1926238 (Migration)

1926238 (Migration) [2021] AATA 5462 (17 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926238
MEMBER:Sean Baker
DATE:17 December 2021
PLACE OF DECISION: Melbourne
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 17 December 2021 at 4:07pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) visa – applicant had given incorrect information – applicant a citizen of Pakistan – non-compliance was inadvertent and not effected for the purposes of obtaining a migration advantage – time has elapsed since the non-compliance – applicant’s fear of returning to Afghanistan for reasons of his race and religion is well founded – decision under review set aside
LEGISLATION
Migration Act 1958, ss 100, 101, 107, 109, 425
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Saeed Abdi Mahmud v. NADRA 2018 CLC 1588
Wan v MIMA (2001) 107 FCR 133
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision 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).
The delegate cancelled the visa on the basis that they found the applicant had provided incorrect answers in his Refugee (subclass 200) visa and that the reasons for cancellation outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 425(2)(a) of the Act.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
Non-compliance with questions 2,3, 21 and 28 and the attached UNHCR Resettlement Registration Form (RRF) requested under Q 28 of his Refugee (subclass 200) visa lodged on 8 March 2012.
The delegate found that the answers to these questions were incorrect because the applicant had provided an incorrect date of birth, and because the delegate found that the applicant was a citizen of Pakistan and had not had the experiences and feared harm in Afghanistan in the way claimed in his RRF.
This was based on information obtained from an interview with the applicant’s wife, her production of Afghan identity documents that were not taskeras, noted [Ms A] and the children had strong Pakistani accents, and [Ms A] refused to let the interviewer check their details with the Pakistan National Database and Registration Authority (NADRA), gave some information which the delegate considered inconsistent with that of the applicant about their departure from Afghanistan in 2010, and did not mention the assault and stealing of the applicant’s [vehicle] in Quetta.
The delegate also considered the information provided by the applicant in an interview at the High Commission in Islamabad in March 2016. In this interview the applicant said he had paid Pakistan authorities to obtain CNIC cards for his wife and children, but the cards were not registered on the official database. After this he provided the CNIC of [Ms A] only, not those of himself or his children.
On checking [Ms A’s] CNIC it was confirmed as genuine by the Pakistan authorities, and her husband was recorded as [applicant’s name] and that he is also a citizen of Pakistan. The delegate considered the CNIC was evidence [Ms A] is a Pakistan citizen and that the applicant is also a Pakistan citizen.
On 1 April 2015 the applicant provided to the Department a change of details form which noted that his birth date had been incorrectly recorded as [Date 1] and he provided information that his correct date of birth is [Date 2]. In support he provided a birth certificate issued by the Consulate of Afghanistan in Quetta which when verified was declared by the Embassy of Afghanistan in Islamabad to be fake and bogus. He also provided an Afghan identity card issued by the Ministry of Home Affairs, Department of Population and Registration, Afghan government, the delegate states the applicant does not appear to be the correct age in the photograph attached to this card and the delegate notes he was in Australia when this card was issued, and that this document is referred to in the document found to be fake and bogus and this indicated this card was also fake and bogus.
The applicant’s wife did produce a purported old taskera for the applicant issued sometime approximately between –[year range], (which supports his corrected birth date and was confirmed by the applicant to have been issued in [Year 1]) which the delegate appears to have accepted may have been genuine but which the delegate noted did not preclude the possibility that sometime after the applicant obtained Pakistan citizenship.
It is not in dispute that the applicant is a Hazara and Shia. At all stages the applicant has maintained a consistent story of his ethnicity and religion, his life in Afghanistan, travel to Pakistan with his family and then return to Afghanistan and then fleeing to Pakistan where he and his wife and children resided until his departure for Australia.
The applicant has consistently stated that he was born in Afghanistan and is an Afghan citizen who holds no other citizenship.
He has consistently claimed that he and his family fled Afghanistan around 1989 after attacks by Pashtuns in his area. They returned to Afghanistan one year later. In the Summer of 2010 Pashtun / Taliban attacks in the area meant that they decided to leave the area again. He sold his livestock operation and went to Quetta, Pakistan.
He and his family faced hardship in Quetta, with increasing insecurity and he was undocumented. He was attacked by an unknown group and his [vehicle] taken. In December 2010 he left Quetta and travelled to [a country] when he registered with UNHCR.
On the basis of the information supplied, a delegate found the applicant satisfied the requirements for a Refugee (Subclass 200) visa on the basis he was an Afghan national, a mandated refugee by UNHCR and, despite his claims relating to generalised violence, the fact he had been mandated by UNHCR mean on balance the delegate was satisfied the applicant had been subject to persecution in Afghanistan.
The concern of the cancellation delegate focuses on information that tends to indicate the applicant acquired Pakistan citizenship without detailing how the officer believes the applicant acquired that citizenship.
The applicant has provided primary identity documents of Afghanistan. It is the case that the most recent of these documents, contained from the consulate in Quetta, are of concern as they were found to be fake and bogus by the afghan embassy in Islamabad. However, the cancellation delegate appears to have accepted the Taskera issued in [Year 1] as genuine as they have relied on this to support their reasoning on his age.
This Taskera is consistent with the applicant’s claims that he is a national of Afghanistan. He has consistently stated that his family left Afghanistan for Pakistan around 1989 and then again in 2010 and this is consistent with information that many Hazaras fled Afghanistan at these times.
There is further information which provides a contextual basis which does not support the conclusion that the applicant is not a national of Afghanistan and is a national of Pakistan.
Country information about Pakistan states that the Hazara were recognised as a local tribe of Balochistan in 1962 by the Governor of West Pakistan, and that this allowed the Hazara resident in Pakistan at this time to be recognised as Pakistan nationals and granted citizenship.[1] DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services.[2]
[1] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14.
[2] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14
The most recent DFAT Report states that Hazara children born in Pakistan are entitled to Pakistan citizenship, but that Hazara arrivals from Afghanistan typically do not have citizenship, instead being able to access immigration cards which provide some rights including access to drivers’ licences.[3] The DFAT report goes on to note that many Afghan refugees, specifically those in Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a Taskera or UNHCR registration documents.[4]
[3] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.
[4] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.
The Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man.[5] Relevant to this consideration, Section 4 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 naturalization under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalization or allowing the government to register any person as a citizen.[6]
[5] The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >
The Naturalization Act allows a person to be granted a certificate of naturalization 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 naturalized, 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.[7]
[7] The Pakistan Naturalization Act 1926, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >
The country information demonstrates however that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who arrived in Pakistan after 1962.
According to an article in Foreign Policy:
Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[8]
[8] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,
The European University Institute has provided a comprehensive and detailed report on Pakistan citizenship law. In this report, the author notes that ‘Over time, an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels.’[9] The report references the case referred to above, a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistan national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and Aliens. [10]
[9] 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 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 >
Afghan refugees have also been found not to have rights under the Constitution of Pakistan. In the case of Abdul Majeed and another vs. The S.H.O. Police Station Naulakha, Lahore, PLD 1989 Lahore 223, the petitioner, an Afghan refugee, sought to argue that the position of Afghan refugees was analogous to that of those who had come to Pakistan as refugees in 1947 on partition and those from the Kashmir disputed territories. The court dismissed the application holding that Afghan refugees are categorically distinguished from these Constitutionally recognised groups:
It emphasized that statutory exceptions were carved out in the citizenship laws of Pakistan for these groups. Quite the contrary, Afghan refugees were granted refugee cards and under the terms of the Geneva Accords, their stay in the territory of Pakistan is allowed for a temporary period in which foreign troops have occupied Afghanistan. For this reason, the court held, the law enforcement agencies are justified to restrict the movement of foreigner refugees in the country.[11]
[11] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 6 >
This judicial view was confirmed as recently as 2018 by the Islamabad High Court which cited with approval the decision of the Peshawar High Court in Sanai. The Islamabad High Court in Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 (Mahmud), stated as had the court in Sanai that all persons born in Pakistan except Afghan refugees were entitled to citizenship, but went on to (incorrectly) assert that Pakistan was a signatory to the Refugees Convention and therefore that Afghan refugees were the responsibility of the UNHCR and that Pakistan laws including the Citizenship Act, Naturalization Act and the Constitution did not apply to them. The situation is further complicated by the potential for unregistered Afghan people resident in Pakistan to be considered illegal immigrants under the Foreigners Act 1946.
The situation for unregistered Afghans in Pakistan appears even more parlous than for those registered.[12] The Foreigners Act provides for the regulation of the entry, presence and departure of foreigners who are defined in the act as any person who is not a citizen of Pakistan.[13] 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.[14]
[12] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 6 Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, Sections 14, 2 of the Foreigners Act 1946.
[14] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
In September 2018 Prime Minister Khan proposed a law which would have provided citizenship to Afghans born in Pakistan, and a private members bill would have extended this to Afghans living in Pakistan for 20 years or more and who had been registered. The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019, with the committee observing that the proposed amendment would have serious repercussions on the security and economy of the country and that the provinces of Sindh, Khyber Pakhtunkhwa, and Balochistan held serious reservations against the statement made by the Prime Minister.[15] This appears to reflect a widely held perception in Pakistan that Afghans are a security threat and an economic drain on the country, despite evidence to the contrary.[16] This has led to many Afghans being pushed back to Afghanistan in recent years.[17]
[15] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,
[16] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, Zia ur-Rehman, “Afghans Flee to Pakistan. An Uncertain Future Awaits.” The New York Times, 8 September 2021, Afghans Flee to Pakistan. An Uncertain Future Awaits. - The New York Times (nytimes.com).
[17] Zia ur-Rehman, “Afghans Flee to Pakistan. An Uncertain Future Awaits.” The New York Times, 8 September 2021, Afghans Flee to Pakistan. An Uncertain Future Awaits. - The New York Times (nytimes.com).

A further complication is that the Citizenship Rules 1952 provide for the issuing of a certificate of citizenship by provincial governments for those who acquire citizenship by birth or descent, but it is not common for such documents to be issued, so NADRA is the de facto, but not legislative, authority for recognition.[18] For those who acquire citizenship by naturalization or marriage, the Directorate General of Immigration and Passports (DGIP), Ministry of Interior (MoI), is responsible for determining eligibility for such citizenship acquisition.[19]
[18] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.
[19] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.
The country information above establishes to my satisfaction that there is no legal process by which Afghans in Pakistan after 1962 may legitimately acquire citizenship, regardless of their status as registered refugees or unregistered (and therefore considered illegal immigrants by the Pakistan government). Administratively, judicially, and legislatively, the Pakistan authorities have manifested an intent to exclude Afghans from citizenship and other rights under the Constitution. This appears to be longstanding policy and to have been confirmed by the refusal of the National Assembly to pass laws allowing for the granting of citizenship to Afghan refugees as recently as August 2019. When read together, the decisions of the Pakistan High Courts set out above demonstrate that Afghans, whether registered refugees or unregistered, are distinguished from other groups in Pakistan and have been specifically excluded by these Court decisions from accessing citizenship through birth, but also, given the reasoning in Mahmud, through naturalization or any of the other processes envisaged under Pakistan law for becoming a citizen. These decisions establish that Afghans in Pakistan have no method by which they can legitimately be recognised as citizens. The recent actions of the National Assembly demonstrate legislative support for this approach.
I note that the DFAT report indicates that Hazaras born in Afghanistan can gain citizenship, but I can find no support for this brief assertion in any other primary sourced country information.[20] Given the weight of information before me tends to indicate that this is not the case, I place little weight on this statement in the DFAT report.
[20] I note the UK Home Office report, Country Policy and Information Note - Pakistan: Hazaras, Version 2.0, November 2019 but this report draws entirely and exclusively from the DFAT report.
I accept that the applicant was born in Afghanistan, given that he has consistently claimed this, and his claims of when he departed match country information. Further, even if all of the concerns raised by the cancellation delegate are significant (and for the reasons below I do not think they are), these concerns do not establish that the applicant was born in Pakistan, to Pakistan citizen parents.
When weighed together, the country information above, and the applicant’s Taskera issued in [Year 1] provide substantial weight to his claims to have been born in, and to be a citizen of Afghanistan exclusively. I accept on the information before me, that the applicant was born in Afghanistan, and did not arrive in Pakistan until approximately 1989 on the first occasion, and therefore the applicant could not have taken advantage of the 1962 recognition. On the basis of the country information I have considered above, I find that there is no process by which the applicant could have acquired Pakistan citizenship, neither by naturalization nor any other process set out in the Pakistan Citizenship Act nor any other legislation. Following the caselaw above, the applicant’s stay in Pakistan was governed by the Foreigners Act and according to the ruling in Sanai, the Citizenship Act does not apply to him as an Afghan citizen.
The delegate found that the applicant’s wife’s CNIC was genuine and that it was linked through the family reference to the applicant who therefore also would have held a genuine CNIC. I note that at all times the applicant has maintained that the CNICs he acquired for his wife and children were non-genuine.
The country information indicates that the situation regarding NICs is not clear cut. Corruption is endemic in Pakistan, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[21] However, CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.[22] NADRA can verify fraudulent documents although:
… detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.[23]
[21] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.
[22] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.
[23] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.
The CODE report notes that:
Initially, the Government of Pakistan did not maintain a proper record and database of refugees entering and leaving Pakistan. Since Pakistan’s national registration system was newly established at the time of the arrival of the refugees, and the mechanism for enquiry and verification of nationality was 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. Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees. On April 17, 2018, Mrs. Nusrat Sahar Abbasi, a member of the Sindh Assembly stated on the floor of the house that about 500,000 foreigners, including Afghan refugees, had fraudulently obtained Pakistan’s CNICs and had registered themselves as voters.[24]
[24] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
A report in the Express Tribune, dated 3 September 2018, noted that, according to the chairman of NADRA, some Afghan nationals obtained CNICs by pretending to be related to Pakistani nationals. The chairman stated that the cards had been blocked. The report also added that some Pakistani Pashtuns pretended to be Afghan refugees and received relief funds, but then returned to Pakistan.[25]
[25] UK Home Office, Country Information Note - Pakistan: Documentation, Version 2.0, March 2020, >
In a research response to the Canadian Immigration and Refugee Board, it is noted that:
Obstacles to what should be tasks the average Pakistani citizen might take for granted – such as having passports and national identity cards issued – remain a key problem for the Shia Hazara community. Government authorities ask them to prove that they are indeed "Pakistanis" and that they have not "emigrated" from Afghanistan. The community believes this is indicative of systemic discrimination. (HRCP 2019, 8-9)[26]
[26] 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
This country information demonstrates several facts. ‘Genuine’ CNICs obtained with fraudulent feeder documents are still possible, and at the time when the applicant obtained the CNICs for his family, would have been possible. The country information also indicates that NADRA can verify documents, but that detection may be difficult. Lastly, the country information establishes that the holding of bogus, or fraudulently obtained genuine CNICs by Afghan refugees is a recognised concern of NADRA and legislators with ongoing verification and blocking of CNICs issued to Afghans. The response to the Canadian Board indicates not only the discrimination present in the approach of the authorities to Afghans and specifically Hazara, but also the distinction between Hazaras who can establish their forebears were present in Pakistan on or prior to 1962 and those who cannot.
The applicant has always maintained that the CNICs held by his wife and children are not genuine. The consistency of his claims with the above country information lead me to accept the applicant’s claim that he obtained these CNICs by the payment of money to an intermediary. Indeed, given the information and my findings in the section above, this becomes the only plausible conclusion - Afghan citizens are not able to acquire citizenship if they have arrived in Pakistan after 1962, as did the applicant.
I have also considered the other concerns raised by the cancellation delegate and the identity officer. When considered in the light of the country information above, I find these concerns do not displace my considerations above. In relation to the interview with the applicant’s wife, there are many reasons why she may have been unable to provide taskeras. The claim that [Ms A] and the children had strong Pakistani accents, with respect to the interviewer, does not appear to be based on any expert analysis of their accents. The refusal to allow the Department to check their status with NADRA may have been due to the fact that their Pakistan documents were fraudulently obtained and checking this with NADRA may have alerted the Pakistan authorities to this. I do not consider her evidence about the applicant and their family history to be materially divergent from his UNHCR claims given the period of time that had elapsed between the UNHCR claims and her information. Similarly with the information provided by the applicant at the March 2016 interview. His reluctance to provide the CNICs can also be explained by this.
The finding that [Ms A’s] CNIC is ‘genuine’ must be seen in the context of the country information above that fraudulent documents obtained with genuine feeder documents may be found to be genuine despite them not being so.
I understand the Department’s concerns around the applicant’s change of his date of birth and the fact that he produced the incorrect date of birth on numerous documents. I am puzzled why the delegate did not accept the applicant’s explanation for why the UNHCR officer refused to change his incorrect date of birth – the UNHCR offices are busy, and it is certainly not implausible that the applicant was told it was too late to change it. Having then had this date on his UNHCR document, he may have felt compelled to repeat this information in his 200 application. I acknowledge that the applicant could and should have provided this information earlier.
As above, I have found the Taskera issued in [Year 1] to be strong evidence for the applicant’s claims being true.
Without further checking, I place no weight on the other identity documents issued. I do not accept however that any of this information establishes to the requisite level required to cancel the visa that the applicant is not a national of Afghanistan as he claimed in his application.
I have had regard to the taskeras, and passports issued to the applicant’s wife and children provided in the response to the s. 107 notice, but I have not assessed these further given my findings above.
Above, I have explained why the claim of the applicant that his wife and children held non-genuine Pakistan NIC is not only plausible but, given they arrived after 1962, the only likely explanation
Given this, the information before me, and that was before the cancellation delegate, is insufficient to establish that the applicant is a national of Pakistan. It appears to me that it may be an error going to jurisdiction to cancel the applicant’s visa on the basis of this information alone, without going further and ascertaining whether, in the accepted circumstances of the applicant, he would be entitled to Pakistan nationality.
I have found that there is no basis for an Afghan citizen in the applicant’s position to legitimately obtain Pakistan citizenship. I find therefore that the suspicions to the contrary are not a sufficient basis to conclude that the applicant is a national of Pakistan, particularly when considered against the country information I have set out above.
On the basis of my findings above, I find that the applicant is and was at the time of his application for the 200 visa, a national of Afghanistan only, and that he was not at any time a national nor held citizenship of Pakistan. The delegate also found that the applicant may have provided incorrect information when he claimed to fear return to Afghanistan at the time of his RRF and application for the 200 visa, which the delegate considered was incorrect because the delegate had found the applicant had the right to legally reside in Pakistan as a Pakistani citizen. For the reasons above, I have found that he was not at any time a national or citizen of Pakistan.
On this basis I find that the applicant did not provide incorrect information in his answer to Question 2 of the form where he answered ‘Afghan’, to question 3 of the form where he answered ‘Afghan’ for his wife, nor to Question 28.
On the basis of his Taskera issued in [Year 1] and his change of details form I accept that the applicant’s correct date of birth is [Date 2] and that he holds a genuine identity document being this Taskera. Therefore, I find the applicant did not provide correct information in Question 2 in relation to his date of birth only, and in relation to Question 21 where he did not give details of this Taskera.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice in relation to his date of birth and his Afghan identity document, being the Taskera issued in [Year 1].
Should the visa be cancelled?
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).
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.
the correct information
The correct information is that the applicant’s accepted date of birth is [Date 2] and that he holds a further identity document being his [Year 1] Taskera.
Having carefully considered his explanation for why an incorrect birth date was recorded in his UNHCR RRF and application for the 200 visa, I accept this explanation for the reasons above. The applicant has not provided any information about why he did not include his [Year 1] taskera in his response to Question 21 in his 200 visa application. However, given this document has been accepted by the cancellation delegate, and me, as genuine, I can see no ill intent behind not listing this document in question 21 and it may have been because he did not have the document to hand when filling out his RRF.
I give this consideration significant weight in favour of the visa not being cancelled.
the content of the genuine document (if any)
Not relevant as the cancellation does not turn on the provision of false or bogus documents.
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
I have found above that the incorrect information refers only to his date of birth and his failure to provide information about his [Year 1] Taskera. These facts are not material to the grant of the 200 visa, which as above were based on the applicant’s Afghan nationality and the fact the UNHCR had mandated him.
I therefore give this factor no weight in favour of the visa being cancelled.
the circumstances in which the non-compliance occurred
As above I have accepted that the provision of his incorrect date of birth may have been as the applicant claims a mistake at the UNHCR interview, and that he then felt compelled to repeat this information in later documents so that there was not an inconsistency. It is true that he should have made the situation clear earlier. I also accept that he did not provide the information about his [Year 1] Taskera for any bad faith reason. These omissions, I consider, were entirely inadvertent on the part of the applicant. I note also the claim accepted by the delegate that the applicant is illiterate with little schooling or education. I find the non-compliance to have been inadvertent and not effected for the purposes of obtaining a migration advantage.
I give this consideration significant weight in favour of the visa not being cancelled.
the present circumstances of the visa holder
The applicant has led a difficult existence since the visa was cancelled. He is an elderly man. He has significant back pain which means he is unable to undertake many activities and survives on Centrelink payments and loans from generous friends. Much of this money he sends back to support his family. Having regard to the information on the Tribunal file I find that the applicant lives a difficult and precarious life at present.
I give this consideration significant weight in favour of the visa not being cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant responded to the s. 107 notice and was in all respects as forthcoming and compliant as he was able to be. I give this some little weight in favour of the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
There is no information before me to indicate that the applicant has engaged in any other instances of non-compliance. I give this no weight for or against cancellation.
the time that has elapsed since the non-compliance
A significant period of time has passed since the applicant’s RRF and his application for the 200 visa. Given the period of time I give this some little weight in favour of the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before me to indicate that the applicant has breached the law since the non-compliance. I give this no weight for or against cancellation.
any contribution made by the holder to the community.
There is no information before me in relation to this. I give this no weight for or against cancellation.
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.
whether there would be consequential cancellations under s.140.
There are no consequential s. 140 cancellation associated with the applicant’s visa cancellation. I give this no weight for or against cancellation.
if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

None of the applicant’s children are onshore. They are all also over 18 and under Article 1 of the Convention on the Rights of the Child the rights under that Convention accrue only to those under 18. I give this no weight for or against cancellation.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
I have carefully considered this question. I have found above that the applicant is a national of Afghanistan and no other country. He would be returned to that country.
The applicant is not barred from applying for a protection visa under s.48A. However, while he may be able to apply for a protection visa, and have his claims assessed, this is not a certainty and relies on the applicant being aware and applying for the protection visa.
The situation in Afghanistan at the moment remains unclear. What is not unclear however is that the Taliban have and appear to continue to view Hazara as apostates and people associated with the former government and international community.[27] As such I find the applicant’s fear of returning to Afghanistan for reasons of his race and religion is well founded and that he engages Australia’s obligation to not refoule him to that country. I give this consideration significant weight towards the visa not being cancelled.
whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
[27] DFAT Country Information Report Afghanistan, 27 June 2019, 3.7 - 3.16.
The applicant is also likely to be detained. Such a period will depend on whether the Department would return the applicant immediately, or if the applicant did lodge an application for protection the detention could be for some considerable period. I give this some weight towards the visa not being cancelled.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
No other relevant matters have been drawn to my attention.
Conclusion
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. However, as above, I have found for the reasons above that this non-compliance was only in relation to his date of birth and failure to provide details of a further identity document, both of which I have accepted were largely inadvertent. They do not, for the reasons above, go to the substance of the reasons he was granted the 200 visa. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
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.
Sean Baker
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.

[2021] AATA 5462

17 December 2021

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