1926998 (Refugee)

1926998 (Refugee) [2021] AATA 757 (26 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926998
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Christopher Smolicz
DATE:26 February 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 26 February 2021 at 12:36 pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – applicant’s identity – different name on protection visa grant – different name on humanitarian visa application – change of name as child – unaware of brother’s humanitarian application – structure of Afghan names – dates of birth not important – tribunal satisfied with applicant’s identity – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 Safe Haven Enterprise Visa [SHEV] under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AA) on the basis that he was not satisfied of the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant background
The applicant arrived in Australia by boat on 12 November 2012 and took part in an entry interview where he claimed to be [applicant name], born [year], a Hazara, Shia Muslim from Afghanistan. To support his claimed identity, he submitted an untranslated Afghan identity card (taskira [deleted]).
On 11 April 2016 the applicant applied for a SHEV on the basis of fearing harm from the Taliban as a Hazara Shia. He provided details of his family composition of father [and] [mother] (both living), two sisters, a wife and child. He claimed to have lived in Pakistan from 2000–2012, with one year working in Iran 2008–2009.
He declared that he was not known by any other names, did not have any personal contacts in Australia and had not applied for an Australian visa outside Australia. He submitted a second Afghani taskira ([deleted]) issued [in] June 2016 to support his identity. His SHEV was granted on 9 November 2016.
On 2 July 2019 the delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation (NOICC) in which the applicant was advised the delegate was considering cancelling his visa under s.116 of the Act, as the delegate was not satisfied as to his identity.
The NOICC indicated that the applicant had provided conflicting and inconsistent information, which raised concerns about his claimed identity, particularly with regard to his name, DOB, his time in Afghanistan and exit to Pakistan; and his family composition.
The notice records that a facial image comparison undertaken after the applicant’s protection visa was granted shows he was included as a dependent applicant in an offshore Global Special Humanitarian (GSH) visa (Subclass 202) application lodged on 31 August 2010 under the name of ‘[Name 1]’, born [a different date].
The GSH visa application was lodged in Pakistan by his sister-in-law, [Ms A], and the applicant was being proposed by his brother [Mr A] who was residing in Australia.
The GSH visa application indicated a different family composition including that both parents were deceased and had the surname [Surname 1], four sisters (different to those in the SHEV application) and two brothers. The GSH visa application indicated that the applicant had resided in Pakistan since 2009 rather than 2000, there was no mention of Iran, and included a different Afghani taskira ([deleted]) issued [in] November 2009 in the name ‘[Name 1].
[In] April 2013 [Ms A] indicated she wished to withdraw [Name 1] from the GSH visa application, coinciding with the applicant’s arrival in Australia. The GSH visa application was subsequently refused.
The NOICC stated that based on such information, there appeared to be grounds for cancelling the visa under s.116(1AA) of the Act on the basis the delegate was not satisfied as to the applicant’s identity. The applicant was invited to comment in writing to the NOICC.
Response to the NOICC
In response to the NOICC, the applicant’s representative provided a written submission dated 16 July 2019 and a statutory declaration by the applicant dated 15 July 2019.
In his response, the applicant addressed the matters raised by the delegate in the NOICC and denies the ground for cancellation exists, but acknowledges incorrect information was given at his entry interview and in his SHEV application.
He maintained he was born [Name 1]. He claims he was often sick as a young boy and his family were superstitious and decided to change his name to [applicant name].
He explained that he was included in the 2010 GSH visa application by his brother - [Mr A]– without his knowledge and his brother also obtained taskira [deleted] without his knowledge. The applicant said he was not involved in the process and unaware of the application or the differing identity created for him until after it was refused.
The applicant claims [Mr A] manufactured the date of birth of [a different year], provided false information that his parents were deceased and that he had moved to Pakistan in 2009 and had not worked in Iran, but claimed other details in the GSH visa application were correct.
The applicant states his claims for protection were truthful and other details in the SHEV application (name, that parents were living, details for two sisters, wife and child, residential history) are correct. The applicant states incorrect information (omission of birth name, family in Australia and the earlier SHEV application) was given on advice of a people smuggler and former migration agent in Australia.
In relation to discrepancies surrounding his family composition, the applicant claims he believed he did not need to declare married siblings on the SHEV because he was not in contact with them. Differing dates of birth and spelling of names for family members were given due to lack of records, transliteration and cultural practice.
The applicant did not declare in the GSH visa application that he applied for the SHEV because he misunderstood obligations under migration law and did not want to create complications which would risk rejection of his application. He claims he told his former migration agent that he wanted to provide complete and correct information and explain omissions but was advised not to do so.
The applicant said the first taskira issued in the name [Name 1], dated [November] 2009, was obtained by his sister-in-law from the Afghan Consulate General in Quetta, Pakistan. He claims he did not know anything about it and did not need to have his photo taken as part of the process because a passport size photo of him already existed.
The applicant claims he applied for the second taskira ([deleted]) in the name of [applicant name] at the Afghan consulate in Quetta before he travelled to Australia. After he was released from detention, he sent the taskira to his uncle in Afghanistan so that he could have it verified. The officials told him it was not recorded in the books of his region and it was not valid.
He claims the third taskira issued [in] June 2016 in the name [applicant name] ([deleted]) was obtained by his uncle with his consent, is genuine and has been verified by the Ministry of Foreign Affairs.
On 11 September 2019 the delegate decided to cancel the visa. In the decision record, the delegate noted the matters set out in the NOICC, and the applicant’s explanations as to the inconsistent information that had been provided, but ultimately did not accept them. The delegate found that the applicant had been unable to provide any reliable identity information or documentation to the Department since his arrival in Australia. The delegate concluded that they were not satisfied as to the applicant’s identity and the ground for cancellation of the visa under s.116(1AA) was established.
Having found the grounds for cancellation existed, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in the documents submitted in response to the NOICC but stated that, having weighed up all the relevant factors, he was satisfied that the grounds for cancellation outweighed the reasons not to cancel the visa.
Review application
On review the Tribunal was provide with a statutory declaration by the applicant dated 9 February 2021, a statutory declaration from his brother, [Mr A], and a statutory declaration from [a] friend of the applicant’s family. The applicant’s brother and [friend] gave evidence at the hearing.
[Mr A] agreed with the delegate’s findings that it was unusual for people in Afghanistan to use formal surnames. He maintained the name [Surname 1] was not a formal surname in Afghanistan but was an unofficial surname used by neighbours and people in the area to refer to his family. He claims his father’s brother went to Iran and when he came back, he became familiar with surnames and when he went to the mosque the Mullah gave him nicknames and called him “[Surname 1]”.
He claims his brother was named [Name 1] at birth but his parent’s changed his name to [applicant name] because in Afghan culture if someone gets regularly sick it is a superstition that if they change their name they will get better.
When [Mr A] arrived in Australia [[date] November 2009] he applied for a protection visa and provided details of his family’s composition and included “[Name 1] age [age]”. He provided false information about his brother’s age because he hoped this would improve his chance to come to Australia. He used the name “[Name 1]” instead of “[applicant name]” because people in his family used to call the applicant by both names.
He confirmed that in 2010 he was granted the protection visa and he sponsored his wife ([Ms A]) and their three children on a GSH visa application. He also included his two younger brothers as dependants. To make it look like the applicant was dependent upon [Ms A], he falsely declared that his date of birth was [a different date] and that their parents had died. He also said that the applicant had moved to Pakistan in 2009 so it matched with his wife’s residential history.
As part of the GSH visa application he asked his wife to get a taskira for his brother (the applicant). She got the taskira in the name of [Name 1] because this was his name at birth and the family used to sometimes call him by this name.
He claims he moved between Iran, Pakistan and Afghanistan for work and did not know [Name 1]’s exact residential history. All he knew was that he lived in Pakistan and worked in Iran for a little while.
He claims the reason that he did not tell his brother that he included him in the GSH visa application was because he did not want him to get his hopes up if the visa was refused. He only told his brother about the application when it was refused. Later he withdrew the applicant and [name deleted] from the application because someone from the Department told him that he should just focus on bringing his immediate family.
Tribunal hearing
The applicant generally repeated the evidence he had provided to the Department in response to the NOICC. He maintained that he was born [Name 1] but his real name was [applicant name] after his parents changed his name because he was a sick child. He had no knowledge that his brother was seeking to sponsor him to Australia in the offshore GSH visa application in 2010 in a different name. He claims his sister-in-law obtained the taskira in Quetta without his knowledge and she was able to use a passport sized photograph which he had obtained when he was travelling to Iran. He claimed he did not tell his brother he was coming by boat to Australia. He claims he has no other identity documents and the third taskira provided in support of his protection visa is genuine and he obtained the original when he returned to Pakistan in 2017 to visit his wife. The applicant continued to blame his brother, people smugglers and his Australian migration agent for the discrepancies and the inconsistent information about his identity in the GSH visa application made in 2010 and his SHEV application in 2016.
The Tribunal finds the applicant’s brother also generally repeated the evidence about the applicant’s change of name after birth due to superstition. He said the name [Name 1] was never formally changed and people in the village started to call his brother [applicant name] after his parents told them they were going to call their son by a different name because he was constantly unwell. He did not know what illness his brother had and did not discuss it with his parents. He agreed that Afghans don’t normally use surnames but historically he came to be called [Surname 1] and assumed this to be his surname when he arrived in Australia.
He confirmed that the applicant was called [Name 1] at birth and that was why he lodged a GSH visa application seeking to sponsor him to Australia in the applicant’s birth name. He conceded that he did tell the applicant about the GSH visa application lodged in the name [Name 1] but claimed that his brother was not involved in obtaining the taskira and this was done by his wife. He said the applicant told him he planned to come to Australia by boat. He was not happy with the applicant’s decision because his boat journey to Australia was very dangerous, but he did not seek to stop him. He knew the applicant arrived in Australia because another person told him. He was not pleased that the applicant was applying for the protection visa in a different name. He thought it would be more logical for his brother to declare that he had a relative in Australia and this would increase his chance of being able to stay.
In post hearing submissions the applicant’s agent confirmed that the applicant was born [Name 1] but claims his real name is [applicant name] and this is why he applied for a visa and obtained a taskira in this name. He did not try to deceive the Department with the use of the name [applicant name]. He did not obtain the taskira in this name in an attempt to substantiate a false identity. The taskira was issued in this name because it has been the applicant’s formal name since he was [a child]. He was not trying to distance himself from [Mr A] or the GSH visa application by providing a false name.
The Tribunal finds however that the discrepancies surrounding his identity go beyond his name and date of birth. The Tribunal finds that many of the discrepancies can not be blamed on poor advice and cultural and language difficulties. Overall, the Tribunal finds the applicant’s response to the questions was inconsistent, not forthcoming and difficult to accept.
For example, the Tribunal finds it inconsistent that the applicant would claim to be known as [applicant name] since he was a young child but when his brother arrived in Australia in 2009 he continued to use his birth name and listed him as [Name 1] in his protection visa application. Why would his brother try to sponsor him to Australia in 2010 in the name [Name 1] if that was no longer his name? Why would his sister-in-law obtain a taskira in the name of [Name 1] when he claims he was no longer associated with the name?
The Tribunal finds it difficult to accept the applicant would be included in a GSH visa application, seeking to travel to Australia under a false identity and not be aware the application was lodged on his behalf declaring false information about his identity and his family’s composition. As discussed with the applicant at hearing, if the visa was approved, he would need to be familiar with all the personal details included in the application and that he would be travelling to Australia. The Tribunal also notes that applying for a visa to travel to Australia is complex; it requires specific identity photographs, identity documents, planning, money to pay fees and communication with the government authorities. It seems implausible that the applicant would have no knowledge of the process and his brother did not tell him because he did not want to disappoint him if the application was not successful.
Does the ground for cancellation exist?
Under s.116 of the Act, the Minister may cancel a visa if they are satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
In assessing the applicant’s claims regarding his true identity, the Tribunal has had regard to the Department’s National Identity Proofing Guidelines. In particular the Departmental guidelines note that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[1]
[1] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 >
Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed. Also where, in response to a notice under s.119, the visa holder satisfies the delegate as to their true identity.[2] 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.
[2] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140) – s.116(1AA) – Not satisfied as to identity (re-issue date 21/8/16)
The Department’s policy advice manual explains:
The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.
While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant’s identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[3]
[3] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1
Documentation includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their narrative. Biometrics include personal identifiers such as facial image and fingerprints.[4]
[4] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2

The Tribunal has also had regard to specific guidance developed by the Department in relation to Hazara Shia Afghan visa applicants. The guidelines emphasise the difficulty applicants from Afghanistan may have in obtaining reliable documentation, although every effort may be expended by the applicants.[5]
Nationality, race and religion
[5] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016
In assessing the applicant’s identity, the Tribunal has had regard to the following information regarding the Afghan Hazara ethnic minority group residing in Pakistan:
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.[6]
[6] 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
The Tribunal finds the applicant has consistently presented that he is Hazar Shia Muslim born [in] Urozgan Afghanistan. He declared that his family fled Afghanistan because they feared harm from the Taliban because of their race and religion. The Tribunal finds the information about his race, religion and place of birth and fear of persecution has been consistently declared throughout his GSH visa application, his entry interview and his SHEV application.
The Tribunal also notes the applicant participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and the Tribunal finds that the applicant has the distinct facial features shared by Hazaras.
As detailed above, country information confirms that the Hazara ethnic minority has a long history of persecution in Afghanistan due to their Shia faith. They are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. The Tribunal is satisfied the applicant was born in Afghanistan and is of Hazara ethnicity and Shia Muslim religion.
GSH visa application in the name of [Name 1]
The Tribunal has had regard to the facial image comparison undertaken after the applicant’s protection visa was granted and accepts that he was included under the name of [Name 1], in a GSH visa application lodged on 31 August 2010.
The Tribunal has had regard to the brother’s evidence and finds he provided a credible account of their childhood growing up in Afghanistan and the difficulties he faced attempting to sponsor the applicant to Australia. His evidence was frank and forthright. The Tribunal is prepared to accept the applicant and [Mr A] are brothers.
The Tribunal notes that the essential role of the family and community networks in providing protection, opportunities and mobility in Afghanistan is well documented.[7] Reports also confirms that family is the single most important aspect of life in Afghanistan. This means that family responsibilities tend to hold a greater importance than personal needs.[8] The Tribunal accepts that [Mr A]’s actions in providing false information in the GSH visa application were underpinned by a genuine fear for the safety of his family, including his brother in Pakistan.
[7] ICG 2009, UNHCR 2010, Still Human Still Here 2012
[8] >
The Tribunal accepts that as the first male in the family arriving in Australia by boat [Mr A] would be subject to a level of cultural and family obligation to assist his family’s future travel to Australia. The Tribunal finds [Mr A] was seeking to help his immediate family including the applicant flee Pakistan by including false information about him in the GSH visa application as a dependent [age]-year-old minor. He included incorrect information about the applicant’s date of birth, the death of their parents and the time the applicant spent in Pakistan so as to increase the chance of him being accepted as a dependent minor by the Australian authorities.
The Tribunal also notes that when the applicant’s brother first arrived in Australia and applied for a protection visa, he declared that he had a brother called[Name 1]. As detailed above, the applicant does not dispute that he was born[Name 1]. He has never formally changed his name.
Country information confirms that Afghans traditionally use only a first name and generally lack a last name. Afghan people are often distinguished by their tribal affiliation, place of birth, profession or honorific titles. Afghans that have contact with the Western cultures may adopt a surname. In general, the educated or prosperous families living in urban areas use last names. In these instances, they generally select a last name that represents their tribal affiliation. It is also reported that male first names generally consist of two parts. It is common, that at least one of the parts includes a common name that is usually referred to as a "subordinate name", such as Mohammad or Ali. Country information also confirms that because most Afghans do not have last names this may result in people within the same family having different last names.[9]
[9] The Structure of Afghan Names, November 2009 Karin Megerdoomian
The Tribunal finds that the applicant’s brother is likely to have assumed the name [Surname 1] as a formal surname when he arrived in Australia. The Tribunal also notes that the applicant’s father’s name has consistently been presented as ‘[name]’ and his grandfather as[name]. The Tribunal has had regard to the country information, finding the fact the applicant, his brother and father have different names is consistent with Afghan naming practices.
For the following reasons, the Tribunal accepts the applicant was born [Name 1]. The Tribunal has however some reservations about the applicant’s evidence that his parents changed his name from [Name 1] to [applicant name] because changing his name would bring him good health as a child. No evidence was provided about the nature of the applicant’s illness as a child.
The Tribunal is however prepared to accept that it is plausible his parents held superstitious health beliefs. The Tribunal notes however that the evidence presented at the hearing confirms his name was never formerly changed and people would refer to him by both names [Name 1] and [applicant name]. For example, his brother would refer to him in two separate visa applications as [Name 1]. His brother also obtained a taskira in the name [Name 1] in support of the applicant’s identity in the GSH visa application.
The Tribunal finds that when the applicant arrived in Australia by boat, he failed to disclose that he was known by any other name and he used the name of [applicant name]. The Tribunal finds the applicant was motivated to provide false information to disassociate himself from the failed GSH visa application which contained false information about his date of birth and his parents being deceased. The Tribunal also notes the applicant’s name “[Name 1]” was withdrawn from the offshore GSH visa application because he subsequently had arrived in Australia without a visa and assumed a false name.
In conclusion, the Tribunal has had regard to the country information about the structure of Afghan names and notes the applicant’s brother referred to the applicant as [Name 1] in two different visa applications. The Tribunal notes the applicant has admitted he was called [Name 1] at birth. The Tribunal finds that the applicant and [Mr A] are brothers, the applicant’s real name is [Name 1] and that he was also known as [applicant name] by his family.
The applicant’s date of birth
The NOICC sets out that there are two different dates of birth associated with the applicant. According to the information contained in the GSH visa application, the applicant’s date of birth was [a different date]. The applicant claims he does not know exactly when he was born. When he arrived in Australia, he told the Department approximately how old he was, and they then gave him the date of birth of [date].
The Tribunal accepts the applicant’s claims that he does not know his exact date of birth. Country information supports his evidence in this regard. DFAT confirms that the Afghan authorities did not historically issue birth certificates, which remain far from common; the high number of home births makes the process of registering births challenging; the reporting of birth dates is unreliable and reported dates are likely to be approximate[10]. The Tribunal accepts the applicant’s day and month [date] was ascribed to him at the protection visa application stage by the Australian authorities, as a makeshift birthday, as is often the practice (usually ‘1 January’ or ‘31 December’), for administrative purposes in Australia and other countries[11].
[10] DFAT Country Information Report Afghanistan 27 June 2019 at 5.49
[11] Washington Post, ‘In Afghanistan, Jan.1 is everyone’s birthday’ , December 31, 2013, >
The Tribunal has had regard to the evidence of the applicant’s brother and finds that he falsely declared the applicant was born in [a different year] in the GSH visa application so that the applicant would be [age] years old and qualify as a dependent minor for the purpose of the visa application..
The Tribunal is not satisfied that the remaining inconsistencies and conflicting information regarding dates of births of family members and spelling of names declared in his protection visa application and the GSH visa application are so great as to undermine his claimed identity.
As detailed above, country information confirms dates of birth that in Afghanistan can be a guesstimate according to the Persian solar calendar. [12] The Tribunal therefore places no weight on inconsistent information given about the applicant’s sister’s ([deleted]) date of birth as detailed in the NOICC. Further, the Tribunal notes that the fact that most Afghan names do not contain a last name results in various segmentations when names are recorded in official documents. The Tribunal also notes that the transcription of Afghan names into the English language has not been standardised and dialectal differences may also cause different pronunciations for the same name.[13] The Tribunal finds that these factors may explain some inconsistencies in the names appearing in the visa application forms. For example, at the entry interview it was recorded that his sisters’ names were [stated] however in the protection visa application form the names were recorded [differently].
Wife and child
[12] Canada: Immigration and Refugee Board of Canada, Afghanistan: Description and samples of the Tazkira booklet and the
[13] The Structure of Afghan Names, November 2009 Karin Megerdoomian
The applicant declared in his protection visa application that he married [his wife] in Quetta Pakistan [in] March 2011 and that they have one child born [date]. He provided no further evidence in support of his marriage and child. In post hearing submissions he provided the Tribunal with his Pakistani wedding certificate with translation. The Tribunal was also provided with photographs of himself with his wife and child when he travelled to Pakistan in 2017 and 2018. The wedding certificate records that [applicant name] married [his wife] [in]March 2011. The Tribunal accepts the applicant is married and has [a] son.
Documents
The Tribunal has before it three different taskiras relevant to establishing the applicant’s identity. The applicant claims the taskira ([deleted]) in the name [Name 1], which was provided in support of the GSH visa application, is not genuine. He claims the taskira ([deleted]) in the name [applicant name] he provided at the time of his entry interview was also not recognised by the Afghan authorities. He submits that taskira ([deleted]) in the name of [applicant name], which was provided in support of his SHEV application, is genuine and evidence of his true identity.
The applicant claims to have no other identity documents from Afghanistan. The Tribunal has had regard to country information and accepts that the applicant as an Afghan Hazara displaced person living unlawfully in Pakistan would have great difficulty obtaining genuine identity documents.
Country information confirms the taskira, a one-page official identity certificate issued by the National Statistics and Information Authority (NSIA), is the primary form of identification for Afghan citizens. DFAT reports that although the issuance of new e-taskiras (launched officially in May 2018) should help mitigate the risk of document fraud, it remains a major issue in Afghanistan. It states that genuine documents can be issued based on false information, with support forms of documentation such as school, academic or banker records easily forged. This is particularly problematic for taskiras – according to DFAT – given they are the primary document used to obtain other forms of identification.[14]
[14] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.46-5.48 and 5.54
For earlier taskiras, DFAT states:
Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete[15].
[15] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.48
DFAT also indicates that: NSIA field officers manually record the details of births and deaths; each location holds two registers, which are completed simultaneously when data is entered; when the registers become full both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged; and one register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.[16]
[16] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.45
It is widely accepted that Afghan citizens displaced by the conflict in that country experience difficulties obtaining taskiras. This is because taskira access is based on recognition by family members or community elders, which pose significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity. Further, children and young people are at particular risk of lacking civil and identification documents, particularly when displaced[17].
[17] Norwegian Refugee Council, Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016
Country information confirms that it is possible to obtain a duplicate for Afghans who live abroad and who have previously been in possession of a taskira.[18] Country information also indicates that the Embassy of the Islamic Republic of Afghanistan in Canberra aids Afghan nationals in Australia who seek verification of their Afghan identity. [19]
[18] Landinfo, Country of Origin Information Centre, ‘Afghanistan: Tazkera, passports and other ID documents’, 22 May 2019, p.16 Department of Immigration and Border Protection 2017 Afghanistan: Country Information Request: CI170615142556028: Obtaining a Tazkira from the Afghan Embassy in Canberra, Australia
There are a number of reports showing what is required to obtain a taskira: a completed application form, passport sized photos and a copy of the taskira of a male relative on the father’s side (if the applicant does not have a birth certificate) .[20] As to whether or not a family member can obtain a taskira for another adult family member, country information from various sources indicates that the presence of an individual (over the age of seven) is mandatory. In advice from the Immigration and Refugee Board of Canberra in February 2019, it is stated that the US Reciprocity Schedule for Afghanistan states that applicants over the age of seven ‘must apply in[ ]person and submit a thumb print’.[21] According to a 2016 Samuel Hall and Norwegian Refugee Council (NRC) report, all Afghans are required to ‘return to their family's place of residence, or to Kabul, to apply for [a] tazkera’.[22]
[20] Landinfo, Country of Origin Information Centre, Report, Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, p.7, Research Directorate, Immigration and Refugee Board of Canada, AFG106237.E, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019), 6 February 2019, Samuel Hall and the Norwegian Refugee Council (NRC), Access to Tazkera and Other Civil Documentation in Afghanistan, November 2016,

The country information casts doubt on the applicant’s claims that his uncle was able to obtain a taskira for him in Afghanistan or on the evidence of his brother that his sister-in-law was able to obtain a taskira without his knowledge in Quetta.
The Tribunal accepts that it is not uncommon for illegal maritime arrivals seeking protection in Australia to have limited access to documentation that can be used to verify their identity. The lack of identity documents can be attributed to a number of factors such as the failure of governments in the country of origin, forced displacement or destruction of documentation.
The Tribunal has had regard to the country information detailed above and the circumstances in which the three taskiras relevant to the applicant’s identity have been obtained and the circumstances in which they have been produced to the Department. The Tribunal finds they are not reliable identity documents. The Tribunal also notes the applicant conceded that two out of the three taskiras are not genuine. In the circumstances the Tribunal has placed no weight on the taskiras in support of the applicant’s identity.
Conclusions as to the applicant’s identity
It was submitted that the Tribunal should not assess the applicant’s claims through “the lens of a Western perspective and Western assumptions of how a refugee should have acted in the past..” and that “…it is important for the Tribunal to consider the Review applicant’s claims in light of the applicant’s cultural context and lived experiences of Afghan refugees.”
In assessing the applicant’s evidence, the Tribunal has had regard to country information and is acutely aware that the applicant comes from a culture with different naming practices, where dates of birth have little significance and where many families have been displaced due to violent conflicts and face difficulty obtaining formal identity documents. The Tribunal also accepts that Afghan culture includes many superstitions about health beliefs and practices.[23] The Tribunal also accepts the difficulties Afghan asylum seekers face when required to complete forms in the English language which require dates of birth, a first name, and surname which may not exist in their culture. The Tribunal also accepts that many protection visa applicants are given poor advice by agents or members of their own community who seek to assist them lodge their claims. Having said that, the Tribunal is also aware that some applicants seek out advice and engage agents to facilitate migration outcomes or to enable them to stay in Australia and create future migration pathways for other family members.
[23] Superstitions and popular myths in Afghanistan (afghan-web.com), Institute for War and Peace Reporting, How Superstition Rules Afghan Women's Lives, 30 June 2016, ARR 547, available at: Community Profiles for Health Care Providers
In conclusion, for the reasons above and having considered the matters raised in the NOICC, the Tribunal is satisfied the applicant’s identity is [Name 1], born in [year] and that he is also known as [applicant name]. That he is a Hazar Shia Muslim born [in] Urozgan Afghanistan. That he and his family fled Afghanistan and relocated to Pakistan in about 2000. The Tribunal finds the applicant is married to [his wife] and they have a son[born] [date] in Pakistan.
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.
In doing so, the Tribunal notes relevant case law that a mere suspicion is not sufficient to establish the ground for cancellation. In Zhao v MIMA, the Full Federal Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[24]
[24] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.
Christopher Smolicz
Member

Tazkira certificate; information on security features (16 September 2011) AFG103812.E,

<

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Natural Justice
Statutory Construction
Jurisdiction
Standing

Actions

Download as PDF Download as Word Document

Citations

1926998 (Refugee) [2021] AATA 757

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Zhao v MIMA [2000] FCA 1235

[2021] AATA 757

26 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing