1933956 (Refugee)
[2021] AATA 3829
•30 July 2021
1933956 (Refugee) [2021] AATA 3829 (30 July 2021)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1933956
COUNTRY OF REFERENCE: Pakistan
MEMBER: Meena Sripathy
DATE: 30 July 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 July 2021 at 3:55pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information provided in protection application – applicant has previously applied for refugee status from the Department – subject of identity theft – victim of identity fraud – discrepancies in the Afghan documents – applicant had no knowledge of another application – insufficient evidence – likely to cause substantial hardship– decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 35A, 100, 101, 107, 109, 116
Migration Regulations 1994 (Cth), r 2.41, Schedule 2
CASES
Jalal v MIMA (2000) 60 ALD 779
McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Brar (2012) 201 FCR 240
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Saleem v Migration Review Tribunal [2004] FCA 234
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444
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 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that he did not comply with subsection 101(b) of the Migration Act 1958 (The Act) and decided to exercise the discretion under s109 to cancel the applicant’s visa on 20 November 2019.
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 27 July 2021 by video hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived on [Location 1] as an irregular maritime arrival (IMA) on [date] February 2012. He applied for a Protection (Subclass 866) visa on 23 June 2012. He was assessed as meeting the criteria for this visa on 30 July 2012 and was granted it on 7 September 2012.
On 19 September 2018 a forensic facial image comparison was completed by the Department which compared photographs from an application for a Global Special Humanitarian (subclass 202) visa lodged by [Name 1] (DOB: [Date 1]) as a dependent applicant on 9 September 2010 and a photograph of the applicant taken on 12 February 2012 after his arrival as an IMA in Australia.
Departmental records indicate [Ms A] applied for a Global Special Humanitarian (subclass 202) visa on 9 September 2010, which listed her spouse [Name 1] and her children [names deleted] as dependent applicants; and her mother [Ms B] as the proposer. Information included in the application Form 842 indicated that [Name 1] was born in [Area 1], Afghanistan and all dependent applicants are Afghan citizens. Documents included with the application included taskeras with English translations for [Ms A] and [Name 1] and marriage registration documents issued by the Consulate General of Afghanistan Quetta, Pakistan on [date] May 2010. The application was refused on 25 January 2011 because the delegate was not satisfied that all applicants met the criteria for the visa grant and there were compelling reasons for granting the visa.
Notice of intention to consider cancellation under s.107
On 8 August 2019 a notice of intention to consider cancellation (NOICC) was sent to the applicant. The notice said the delegate considered that the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in his visa
application. The notice provided the following particulars of information given by the applicant in his protection visa application that were alleged to be incorrect:
·At question 1 of part B of the Form 866, which asked "Give details of ALL persons included in this application" the visa holder answered "Family Name: [applicant’s last name], Given names: [applicant’s first name], Date of birth: [Date 2].
The delegate considered this answer to be incorrect as a forensic facial image comparison conducted by the Department identified that [Name 1] (DOB: [Date 1]) who applied for a dependent Global Special Humanitarian (subclass 202) visa on 9 September 2010 and [applicant name] (DOB: [Date 2]), represent the same person and that there are no unexplainable dissimilarities present. As such, it appears the visa holder's name and date of birth is [Name 1] (DOB: [Date 1]).
·At question 2 of part B of the Form 866, which asked "Has any person named in Question 1 previously applied for refugee status or a Protection visa from the department?" the visa holder answered "No."
The delegate considered this answer to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. Therefore, it appears the visa holder has previously applied for refugee status from the Department.
·At question 13 of part B of the Form 866, which asked "Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?" the visa holder answered "Yes, refer to attachment." In the attachment, the visa holder indicated that all of his family members are Pakistani citizens; and he listed [his parents and siblings]. The visa holder also indicated that [his wife and children’s names].
The delegate considered these answers to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. As the visa holder declared a different family composition and family members' biodata details in the Global Special Humanitarian (subclass 202) visa application, it appears he provided incorrect family members' biodata details and inconsistent family composition in his Protection visa application.
·At question 1 of part C of the Form 866, which asked "What is your full name?" the visa holder answered "[applicant name]."
The delegate considered this answer to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. Therefore, it appears the visa holder's full name is also [Name 1].
·At question 4 of part C of the Form 866, which asked "What other names have you been known by? the visa holder answered "N/A.
The delegate considered this answer to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. Therefore, the visa holder is also known as [Name 1].
·At question 8 of part C of the Form 866, which asked for the applicant's "Date of birth" the visa holder answered "[Date 2]."
The delegate considered this answer to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. Therefore, it appears the visa holder's date of birth is [Date 1].
·At question 9 of part C of the Form 866, which asked for the applicant's "Place of birth" the visa holder answered "Quetta, Balochistan, Pakistan."
The delegate considered this answer to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. Based on the taskera provided with the Global Special Humanitarian (subclass 202) visa application, it appears the visa holder's place of birth is '[Area 1], Afghanistan.'
·At question 20 of part C of the Form 866, which asked "Your citizenship at birth" the visa holder answered "Pakistani." I consider this answer to be incorrect on the basis of the abovementioned forensic facial image comparison conducted by the Department. Based on the taskera provided with the Global Special Humanitarian (subclass 202) visa application, it appears the visa holder was an Afghan citizen at birth.
·At question 60 of Part C of Form 866 the visa holder signed a declaration stating "1 declare then information / have supplied in or with this form is complete, correct and up to date in every detail."
The delegate considered this answer to be incorrect due to incorrect answers provided to questions 1, 4, 8, 9 and 20 of Part C of Form 866.
The NOICC sets out the evidence before the Department including:
·The applicant’s application for a Protection (subclass 866) visa Form 866 - Application for a Protection (Class XA) visa – Parts B and C, including Attachment to Form 80 and Form 866, and supporting documents provided with the application, including his Pakistani passport, drivers licence, National ID card, Sales Tax and Federal Excise Quetta pass, Pakistani education documents, children’s birth certificates and Pakistani police clearance certificates.
·Forensic facial image comparison report dated 19 September 2018.
·Global Special Humanitarian (Subclass 202) visa application by [Ms A] and [Name 1] made on 9 September 2010, indicating [Name 1] was born in Afghanistan and is an Afghan citizen, and supporting documents provided including copy and English translations of [Name 1]’s and [Ms A]’s taskeras issued by Office of Registration of Population Afghanistan [in] April 2010, copy of [Ms A] and [Name 1] marriage registration documents issued by Consulate General of Afghanistan Quetta, Pakistan [in] May 2020, [Name 1]’s Form 80 declaring his parents and brother as deceased.
The applicant responded to the NOICC on 30 August 2019, with a submission from his representative and supporting documents. The applicant argued that the particulars of the alleged non compliance are not made out. Alternatively he submitted that the reasons for not cancelling the visa outweigh the reasons for cancelling it. In support he provided a Statutory Declaration dated 29 August 2019, copy of his expired Pakistani passport, copy of his Pakistani National ID card, Pakistani Government employee card, copies of his wife and children’s current Pakistani passports and wife and daughter’s new Pakistani ID cards, notarised copies of NADRA family list, copy of his late father’s Pakistani ID card and passport, copy of his mother’s current and previous passports, evidence relating to his previous work including government health ID, copies of his ATO assessments for 2014- 2019.
The representative’s submissions include the following:
·Several errors are identified in the NOICC, including misspelling of the name of [Name 1] and children’s names and dates of birth in paragraph 19, however it is conceded that these errors do not invalidate the NOICC.
·It is contended that the non compliance alleged in the NOICC is not made out.
·As provided in his Statutory Declaration, the applicant denies the accusations made in the NOICC and maintains that the information provided in his Protection visa application are true and correct to the best of his knowledge at that time, and the documentation provided is genuine. He has never been known by any other name or date of birth. He is a Pakistani citizen, has never travelled to Afghanistan and has never held Afghan citizenship. He was born in Quetta Pakistan, as were his parents, wife and children as confirmed by their identity documents submitted which are all genuine.
·He never applied for refugee status or a Protection visa from Australia prior to the application made on 23 June 2012, and he never lodged or was included in a subclass 202 application. He denies that he is [Name 1] despite the photograph. He does not know how the photograph and some of his family details came to be included in that application. He can only surmise that one of his enemies tried to lodge an application as a way of getting back at him. He also speculated that someone could have obtained his late father’s details from the gravestone.
·The applicant declares that he could not have travelled to Afghanistan or to its Consulate in Quetta in April and May 2010 as he was employed at that time by the Pakistani government as a [Occupation 1] and was in charge of [certain tasks] between Quetta and Karachi.
·The representative submits the applicant has provided consistent testimony about his employment in the Pakistani government, supported by documentation provided to date and that he is a credible witness and there is no reason to doubt his testimony.
·Observations are made relating to the subclass 202 documentation provided to the applicant – including several discrepancies in the English translations of the taskeras submitted such as spelling mistakes and errors in the numbers and these kinds of errors cast doubt on the original and veracity of the documents; and that there are no documents supporting the identities of the 3 children and therefore no way of verifying the veracity of the details of those applicants.
·Therefore there is enough doubt about the veracity of the information in the subclass 202 application such that the information in that application cannot be relied on to cancel the applicant’s visa and therefore there is no evidence to support a conclusion that the applicant failed to comply with s101(b) as described in the NOICC and there was no non compliance and the visa should not be cancelled.
·In the alternative, submissions are made addressing the discretionary considerations set out in r.2.41 of the Regulations. Among the matters referred to, it was submitted that the applicant’s claims for protection were not on the basis of his Pakistani citizenship/nationality, but rather his Hazara ethnicity, Shi'a Muslim faith and his particular circumstances as a former Pakistani government employee; arguments and submissions were also made regarding the applicant and his family’s current circumstances and long standing residence in Australia since 2012.
Having considered the evidence and applicant’s response to the NOICC the delegate came to the conclusion that, regardless of the applicant’s denial of knowledge of the 202 application, the non-compliance has still occurred because, for the purposes of Subdivision C of the Migration Act, 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 under section 100 of the Migration Act. The delegate found the applicant’s denials of knowledge of the earlier application lacked credibility given that the grant of that visa would have benefited the applicant and his family and given the amount of supporting documentation submitted. The delegate considered the submissions and arguments made regarding the matters relevant to the exercise of the discretion to cancel the visa but, despite identifying more factors weighed against cancelling the visa than those in favour of cancelling the visa, nevertheless made the decision to cancel the visa without particular explanation for that outcome.
Evidence before the Tribunal
The Department provided the Tribunal the following relevant [files] (Cancellation file); ( ([applicant’s] wife’s) Partner visa application) and ([Ms A] Global Humanitarian Subclass 202 application) for the purposes of considering this review.
Among the documents included in [cancellation file] are: the applicant’s Protection visa application made on 23 June 2012, including application forms and supporting documents; the Global Special Humanitarian (Subclass 202) visa application forms (842 and 681) and supporting documentation and decision record; Notice of Intention to Consider Cancellation Under s109 (NOICC) dated 8 August 2019, applicant’s response to the NOICC dated 30 August 2019 and the cancellation decision record dated 20 November 2019.
Among the relevant documents included in [Partner visa file] are: Application for Migration by a Partner Form 47SP by [applicant’s wife] and her children; Sponsorship for a Partner Form 40SP by applicant; supporting documentation including Statutory Declarations Form 888 from two individuals known to the applicant and his wife from Pakistan; identity documents relating to visa applicants including Pakistan passports, NADRA Family Registration Certificates relating to visa applicants; Government of Balochistan Pakistan Marriage Registration Certificate relating to marriage in Quetta on [date] January 1995 ; children’s Pakistani birth certificates; Pakistani police clearance certificates. The Tribunal notes that the file includes records of biometrics taken from all visa applicants on 20 June 2013 which record No fingerprint or facial match results.
Relevant documents included in [Ms A’s file] are: Application for Offshore Humanitarian visa Form 842 indicating main applicant [Ms A], and naming [Name 1], [and other named person] as ‘other people included’ in the application; Refugee and Special Humanitarian Proposal Form 681 completed by [Ms B]. Personal Particulars for character assessment Forms 80 completed by [Ms A] and [Name 1]; and Marriage certificate relating to marriage between [Ms A] and [Name 1] on [date] August 1998 issued by Consulate General of Afghanistan Quetta Pakistan on [date] May 2010; copies and English translations of taskera documents for [Ms A] and [Name 1] and Australian travel documents and citizenship certificates [Ms B] (Proposer), [and the] main applicant’s brothers).
The Tribunal requested, and was provided by the Department, a copy of the Facial Image Comparison Report dated 19 September 2018 referred to in the delegate’s decision record.
On 21 July 2021 the Tribunal received a submission from the applicant’s representative and supporting documentation: Statutory Declaration by the applicant dated 20 July 2021; evidence of identity theft relating to the applicant in Australia; work certificates from applicant’s employer dated 14 June 2017; ATO Assessment for the year ended 30 June 2020; Australian birth certificate for applicant’s grandchild and Pakistan death certificate for applicant’s mother.
Also provided on 23 July 2021 are Statutory Declarations by [Mr C] and [Mr D], who were known to the applicant in Pakistan and attest to his Pakistani origins and residence. Mr [C] declares he is born in Pakistan and knew the applicant since childhood having grown up in the same neighbourhood and attended the same school. Mr [D] is also born in Pakistan and grew up with the applicant in the same neighbourhood andattests to his Pakistani origins.
The submissions address the delegate’s reasons for decision and provides responses on behalf of the applicant. In summary the submission provides the following responses to the delegate’s findings:
·The applicant maintains the information in his Protection visa application of 23 June 2012 is true and correct to the best of his knowledge.
·He confirms his family are Pakistani citizens, as verified by the identity documentation previously provided and further corroborated by the witness statements of [Mr C] and [Mr D].
·He denies he ever lodged an application for a Subclass 202 visa with false details and fraudulent documents as alleged by the Department.
·He has never travelled to Afghanistan for any reason let alone to obtain fraudulent documents, nor has he ever approached the Afghan Embassy in Quetta. Country information is submitted regarding prevalence of document fraud in Afghanistan, supporting that there is significant doubt the Afghan documents submitted in the Subclass 202 application are genuine or genuinely obtained or issued or that the information in that application is correct.
·The applicant explains in his Statutory Declaration that he believes he was the subject of identity theft by his enemies who sought to sabotage his move to Australia.
·The applicant is of Shia Hazara ethnicity, whose life was in mortal danger in Pakistan leading him to flee to safety in Australia. He reiterates the claims made in his Protection application. His previous job in Pakistan led him to have many enemies who may have wanted to obstruct and prevent him from leaving Pakistan. He can only guess that they may be behind this. Country information about identity theft and persecution of Shia Hazaras in Pakistan is provided in support.
·Regarding the forensic facial image comparison report, the applicant does not deny that the photo in the Subclass 202 application is of him, but he maintains that neither he nor his family members applied for that visa. The issue of this application still perplexes the family.
·The applicant was the victim of identity fraud in Australia several years ago which was reported to NSW Police. Evidence relating to this matter is submitted in support.
The submission argues that the particulars of the alleged non compliance with s101(b) is not made out, referring to the above and previously provided responses of the applicant. In the alternative, if the Tribunal finds there has been non compliance in the way described in the NOICC, the submission argues the visa should not be cancelled having regard to the matters set out in r. 2.41 and addresses the various matters listed in that sub regulation in some detail.
Evidence at hearing 27 July 2021
At the hearing the Tribunal took oral evidence from the applicant via video using the MS Teams platform. He confirmed his current address and that he lives there with his wife and two younger sons. He works as a [occupation]. His daughter is married and lives separately. His wife and children’s visas were also cancelled consequentially after his visa was cancelled.
The Tribunal asked the applicant about his arrival in Australia. He arrived on [date] February 2012 by boat to [Location 1]. He came here alone. Prior to arriving in Australia he lived in Quetta Pakistan. After arriving in Australia he applied for a Protection visa on 23 June 2012.
The Tribunal asked the applicant to explain in brief why he came to Australia and applied for protection here. He said he came because his life was in danger in Pakistan on the basis of his Hazara ethnicity and Shia religion and also because of his work as a [Occupation 1]. The Tribunal noted that he made detailed claims in his Protection visa application and asked if he maintains the truth of those claims. He said he does one hundred percent stand by what he said then.
The applicant confirmed that he lived since birth in [Quetta]. He only ever lived in Pakistan, but through his work as a [Occupation 1] he travelled to other parts of Pakistan. He also travelled to [Country 1] and [Country 2] once in 1999 for three months to visit his brother. Apart from that he travelled to [Country 3] from Pakistan when he was a teenager.
The Tribunal asked the applicant about his family composition. He stated his mother [passed] away last year from illness. She was living in Quetta with his [brother]. His father [passed] away when he was young, also from illness. He has [number of siblings], all of whom live in Quetta with the exception of one brother in [Country 1], and one sister who recently married and went to live in [Country 4]. His wife’s family comprises [siblings] of whom all reside in Pakistan. Her parents are both deceased, her mother, after they married, and her father prior to their marriage. The Tribunal asked if, apart from these relatives who he named, he or his wife had any half siblings from other wives of their father’s. He responded no, each of their fathers only had one wife.
The applicant confirmed that he sponsored his wife and three children in 2013 on a Partner visa, which was granted and they arrived in Australia in November 2013. Neither he nor any of his family have departed Australia since arriving here.
The Tribunal asked the applicant what he knows of the Global Special Humanitarian (Subclass 202) visa made in 2010 by [Ms A]. He said he knows nothing of this application. The first he heard of it was when he applied for Australian citizenship and this process of cancellation of his visa began. When asked specifically if he knows the named main applicant, proposer or any of the named family members in that application he stated emphatically No. Since this cancellation process began he has not obtained any information about them and has no idea who they are.
The Tribunal put to him that information before it on the Subclass 202 application file indicates that the proposer’s family shares similarities in names with his wife’s family and asked for his response or comment to this. He said he does not know who they are. The Tribunal asked if he provided any documents or photos for that application. He said he did not. He repeated that he has no knowledge of the family named in that application. It is not his family.
The Tribunal put to the applicant that included in the file provided to the Tribunal relating to the Subclass 202 application are original photographs of the family subject of that application. It showed the applicant copies of these photos alongside copies of photos of his wife and children included in their Partner (Subclass 309) application contained on that file, also before the Tribunal, via a screen share. The applicant confirmed that the photos from the Subclass 202 file are photos of his wife and children and they are the same individuals in the photos included in the Subclass 309 application, but he stated that he does not know how they came to be included in the Subclass 202 file. He did not provide them. The applicant explained that here in Australia he has been the subject of an identity theft which he discovered during a credit check process and of which he has provided evidence. He believes that if this can happen to him in Australia it supports that it could have happened to him in Pakistan.
The Tribunal asked the applicant how he obtained the Pakistan Police Clearance certificate relating to him that was included on his wife’s Subclass 309 application dated 30 March 2012 given that he was in Australia on that date. He said his brother obtained a copy of his photograph that was held by a photographer at his shop [near] his home and applied for the certificate on his behalf. He explained that the negatives of photos are kept there and he did not need to give permission for his brother to get this. When asked where the photos of his children used in the Subclass 202 application were taken, he said he cannot remember. The applicant confirmed his children had passports prior to the ones they used to come to Australia but he does not have copies of these.
The Tribunal discussed the NOICC issued to him on 8 August 2019 and noted he provided a response through his representative on 29 August 2019 which the Tribunal has before it and will take into consideration, together also with the more recent submissions and evidence provided to the Tribunal on 21 July 2021. It notes no issues have been raised regarding the validity of the notice, including the sufficiency of particulars and asked the applicant and representative if they wished to say anything more on this. The applicant confirmed he received the notice and understood what it alleged. The representative confirmed no issues are raised with the validity of the notice.
The Tribunal noted that the applicant stated in his statements and submissions, and continues to maintain that he has no knowledge of the application for a Subclass 202 visa and who or how it was made, and that he believes it may have been done by enemies of his in Pakistan who wanted to sabotage his plan to leave Pakistan in future, and put to him that it has some difficulty understanding how that would be a move against him given that the purpose of the application would appear to be to obtain permanent visas for him and his family. In response the applicant said he too does not know. He said he had plans of coming to Australia earlier because his life was in danger and it is possible some of his enemies came to know about this and wanted to interrupt that plan. He believes that a false application was made with a view to cause problems for him in future such as what has happened with this cancellation. At the time the application was made it was known to be difficult for Afghans in Pakistan to be accepted so the application made on that basis was likely to be refused. The applicant added that as a government employee at that time he would never have made an application claiming to be an Afghan as it would have been very dangerous for him, he would have been arrested.
The Tribunal put to the applicant that given his acknowledgment that the photo included with that application is of him, it may find that regardless of his knowledge of the application being made, his answer to Q 4 in his Protection visa application regarding other names he is known by, and also Q 2 whether he has applied for refugee status or a Protection visa previously may nevertheless be incorrect because s100 of the Migration Act states that answers may be incorrect even if the person did not know that it was incorrect. It asked for his comment or response to that. The applicant repeated that he does not know these people and he should not be punished for doing this, they should be punished. The Tribunal invited his representative to make submissions on this point regarding the application of s100 of the Migration Act. She said it is clear in this case that the applicant did not knowingly provide incorrect information. The applicant repeated that if the Subclass 202 visa was granted he would be arrested in Pakistan for using a false identity.
The Tribunal asked the applicant when he started to make plans to leave Pakistan. He said he had problems from 2009 and talked to a smuggler about making arrangements to leave but it did not amount to anything. Then in 2011 his nephew was killed and after that he again made arrangements to leave Pakistan and left. He paid an agent who arranged a visa for [Country 5] for him. He left Pakistan lawfully on his own passport by air to [Country 5] and from there came to Australia. The applicant confirmed again that he never made an application for a Subclass 202 visa as an Afghan citizen and he would not have done that because he would risk arrest at the border if he tried to leave on a false identity.
The Tribunal explained that if it is satisfied that there was no non compliance that is the end of the matter and the cancellation is set aside. If it finds there has been non compliance, even with only one of the particularised answers, then it must go on to consider whether to cancel the visa. It will consider the submissions and evidence provided already regarding the matters mentioned in r.2.41. The Tribunal asked if the applicant wishes to add anything further on the matter of the discretion. The applicant said since coming to Australia he has followed all the rules and worked hard. He has never even left Sydeny because he is only working. He has had no issues with the law. The applicant told the Tribunal that since the cancellation his children’s education has been affected. His son finished his HSC and has been unable to continue further study. They are anxious and stressed because of this matter.
The representative invited the Tribunal to contact the migration agent who assisted to lodge the Subclass 202 application or the proposer herself. They have not done this to date as they do not feel it is appropriate. She is not sure what information that will provide but the applicant is adamant that he has no knowledge of that application. Following the hearing the representative repeated the request to the Tribunal to make direct contact with the migration agent who prepared the Subclass 2020 application.
FINDINGS AND REASONS
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.
Did the notice comply with the requirements in s.107?
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 8 August 2019. The first issue for the Tribunal’s consideration is whether the notice issued by the Minister’s delegate complied with s.107. The applicant’s representative raised no issue about the validity of the notice in their response to the NOICC dated 30 August 2019 or in recent submissions to the Tribunal or at hearing. The Tribunal has considered the NOICC and accepts that the delegate reached the necessary state of mind to issue it on the basis it expressly states that the delegate has formed the view that there has been non-compliance and reveals the basis for his findings. The Tribunal accepts that the delegate reached the required state of mind.
The next question relates to the sufficiency of the notice. That is, whether the notice included particulars of the possible non-compliance. In the present case the NOICC particularised the non-compliance as set out above in paragraph 10. Case law about the role and sufficiency of particulars provides that they must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open[1] and that it would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision.[2] Having regard to these authorities, the Tribunal is satisfied in the present case that the allegation of non- compliance has been sufficiently particularised.
[1] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.
[2] Zhong v MIAC (2008) 171 FCR 444 at [80].
The manner in which it has been particularised frames the inquiry before the Tribunal, as the relevant task for the Tribunal is to decide whether there has been non-compliance in the way described in the notice.[3] In this case the Tribunal finds that the NOICC particularises the alleged non-compliance as providing incorrect information in his Protection visa application about his name, date of birth, family composition, place and citizenship at birth, names he has been known by and whether he has previously applied for refugee status or a Protection visa. Specifically, that the following responses he provided in Part B and C of Form 866 of his Protection visa application submitted on 23 June 2012 are incorrect: his name (Q1 Part B and Q1 Part C) ), date of birth (Q1 Part B and Q8 Part C), whether he is known by any other names (Q 4 Part C), whether he has previously applied for refugee status or a Protection visa from the Department (Q2 Part B), details provided of his family composition (Q13 Part B), place of birth (Q9 Part C) , citizenship at birth (Q20 Part C) and declaration as to the truth of his responses (Q60 Part C). These responses are alleged to be incorrect on the basis of a Facial Comparison report that found him to be the same person as a person included as a dependent family member in a Global Special Humanitarian (subclass 202) visa lodged on 9 September 2010 and information contained in that application that contradicted the information he provided about his name, date of birth, family composition, and place and citizenship at birth.
[3] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234
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.
With regard to the onus of establishing non-compliance, it is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[4] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[5] Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. at [25]:
‘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.’ [6]
[4] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191
at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.
In a case such as the present, in deciding whether the ground for cancellation is made out the Tribunal also considers it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[7] In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Protection visa application are, undeniably, serious.
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
The delegate, having considered the applicant’s response to the NOICC, concluded that the information before the Department in the forensic facial image comparison results confirm that the applicant and [Name 1] who previously applied for a Global Humanitarian (Subclass 202) visa are the same person and therefore his responses to the questions about whether he has previously applied for protection or has been known by other names are incorrect. The delegate acknowledged the applicant’s response that his information pertaining to his identity provided in the Protection visa application are correct, however the delegate concluded that an answer to a question is incorrect even though a person who gave or provided the answer did not know that it was incorrect : s100 of the Act and on that basis found that there was non compliance under s101(b).
The Tribunal has considered the applicant’s response to the NOICC, and the submissions, written and oral evidence provided to the Tribunal and evidence before it contained in Department files referred to above and for the following reasons has come to a different conclusion to the delegate. For the following reasons the Tribunal is not satisfied on the available material that there has been non-compliance as described in the NOICC dated 8 August 2019.
Incorrect information about his name, date and place of birth, country of citizenship and family composition
Inherent in this allegation of non compliance is an allegation that the applicant is the same person as [Name 1], an Afghan national born on [Date 1] who was included as a dependent family member of the main visa applicant, [Ms A], in a Global Special Humanitarian (Subclass 202) visa application made on 9 September 2010.
This allegation is made on the basis of a Forensic Facial Image Comparison which compared photographs from the Global Special Humanitarian (subclass 202) and a photograph of the applicant taken on 12 February 2012 after his arrival in Australia, which concluded that the images were of the same person.
The applicant has conceded in his response to the NOICC and in his evidence to the Tribunal that his photo was used in the Subclass 202 application. However, he denies having any knowledge of this application prior to this cancellation process and denies that he is [Name 1]. He claims and has maintained consistently and adamantly throughout the cancellation process, that his name, date and place of birth, citizenship and family composition are as he stated in his Protection visa application. He has acknowledged that his photo and that of his wife and children were used in the Subclass 202 application but denies any knowledge of the lodgement of the Subclass 202 application or the details provided in it. In support of his claims he relies on numerous official identity documents, copies of which were included with his response to the NOICC. These include his Pakistani passport, National Pakistani ID card and Pakistani Government Employee card. He stated he is born in Pakistan and at least 3 generations of his family have lived in Pakistan and has provided copies of his late father and mother’s Pakistani National ID cards and passports showing their birthplace as Quetta, Pakistan; and copies of his wife and children’s Pakistani passports, National ID cards and Family Registration Certificates to support his true identity and citizenship. In his Statutory Declarations of 29 August 2019 and 20 July 2021 he has provided a possible explanation of who may be behind this false information and inclusion of his family’s photos in the Subclass 202 application and the possible motivation.
The contrary evidence to the applicant’s claims is the identity documentation included in the Subclass 202 application of [Name 1] which are the copies and English translation of ‘Head Office Census’ or taskeras for [Ms A] and [Name 1] and a marriage registration documents issued by the Consulate General of Afghanistan in Quetta. The applicant in his response to the NOICC has pointed out numerous conspicuous errors and discrepancies in this documentation and has argued there is substantial and credible country information about the ease of obtaining such false documentation in Pakistan and Afghanistan. The submissions also note that no documentation for the children was included in the Subclass 202 application to verify their identities.
The Tribunal has carefully considered the evidence and arguments before it. The evidence provided by the applicant to support his and his family members’ claimed Pakistani identity and citizenship, including ID cards and passports, some of which have security features and are documents issued by a competent central authority, NADRA. On the other hand, the documents before the Tribunal which contradict his claimed Pakistani identity are the Afghan taskera relating to [Name 1], and marriage registration document, included in the Subclass 2020 application. The Tribunal notes discrepancies in these documents including errors in spelling and in the serial numbers on the translations of the taskeras, and that the marriage registration document certifies a marriage on [date] August 1998 by the Consulate General of Afghanistan in Quetta in 2010, yet information in the application indicates they came to Pakistan in 2004. Country information before the Tribunal supports the reliability of ID documentation in Pakistan such as passports and CNIC cards that contain biometric and security features and are issued by a central authority, although the Tribunal is mindful that it also indicates document fraud does occur in Pakistan and that genuine documents can be fraudulently obtained using altered or counterfeit feeder documents.[8] On the other hand, the Tribunal is aware of substantial country information regarding the unreliability of Afghan documentation.[9] DFAT notes that the manual records process system in Afghanistan, absence of any robust security features, and decentralised process for obtaining taskeras all contribute to the vulnerability of these documents to fraud.[10] Taking all of this into consideration, on the weight and nature of the Pakistani documentation submitted by the applicant and the obvious discrepancies in the Afghan documents before the Tribunal, the Tribunal prefers the former over the latter, which it finds unreliable and insufficient to base a conclusion that they are genuine or were properly obtained. The applicant has provided multiple Pakistani ID documents that consistently support his identity as a Pakistan born citizen, and his claimed name and date of birth, and on this basis the Tribunal accepts the Pakistani documents are genuine and reliable and accurately attest to his identity.
[8] DFAT Country Information Report Pakistan, 2019, p71
[9] Eg. Hall, S and Norwegian Refugee Council (NRC), NRC Report: Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016, https:IIwww.flyktninghielpen.no/globalassets/pdflreports/af civil-documentation-study final small- size.pdf
[10] DFAT Country Information Report Afghanistan, 2019 [5.54]
Therefore the Tribunal finds the evidence before it supports a conclusion that the applicant is as he claims, a Pakistan born citizen and on the basis of this evidence it accepts that the answers he provided relating to his name, date of birth, place of birth and citizenship in Parts B and C of Form 866 were correct and there is no non compliance as alleged in respect of these answers.
Incorrect response to whether he has previously applied for refugee status or a Protection visa
The Tribunal observes that the delegate also accepted the Pakistani documents over the Afghan documents and concluded that the applicant and his family members are highly likely to be documented Pakistani citizens and it was more plausible he applied for the Subclass 202 visa under the pretence of being an Afghan citizen based on fraudulent Afghan documents to facilitate a favourable migration outcome for himself and his family and on this basis his answer to the questions as to whether he previously applied for refugee status or a Protection visa was incorrect.
In his response to the NOICC and submissions and evidence to the Tribunal the applicant denies and disputes this allegation. He maintains he had no knowledge of this application prior to being informed about it as a result of this cancellation process and therefore his response to this question was not incorrect. He has posited a theory that the photos of his family members were obtained by enemies of his, of which he claims he had many due to the nature of his employment in Pakistan, and they facilitated this application as a means to sabotage his plans to escape to Australia which he had begun to consider since 2009.
The Tribunal questioned the applicant during the hearing about this. It put to him its concerns about the plausibility and credibility of his claim that this application was made without his knowledge and by his ‘enemies’, given that the purpose of the application appears to be beneficial to him and his family were it to have succeeded. It also put to him its concerns about the evidence of the original photos of himself and the members of his family on the Subclass 202 file, which the applicant confirmed was of them, and the similarities in the family details including days and months of birth of the children and family names of his wife’s family. In response the applicant maintained his denial and repeated his theory of who and how this evidence may have been obtained. While the Tribunal has serious doubts about the applicant’s claim to have no knowledge of the matter, it acknowledges his adamant and consistent denial and observes that, apart from the family photos, there is also no other credible evidence before it to support that he knew or was a party to this application. Having regard to the authorities referred to above about the onus of establishing the facts being on the Minister (or Tribunal on review) and the Tribunal’s role to reach a state of satisfaction on a consideration of the available material, and in the face of the consistent and adamant denial by the applicant, the Tribunal cannot confidently be satisfied on the evidence before it that the applicant had knowledge of, or was personally involved in making the Global Special Humanitarian (Subclass 202) application in which the images of himself and his family were used.
In any event the specific question before the Tribunal is whether the applicant’s negative response to Q 2 of Part B as to whether he has previously applied for refugee status or a Protection visa is incorrect. The Tribunal observes that the application for a Global Special Humanitarian (Subclass 202) visa is not an application for refugee status nor is it a Protection visa. The criteria for the subclass 202 visa makes no reference to a determination of refugee status, nor is there any indication in the application that the applicant known as [Name 1], who was included as a dependent family member of the main applicant, made any claims to meet the primary criteria. Protection visas are specifically defined in s35A of the Migration Act as a visa of a class provided in that section and specifically do not include Global Special Humanitarian visas (Class XB) (Subclass 202). Therefore the Tribunal is not satisfied that the applicant’s response to Q2 of Part B of Form 866 was incorrect and there was no non compliance with s101(b) in relation to this answer.
Incorrect information about names applicant was known by
The applicant answered in N/A to the question in Part C (Q4) as to whether there are any other names he was known by. He claims this is correct because he is not and has never been known by the name [Name 1] as alleged in the NOICC and that he did not know of the existence of this application until informed of it by this cancellation process.
In considering this matter the Tribunal notes Jalal v MIMA where Finkelstein J stated
whether a non-citizen has given an incorrect answer in his or her application form, or has given incorrect information which is deemed to be an incorrect answer in the application form, is to be determined at the moment the answer is given or the information is provided.[11]
[11] Jalal v MIMA (2000) 60 ALD 779 at [17]
As indicated above, while the Tribunal has some doubts about the applicant’s claim to have no knowledge of the Subclass 202 application until this cancellation process, it has concluded that is unable to make a determinative finding on the evidence before it that he did have such knowledge of, or was personally involved in making the Global Special Humanitarian (Subclass 202) application. Therefore the Tribunal finds that the applicant’s omission to include the name [Name 1] in his response on his Protection visa application made on 23 June 2012 was not incorrect at the time the answer was given, and there is no non compliance with s101(b) in relation to this answer.
Conclusion on non-compliance
In reaching the above conclusions regarding the allegations of non compliance raised in the NOICC, the Tribunal has had regard to all of the information and evidence before it, including the applicant’s response to the NOICC, his submissions, arguments and oral evidence to the Tribunal. It has also considered information contained in the Department’s files and records before the Tribunal. The Tribunal remains perplexed about the photographs of the applicant and his family, and similarities relating to his family’s details contained in the Global Special Humanitarian visa application lodged in September 2010 and is not without some doubts about the applicant’s explanations regarding this matter. However, in light of the manner in which the non-compliance in this matter has been framed in the s107 notice issued on 8 August 2019, and the serious consequences that follow from a decision regarding non-compliance, it is imperative that conclusions are based on evidence which is substantive and reliable. In this case, the Tribunal is not satisfied that sufficient evidence is before it to contradict the applicant’s assertions that he had no knowledge of this application being made and for this reason the Tribunal has reached the above conclusions.
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
However notwithstanding this, and although strictly not necessary, the Tribunal observes that, even if it were to have found non compliance relating to his response about the question regarding what names he was known by, there are sufficient significant circumstances, having regard to relevant matters referred to in r.2.41, that weigh against a decision to cancel the visa in this matter. These are as follows. The Tribunal has accepted that the applicant’s information about his true identity, citizenship and family composition is as he stated in his Protection visa application and the evidence before the Tribunal relating to that application and assessment indicate that his Protection visa was granted on the basis of his cumulative claims relating to his ethnicity, religion and occupation and the Tribunal cannot see how this would have led to a different decision on the applicant being owed protection obligations if the correct information that he was also known by the name included in the subclass 202 application was known to the delegate. Furthermore, the applicant’s current circumstances and impact on his family weigh significantly in favour of not cancelling the visa. The applicant has been residing lawfully in Australia since 2012, and with his wife and three children since 2013, a substantial period of over 8 years. His eldest daughter has completed her studies, is now married and has a newborn child; his two younger sons are in the midst of their studies and all the children have spent the formative years of their lives in Australia. The evidence of his tax assessments support that the applicant has worked consistently and paid taxes, since his arrival. The family are integrated into the Australian community. The effect of consequential cancellations on his family members’ visas that follow cancellation of his visa has already caused, and would continue to cause, significant hardship to his entire family including most significantly the children who came as minors many years ago. There is no information before the Tribunal of any other breaches of the law by the applicant. For these reasons, the Tribunal concludes, if there was non compliance relating to the question of whether he was known by any other name, 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 866 (Protection) visa.
Meena Sripathy Member
ATTACHMENT – Migration Act 1958 (extracts)
5 Interpretation
(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.
97 Interpretation
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).
98 Completion 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.
99 Information 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.
100 Incorrect 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.
101 Visa 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.
107 Notice 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.
108 Decision 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.
109 Cancellation 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.
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