1935052 (Migration)

[2020] AATA 4663

1935052 (Migration) [2020] AATA 4663 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935052

MEMBER:Melissa McAdam

DATE:21 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 October 2020 at 11:32am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in a Refugee (Subclass 200) visa application – applicant’s identity – facial image comparison – inclusion as dependant in a Global Special Humanitarian (subclass 202) visa application – veracity of identity documents – Afghan Taskera – military service card – witness statements – applicable principles on public law fraud – complicity or indifference to the fraud committed – inclusion of photograph in visa application – no clear or compelling evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 101, 107, 107A, 109

CASES
Kaur v MIBP [2019] FCAFC 53

Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his Refugee (subclass 200) visa application.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent.

   NOICC

4. On 11 July 2019 the department delegate issued a Notice of Intention to consider Cancellation (‘NOICC’) of the applicant’s Subclass 155 visa.  The NOICC contained the following:

   I consider that there has been non-compliance with the following section(s) of the
   Migration Act 1958:

   Section 101 Visa applications to be correct

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

   (b) no incorrect answers are given or provided.

   The provisions of section 107A of the Migration Act 1958 (‘the Migration Act’) indicate that possible non-compliances in connection with a previous visa may be grounds for cancellation of a current visa.

   Section 107A relevantly provides as follows:

   107A. Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

   The possible non-compliances that:
    (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
   (b) if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person

   By operation of section 107A of the Migration Act, if you did not comply with subsection 101(b)
   before your Refugee (subclass 200) visa was granted to you on 21 February 2013, then your Five Year Resident Return (subclass 155) visa which was granted on 6 September 2018 may be cancelled.

   If you did not comply with subsection 101 (b), your visa may be cancelled under section 109 of the Migration Act.

   By operation of s99 of the Act, 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.

   Evidence - your application for a Refugee (subclass 200) visa:

   You applied in [Country 1] for a Refugee (subclass 200) visa on 20 November 2012. You claimed never to have had any national identity documents and never to have held a valid travel document.

   You claimed you travelled to [Country 1] with the assistance of a people smuggler using a Pakistani passport in the name of [Alias 1].

   Your application consisted of a departmental form 842 “Application for an Offshore Humanitarian visa Refugee and Humanitarian (Class XB) visa.”

   Question 1 on the form 842 asked: “How many people are included in this application?” You
   answered; one.
   Question 2 on the form 842 asked; “Give details of the main applicant.” You answered:

   Family name: [Family name]
   Given names: [Given name]
   Sex: Male
   Date of birth: [Date 1].

   In your application, you stated that you are married to [Ms A] with two children, [Child 1] and [Child 2]. You stated:

   • Your father [Mr B] and your mother [Ms C] were living in Pakistan;

   • You had a brother, [Mr D], and a sister, [Ms E];

   • You fled Afghanistan after being taken and mistreated by the Taliban in 2001 in relation to a land dispute;

   • You lived in Pakistan illegally from 2001 until 2011.

   You were interviewed on 28 November 2012 in relation to your application for a Refugee (subclass 200) visa. You were asked the following question during the interview:

   “Has anyone in this application ever applied for other Australian visas before this application?” You answered; no.
   Based on the information you provided in your application form and at interview, a delegate of the Minister found that you met the criteria for grant of the Refugee (subclass 200) visa. You were granted a Refugee (subclass 200) visa on 21 February 2013.

   Evidence - [Alias 2]’s application for an Offshore Humanitarian visa

   Departmental records indicate that on 18 August 2009 [Alias 2] (born [Date 2]) applied for a Global Special Humanitarian (subclass 202) visa. He applied for the visa as a member of the family unit of the main applicant [Mr F].

   In his application for a subclass 202 visa, [Alias 2] claimed to be the unmarried grandson of the main applicant. It was stated in the application that his mother is [Ms G] and that his father [Mr H] is deceased, killed by the Taliban in 2001. It was stated in the application that [Alias 2] had the following siblings:

   • [Mr I] (brother, born [Date 3]);
   • [Ms J] (sister, born [Date 4]);
   • [Ms K] (sister, born [Date 5]);
   • [Mr L] (brother, born [Date 6]);
   • [Mr M] (brother, born [Date 7]).

   [Alias 2] provided a photocopy of an Afghan identity card [Number 1] with the application.

   It was stated in the application that [Alias 2] and the other applicants fled
   Afghanistan to live in Pakistan [in] October 2008 and were living in Pakistan at the time of the
   application.

   [Alias 2]’s application for a Global Special Humanitarian (subclass 202) visa was refused on 7 December 2009.

   Evidence - Facial Comparison;

   A facial image of [Alias 2] was provided with his application for an Offshore
   Humanitarian visa. This image was compared with other facial images on departmental records; it matched a facial image of you.

   A departmental Forensic Facial Image Examiner then compared this facial image of [Alias 2] with a facial image of you obtained by the Department on 29 January 2013 in relation to your application for a Refugee (subclass 200) visa. The Forensic Facial Image Examiner found that the images represent the same person.

   Consideration of the evidence:

   Based on the evidence before me, I consider you and [Alias 2] are the same
   person. I consider you applied for an Offshore Humanitarian visa on 18 August 2009 using the
   name [Alias 2]. I consider [Alias 2] is likely to be your correct name because you provided a copy of an Afghan identity card [Number 1] in that name. I therefore consider that the following answers to the following questions relating to your application for a Refugee visa are incorrect:

   • At question 2 on the form 842, which asked: “Give details of the main applicant:” You answered:

   Family name: [Family name]
   Given names: [Given name]
   Sex: Male
   Date of birth: [Date 1].

   I consider your answer is incorrect because it is likely your correct name, which is recorded on your Afghan identity card [Number 1], is [Alias 2].

   As I consider your answer to question 2 on your application for a Refugee (subclass 200) visa is incorrect, I consider you did not comply with subsection 101 (b) of the Migration Act in relation to this answer.

   • You were interviewed on 28 November 2012 in relation to your application for a Refugee
   (subclass 200) visa. During the interview you were asked:
   “Has anyone in this application ever applied for other Australian visas before this application?” You answered: no.

   I consider your answer is incorrect, because you applied for a Global Special Humanitarian
   (subclass 202) visa on 18 August 2009 in the name [Alias 2]. By operation of
   section 99 of the Migration Act, your answer to this question during your interview on 28 November 2012 in relation to your application for a Refugee (subclass 200) visa is taken for the purposes of subsection 101(b) to be an answer to a question on your application form. As your answer is incorrect, I consider you did not comply with subsection 101(b) in relation to this question.

   The incorrect information you gave about your identity and your previous visa application was
   material to the decision that you met the criteria for the grant of a Refugee (subclass 200) visa. If you had provided the correct information it is likely that the Minister’s delegate deciding your
   application for a Refugee visa would have observed that you had made a previous application for an Offshore Humanitarian visa on 18 August 2009 and that the information provided by you in both visa applications is significantly different, especially in relation to:

   • your identity;
   • the details of your family members; and
   • the date you departed Afghanistan.

   If the Minister’s delegate deciding your application for a Refugee (subclass 200) visa had been
   aware that you had made a previous application for an Offshore Humanitarian visa on 18 August 2009 in which you provided significantly different information about your identity, your family and the date when you left Afghanistan, it is likely that the delegate would have taken this information into significant consideration which may have affected the outcome.

   As it appears you have not complied with section 101(b) of the Act in relation to your previously
   held Refugee (subclass 200) visa, as per section 107A of the Act, your current Resident Return (subclass 155) visa is liable for cancellation consideration under section 109 of the Migration Act 1958.

   Response to NOICC

5. On 24 July 2019 the applicant provided a written response enclosing a Statutory Declaration in which he states:

   1. I am making this statement in response to the NOICC notice which was sent to me last week. I still in shock and I cannot believe this would happen to me. I do not agree with the allegation m made that I misled the office. I did not give them false information. I honestly knew nothing about the application referred to in the notice. From the day we received this notice my whole family has been under tension and stress.

   2. My name is [the applicant] DOB [Date 1] S/0 [Mr B] DOB [Date 9]. And my date of birth is [Date 1]. My family name comes from my father’s first name. My mother name is [Mr C] DOB [Date 9]. My father passed away in [date] in Quetta Pakistan. He has old solid Afghan ID and Tarkhees.( it is Afghan army service card) . My mother does not have Afghan ID. Because before year 2000 the most ladies in country sides never made Afghan ID. And when Taliban captured Afghanistan they banned ladies for going out and visiting government offices. I made my Afghan ID (Taskera) through Afghanistan embassy in Canberra with the help my friend in Kabul. It is impossible to make an Afghan ID if your father does not have any ID record there Kabul ID office.

   3. I am married to [Ms A] DOB [Date 10] on [date] in Quetta Pakistan. I have the marriage certificate. I have photographs from the wedding party. We had two children [Child 1] DOB [Date 11] and [Child 2] DOB [Date 12].

   4. My daughter [Child 1] got injured because of a bomb blast in 30/08/2011 that took life of 11 Hazaras. It was Eid day which is the most popular day in our Islamic calendar comes at the end of every month of Ramadan. She did not die on the same day but she passed away nearly 7 months later. I declared I had a daughter when I applied for my offshore humanitarian visa in [Country 1], because she was alive that time. But I did not mention her in my wife and son’s
   applications in 2013 because she had passed away by then.

   5. My wife and my son both have Afghan ID (Taskera). And they are here with me in Australia. And I got another child name is [Child 3] DOB [Date 13] born at [named] Hospital. He is Australian citizen by birth.

   6. I have applied for my wife and son two applications.

   - Offshore Humanitarian visa

   - Partner visa: 309/100

   - I cancelled Partner visa few months later because I saw Humanitarian visa process began.

   7. I want to note here that I apply for mother [Ms C] DOB [Date 9] application in 16/12/2013. This application was for a humanitarian visa, but it was refused on 10/02/2016. The file number was [number]. The same time I applied for my brother [Mr D] and it was refused too.

   8. I was born in [location] of Qarabagh district of Provence Ghazni in [Date 1]. I flee from Afghanistan because I was mistreated and tortured by our Pashtoons partners with the help of Taliban in relation to a land dispute. I arrived in Pakistan at the end of 2001. I worked in [shops] for almost 9 years in Quetta Pakistan. My parents reached Pakistan nearly after 2 years. And unfortunately the lives in Quetta were getting worsening after 2003. I was there when few huge bomb blasts killed hundreds of lives of Hazara ethnic.

   9. The years 2008, 2009 and 2010 was the worse years for Hazaras ethnic living in Quetta city Pakistan which is in south west of the country. The city turned to bloodshed for Hazara ethnic. So called extremist groups were attacking on Hazara people and targeting our peaceful ethnic in every area of the Quetta city. They killed politicians, lawyers, government officer who were belong to Hazara ethnic, students, sport players, businessmen, labourers and all Hazara who were trying to make movement inside the city or traveling from one corner to another corner. Not a single Hazara was safe. Wahabees (the Sunni extremist group who always take the responsibility of Hazara killing) think Hazaras are Shia it means they are infidels and the must be killed. Hazara is a minority ethnic in Quetta living in two corners of Quetta city.

   10.I was working in [location] inside the city in [shop]. I had to go to work every morning and come back at nights. While I was at work my family and especially my parents were praying for my safety at workplace. My father was an old man who was more worried than anyone else at home. We were always discussing the situation of city at home during dinners. Sometimes my father would suggest me to leave the job and flee from the city. He was worried about me and my family’s future. He was saying me that he intends to talk someone to help us and to take me out of Quetta city. But I never took his words seriously, because I knew I don’t have any documents or not any close relative in overseas that we can request them to sponsor us.

   11.I have read the notice and it could be my father might have got an Afghan ID (TAZKEERA) using my photo with a false name of [Alias 2] and a false date of birth to try and get me an Australian visa. I don’t know. I definitely had no idea about it. By giving money you can get anything there. Making an Afghan ID, driving license or married certificate is easy in Quetta. As I am not [Alias 2] those documents are fake and bogus documents. My photograph has been used without my permission and without my knowledge. My father might have talked someone to do this, if he did do it. I was completely unaware of this and I didn’t know or agree to being on an application or using a false name and false ID. As I said, I only found out when I got the notice.

   12. My name is not [Alias 2] and I have never used that name and I have never been known by that name. I have only found out that name has been used with my photograph because that is what is said in the notice. I was not born on [Date 2]. I am not [Age 1] and you can see that by looking at me. I am [Age 2]. I do not know anyone with that name. If you say I am [Alias 2] born on [Date 2] then you are saying I got married when I was 14 and had my first two children when I was 16 and 17, which is wrong.

   13. In 2011 I took a decision to flee from Quetta city. I was discussing with friend and community how to travel to Australia. I realized I must leave that city in order make my family’s future brighter. I feared if I were staying there I would have been killed- many of my [worker] friends were killed after I left Quetta.

   14.1 arrived in [Country] in [May] 2011 and I registered myself in UNHCR in [May] 2011. I was interviewed by Australian embassy. I know that I gave my statement honestly and sincerely. I have faith that I have not given any false statements.

   15. Today I am in Australia with my family. We feel safe and sound. I have a huge community Qarabagh (Qarabagh is the name of a district in Afghanistan). I am a member of [Organisation 1]. We made some nice and close family friends from these two communities. We do have family gathering almost every week. I work as [an occupation] in a [workplace] ([Employer 1]). From the first day it was in my priority that I must work and pay tax and not to depend on Centerlink. I don’t have any breaches. These days I have start working with [Service provider] part time.

   16. We can’t live in Afghanistan. It is not safe for us, and my youngest is Australian, so he would be targeted there, and so would our family.

6. The applicant’s agent also enclosed a submission outlining the following:

   -Relevant sections of the Migration Act 1958 and Migration Regulations 1994.

   -Excerpts from the Full Federal Court judgment, Minister for immigration and Citizenship v Khadgi [2010] FCAFC 145 in relation to r.2.41 and the discretionary power to cancel a visa.

   -A submission that the power in s.109 is not enlivened because the applicant had no knowledge of the earlier subclass 202 visa application and therefore had not made an application for the visa.

   -A submission that the subclass 202 visa application was fraudulently made in respect of the applicant with the result that it is taken not to be an application, with reference to the Full Federal Court judgments, Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 and Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53.

   -A submission that, if it is assumed that the applicant’s father was involved in an application made for the applicant, then there is no evidence that the applicant’s father was aware, complicit or indifferent to the fraudulent application made in the name of the applicant; and that the applicant’s father was therefore also the victim of fraud.

   -A submission regarding evidence that supports a finding the applicant was a victim of a fraudulent application, which includes the applicant’s bio-data and official document from the Afghan Embassy.

   -A submission that the delegate’s assumption was based only upon the photographic match referred to in the notice.

   -A submission that the information provided in the subclass 202 visa application clearly does not match the applicant’s personal bio-data and history.

   -Submissions regarding discretionary considerations under r.2.41, emphasising the applicant’s two minor children in Australia, one an Australian citizen; the ongoing security threats in Afghanistan; and the applicant’s contributions to the Australian community.

1. The applicant attached the following further documents to his response:

   -Certified copy of the Australian travel document biodata page for [the applicant], [number].

   -Copy of Afghan Identification Card and letter from the Embassy of the Islamic Republic of Afghanistan for [the applicant] (ID card No. [number]).

   -Certified copy of the Australian travel document biodata page for [Ms A], [number].

   -Copy of Afghan Identification Card for [Ms A] (ID card No. [number]).

   -Certified copy of the Australian travel document biodata page for [Child 2], [number].

   -Certified copy of the birth certificate for [Child 3].

   -Certified copy of document to travel to Australia for [Child 2] (No. [number]).

   -Certified copy of Afghan identification card and translation for [Child 2] (ID No. [number]).

   -Certified copy of the passport biodata page for [Child 3], Australia, [number].

   -Certified copy of the Australian citizenship certificate for [Child 3] (No. [number]).

   -Certified copy of the Islamic marriage certificate for [the applicant] and [Ms A], with translation.

   -Copy of [the applicant]’s father’s Afghan identification card.

   -Certified copy of wedding photos for [the applicant] and [Ms A].

   -Certified copy of [Community activity] participation certificate.

   -Copies of various photographs from community service participation.

   -Certified copy of a reference letter from [Organisation 1].

   -Certified copy of an employment reference letter from [Employer 1].

   -Certified copy of a character reference letter from [Mr N].

   -[Gas] account bill.

   -Copy of Record of Attendance certificate for [Workplace skills] Course.

   -Copy of income statements from the Australian Taxation Office for [the applicant].

   Delegate’s decision

2. On 9 December 2019 the delegate decided to cancel the applicant’s visa.  He was satisfied that ‘[Alias 2]’ is likely to be the applicant’s correct name based upon the copy of an Afghan identity card [Number 1] in that name.  The delegate found that the applicant had therefore provided incorrect answers in his application for the subclass 200 visa.  The delegate was not satisfied that the subclass 202 visa application was made without the applicant’s knowledge because passport photographs were supplied with the application purporting to depict the applicant.  The delegate considered it highly unlikely that a different person would apply for a visa using the applicant’s photograph.  The delegate was satisfied there had been non-compliance by the applicant with s.101(b) of the Act.

3. The delegate weighed the discretionary considerations and found that the applicant’s non-compliance with s.101(b) outweighed the reasons not to cancel his visa.

   Information to the Tribunal

   Pre-Hearing Submissions

4. On 28 August 2020 the applicant’s Agent provided a written submission to the Tribunal, outlining the following:

   a.A submission that there is no evidence that the 2009 subclass 202 visa application was made by the applicant.

   b.A submission that the 2009 Subclass 202 visa application was made without the applicant’s knowledge so was fraudulently made.

   c.A submission that, given the applicant had no knowledge of the 2009 Subclass 202 visa application, and was not complicit in it or indifferent to it, the application was infected by fraud.

   d.A submission that if the applicant’s father tried to have a visa application made for the applicant, then the applicant’s father was also the victim of fraud.

   e.A submission that the finding that the photographs of ‘[Alias 2]’ and the applicant are of the same person does not mean the applicant is [Alias 2].  The delegate provided no reasoning why he accepted the Taskera of [Alias 2] to be genuine but rejected the authenticity of the applicant’s Taskera and the letter from the Afghan Embassy.

   f.A submission that it is not logical for the applicant to marry in 2006 and then pretend to be a [age] year old single person in a visa application in 2009 as he would not be able to bring his wife and child to Australia without disclosing the fraud.

   g.Information relevant to r.2.41 considerations.

5. The Agent also enclosed the following document copies:

   -A Statutory Declaration by the applicant, dated 28 August 2020.

   -A Letter from the applicant’s wife, [Ms A], dated 26 August 2020.

   -Antenatal Records Issued by NSW Health in relation the applicant’s wife.

   -A Statement from [Mr O].

   -A Statement from [Ms P].

   -A letter from [Mr Q], dated 24 August 2020.

6. In his Statutory Declaration the applicant states:

   a.He is not [Alias 2].

   b.He is [the applicant], son of [Mr B].

   c.He does not know about the application using fake documents with his photograph.

   d.If he had known about the application he would have informed the department.

   e.His father wanted to send the applicant to another country because of the targeting of Hazaras in Quetta.

   f.The applicant’s father told him he wanted to find someone to take the applicant out of Quetta but the applicant did not take the suggestion seriously.

   g.The applicant’s father may have found an agent to make a fake Afghan identity document for the applicant without his knowledge.  The applicant’s father never involved the applicant in decision making.

   h.He has a video and photographs of his engagement party and wedding.

   i.He volunteers to have a DNA test with his mother and brother.

   j.His close friend [Mr O] knew the applicant for 17 years in Pakistan.  They worked together in a [shop].

   k.[Ms P] knew the applicant in Pakistan.

   l.[Mr Q] has been the applicant’s employer for seven years.

   m.He has worked legally and paid tax in Australia and has always respected the laws. He is active with the Qarabagh community and [Organisation 1].  His eldest son [Child 2] is in Class [level] and has done well in [sport].

   n.It was and is not safe for Hazaras in Afghanistan.

   o.It is not safe for the applicant in Afghanistan.

   p.His wife is pregnant and cannot go to Afghanistan.  It is not safe for his family in Afghanistan.

7. In her letter [Ms A], states:

   a.She is the wife of the applicant.  They married [in] 2006 and have two children together.

   b.After they married she lived with the applicant and his family, his parent and siblings.

   c.Her husband is kind gentle and hard working.

   d.Hazaras are massacred in Pakistan.

   e.Being a woman in Afghanistan is very difficult.  She has never been to school because she is a girl.

   f.Her parent fled Afghanistan with her husband’s parents when she was 14 years old.  

   g.She is pregnant and expecting a [baby] in January 2021.

   h.She cannot go to Afghanistan. Insurgents entered the maternity hospital in an Hazara area Dashte Barche (in Kabul) and murdered women and babies there.  Her community in Qarabagh are under attack.

   i.Her husband is stressed and worried about their future.

   j.She knows his family well as she lived with them in Pakistan. His mother is like her mother.   She was present when the applicant’s father [Mr B] died.  She lived in the same [location] as the applicant and his family in Afghanistan.

8. The Antenatal Records state that the applicant’s wife is pregnant and due to give birth in January 2021.

9. The statement by [Mr O] states that he is living in Melbourne. The applicant is one of his closest friends.  He has known the applicant for about 15 years.  They met in Pakistan where they worked at the same workshop.  They witnessed each other’s marriage.  They have met again in Australia where their friendship continues.  [Mr O] knows all the applicant’s family members in Pakistan.  He was in Pakistan when the applicant’s father died in 2013.  The applicant is reliable and honest and very motivated.  The applicant has always been known by his name ‘[Given name]’.  Their lives were at risk in Pakistan.  He would not want to live in Pakistan or Afghanistan. 

10. The statement by [Ms P] states that she has known ‘[Given name]’, the applicant, for nine years.  They are family friends. They belonged to the same village in Qarabagh.  She knows the applicant’s family in Afghanistan and in Australia.  During her visits to Pakistan she is invited over by [the applicant]’s family who host a small gathering.  The applicant’s mother is a great and generous woman.  [Ms P] visited Pakistan in 2013, the year the applicant’s father passed away. She paid her condolences to the applicant’s family.  She has only ever known the applicant as ‘[Given name]’, both here and in Pakistan.  [The applicant] is a valuable member of the community in Sydney.  He works hard and wants to build a successful life for his family in Australia.  There is persecution and discrimination against Hazaras in Pakistan and Afghanistan.  Hazaras are currently being targeted and killed in Qarabagh.  In Quetta the Hazara population has been isolated and confined to an area of 10km radius. To go outside the area is to risk being killed.  [The applicant] is an honest and kind-hearted friend.

11. The letter from [Mr Q] states that the applicant is his employee and gives a highly glowing reference and recommendation of the applicant’s character.

    Tribunal Hearing

12. The applicant appeared before the Tribunal on 8 September 2020 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

13. The following is a summary of the information the applicant provided at the hearing:

    a.He was born in [location], Qarabagh, Afghanistan. 

    b.He went to Quetta in Pakistan when he was about [age] and a half or [age] years old.

    c.He was born in [Year 1].

    d.He stayed in Quetta for about ten years.

    e.He attended religious school with a Mullah in [location], to learn the Koran. There were no other schools there.  He attended the religious school twice a day, each day of the week.  He can recite the Koran.

    f.He did not go to school in Quetta but he studied English there.

    g.He can speak Dari and Hazaraghi and some Pashto and English.

    h.He can read. He can write with difficulty.

    i.He can read and write in Dari. He learned to read in Afghanistan with the Mullah.  The Koran classes were in Arabic but the Mullah also taught the alphabet and some words in Dari. The applicant’s father also helped him learn to read and write. 

    j.The applicant did not work in his village because his father and uncle worked.  The applicant worked for five months or so [doing a job] in Qarabagh.

    k.He no longer has any family or relatives in [location] or anywhere in Afghanistan.  All his relatives are in Quetta.  His mother, brother and sister are in Quetta.  He has some friends from Qarabagh who now live in Kabul.

    l.He receives news about [location] from community members here who have links to [location].  They cannot contact the village elders on his behalf because most of the people who were originally there have left.  There were about 400 households in [location].

    m.The applicant does not know the [Alias 2] family.  He cannot say if his parents had any knowledge of the [Alias 2] family, maybe they did.  He has asked his mother who said that she did not know them.  They tried to find out information about the [Alias 2] family but could not find them.  His mother is sick and bedbound.  His brother tried but could not find them, maybe they are not there.  His brother was born in [year] and is about [age] years old.

    n.The applicant does not know how the [Alias 2 family] had a photograph of him. He wonders and worries about this.  His mother does not know.  Maybe his father provided the photograph.  Maybe the person said ‘I can take your son by plane to Australia’.  Maybe his father knew the [Alias 2] family.

    o.The applicant’s father would not discuss future plans for the applicant with the applicant’s mother. In Afghanistan the men are different. They do not consult with the women, they just make the decisions themselves.  His father would not tell his mother because women spread news around.

    p.A couple of times the applicant’s father mentioned that the applicant should go to Australia through a smuggler. He also mentioned Europe and the UK.  Quetta was not safe. The applicant’s father did not mention he was sending the applicant with someone. The applicant told his father there should be a blood relative else otherwise how would he travel.  He told his father to watch out and not be tricked.

    q.If the applicant had found out what his father planned he would have stopped his father and told him no, he is needed to work for the family and his father should leave him be.

    r.His father was concerned about the security situation in Quetta.  Maybe the people assured him the plan would be successful.   Perhaps his father thought the applicant would accept the plan if it was successful.

    s.The applicant did not sign the back of the photograph of himself which was submitted with the subclass 202 visa application.

    t.The applicant’s wife’s family have no family name.  The applicant’s family has no family name.  He took the surname ‘[Family name]’ when he came to Australia because that was his father’s first name, ‘[Mr B]’.  Few people in villages have family names in Afghanistan.  People in government may have family names.

    u.His family is not related to his wife’s family.  They married in 2006. Their ‘nikah’ was done in 2004.  His wife and eldest sons are Australian permanent residents.  His youngest son is an Australian citizen.

    v.It is currently the holy month of Muharram. He would not lie during this holy month.

14. The following is a summary of the information the applicant’s wife, [Ms A], provided at the hearing:

    a.She was born in [location], Afghanistan.  Some distant family friends are living in [location], but none of her relatives still live there.  She knew the applicant when she lived in [location].  Her father worked for the applicant’s father, farming.  Her family is not related to the applicant’s family.  She does not have a family name.  Before her marriage she was known as the daughter of [Mr R], which was her father’s fist name.  Nobody in the village had a family name.  Her mother’s name is [Ms S].

    b.Her family are all in Quetta.  Her parents and brother are there.  They have ever returned to visit Afghanistan.

    c.Her family do not have identity documents. She has an Afghan Taskera. She will submit this to the Tribunal.

    d.She did not go to school in Afghanistan or Quetta. She studied English in Quetta.  She cannot read or write in Dari.  She studied the Koran which is in Arabic.  Her mother taught it to her at home.

    e.She did not know about the Subclass 202 visa application in 2009.

    f.She did not know the [Alias 2] family when she lived in Quetta.

    Post-Hearing Submission

15. On 28 September 2020 the Tribunal wrote to the applicant asking for translations of his father’s Afghan identity documents and for his comments regarding discrepancies between the applicant’s Taskera registration details and the details that appear in his son [Child 2]’s Taskera.

16. On 6 October 2020 the applicant’s Agent provided the following written materials to the Tribunal:

    -An English translation of the Certificate of Military Discharge of ‘[Mr B]’.

    -An English translation of the Afghanistan Ministry of Interior Affairs, Department of Population Statistics, Registration for ‘[Mr B]’.

    -A typed letter from the applicant in which he states that his wife and son [Child 2] both applied for a Taskera in Kabul.  Their Taskeras were issued in February and March 2015.  At that time the applicant did not have a Taskera so his son [Child 2] may have been registered under his wife or wife’s parent’s registration page.  This would be why [Child 2]’s registration details differ from those of the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. 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.

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

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

20. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: the applicant had provided incorrect responses in his subclass 200 visa application form, namely:

    a.   He provided his incorrect name in his application because it is likely the applicant’s correct name is ‘[Alias 2]’.

    b.   He answered ‘no’ when asked if he had ever applied for other Australian visas before, whereas he had applied for a Subclass 202 visa on 18 August 2009.

21. The issues in this case therefore go to the applicant’s name and to whether the applicant can be considered to have applied for a Subclass 202 visa application in 2009.

22. There is no onus upon an applicant to establish that a ground for cancellation does not exist.  Generally, 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.[1]  In a matter involving a visa cancellation under s.116 of the Act, Zhao v MIMA, the 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.[2]

    [1] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

23. The Court’s comments would be applicable to cancellations under s.109 of the Act.

24. In the civil context, Dixon J in the High Court held that:

    the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.[3]

    [3] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 362].

1. While this principle may not have direct application in administrative law, the Tribunal considers it is appropriate to bear in mind the gravity of the consequences in deciding whether the ground for cancellation is made out.[4]

   Applicant’s Name

   [4] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16], the principle explained by the High Court in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on the old s.20, the precursor to ss.101-109.

2. The applicant has provided several documents in support of his claim that his correct name is ‘[the applicant]’.  These include:

   a.    An Afghan Taskera in the name of [the applicant], with his photograph.

   b.    A letter from the Embassy of Afghanistan in Canberra confirming the applicant is [the applicant].

   c.     A witness statement from a person who claims to have known the applicant in Quetta and in Australia.

   d.    A witness statement from a person who claims to have known the applicant in the Afghan village [location], in Quetta and in Australia.

   e.    His father’s Afghan Taskera.

   f.   His father’s Afghan military service card.

   g.    His son, [Child 2]’s, Taskera.

   h.    His marriage document from Quetta.

   i.   His wife’s Taskera.

3. The evidence that the applicant is [Alias 2] amounts to a Taskera in that name with the applicant’s photograph, and a photograph of the applicant with a date and the name ‘[Alias 2]’ written in English and in Dari (or a language with similar script) on the back of the photograph.

4. In the Tribunal’s view the available evidence weighs heavily in favour of a finding that the applicant’s name is ‘[the applicant]’. 

5. The Tribunal notes available country information about the ease of obtaining Afghanistan identity documents with false details.  The Tribunal accepts this could readily apply to both Taskeras, the one in the name of ‘[Alias 2]’, and the one in the name of ‘[the applicant]’.  However the applicant’s father’s Taskera and his Afghan military service card are obviously very old documents.  Given their age and the conformity in their details the Tribunal considers there is a likelihood that they are copies of genuine identity documents for [Mr B].  The Taskera in the name ‘[the applicant]’ references both his father’s name and his father’s national identity registration - namely page, volume and registration numbers.  These details match the details on [Mr B]’s Taskera and Military Service card.   The age details in the Taskera of ‘[the applicant]’ more accurately reflect the applicant’s age than those in the Taskera of ‘[Alias 2]’.  In view of all these factors the Tribunal considers it is more likely that the Taskera in the name [the applicant] is genuine than is the Taskera in the name ‘[Alias 2]’.

6. The Tribunal considers that the writing of a person’s name on the back of a photograph is an unreliable indication of actual identity.

7. The applicant has also provided a Marriage Certificate and the Birth record of his son which record his name as ‘[the applicant]’.  These documents were produced in 2015.  That time coincides with the timing of the applicant’s sponsorship of his family to Australia and the Tribunal acknowledges the applicant’s need to produce documents with identity details that reflect his identity in Australia.  However there is nothing on the face of the documents to suggest they are copies of non-genuine documents.  The Marriage Certificate bears the names, photographs and thumbprints of several attesting witnesses.  The attesting witnesses all claim familiarity with the applicant, in the name [the applicant].  The Tribunal considers that these documents cannot, on their face, be discounted as not genuine.

8. The Tribunal also gives substantial weight to the evidence of the two witnesses, [Mr O] and [Ms P].  They both detailed their knowledge of the applicant, the basis of their knowledge, their years of friendship or contact with the applicant in Afghanistan and/or Pakistan and in Australia; their years of friendship or contact with the applicant’s family in Afghanistan and/or Pakistan; and that the applicant has always been known to them as ‘[Given name]’.  The Tribunal found their evidence clear, forthcoming and consistent. 

9. In sum most of the available evidence discloses that the applicant is ‘[the applicant]’.  While the Tribunal cannot definitively state that the evidence is not fabricated, there are no apparent indications that the evidence submitted on the applicant’s behalf is not genuine. The evidence is persuasive and the Tribunal accepts that the applicant’s correct name is ‘[the applicant]’ and that he has always been known to his family and friends as ‘[Given name]’ or ‘[the applicant]’.

   Subclass 202 visa application

10. Accepting that the applicant is [the applicant], and not [Alias 2], it follows that the inclusion of ‘[Alias 2]’ with the applicant’s photograph, as a dependent in the Subclass 202 visa application was fraudulent.

11. The applicant claims to have been unaware that a Subclass 202 visa application had been made in 2009 purporting to include him as a dependent under the name ‘[Alias 2]’, until informed of this by the NOICC.  He claims he did not consent to or initiate the visa application being made. He claims he did not anticipate such a visa application being made on his behalf.

12. In sum the applicant claims that the Subclass 202 visa application was made fraudulently in relation to the inclusion of his photograph under the name [Alias 2], as a dependent.  The applicant’s Agent submits that the fraud vitiates the visa application so that it cannot be considered a valid visa application. Therefore his answer in his application for a subclass 200 visa application, that he had not previously applied for a visa, was correct, regardless of the application of s.98 of the Act.

13. In Kaur v MIBP,[5] the Full Federal Court held:

    [5] [2019] FCAFC 53 (3 APRIL 2019)

    The applicable principles on public law fraud

    The principles applicable to the determination of whether fraudulent conduct vitiates a visa application are helpfully set out in the Minister’s written submissions at [6]-[9], and were not disputed by the appellants. They arise from the High Court’s decision in SZFDE, and four decisions of the Full Court of this Court, and there is no challenge to the correctness of those authorities:

    First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves ... room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (Singh at [52]).
    
    Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]).
    
    Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]).
    
    Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.

    To this summary should be added the following propositions articulated by the High Court in SZFDE:

    (a) There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]-[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365), [47]-[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).
    
    (b) Often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted” (at [22]).
    
    (c) Circumstances where an applicant for judicial review has “colluded” in the fraud are excluded from these principles (at [28]).
    
    (d) A finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (in the words of French J in SZFDE in the Full Court, quoted with approval by the High Court at [41]).

    Relevantly for the resolution of the grounds of appeal in this case, the following matters should be emphasised:

    (a) The … first appellant, bore the onus of proving that she was the “innocent victim” of the undoubted and accepted fraud committed by S & S Migration: see Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 161 ALD 203 at [78].
    
    (b) While the High Court in SZFDE spoke only of “collusion” by a visa applicant as avoiding the otherwise unravelling effect of fraud in the public law context, authorities in this Court have held that, where a visa applicant is found to be “indifferent” to a fraud perpetrated by a third party as part of the decision-making process, this will also avoid the unravelling effect. We deal at [133]-[140] below with what we consider “indifferent” actually means in this context.
    
    (c) Relevantly to circumstances such as those the subject of this appeal, in order to deny the unravelling effect of a proven fraud, a Court must be satisfied on the balance of probabilities that a visa applicant was (recklessly) indifferent to whether her or his migration agent used unlawful means, or fraudulent information, to attempt to secure the applicant a visa: see Gill at [48]-[49]; SZFDE at [25].
    
    (d) Recalling the point made by French J in the Full Court in SZFDE, it is necessary for the Court to identify with precision what the fraud was, how it was perpetrated, and what effect it had.[6]

    [6] at [56]-[58].

    …

    One of the points made by the Full Court in Gill at [49] is that there is a distinction between:

    ... an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. [7]

    [7] at [132].

    …

    What is meant by indifference in this context approximates to what has been called “reckless indifference” at common law. That is because reckless indifference has been held to be sufficient in terms of a state of mind, to be treated along with intention, as transforming a false representation (for example) into a fraudulent one. In their written submissions, the appellants referred to the following statement by Hayne JA (as his Honour then was) in Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 194 (Brooking and Tadgell JJA agreeing):

    The expressions “reckless indifference” and “wilful blindness” are useful shorthand expressions to describe some kinds of cases of fraud. As the classical exposition by Lord Herschell in Derry v. Peek [1889] UKHL 1; (1889) 14 App. Cas. 337 at 374 shows, fraud can be proved by showing that a false statement has been made without belief in its truth or, “recklessly, careless whether it be true or false”. But as was said in the Assets Co., Ltd. case, the mere fact that a person might have found out fraud if further enquiries had been made does not of itself prove fraud. The enquiry is an enquiry for actual dishonesty not for want of due care.

    Justice Finkelstein invoked the concept of “reckless indifference” in a 2008 decision concerning an allegation of fraud by a migration agent which resulted in the appellant not attending a hearing. In SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [34], his Honour stated:

    As to false information, it will be fraudulent if it is made by a person who does not believe in its truth or is recklessly indifferent to its truth: Commercial Banking Company of Sydney Ltd v R H Brown & Co [1972] HCA 24; (1972) 126 CLR 337, 343. If the appellant’s evidence is accepted, the only findings that are open are that the agent was deliberately fraudulent or, at the least, recklessly indifferent as to what he told the tribunal. The agent’s conduct is particularly grievous because it is likely he knew that the appellant’s non-attendance would be fatal to his application.

    When placed in its proper context, in the proof of fraud, it is apparent that the requisite state of mind for “reckless indifference” is close to intention. Or at the least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that a court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act.

    What these authorities make clear is that the reckless indifference (or wilful blindness) must be as to the truth of the representation, which is said to be deliberately false. The state of mind is thus found to be close to deliberate dishonesty. Once this is understood, the need for a careful finding, based on probative evidence, becomes apparent.

    Other states of mind will not suffice. Helplessness, or a sense of helplessness, is not the same as reckless indifference. Fear of authority is not the same as reckless indifference. Nor is naivety. Nor is ignorance. Nor is want of due care: see SZFDE at [53], and Pyramid Building Society at 194. All of these states of mind need to be carefully distinguished.

    Dependence or reliance is also not the same as reckless indifference. As the Full Court noted in Gill at [50]:

    ... the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.

    So too, dependence or reliance on the advice of a migration agent …  is quite different to being recklessly indifferent to the truth of the claims and material put forward to the Department by S & S Migration as the basis on which a visa should be granted, and is thereby insufficient to be treated as tantamount to deliberate dishonesty.[8]

    [8] at [134]-[140].

14. In Kaur the Full Federal Court emphasised the need for determinations to be based upon probative evidence.  The Court expresses criticism of the primary judge basing adverse findings upon ‘speculation’,[9] or without evidence to support the finding.[10]  The Court is further critical of the primary judge’s finding that the appellant in that case was complicit in or indifferent to the fraud committed by her Agent, without a sufficient probative basis for the finding, where alternative explanations provided by the appellant were not inherently improbable.[11] The Court stated that it is open to reject the appellant’s explanations but for this to occur there needs to be reasoning and justification for such a finding.[12]

    [9] at [116].

    [10] at [112] and [117].

    [11] at [125].

    [12] at [128].

15. From the judgment in Kaur the following applicable principles can be extracted:

    -The applicant bears the burden of proof that he was not complicit in, or indifferent to, the visa application fraud committed in the Subclass 202 visa application. 

    -This requires an applicant to prove a negative.[13] 

    -The applicable standard of proof is on the balance of probabilities.[14] 

    -Indifference, or reckless indifference, is a state of mind close to ‘deliberate dishonesty’[15] or ’intention’[16].  This requires a ‘careful finding’ based upon probative evidence. [17]  Lesser states of mind will not amount to indifference so that ‘helplessness’, ‘fear of authority’, ‘naivety’, ignorance’, or ‘want of due care’ would not amount to indifference.[18]

    -If an applicant is complicit in, or indifferent to, the fraud committed there is no disabling effect on the visa application.[19]

    -To find that a person is not telling the truth is ‘not a trifle’.  The finding must not only be justifiable, it must be justified in the reasons.[20]

    [13] at [123] and [178].

    [14] at [58].

    [15] at [137].

    [16] at [136].

    [17] at [137].

    [18] at [138].

    [19] at [151].

    [20] at [165].

16. The evidence of the applicant’s involvement in the Subclass 202 visa application amounts to the inclusion of his photograph as one of the dependents. His photograph was included in the application form and on a Taskera in the name of [Alias 2]. The delegate reasoned that the inclusion of the applicant’s passport photos in the Subclass 202 visa application was indication of the applicant’s knowledge and complicity in the application.

17. The applicant has stated that he does not know how the Subclass 202 visa application came to include his photograph as a dependent in the application.  He stated it may have been his father who initiated the arrangement through an ‘agent’.  The Tribunal considers that apart from the applicant and his father, there appears no one else who would wish to include the applicant’s photograph in a visa application or a Taskera in a different name.

18. It seems very unusual that a visa application would be made on behalf of an adult, married, working male without his knowledge or approval. The applicant however claims this is not so unusual in Afghan culture.  He states that his father, as head of the household, would make decisions and take actions without consulting or informing anyone in the family, regardless of the impact of such decisions and actions upon individual family members.  He also states that his father considered it a matter of urgency to get the applicant out of Pakistan and to another country.  He confirms that he and his father discussed getting the applicant to another country but that the applicant expressed his doubt this could be achieved and that the possibility of falsely including the applicant in another person’s application was not raised.  He also stated that his father’s lack of disclosure that he was taking steps to arrange a visa application for the applicant was based upon both culture and his father’s awareness that the applicant would not be favourable to falsifying a visa application on his behalf.

19. The Tribunal notes that the Subclass 202 visa application has not been signed by the person purporting to be ‘[Alias 2]’.

20. There are four passport style photographs of the applicant included in the Subclass 202 visa application. Each of them has the date ‘[Date 2]’ written in pen in English and the name ‘[Alias 2]’ written in pen in English and a Dari-like script, on the back of the photographs.  The same photograph is attached to the Taskera in name of ‘[Alias 2]’.

21. There are seven people (including ‘[Alias 2]’) included in the Subclass 202 visa application and passport-style photographs of each of them, with their names and dates of birth written on the back, are part of the application.   On the photographs for five of the applicants (including ‘[Alias 2]’) the details on the back are written in blue ink. The details on the back of the photographs for the other two applicants are written in black ink. The Tribunal notes that the handwriting in blue ink appears to be the same for each of the five photographs (and different from the handwriting in black ink).  It therefore appears that the same person wrote the details on the back of the photographs for five of the applicants, including ‘[Alias 2]’.  The Tribunal considers this indicates a likelihood that the applicant himself did not write the name and date of birth details on the back of the photographs of him.

1. This still leaves open the possibility that the applicant himself supplied the photographs for the purpose of being included in the visa application and to obtain a Taskera.  Accepting that only he or his father would initiate such an application then either he or his father supplied the photographs to be used in the application and the Taskera.  The applicant either did so directly, or knowingly through his father, or unknowingly through his father.  Any of these possibilities could have occurred.  While the likelihood of the photographs being supplied without the applicant’s knowledge appears lower than the other two options it remains very possible, if his father was withholding information about a visa application from the applicant.  The Tribunal considers this scenario not inherently improbable.

2. There is no clear or compelling evidence before the Tribunal that the applicant did intentionally or knowingly cause his photographs to be used in the Subclass 202 visa application, or that he was indifferent to this being done.  The applicant’s evidence that he had no knowledge of this and does not know how it occurred is not directly controverted by any other available evidence. 

3. There is also no clear or compelling evidence that the applicant was knowingly involved in the Subclass 202 visa application or that he had expressly or impliedly authorised or consented being included in such an application.  While there remain doubts as to the applicant’s involvement, knowledge or acquiescence in the Subclass 202 visa application, there is only speculation to suggest that he was knowingly involved or indifferent to, his inclusion in the visa application.  

4. The inclusion of a markedly lower age for ‘[Alias 2]’ and a description of him as unmarried and without children, lends some support to the applicant’s assertions he had no involvement or knowledge in, or indifference to, the fraud.

5. The applicant has offered a plausible explanation and there is some circumstantial evidence that supports his explanation.  Countering this is merely the existence of the applicant’s photographs in the application and a lack of certainty as to why.  Bearing in mind the cautions expressed by the Full Federal Court, the Tribunal considers the available evidence does not provide a sufficiently probative basis for it to find that the applicant was complicit in, or indifferent to, the fraud in the Subclass 202 visa application. Given the scarcity of available evidence, on balance the Tribunal considers the applicant has discharged his onus of proof in establishing a lack of complicity or indifference in the fraud.

6. This would mean that the applicant’s father was responsible for initiating events that led to the applicant’s photograph being included in the Subclass 202 visa application with the name ‘[Alias 2]’, as a dependent in the application.  Whether the applicant’s father did so by authorising the inclusion of his son under a false identity with another visa applicant’s family, or whether this method was chosen independently by an Agent is unknown. The former appears the more likely but not a certainty.  Regardless, either scenario does not of itself make the applicant complicit in, or indifferent to, the fraud.

7. Given the above finding that inclusion of the applicant’s photograph with a different name in the Subclass 202 visa application was a fraudulent application in which the applicant was not complicit or indifferent to, the Tribunal finds that the Subclass 202 visa application purporting to include the applicant as ‘[Alias 2]’, is vitiated by fraud.  The Tribunal finds that it was not a visa application by the applicant.

8. On the basis of these findings the applicant’s response in his Subclass 200 visa application that he had not previously applied for a visa is correct.

9. The Tribunal therefore finds that the applicant did not provide incorrect information in his Subclass 200 visa application as particularised in the s.107 notice.

10. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

11. The Tribunal would also note that if the discretionary power did arise in this application, the majority of the prescribed circumstances would not favour the exercise of the power to  cancel the visa.

    DECISION

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

    Melissa McAdam
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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