2001497 (Refugee)
[2021] AATA 2019
•30 April 2021
2001497 (Refugee) [2021] AATA 2019 (30 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2001497
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Christopher Smolicz
DATE:30 April 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 April 2021 at 9:45 am
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – religion – Shia – race – Hazara / Farsiwan – identity details – family composition – death of the applicant’s father – fear of the Taliban – Pakistani citizenship – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109, 189, 36, 65, 424
Migration Regulations 1994, Schedule 2; r 2.41CASES
DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248Any 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 applicant arrived in Australia by boat [in] April 2011 and identified himself as an Afghan national of Shia religion born in [year].
On 6 January 2020 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that they considered the applicant had given incorrect information in his protection visa application about his date of birth, place of birth, family composition, right of residency and protection claims.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Material under non-disclosure certificate
A certificate was issued by a delegate of the Minister under s.438(1)(a) of the Act in relation to documents contained on the Department’s file ([number]).
The Minister (or delegate) may place restrictions on material given to the Tribunal by the Department. Section 438 permits the Minister to certify in writing that the disclosure of information is contrary to the public interest or notify the Tribunal that it was given in confidence to the Department.
The Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal has formed the view that the certificate is valid. The Tribunal provided the applicant’s representative with a copy of the certificate. The representative made submissions regarding the certificate which are addressed further below under the heading “adverse information”.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
The s.107 notice is dated 28 December 2018 and was sent to the applicant by registered mail. The notice sets out in detail the information given by the applicant in his protection visa application (Form 866 Part B and Part C) that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. The Tribunal is satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the notice was non-compliance with s.101(b) and can be summarised as follows:
· The applicant arrived in Australia [in] April 2011 as unauthorised maritime arrival (UMA). In his protection visa application lodged on 8 June 2011, the applicant claimed to be a “Kandahari” Shia, born [on DOB 1], an Afghan citizen born in Afghanistan.
· The applicant declared that in about 2001 the Taliban killed his father and elder brother because the family were Shia and the Taliban wanted to seize the family’s land.
· The applicant provided details of family composition comprising his parents and [siblings], including his deceased father [Father Name A] and deceased elder brother [Brother A].
· After his father’s death the applicant (aged [age]) and his family fled Afghan for Pakistan where they lived illegally.
· He feared harm in Afghanistan because of his Shia faith and minority Farsiwan ethnicity; he would be mistaken/perceived as Hazara as was his father.
· If he returns to Afghanistan the Taliban will think he has returned to reclaim his family’s land, and this would put his life in danger.
· On 14 June 2012 he was granted a protection visa.
Particulars of non-compliance
The Department considered the applicant gave incorrect information in his protection visa application about his age, family composition, right of residency and protection claims because:
· The applicant provided no documentary evidence such as a death certificate to support his claim that his father was dead.
· Evidence indicated that his [Sibling B] was born in [later year] which undermines his father’s claimed death in 2000.
· The applicant gave inconsistent evidence as to whether his [younger siblings] were his [siblings] or his cousins throughout the application processes. This evidence was relevant because it contradicted his evidence that his father was dead.
· The applicant phoned his father upon his arrival to Australia.
· The applicant’s father has a current [social media] page that contains photos of him and the applicant together that were taken after the grant of his protection visa.
· The applicant never had a brother named [Brother A] who was killed because there’s no documentary evidence to support this claim.
· The applicant didn’t originally claim the existence of brother [Brother A] in his biodata interview after arriving in Australia, where he only listed [fewer] siblings.
· The applicant claimed that his [Brother A] was killed at the same time as his father, but given the evidence that his father is alive this does not support the fact that he had a brother killed at the same time by the Taliban.
· During applicant’s citizenship interview on 7 December 2016 the applicant didn’t mention this brother despite being specifically asked, and only referred to him when it was put to him that he had claimed another sibling in his entry interview on 4 May 2011 and in his protection visa application.
· The applicant’s inability to recall details about Afghanistan and his ability to describe in detail where he resided in Pakistan supports a finding that he never lived in Afghanistan.
· Photos on his father’s [social media] page show his father travelled to Iran which suggests his father held a passport and had a right to reside in Pakistan.
· The "trigger event" (of his father and brother being killed) didn’t occur, and therefore the applicant’s protection claims including the Taliban seizing their family land and the family having to flee to Pakistan did not occur. The applicant and his family therefore chose to reside in Pakistan and were not precluded from returning to Afghanistan due to fear of harm.
· The evidence on the applicant’s [social media] account to support his correct date of birth to be [earlier DOB 2].
· At his citizenship interview, the applicant advised his wife was younger than him, and since her date of birth is [DOB 3] this indicates he was born before then, consistent with his dob of [DOB 2] as per his [social media] account.
The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.
The applicant responded to the s.107 notice on 18 January 2019 and denied that he had provided incorrect information.
The applicant stated that his previous migration agent completed the protection visa application form incorrectly. He says the Department has only selected parts of his interview responses to “strengthen the allegations”. The applicant disputes that his father is alive and states that a [social media] page under his name doesn’t prove his father is alive. He claims his brother created a [social media] page for his uncle years ago and his uncle used the name “[Father Name A]”.
The delegate found that there had been non-compliance with s.101(1)(b) of the Act in relation to answers given to question 13, Part B, and questions 8, 43, 44, 45, 46, 47 and 48 of Part C in the protection visa application. The delegate considered the applicant’s response to the NOICC and cancelled the visa.
AAT review proceedings
The applicant provided the Tribunal with a statement dated 24 February 2021 in response to the issues raised in the NOICC. The Tribunal was also provided with the following new evidence which was not before the delegate:
· Afghani identify document (taskira) with translation purporting to be issued by the Afghanistan Central Civil Registration Authority in 2019 as evidence of the applicant’s age, identity and nationality.
· A number of statutory declarations and reference letters issued by members of the Australian community who know the applicant.
· Correspondence from the [Community Organisation 1] in support of the applicant’s Shia faith and Afghan identity.
· Three translated Afghan reference letters and related identity documents from people in Afghanistan who purport to know the applicant and his family.
The applicant denies he provided incorrect information in his protection visa application. He claims he was born in Kandahar Province, Afghanistan, in about [year]. He is an Afghan citizen. He provided the Tribunal with a taskira which he claims is proof of his identity and nationality.
He claims Afghan do not record exact dates of birth, and when questioned by the Department he could only give rough estimates. His family recorded his date of birth in the back of the Quran, which is no longer in his possession.
His father is [Father Name A], a landowner. He comes from a Shia Muslim family who were disliked by the Taliban, who are Sunni Muslims. The Taliban demanded his father’s land, and when his father refused to hand over the land he was killed along with his older brother [Brother A] in 2001.
He only has faint memories of Afghanistan but claims to remember the bodies of his brother and father being delivered to his doorstep. He did not ask his mother many questions about their life in Afghanistan since this would bring up painful memories for her. He does not remember any details about his province in Afghanistan because he was too young. His family was not educated and did not know cultural details about Kandahar. He thinks his father may have been Hazara and his mother is Farsiwani.
After the murder of his father and brother, his family moved to Pakistan where they lived as illegal immigrants. During this time, his [uncle] ([Uncle A]) became the protector and provider for the family who helped them escape from Afghanistan.
[Uncle A] had his own children ([Child A] and [Child B]) from a previous marriage and the children were incorporated into his family. He grew up believing that [Child A] and [Child B] were his [siblings].
He grew up in Pakistan, but he and his family did not have residency rights. He does not know anything about the Proof of Registration (PoR) and his family did not apply for it.
The situation in Pakistan was dangerous and his family decided he should seek a better life in Australia. With the assistance of a people smuggler, he arrived in Australia as an unauthorised maritime arrival in 2011.
He denies the allegation that he made a telephone call to his father in Pakistan when he arrived on Christmas Island. He claims that when he arrived on Christmas Island, he was dazed and confused after his harrowing boat journey to Australia. The number that he dialled was his mother’s number in Pakistan. He does not remember making the telephone call and does not remember telling immigration officials exactly who he was calling because it was so long ago.
He states that during an interview with the Department in 2012, it was put to him that the dates of birth of [Child A] and [Child B] did not match the chronological sequence of his father’s death. The applicant claims he made a telephone call to his mother to ask about this discrepancy and she told him for the first time that [Child A] and [Child B] were really his cousins. He claims that this information needs to be understood in the context of Afghan adoptive practices. He claims that since [Uncle A] was now a father figure to him and his siblings, his uncle’s children became his siblings by customary adoption.
The applicant states that his protection claims are genuine and had nothing to do with his family composition and he genuinely fears for his life in Afghanistan because he is a Shia Muslim.
In relation to the [social media] posts in the name “[Father Name A]” the applicant claims his brother made the [social media] profile for his [Uncle A]. He claims it is actually [Uncle A’s] [social media] page and his photographs.
He is unable to obtain a death certificate for his father and brother because record keeping in Afghanistan is not maintained and Afghan villagers would not concern themselves with such practices. He is not able to get official government documents about an incident which occurred 20 years ago.
He refers to three Afghan witnesses who remember the murder of his father and brother as proof of their death.
He fears returning to Afghanistan because he belongs to the Shia religious minority group that has been persecuted by the Taliban in Afghanistan. He claims he has a prominent profile in Afghanistan because the Taliban would assume that he has returned to take his family land.
The situation for Shias has now got worse in Afghanistan because the Islamic State have replaced the Taliban and there is no state protection because the government is weak and unable to prevent the proliferation of terrorists in Afghanistan.
He also has not lived in Afghanistan for 20 years and the country is foreign to him and he has no close family in Afghanistan.
Tribunal hearing
The applicant appeared before the Tribunal on 3 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicant was represented in relation to the review by his registered migration agent.
Credibility
The Tribunal finds the applicant’s evidence at the hearing was evasive, vague and inconsistent. The Tribunal did not find the applicant’s evidence to be a credible. The Tribunal raised its concerns with the applicant at the hearing.
The applicant maintained at the hearing that he was a Shia Muslim born in Kandahar, Afghanistan, in about [year]. His father and elder brother were killed by the Taliban in about 2001 and his family fled to Pakistan. His family lived in Pakistan as illegal undocumented migrants and he travelled to Australia on a false Pakistani passport arranged by people smugglers. He does not have any Pakistani identity documents although he married a Pakistani national [in] August 2013. He has no children. In January 2014 he attempted to sponsor his wife to come to Australia, but the application was refused because his visa was cancelled.
The Tribunal questioned the applicant about his employment in Pakistan. The applicant said he was well known for his [occupation 1] work and had worked as [an occupation 1] in Pakistan for about 10 years prior to arriving in Australia. The Tribunal finds the applicant’s response inconsistent with the applicant’s claims he was [age] years old when he arrived in Australia. It does not seem plausible that the applicant would start to work as [an occupation 1] at the age of [very young age].
The Tribunal referred the applicant to the [social media] page in the name of his father ‘[Father Name A]’. The Tribunal observed that the [social media] page was active when he applied for the protection visa and listed the applicant by name as a friend. The page has numerous photographs of [Father Name A variant] in different settings and years. According to the NOICC, there are photos of [Father Name A variant] in Iran at Jamkaran Mosque and a photo of the applicant hugging [Father Name A variant]. The Tribunal told the applicant that the evidence appearing on the [social media] page is a strong indication that his father was still alive when the applicant arrived in Australia.
The applicant repeated his claim that the [social media] page was set up by his brother in Pakistan for his [Uncle A]. The applicant said the photos were of his uncle and not his father. The applicant further claims his brother does not know that his father was killed by the Taliban and believes that [Uncle A] is his father.
The Tribunal finds the applicant’s evidence illogical and difficult to accept. The applicant was unable to explain why his brother was not aware of his father’s death or why he would maintain an active [social media] page for his father. It is unclear why the uncle ([Uncle A]) would agree to have his photos posted under the name of [Father Name A]. It is unclear why the applicant’s brother would continue to post photos of [Uncle A] when he was traveling to Iran. The applicant was unable to provide any meaningful response to the Tribunal’s concerns and said that people in Pakistan use social media differently than in Australia.
The Tribunal questioned the applicant about his [Uncle A]. The applicant displayed limited knowledge of his uncle. When the Tribunal expressed surprise that he knew little about his uncle, the applicant said he was not very close to his uncle and did not ask him about his work. The Tribunal finds the applicant’s evidence inconsistent with his statement where he claims [Uncle A] assumed the role of his father after his father’s death in 2001; that his uncle’s children ([Child A] and [Child B]) grew up with his family and he thought they were his siblings until he arrived in Australia; and that his family lived in the same house with his uncle in Pakistan. The Tribunal also finds the applicant’s evidence inconsistent with his earlier evidence that his brother still believes that [Uncle A] is his father.
The Tribunal observed that the photos on [social media] show the person identified as [Father Name A variant] visiting a mosque in Iran which would suggest this person had travel documents and was not undocumented. The applicant said that the person in the [social media] posts was his uncle and he travelled on false travel documents. After further questioning, the applicant said he did not actually know whether or not [Uncle A] had false travel documents, but such documents were easy to obtain, and people used them in Pakistan.
The Tribunal questioned the applicant about his [social media] page which lists his birthday as [DOB 2]. The Tribunal noted that he posted information about the astrological star sign Taurus on his [social media] page which would also suggest he was born in April. The applicant was unable to provide a meaningful or coherent response to the evidence.
The Tribunal observed that according to the NOICC, he travelled from Australia to Pakistan from [April] 2015 to [May] 2015. The Tribunal referred the applicant to [Father Name A’s] [social media] page which depicts a photo of him embracing [Father Name A variant] and a photo of a cake with the words “Happy Birthday [Applicant’s name]”. The Tribunal observed that the post appears to coincide with the date of birth that appears on his [social media] page ([DOB 2]). The Tribunal finds that the [social media] post is strong evidence that the applicant was celebrating his birthday with his father in Pakistan in April 2015. The Tribunal also notes that according to [Father Name A’s] [social media] page, he was educated in [a town] located [distance] north-east of Lahore, Pakistan, in the Narowal District.
The applicant denied he was celebrating his birthday with his father. He was unable to provide a meaningful response about the photograph of birthday cake and claims that the photograph popped up on [social media] and his brother posted it.
The applicant said he set up a [social media] account when he arrived in Australia and used the false date of birth [DOB 2] which was the date of birth used in his false Pakistani passport.
He claims he could not set up the [social media] account under his real dob because he was a minor at the time. The Tribunal asked why he chose to use the false date that was in the passport. The applicant could not provide a meaningful response. The Tribunal does not find the applicant’s evidence to be logical or consistent with his claim that he was [younger age] years old at the time. The Tribunal notes that [social media] is a social media platform that is clearly used by [teenagers].
The Tribunal questioned the applicant about his wife’s age. The applicant said she is older and was born in [year]. The Tribunal noted that when he was interviewed by the Department as part of his citizenship application in December 2016, he was asked about his wife’s age and said she was younger. The Tribunal noted that his answer was consistent with him being born in [earlier year]. The applicant said he did not say she was younger or older to the Department.
The applicant claims he was [age] years old when he arrived in Australia. The applicant’s day and month ‘[DOB 1] was ascribed to him at the protection visa application stage by the Australian authorities, as a makeshift birthday, as is often the practice (usually ‘1 January’ or ‘31 December’), for administrative purposes in Australia and other countries.[1]
[1] Washington Post, ‘In Afghanistan, Jan.1 is everyone’s birthday’ , December 31, 2013, >
The Tribunal has had regard to country information and accepts that it is common in the Afghani culture for people to not know the exact dates of birth. The documentary systems in Afghanistan are poor and insufficient to accurately record the dates of events. DFAT confirms that the Afghan authorities did not historically issue birth certificates, which remain far from common; the high number of home births makes the process of registering births challenging; the reporting of birth dates is unreliable and reported dates are likely to be approximate.[2]
[2] DFAT Country Information Report Afghanistan 27 June 2019 at 5.49
The Tribunal does not however accept the applicant’s evidence that he was [age] years old when he arrived in Australia.
The Tribunal referred the applicant to the NOICC and noted that it is recorded in the Department’s records that when he arrived on Christmas Island, he made a telephone call to “[name identified as his father]”. The applicant said he was on a boat for many hours. When he arrived, the authorities gave him some paper and asked him to write down his father’s name and a telephone number. The telephone number was his mother’s and he spoke to his uncle and told him he arrived.
The Tribunal does not find the applicant’s explanation credible. The Tribunal does not accept the applicant would be writing down the name of his father as a contact person if he had been deceased for 20 years. The Tribunal finds that the record of the telephone call held by the Department is persuasive and strong evidence that the applicant’s father was alive when he arrived in Australia.
The Tribunal questioned the applicant about the evidence he disclosed in his entry interview dated 4 May 2011 about his two youngest siblings. The delegate noted that his mother did not remarry and according to the dates of birth it was not possible for the siblings to have been born if his father had died in about 2000/2001. The delegate noted that this was further evidence that his father was not deceased when the applicant applied for protection.
The applicant said “[Child A] and [Child B]” were his cousins. He was young and did not know they were his cousins when he was growing up with them. It was only after he arrived on Christmas Island and spoke to his mother that he found out they were not his siblings. He claims his mother was pregnant with [Sibling B] when she arrived in Pakistan.
Religion
The Tribunal questioned the applicant about his religion, if he attends a mosque in Australia and the name of the mufti who says the prayers. The Tribunal finds the applicant’s response at the hearing was confused, vague and difficult to follow. For example, he found it difficult to provide evidence about the address and name of the mosque. After further questioning, the applicant said he attends the [named community] mosque [at location] although he claimed there is a new mosque under construction. He claims that he prays twice a week and [an named leader] and says the prayers at the mosque. The Tribunal has had regard to open source information and notes that the [Community Organisation 1] is located in [a location in] South Australia, and is a non-profit organisation for social, educational and religious purposes, having members from Pakistan, Afghanistan and India.[3]
[3] [Source deleted.]
In support of his claim that he is from the Shia religion, the applicant provided the Tribunal with correspondence issued by the director ([named]) of the [Community Organisation 1] in Adelaide. [This director] confirms that he has known the applicant for about five years and that he is Shia Muslim of ‘Afghan origin’ who regularly attends the mosque and is an active volunteer.
In assessing the applicant’s evidence about his religious practice in Australia, the Tribunal is prepared to accept that there may have been some interpreting issues which explain the applicant’s incoherent response. The Tribunal also accepts that there is a new mosque under construction in South Australia which may explain the confusion about the location of the mosque. The Tribunal accepts the applicant is a Shia Muslim who prays at a Shia mosque in South Australia.
The Tribunal questioned the applicant about the incidents when his life was in danger in Pakistan. The applicant said the place where he was working came under attack from the “BLA” [Balochistan Liberation Army].[4] Shots were fired, and he broke his foot. He knows the BLA were behind the attack because they have long beards and they don’t like the Shia. The applicant said he fears the government in Afghanistan, Daesh, and the Taliban who kill Shia in Pakistan.
[4] The Balochistan Liberation Army (BLA) is an ethnonationalist militant organization, comprised mostly of Marri and Bugti tribe members, fighting against the Pakistani government for greater regional autonomy for the province of Balochistan. The organization was founded in 2000 and has used IEDs, mortar strikes, ethnic genocide, and small arms attacks against Pakistani government affiliates, Punjabi, and foreign workers in Balochistan. Balochistan Liberation Army.pdf | Powered by Box
In assessing the applicant’s claim that he is a Shia Muslim, the Tribunal has also had regard to [Father Name A variant’s] [social media] page and finds that there are photos of the applicant’s father visiting the Jamkaran Mosque in Iran. Reports confirm that the Jamkaran Mosque in Iran is a popular pilgrimage site for Shia Muslims from all over the world.[5]
[5] Masjid-e-Jamkaran | Iran Visitor - Travel Guide To Iran
The Tribunal has had regard to the evidence about the applicant’s religious faith and accepts the applicant is a Shia Muslim.
Nationality and ethnicity
In support of the applicant’s claims that he is an Afghan national who was born in Afghanistan, it was submitted that he is a fluent speaker of Dari. The Tribunal has had regard to reports which confirm that Afghanistan has two official languages, Pashto and Dari, however most Dari speakers natively call their language Farsi or Persian. The Persian language in Afghanistan was officially renamed Dari in the country’s 1964 Constitution, and the practice has since persisted. It is reported that “… speakers of Afghan Persian (Dari) are over half the population of Afghanistan, they are divided between several ethnic groups, such as the Tajiks, Farsiwan, Hazara, and the Aimaq; the single largest ethnic group in Afghanistan are the Pashto-speaking Pashtuns, also historically known as the Afghans.”[6]
[6] Afghanistan’s Persian Linguistic Identity - The Diplomat
The Tribunal questioned the applicant about his ethnicity. The applicant said he came from the Farsiwan ethnic group. When asked to provide further information, he said they call them “Dari”. The applicant said he was not sure where Farsiwan people originate from; he thinks they came from Iran to Afghanistan to do religious teaching. After further questioning, the applicant said his mother was Farsiwan but his father was from the Hazara or Tajik ethnic groups.
The Tribunal finds the applicant had provided different information about his ethnicity since he had arrived in Australia. For example, according to the Independent Protection Assessment decision record, he took part in an interview on 8 March 2012 where he claims that he had recently found out from his mother’s brother that his father’s ethnicity was Farsiwan like his mother.[7] When he first arrived in Australia, he said he was Kandahari, and the Department noted that there is no such ethnicity. He subsequently said he may be Hazara because his father looked Hazara, but he is unsure, then he said he was not Hazara but came from the Farsiwan ethnic group.
[7] [Source deleted.]
After further requestioning, the applicant’s agent confirmed that it is not suggested the applicant comes from the Hazara ethnic group and he does not have facial features characteristic with the Hazara ethnic group, but he is a Shia Muslim, and like the Hazaras Shia Muslims would face persecution from the Taliban because of their Shia faith.
In assessing the applicant’s nationality and ethnicity, the Tribunal has also had regard to the following information regarding the Afghan Hazara ethnic minority group residing in Pakistan:
The Hazara ethnic minority has a long history of persecution due to their Shia faith. In Afghanistan they are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.
At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.
Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan.[8]
[8] Comparative international approaches to establishing identity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4
The Central Asian Cultural Intelligence for Military Operations provides the following information about the Farsiwan ethnic group:
Farsiwan is a group of people in western Afghanistan who speak Persian. The term “Farsiwan” means “Persian (Farsi) speaker.” The Farsiwan are not strictly an ethnic group, but are rather made up of two different ethnic groups, the Tajiks and the Pashtuns. The term “Farsiwan” primarily refers to a linguistic group, although this linguistic group has developed a historical identity that makes the term a quasi‑ethnic identifier. The Farsiwan group is also predominantly Shia Muslim, which also differentiates Farsiwan from the rest of their ethnic group and from the rest of Afghanistan. The term Farsiwan is sometimes used interchangeably with Tajik to refer to Tajiks in western Afghanistan. Pashtuns sometimes imprecisely use the term “Farsiwan” to refer to all non-Pashtu speakers. The Farsiwan are remnants of the Iranian empire that once included much of Afghanistan. The Farsiwan are located in western Afghanistan, along the Iranian border. The Farsiwan are mostly concentrated around the western Afghan city of Herat.[9]
[9] Microsoft Word - Farsiwan in Afghanistan May 12 FINAL FOR HTML.txt (publicintelligence.net)
Reports also confirm that people who identify as Farsiwan are located in the Kandahar Province of Afghanistan.[10]
[10] Kandahar - Program for Culture and Conflict Studies - Naval Postgraduate School (nps.edu)
The Tribunal accepts that people from Afghanistan can be of mixed ethnicity and it may be difficult for a person to associate or identify with one particular ethnic identity. The Tribunal finds however that the applicant’s evidence about his ethnicity is vague, evasive and not consistent with country information. In response to the Tribunal’s concerns, the applicant said he did not know much about his ethnicity until he arrived in Australia and made enquiries.
Country information suggests however that a person’s ethnicity is very important to people of Afghan origin. A person’s ethnicity defines their tribal identity, their community, it defines their political loyalties and their cultural connections.[11] The essential role of the family and community networks in providing protection, opportunities and mobility in Afghanistan is well documented.[12] The Tribunal finds the applicant’s limited insight into his ethnic identity is unusual for a person that claims to be an undocumented Afghani Shia refugee living in Pakistan.
[11] ICG 2009, UNHCR 2010, Still Human Still Here 2012
The Tribunal also referred the applicant to NOICC where it alleges that because his family had chosen been reside in Pakistan for many years, it would suggest that they are not undocumented Afghan refugees but are citizens of Pakistan. The applicant maintained his family were not citizens of Pakistan.
The Tribunal explained to the applicant that if it finds grounds exist to cancel his visa, it has a discretion, and one of the important issues that needs to be considered is if he would be returning to Pakistan or Afghanistan. The applicant maintained he is Afghani and is a Shia Muslim, and his life is not safe in Afghanistan and Pakistan because he is Shia. He claims he travelled to Australia on a false Pakistani passport.
Identity documents – taskira
As detailed above, the applicant has provided the Tribunal with a copy of his taskira in the Dari language, issued in [in] 2019. The Tribunal was provided with an English language translation issued on 28 September 2020. According to the translation, the taskira purports to be verified by the Directorate of Population Status Registration, Kandra. The applicant claims he was not issued a taskira while living in Afghanistan as a child.
The Tribunal notes that the document was not provided to the Department. At the hearing, the Tribunal expressed concern that there is no explanation in his statement how he was able to obtain the document or where it came from.
The applicant said he does not have anyone in Afghanistan and sent his father-in-law to Afghanistan to obtain the taskira. His father-in-law is Pakistani and he is not sure if he had previously travelled to Afghanistan. The Tribunal expressed surprise that his father‑in‑law would take the risk to travel to Afghanistan. The applicant said his father-in-law did not feel it was dangerous for him to travel to Afghanistan because he is a Pakistani and not Afghani.
The Tribunal asked how his father-in-law was able to go to Afghanistan to get the document. The applicant said he went to Afghanistan one month ago by car. The Tribunal finds the taskira purports to be issued [in] 2019 which is inconsistent with the applicant’s evidence his father-in-law obtained the document a month ago.
The applicant maintained his father-in-law went to the place where they issue birth certificates. He gave the name of the grandfather and father, and they found out that he has a birth certificate in Afghanistan.[13]
[13] The Tribunal confirmed with the interpret and the applicant at the hearing that the applicant was in fact referring to a birth certificate at this point when he gave his evidence
The Tribunal asked the applicant if he could be more specific about where he went in Afghanistan. After further questioning, the applicant said he travelled to Kandahar but could not be more specific.
The applicant said he did not know where he went because he has no knowledge of Afghanistan because he left when he was a small boy. The Tribunal asked the applicant how his father-in-law, who was not an Afghan, knew where to go to get the taskira. The applicant said his father-in-law went to a community centre and spoke to people in the community.
The Tribunal explained to the applicant that it had regard to country information which confirms that taskiras are the main identification document for Afghanis however they are not reliable identity documents and can be easily falsified. The applicant maintained the document was genuine because it had a registration number.
The Tribunal has had regard to country information and notes that the taskira, a one‑page official identity certificate issued by the National Statistics and Information Authority (NSIA), is the primary form of identification for Afghan citizens.
Reports confirm that in Afghanistan, the most prevalent identity document is a taskira certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskira certificate is often accepted for preparing official documents, including Afghan passports.
The ease with which bogus Afghan documentation can be obtained – in either Afghanistan or Pakistan – makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.
Reports confirm that applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents. It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[14]
[14] Comparative international approaches to establishing identity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4
DFAT reports that although the issuance of new e-taskiras (launched officially in May 2018) should help mitigate the risk of document fraud, it remains a major issue in Afghanistan. It states that genuine documents can be issued based on false information, with support forms of documentation such as school, academic or banker records easily forged. This is particularly problematic for taskiras – according to DFAT – given they are the primary document used to obtain other forms of identification.[15]
[15] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.46-5.48 and 5.54
For earlier taskiras, DFAT states:
Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.[16]
[16] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.48
DFAT also indicates that: NSIA field officers manually record the details of births and deaths; each location holds two registers, which are completed simultaneously when data is entered; when the registers become full, both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged; and one register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.[17]
[17] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.45
The Tribunal accepts that Afghan citizens displaced by the conflict in that country experience difficulties obtaining taskiras. This is because taskira access is based on recognition by family members or community elders, which poses significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity. Further, children and young people are at particular risk of lacking civil and identification documents, particularly when displaced.[18]
[18] Norwegian Refugee Council, Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016
Country information also indicates that the Embassy of the Islamic Republic of Afghanistan in Canberra aids Afghan nationals in Australia who seek verification of their Afghan identity.[19]
[19] Department of Immigration and Border Protection 2017 Afghanistan: Country Information Request: CI170615142556028: Obtaining a Tazkira from the Afghan Embassy in Canberra, Australia
There are a number of reports showing what is required to obtain a taskira: a completed application form, passport-sized photos and a copy of the taskira of a male relative on the father’s side (if the applicant does not have a birth certificate).[20]
[20] Landinfo, Country of Origin Information Centre, Report, Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, p.7, >
As to whether or not a family member can obtain a taskira for another adult family member, country information from various sources indicates that the presence of an individual (over the age of seven) is mandatory.
In advice from the Immigration and Refugee Board of Canberra in February 2019, it is stated that the US Reciprocity Schedule for Afghanistan states that applicants over the age of seven ‘must apply in person and submit a thumb print’.[21] According to a 2016 Samuel Hall and Norwegian Refugee Council (NRC) report, all Afghans are required to ‘return to their family’s place of residence, or to Kabul, to apply for [a] tazkera’.[22]
The Tribunal has had regard to the applicant’s evidence about the circumstances in which his father‑in‑law obtained the taskira. The Tribunal has had regard to the country information and finds that it casts strong doubts on the applicant’s claims that his father-in-law who is Pakistani citizen was able to obtain a taskira for in Afghanistan. In conclusion, the Tribunal does not accept the taskira provided by the applicant is a genuine document which can be relied upon as evidence of the applicant’s birth, nationality and age.
Witnesses statements from Afghanistan
The Tribunal questioned the applicant about the three statements that purport to be issued by witnesses in Afghanistan that claim to come from the applicant’s home village. The witnesses each claim to know the applicant’s father and that he and his son were killed by the Taliban in 2001 and the rest of the family left Kandahar and are now living in Quetta.
When questioned by the statements, the applicant said that his father-in-law was able to obtain them from the witnesses who live in the same area of Afghanistan where he came from. The Tribunal asked the applicant how his father-in-law knew the names of the witnesses. The applicant said his father-in-law happened to find the three people that remembered him and his father. The Tribunal asked the applicant how his father‑in‑law knew who to ask. The applicant said his father-in-law asked members of the Shia community living in that area.
[21] Research Directorate, Immigration and Refugee Board of Canada, AFG106237.E, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017‑February 2019), 6 February 2019, Samuel Hall and the Norwegian Refugee Council (NRC), Access to Tazkera and Other Civil Documentation in Afghanistan, November 2016, The Tribunal has had regard to the three witness statements and the applicant’s explanation of how they were obtained. The Tribunal has considered the applicant’s evidence and has concerns about the authenticity of the statements. The Tribunal noted that the statements are almost identical. The Tribunal does not find it plausible that the applicant’s father-in-law, a Pakistan national, would be able to travel to Afghanistan and locate three witnesses who all knew the applicant’s family, his grandfather’s name, and that the applicant’s father and elder brother were killed by the Taliban 20 years ago, and that the family now lives in Quetta, Pakistan. The Tribunal has placed no weight on this evidence.
101. In assessing the applicant’s evidence, the Tribunal notes the applicant has provided a psychological report dated 1 July 2021. The Tribunal questioned the applicant about the report. The applicant confirmed that he had only attended one appointment with the psychologist due to COVID-19 restrictions. The Tribunal noted that according to the psychologist’s observation, the applicant appeared several years older than his stated age which would seem to support the allegations that he was born in [earlier year] and not [year]. The applicant said he lost his hair because of the visa cancellation and surrounding issues. He said the taskira is confirmation of his birth date.
102. The Tribunal questioned the applicant about where the name [family name] originates from. The applicant said it comes from his grandfather. The Tribunal noted that according to country information, Afghans do not normally have surnames. The applicant said he does not know much about Afghan culture because he grew up in Pakistan since he was [age] years old. He maintained that his surname was passed on from grandfather to father.
103. The Tribunal has had regard to country information and finds that surnames in Afghanistan do not follow the same rigid rules as surnames in Western societies; it is a much more flexible concept. Country information confirms that Afghans traditionally use only a first name and generally lack a last name. Afghan people are often distinguished by their tribal affiliation, place of birth, profession or honorific titles. Afghans that have contact with the Western cultures may adopt a surname. In general, the educated or prosperous families living in urban areas use last names. In these instances, they generally select a last name that represents their tribal affiliation. It is also reported that male first names generally consist of two parts. It is common that at least one of the parts includes a common name that is usually referred to as a “subordinate name”, such as Mohammad or Ali. This flexibility within the Afghan naming norms means it is not unusual for different surnames to exist within the same family, even siblings can choose to use different surnames.[23]
Adverse information
[23] The Structure of Afghan Names, November 2009 Karine Megerdoomian (psu.edu)
104. The Tribunal has before it adverse ‘dob-in’ information that was provided in confidence to the Department and his subject certificate issued under s.438(1)(a) of the Act.
105. The Tribunal finds the dob-in information meets the definition of ‘non-disclosable information’ under s.5 of the Act. ‘Non-disclosable information’ as defined in s.5(1) of the Act includes information whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence and information or matters whose disclosure may be contrary to the national or public interest.[24]
[24] Information which meets the definition of ‘non-disclosable information’ is explicitly exempt from the obligations in s.424A and s.424AA of the Act
106. The Tribunal has given consideration to whether it is possible to nonetheless disclose the substance or gist of the information to the applicant to assist in affording the applicant procedural fairness while at the same time protecting any relevant public interest, including the interest in protecting informants.
107. The Tribunal told the applicant at the hearing that it had considered the information and was of the view that it is relevant and it would put the gist of the information to him for his comment and response using the procedure in s.424AA of the Act without disclosing the identity of its source. The Tribunal discussed the relevance and consequence of the information with the applicant at the hearing.
108. Specifically, the Tribunal informed the applicant that the Department received information in January 2018 that alleged that:
· He claims to be an Afghanistan refugee, but his nationality is in fact Pakistani.
· All his family are in Pakistan.
· He claims his father is dead, but he is alive.
· He claims his brother is dead, but he does not exist, and he only has [one other] brother who is living in Pakistan.
· The date of birth he provided to the Department when he arrived in Australia is false, and he was not a minor when he arrived in Australia.
· His correct date of birth is [DOB 2].
· The Immigration office contacted him early last year [2017] because they found his Pakistani passport and he denied it was his.
109. The applicant denied the allegations were true and maintained he was born in Afghanistan and referred the Tribunal to the taskira as confirmation of his date of birth and his Afghan nationality. He claims his father and elder brother are dead. He is a Shia Muslim. He does not have a Pakistani passport.
110. In post-hearing submissions, the applicant’s agent wrote “The applicant objects to the non‑disclosure certificate and regards Folios 10-12 and 210-211 [dob-in information] mentioned in the Notification letter to be a report of a jealous person. He is certain that the allegations regarding his identity and nationality originate either from an ex-girlfriend who sought to damage [his] reputation and employment or envious members of the Afghan community.”
111. The agent further submitted “The Tribunal has been prohibited from disclosing the details surrounding this adverse information and the identity of the informer to [the applicant]. We contended that this procedure is unfair to the applicant and places him at a great disadvantage. In the absence of any clarification from the Department about the identity of the informer or the actual content of the adverse information, [the applicant] is unable to defend his position and can only speculate as to which of his numerous enemies in the Afghan community has passed on this adverse information.”
112. The Tribunal notes the agent’s submissions but finds that it is prevented from disclosing the source of the adverse information under s.5 of the Act. The Tribunal finds that it has complied with its procedural fairness obligations to the applicant by disclosing the gist of the information to the applicant.
113. In assessing the adverse information, the Tribunal is acutely aware that allegations can be made for various reasons. The Tribunal also must exercise caution in assessing what weight to place on such information in circumstances where it does not have a statutory declaration and is unable to question the witnesses about the allegations. The Tribunal also notes the adverse information was not referred to by the Department in the NOICC. The Tribunal has given the dob-in information no weight in assessing whether the applicant provided incorrect information as detailed in the NOICC.
114. In post-hearing submissions, the applicant’s representative also raised concerns about the interpreter and her qualifications.
Interpreter issues
115. The Tribunal responded to the issues raised by the agent and invited the applicant to identify which parts of the hearing were of concern and offered to list a second hearing with a different Dari interpreter. The applicant did not request a second hearing but identified the following issues:
§ In the part of the hearing when the applicant’s uncle’s international travel was discussed, the interpreter continuously described a “fake passport” when the applicant referred to “illegal travel.” It was however acknowledged by the agent that the Tribunal allowed the representative’s interjection during the hearing to clarify the matter.
§ Throughout the hearing, the interpreter referred to the birth certificate while the applicant described his taskira. It was also noted by the agent that the Tribunal clarified the matter during the hearing.
§ It was submitted that in the section of the hearing where the applicant’s religious practices were discussed, there was misinterpretation of words “mufti” and “imam” which caused significant confusion for the applicant and effectively rendered his responses illogical and evasive and it appeared that the applicant did not know his place of worship.
Analysis
116. DFAT reports that Pakistan is host to approximately 1.4 million registered Afghan refugees and an estimated 1 million unregistered Afghans, some displaced for nearly 40 years.[25]
[25] DFAT Country Information Report 20 February 2019 [3.49]
117. The Tribunal finds the applicant is fluent in the Dari language which is one of the main languages spoken in Afghanistan. The applicant’s Shia faith and his ability to speak Dari also support his claim that he is from the Farsiwan ethnic group. Country information also confirms that many people from the Farsiwan ethnic group are based in Kandahar, Afghanistan, where the applicant claims his family originate from. The Tribunal has had regard to the applicant’s evidence and the country information detailed above and is prepared to accept the applicant is a Shia Muslim. The Tribunal is prepared to accept that cumulatively this evidence supports the applicant’s claim that he and his family originate from Afghanistan and the applicant was living in Pakistan prior to his arrival in Australia.
118. The Tribunal finds however that the applicant provided incorrect information when he applied for his protection visa. The Tribunal finds the applicant’s father was alive and living in Pakistan when the applicant applied for the protection visa. The Tribunal makes this finding having regard to the applicant’s [social media] page and the [social media] page in the name [Father Name A] (the applicant’s father). The Tribunal finds the applicant’s explanation about his younger brother creating the [social media] page for his uncle who he believes is his father is not credible. The Tribunal also finds the applicant telephoned his father from Christmas Island soon after he arrived in Australia. The Tribunal does not accept the applicant’s father and older brother were killed by the Taliban because of a land dispute. As a consequence, the Tribunal does not accept the applicant and his mother and siblings had to flee Afghanistan in about 2001. The Tribunal finds the applicant manufactured this evidence because he was born in Pakistan. The Tribunal finds the applicant was born on [DOB 2] and he provided false information about his date of birth when he arrived in Australia. The Tribunal finds the applicant’s lack of insight into his ethnic identity also supports a finding that the applicant was born in Pakistan. This finding is further supported by the fact the applicant married a Pakistani national in August 2013. The Tribunal has also had regard to [Father Name A’s] [social media] page and finds that the applicant’s father was educated in Pakistan and was able to travel to Iran from Pakistan on a number of occasions, which suggests he is not an undocumented Afghan refugee.
119. DFAT reports that in 2007, Pakistan, Afghanistan and the UNHCR signed a tripartite agreement, which gave Afghan refugees the right to register and obtain a PoR card, identifying them as Afghan refugees eligible for protection and support through UNHCR under Pakistan refugee laws.
120. DFAT assesses that approximately 2.2 million Afghan refugees have been issued PoR cards since 2006. As at 31 May 2018, 1,394,630 PoR cardholders remained in Pakistan. The Tribunal notes however that the PoR cards issued to Afghan refugees in Pakistan expired on 31 December 2012 with the government allowed some extensions.[26] DFAT also reports that many Afghan refugees in Pakistan still do not hold Afghan Citizenship cards or PoR cards.[27]
[26] Afghan refugees in Iran & Pakistan | European Resettlement Network
[27] DFAT Country Information Report 20 February 2019 [3.65]
121. The European University Institute has also provided a comprehensive and detailed report on Pakistan citizenship law. The Tribunal finds the report relevant in assessing the applicant’s citizenship status in Pakistan.
122. In this report, the author notes that ‘Over time, an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels.’[28] The report references a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). In this case, Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistan national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and aliens.[29]
[28] Nazir, F., Report on Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 5 Nazir, F., Report On Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 5-6 Afghan refugees have also been found not to have rights under the Constitution of Pakistan. In the case of Abdul Majeed and another vs. The S.H.O. Police Station Naulakha, Lahore, PLD 1989 Lahore 223, the petitioner, an Afghan refugee, sought to argue that the position of Afghan refugees was analogous to that of those who had come to Pakistan as refugees in 1947 on partition and those from the Kashmir disputed territories. The court dismissed the application holding that Afghan refugees are categorically distinguished from these Constitutionally recognised groups:
It emphasized that statutory exceptions were carved out in the citizenship laws of Pakistan for these groups. Quite the contrary, Afghan refugees were granted refugee cards and under the terms of the Geneva Accords, their stay in the territory of Pakistan is allowed for a temporary period in which foreign troops have occupied Afghanistan. For this reason, the court held, the law enforcement agencies are justified to restrict the movement of foreigner refugees in the country.[30]
[30] Nazir, F., Report On Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 6 This judicial view was confirmed in 2018 by the Islamabad High Court which cited with approval the decision of the Peshawar High Court in Sanai. The Islamabad High Court in Saeed Abdi Mahmud v NADRA 2018 CLC 1588 (Mahmud) stated as had the court in Sanai that all persons born in Pakistan except Afghan refugees were entitled to citizenship, but went on to (incorrectly) assert that Pakistan was a signatory to the Refugees Convention and therefore that Afghan refugees were the responsibility of the UNHCR and that Pakistan laws including the Citizenship Act, the Naturalization Act and the Constitution did not apply to them. The situation is further complicated by the potential for unregistered Afghan people resident in Pakistan to be considered illegal immigrants under the Foreigners Act 1946.
125. It is reported that the situation for unregistered Afghans in Pakistan appears even more parlous than for those who are registered.[31] The Foreigners Act provides for the regulation of the entry, presence and departure of foreigners who are defined in the Act as any person who is not a citizen of Pakistan.[32] Whilst registered Afghan refugees have a ‘special status’, excluding them from citizenship as above, unregistered Afghans in Pakistan are considered by the government to be aliens and illegal immigrants who may claim only alien registration, work permits and non-refoulement under customary international law.[33]
[31] Nazir, F., Report On Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 6 Sections 14, 2 of the Foreigners Act 1946
[33] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,
It is reported that in September 2018 Prime Minister Khan proposed a law which would have provided citizenship to Afghans born in Pakistan, and a private member’s bill would have extended this to Afghans living in Pakistan for 20 years or greater and who had been registered. The bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019, with the committee observing that the proposed amendment would have serious repercussions on the security and economy of the country, and that the provinces of Sindh, Khyber Pakhtunkhwa and Balochistan held serious reservations against the statement made by the Prime Minister.[34] This appears to reflect a widely held perception in Pakistan that Afghans are a security threat and an economic drain on the country, despite evidence to the contrary.[35]
[34] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,
Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,
A further complication is that the Citizenship Rules 1952 provide for the issuing of a certificate of citizenship by provincial governments for those who acquire citizenship by birth or descent, but it is not common for such documents to be issued, so NADRA is the de facto, but not legislative, authority for recognition.[36] For those who acquire citizenship by naturalisation or marriage, the Directorate General of Immigration and Passports, Ministry of Interior, is responsible for determining eligibility for such citizenship acquisition.[37]
[36] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives
59/16
[37] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives
59/16
128. The Tribunal has had regard to the country information set out above and finds that there appears to be no legal process by which Afghan nationals in Pakistan after 1962 may legitimately acquire citizenship, regardless of their status as registered or unregistered refugees (and therefore considered illegal immigrants by the Pakistan government).
129. Administratively, judicially and legislatively, the Pakistan authorities have manifested an intent to exclude Afghans from citizenship and other rights under the Constitution. When read together, the decisions of the Pakistan High Courts set out above demonstrate that Afghans, whether registered refugees or unregistered, are distinguished from other groups in Pakistan and have been specifically excluded by these court decisions from accessing citizenship through birth, but also, given the reasoning in Mahmud, through naturalisation or any of the other processes envisaged under Pakistan law for becoming a citizen.
130. The Tribunal finds there is credible country information that establishes that Afghans in Pakistan appear to have no method by which they can be recognised as citizens.
131. The applicant has claims that he departed Pakistan on a false Pakistani passport which was issued in his name with dob [DOB 2]. The Tribunal has had regard to the country information and finds that it supports the applicant’s evidence that Afghan refugees in Pakistan are able to obtain a Pakistani NIC and apply for a Pakistani passport by paying a bribe and providing false information to Pakistani government officials.[38] Reports confirm that in 2012, the Pakistani authorities arrested about 278 Afghans for possessing Pakistani NIC. The report confirms that the NIC were not fake but the process through which they were acquired was fraudulent.[39]
[38] Report on Citizenship Law: Pakistan December 2016 RSCAS/EUDO-CIT-CR 2016/13 EUDO Citizenship Observatory
[39] Dual nationals: 278 Afghans held for possessing Pak CINCs, Published by the Express Tribune, May 14, 2012
132. The Tribunal has regard to the country information and finds that it is possible the applicant was able to obtain false Pakistani identity documents and apply for a Pakistani passport which he subsequently used to depart Pakistan. The Tribunal finds that it is possible the applicant was recognised as a Pakistani citizen by Pakistani authorities however his citizenship was obtained by providing false information to the Pakistani authorities.
133. The Tribunal finds the applicant was born in Pakistan however he is a national of Afghanistan. The Tribunal finds that Pakistani law does not allow dual Afghan and Pakistani citizenship.[40] The Tribunal has had regard to the Pakistani Citizenship Act and also notes that a person can be deprived of citizenship if he obtains citizenship of Pakistan either fraudulently or by misrepresentation.[41]
[40] Section 14 of the Pakistan Citizenship Act, 1951 [Pakistan], 13 April 1951, available at: ‘The Pakistan Citizenship
Act, 1951 (as amended to 2000)’, Government of Pakistan, 15 August 2016, CIS38A80123108
[41] Report on Citizenship Law: Pakistan December 2016 RSCAS/EUDO-CIT-CR 2016/13 EUDO Citizenship Observatory p.13 on compliance
134. The Tribunal finds that there was non-compliance with s.101(a) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
135. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
136. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994.
137. The correct information: The applicant is an Afghan National, Shia Muslim from the Farsiwan ethnic group. He was born in Pakistan on [DOB 2]. The applicant worked for 10 years as [an occupation 1] in Pakistan before he travelled to Australia. His father [Father Name A] was alive when the applicant applied for the protection visa. The applicant’s father and elder brother were not killed by the Taliban. The applicant did not flee Afghanistan in 2000/2001 because his family were in a dispute with the Taliban over land.
138. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
139. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Tribunal finds that the applicant was granted a protection visa because he is Shia Muslim who fled Afghanistan after his father was killed by the Taliban. The Tribunal finds the protection visa application was granted partly on incorrect information.
140. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his protection visa application lodged on 8 June 2011.
141. The present circumstances of the visa holder: The applicant is married and has one dependent child. His wife and child remain in Pakistan and he lives alone in Australia. The applicant is currently working in Australia. There is evidence from the applicant’s treating psychologist that he suffers from anxiety and depression.
142. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The Tribunal notes that the applicant did respond to the s.107 notice and denied that he had provided incorrect information as detailed above. The Tribunal finds his responses have not been forthcoming. As detailed above, the Tribunal does not accept the applicant’s explanation about his age, family composition and the death of his father and the reasons his family fled Afghanistan to be credible.
143. Any other instances of non-compliance by the visa holder known to the Minister: The Tribunal finds that the applicant has provided incorrect information about his age and family composition when he applied to the Department to sponsor his wife to Australia.
144. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in June 2011 and approximately 10 years have elapsed since then.
145. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.
146. Any contribution made by the holder to the community: The applicant provided a number of character references from members of the Australian community stating that he is hardworking, reliable and respectful.
Other factors to be considered
147. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
148. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) of the Act has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia.[42]
[42] DMH16 v MIBP [2017] FCA 448
149. The applicant does not have any dependants living with him in Australia who may be affected by his visa cancellation.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non‑refoulement obligations under relevant international agreements
150. The Department’s Policy Guidelines set out that Australia is party to three international treaties that generate explicit or implicit non-refoulement obligations, including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
151. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
152. In relation to the Refugees Convention, the Policy Guidelines provide that:
Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).
Refoulement is prohibited under Article 33 of the Refugees Convention unless:
- there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
- the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.
153. In this case, the delegate’s decision records that the Department has not conducted an International Treaties Obligation Assessment.
Country of nationality
154. As detailed above, the Tribunal finds the applicant is an Afghan national who resided in Pakistan before he arrived in Australia. The Tribunal has assessed the applicant’s claims against Afghanistan.
Well-founded fear of persecution
155. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Shia religion.
156. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of Policy Guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case, the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019 and Country Information Report Pakistan dated 20 February 2019.
The applicant’s personal background
157. The applicant is [an age]-year-old Afghan national who was born in Pakistan and has never travelled to Afghanistan. He is a Shia Muslim from the Farsiwan ethnic group. The Tribunal accepts his family originate from Kandahar however the applicant has no family or tribal connection remaining in Afghanistan. The Tribunal finds the applicant grew up and was educated in Pakistan and has limited insight into his Afghan culture and his ethnic identity.
158. DFAT assesses that undocumented Afghan refugees in Pakistan face a high risk of official and societal discrimination, as well as harassment by security services. DFAT assesses that registered Afghans face a moderate risk of societal discrimination. Afghans of interest to the Pakistan government, irrespective of status, face a high risk of official discrimination in the form of harassment and possibly violence by security forces.[43]
[43] DFAT Country Information Report Pakistan 20 February 2019 [3.69]
159. The Tribunal accepts that as an Afghan Shia Muslim living in Pakistan, the applicant has lived in fear and experienced intimidation because of his religious beliefs. The Tribunal finds that the applicant’s claim that his place of work in Pakistan was subject to a terrorist attack by a Sunni extremist group is consistent with country information.
160. Country information confirms that the concept of Shia Muslims being heretics is widespread amongst the Sunni population of Pakistan. The conflict between the two denominations of Islam has deep roots in Pakistani society. Siddiqa (2020) mentioned that the sectarian tensions in Pakistan were on the rise as Sunni fundamentalists increased their harassment of Shias. There is a political dimension involved as well since the Sunnis in Pakistan have long accused the Shias of covertly supporting Iran.[44]
[44] Siddiqa, Ayesha (2020) ‘Shi’a-Sunni rift on rise in Pakistan, but Imran Khan govt’s silence may be strategic,’ The Print, DFAT advise that militant attacks can occur anywhere in Pakistan.[45] Specifically, DFAT reports that the underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018 and continue in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.[46]
[45] DFAT Country Information Report Pakistan 20 February 2019 [2.69]
[46] DFAT Country Information Report Pakistan 20 February 2019 [2.72]
162. The UNHCR finds that ‘members of the Shi’ite [Shi’a] community may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion, ethnicity, (imputed) political opinion, and/or other relevant grounds’.[47]
[47] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 1 January 2017, 59 <CISEDB50AD3775>
163. The UNHCR reports that Shi’ites are the main targets of sectarian attacks in Pakistan. The UNHCR reports that the number of blasphemy allegations made against Shi’ites has ‘increased exponentially’ in the period from 2012 to 2015. Extremist Sunni militant groups reportedly view the Shi’ites as ‘heretics’, ‘infidels’ and ‘apostates’ who should be punished with death. Shi’ites are subject to violent sectarian attacks by such militant groups, which are reportedly able to act with impunity.[48] The UNHCR finds that attacks are primarily targeting ordinary Shi’ite individuals in all parts of the country.[49]
[48] Ibid pp. 54-55
[49] Ibid pp. 57-58
164. The Tribunal finds that although there is a relative reduction in sectarian violence in Pakistan, the security situation is fluid and varies greatly across the country. According to the most current South Asia Terrorism Portal (SATP) report from 2021 terrorism linked incidents increased from 284 in 2019 to 319 in 2020.[50]
The applicant’s fear of harm in Afghanistan
[50] South Asian Terrorist Portal Pakistan Assessment 2021 The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Shia religion. For the reasons set out below, and having regard to the most recent DFAT reports as well as other sources discussed below, the Tribunal accepts that to be the case.
166. The United Nations Assistance Mission in Afghanistan (UNAMA) has a bleak appraisal of the current security situation in Afghanistan:
The UN Assistance Mission in Afghanistan (UNAMA) is gravely concerned about the unprecedented levels of violence harming civilians during the third quarter of 2019. From 1 July to 30 September 2019, UNAMA documented the highest number of civilian casualties that it has recorded in a single quarter since it began systematic documentation in 2009. While in the first half year of 2019 UNAMA documented a decrease in civilian casualties in comparison to previous year, in July, August and September extreme levels of violence brought the civilian casualty levels back to the unacceptable high levels of previous years. Furthermore, in the month of July, UNAMA documented the highest number of civilian casualties that the Mission has recorded in a single month. For the sixth year in a row, UNAMA has recorded more than 8,000 civilian casualties in the first nine months of the year, underlining that Afghans have been exposed to extreme levels of violence for many years, despite the statements of parties to the conflict to prevent and mitigate harm to civilians.[51]
[51] UNAMA Quarterly Report on the Protection of Civilians in Armed Conflict 17 October 2019 The Tribunal finds that the UNAMA report echoes Professor Maley warning that it is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the situation in late 2019 and beyond.[52]
[52] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019
168. The Tribunal finds that DFAT’s report also indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of anti-government elements (AGEs) remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan Province (ISKP) has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict, and no part of Afghanistan can be considered free from conflict‑related violence.[53]
[53] Ibid at 2.52 – 2.59
169. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations. Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, IEDs and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties.[54]
[54] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59
170. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and the Hazaras’ faith is particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, and Hazaras remain particularly vulnerable to being selected for abduction or violence.[55] The Tribunal finds that the applicant as a Farsiwan Shia Muslim would face similar threats to members of the Hazara ethnic group if he was to return to Afghanistan.
[55] DFAT Country Information Report Afghanistan 27 June 2019 at 2.70 – 2.74
171. Professor Maley reports that when the security situation in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line.’[56]
[56] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019
172. In relation to the risk profile for ‘Shia’, the EASO reports that the Shia community is disproportionately represented among civilian casualties in Kabul and Herat. There are reports of attacks against the Shia, especially on places where Shia gather, such as mosques, and during religious commemorations and political demonstrations. In 2018, the majority of ISKP attacks on religious sites reportedly targeted Shia communities.[57]
[57] European Asylum Support Office Country Guidance Afghanistan June 2019 p.70
173. DFAT also reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. UNAMA documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018, there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city.[58]
[58] Ibid at 3.29 – 3.35
174. In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul.[59]
[59] Ibid at 3.29 – 3.35
175. Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack.[60]
[60] As detailed above, the applicant was born in Pakistan and has never lived in Afghanistan. He has mental health issues and no family or tribal support in Afghanistan. DFAT’s most resent country information report on Pakistan also highlights the difficulties that Afghans born in Pakistan experience when they relocate to Afghanistan due to discrimination and language and literacy issues.[61] UNHCR also confirms that relocation is difficult in Afghanistan and virtually impossible without family or other networks based on tribe or friendship.[62]
[61] DFAT Country Information Report Pakistan 20 February 2019 at 3.54
[62] The United Nations High Commissioner for Refugees, ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’ 17 December 2010, The Tribunal also places significant weight on recent reports that the security situation in Afghanistan is likely to deteriorate in the reasonably foreseeable future following the historic announcement by President Biden of the withdrawal of American forces by September 2021. Professor Maley highlights that the psychological consequence of the announcement of foreign troop withdrawal from Afghanistan will encourage the Taliban to attempt to seize complete power.[63] Professor Maley further predicts that the increased violence and re‑emergence of the Taliban was likely to create “one of the largest refugee movements ever” out of Afghanistan which would “dwarf anything seen previously in Afghanistan’s history.”[64]
[63] nation › defence
[64] ttps:// In view of the applicant’s personal profile as an Afghan national born in Pakistan and the country information cited above indicating the strong and growing presence of the Taliban in much of Afghanistan, the potential for further sectarian violence, the increased presence of ISIS and the ongoing ethnic and sectarian tensions and discrimination against Shia Muslims, the Tribunal finds that the threat to the applicant is not localised and a real chance of persecution applies to all areas of Afghanistan. The Tribunal finds that relocation is not an option available to the applicant to avoid the risk of persecution.
179. For the reasons set out above, the Tribunal accepts the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion if he is returned to Afghanistan, now or in the reasonably foreseeable future.
180. The Tribunal finds that the applicant comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.
EXERCISE OF DISCRETION
181. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
182. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Christopher Smolicz
MemberATTACHMENT – 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.
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Citations2001497 (Refugee) [2021] AATA 2019
Cases Citing This Decision0
Cases Cited1
Statutory Material Cited0
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317Minister for Immigration and Citizenship v SZRKT [2013] FCA 317