2002491 (Refugee)

[2021] AATA 4415

2002491 (Refugee) [2021] AATA 4415 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2002491

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kate Millar

DATE:22 October 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 22 October 2021 at 4:05pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in visa application – family composition and citizenship – father deceased and applicant an Afghani citizen – allegation that father alive and he and applicant Pakistani citizens – statement by wife that she visits applicant’s parents – money transfers to person in Pakistan with same name as father, who is required to hold national ID to open bank account – department’s notice lengthy and not always clear – much information about issues not relied on by delegate, including other relationships – gravity of decision to cancel – requirement for positive satisfaction that ground exists – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1), 424A, 438

CASES
MIAC v Brar [2012] FCAFC 30
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] arrived in Australia on 22 May 2010, claiming to be an Afghani citizen in need of protection. He was granted a Subclass 866 (Protection) visa on 5 October 2011.

2. On 21 January 2020, his visa was cancelled under s 109 of the Migration Act 1958 (the Act) because a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found he had provided incorrect information in his application for a protection visa in claiming his father was deceased and he was a citizen of Afghanistan. The delegate found that his father is alive, and that [the applicant] is a citizen of Pakistan.

3. In reviewing this decision, the Tribunal must decide if [the applicant] provided incorrect information in his application for a protection visa, and, if so, whether his visa should be cancelled.

4. [The applicant] attended a hearing on 9 June 2021 to give evidence and present arguments and was assisted by his legal representative. The Tribunal was assisted by an interpreter in the Hazaragi and English languages.

   BACKGROUND

5. [The applicant] claimed in his protection visa application that he was born in [Location], Urozgan, in Afghanistan, and left Afghanistan in approximately 1994 when he was [Age] years old and fled to Pakistan. He claimed that in 2004 one of his brothers was murdered by the Taliban at an Ashura Day March. He stated his father travelled to Afghanistan in 2006 and did not return, and his mother died in 2009.

6. On 31 January 2012, [the applicant] sought to sponsor [Ms A], as his spouse, and [the child], as his son, for refugee and humanitarian visas. In this application, [the applicant] listed [Ms A] as the biological mother of [the child], and said he commenced his relationship with [Ms A] in March 2007, separated briefly, but then resumed the marriage.

7. On 11 November 2012, [Ms A] and [the child] (referred to in this application as [alternative spelling]) applied for partner visas on the basis of [Ms A]’s relationship with [the applicant].

8. As detailed in the decision of the delegate, the Department received information alleging that [the applicant]’s true wife is [Ms B] who arrived in Australia as the spouse of his alleged brother [Mr C]. It was alleged [the child]’s mother is [Ms B]. The delegate states that [Mr C]’s family structure on his arrival in Australia was similar to [the applicant]’s claimed family structure. In particular, both stated that [Mr D] is their father.

9. [Mr C] married [Ms B] and sponsored her to come to Australia on a spouse visa. The allegation states that [the applicant] is now sponsoring [Mr C]’s wife to come to Australia.

10. [The applicant] and [Ms A] were asked to provide DNA test results to show the relationship between [the child] and [Ms A]. These results showed [Ms A] is not the biological mother of [the child]. [The applicant] then stated [the child] is the child of his first wife [Ms E].

11. In an interview with an officer of the Department, [Ms A] stated [the applicant] was previously married to [Ms B], and that his parents were alive, and she visits them in Quetta. The Department also located photographs on social media of [the applicant] and [Ms B] with [the child]. These photographs were deleted shortly after these were put to [Ms A] for comment.

12. The Department also obtained evidence that [the applicant], [Ms B] and [Mr C] have transferred money to [Mr D] through multiple transactions over a considerable period of time entitled “family support or assistance”. The delegate states that in order to collect money transmitted in Pakistan, the person must provide a bank account or photo identification.

13. Many of the sums transferred to [Mr D] were sent to the [Name] Bank, which requires members to hold a Computerised National Identification Card (CNIC). To open a bank account in Pakistan, the person must have identity documents.

14. The delegate found this supports the contention that [Mr D], who the delegate found was the father of [the applicant], is a citizen of Pakistan. The delegate concluded [the applicant] was therefore also a citizen of Pakistan.

15. The Tribunal requested [the applicant] to provide DNA to show the relationship between himself and [Mr C]. [The applicant] initially accepted this offer, however later stated [Mr C] had declined to undertake DNA testing. The Tribunal also sought verification of an identity for [the applicant] issued by the National Statistic and Information Authority in Afghanistan identifying [the applicant] as a citizen of Afghanistan, however the Department was unable to seek verification of this document at the time.

16. [The applicant] sought the assistance of the Tribunal in obtaining DNA evidence to establish his relationship with cousins located in [three countries], as he stated this would also establish his citizenship of Afghanistan. The Tribunal provided the assistance as requested, and some further time to provide this information, however [the applicant] was unable to obtain the information and stated it was difficult to contact his cousins. He was also advised a direct cousin DNA test was not possible and required supporting DNA evidence, such as a full uncle or grandparent. [The applicant] only had contact with a half-uncle. The Tribunal declined to provide further time to access DNA testing, as this would also require verification of the identity documents of the cousins as Afghani nationals, which faces the same difficulty as verifying [the applicant]’s national identity documents. No further DNA test results were provided to the date of this decision.

    PRELIMINARY MATTERS

17. The Department file includes a certificate issued under s 438 of the Act. A valid certificate issued under this section prevents the Tribunal from disclosing information or documents the subject of the certificate.

18. A copy of the certificate was provided to [the applicant] through his representative on 7 January 2021, and he was invited to provide submissions on the validity of the certificate. The Tribunal did not receive any submissions on the validity of the certificate.

19. The Tribunal proceeded on the basis that the certificate was valid but remained mindful of its obligation under s 424A to disclose information that would be the reason, or part of the reason, for affirming the decision under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101 of the Act. This requires a non-citizen to fill in his or her application form in such a way that no incorrect answers are given or provided.

21. The exercise of the cancellation power under s 109 of the Act requires the Minister to issue 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.

    Did the notice comply with the requirements in s 107?

22. Section 107 requires that where the Minister considers the visa holder did not comply with s 101 of the Act, the Minister may give the person a notice “giving particulars of the non‑compliance” and providing other information set out in s 107.

23. To issue a valid notice, the Minister’s delegate must first reach a state of mind to engage s 107. The notice sets out that the delegate considered [the applicant]’s father is not deceased as he claimed and that he is a citizen of Pakistan, in part based on an allegation made to the Department and on financial records. The Tribunal finds the delegate reached the necessary state of mind to engage s 107.

24. The notice must then “give particulars of the non-compliance”. The purpose of giving the particulars is to allow a person who may have his or her visa cancelled the opportunity to respond before the Minister decides under s 108 that there has been non-compliance in the way specified in the notice. The Full Court in MIAC v Brar described the purpose of this statutory scheme is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and respond to them.[1]

    [1] MIAC v Brar [2012] FCAFC 30 at [61].

25. The notice issued under s 107 of the Act is lengthy and contains a great deal of information. It is not always clear how this information relates to the alleged incorrect information. This makes it difficult to discern the particulars relied on to show the incorrect information. For example, there is a great deal of information about the alleged relationship between [the applicant], [Ms B] and [Mr C], and it is unclear how this relates to what in essence is alleged, which is that [the applicant] provided incorrect information when he stated his father is deceased and incorrect information about his nationality and claims for protection. Where a person’s first language is not English, which is often the case, this makes it difficult for the person to understand the alleged non-compliance to which the person is being asked to respond. It also, as in this case, means that the visa holder is put to the time and expense of responding to allegations that do not form part of the alleged incorrect information.

26. It would be preferable for a notice to set out the information alleged to be incorrect and then the information on which this is based rather than a history of all matters that may be incorrect but are not ultimately relied on by the delegate.

27. The Tribunal considered whether this resulted in [the applicant] not being given particulars of the incorrect information. While it is possible to see circumstances in which the volume of information with no clear connection to the alleged incorrect information results in the visa holder not effectively being given notice of the allegations and a chance to respond to them, in this case the allegations were contained and particularised in the notice and [the applicant] did, in fact, respond to them, and the Tribunal finds the s 107 notice sets out particulars of the non‑compliance.

28. The s 107 notice otherwise complies with the requirements in s 107, and 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?

29. The non-compliance identified and particularised in the s 107 notice was non‑compliance with s 101 of the Act in the following respects:

    ·     In answer to Question 9 Form 866B – [the applicant] stated his father was deceased. The delegate considered this incorrect as she found his father is living.

    ·     Question 20 of Part C of Form 866 in answer to “what is your current citizenship?” and he answered “n/a”. The delegate found this is incorrect as she found he is a citizen of Pakistan.

    ·     Question 42 of Part C of Form 866 refers to his statement in support of his protection application. In this he says he left Afghanistan as a child. The delegate found this is incorrect as he was a citizen of Pakistan who lived there all his life.

    ·     Question 44 of Part C of Form 866 where [the applicant] states he fears harm as an Afghan citizen. The delegate found this is incorrect because he is a citizen of Pakistan who will not be returned to Afghanistan.

    ·     Question 45 of Part C of Form 866 in which he stated he fears harm if returned to Afghanistan as Pashtuns make it dangerous for Hazara and his land was confiscated when his family left and he has no community to protect him. The delegate found this is incorrect as he is a citizen of Pakistan.

    ·     Question 46 of Part C of Form 866 asked if Afghan authorities will protect him and he answered he would not be protected because he is Shia, the Taliban has influence over the government and he is easily identifiable due to his physical features and accent. The delegate found this answer incorrect as he is a citizen of Pakistan and has the same rights as a citizen of Pakistan.

30. In summary, the alleged incorrect information is that [the applicant]’s father is deceased and that he is a citizen of Afghanistan. If he is a citizen of Pakistan rather than Afghanistan, this results in finding his claims to fear harm as a citizen of Afghanistan, and if returned to Afghanistan, are incorrect.

31. Considerable information has been provided about the relationship between [Ms B] and [the applicant], and there are significant and understandable concerns about the nature of this relationship. However, this does not form part of the information alleged to be incorrect in the s 107 notice and does not establish either that [the applicant]’s father is living or that he is a citizen of Pakistan.

32. Similarly, the allegation that [Mr C] is [the applicant]’s brother does not of itself establish that his father is living or that he is a citizen of Pakistan. It is not asserted that [Mr C] is a citizen of Pakistan.

33. The delegate refers to evidence that they all transfer money to a [Mr D]. It is difficult to see how the transfers from [Ms B] and [Mr C] to [Mr D] establish either of the central facts in issue, or would strengthen or add more weight to the transfers [the applicant] himself makes to [Mr D].

34. At its highest, the nature of his relationship with [Ms B] and [Mr C] relates to [the applicant]’s credibility if it could be established that he has not disclosed the nature of this relationship.

35. Even if it is established that he has been untruthful about the nature of his relationship with [Ms B] and [Mr C], given the gravity of cancelling a protection visa, this does not of itself establish that he has been untruthful about his father or his citizenship.

    The degree of satisfaction required

36. In looking to the degree of satisfaction required to make a finding that [the applicant] has provided incorrect information in his visa application, the Tribunal has had regard to Sun v Minister for Immigration and Border Protection,[2] in which Justices Flick and Rangiah state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making.

    [2] [2016] FCAFC.

37. However, the Tribunal is mindful of the gravity of the consequences of cancelling a protection visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[3]

    [3] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20].

38. In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal.” [4]

    [4] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119].

39. In looking at whether it has been established that [the applicant]’s father is living and that [the applicant] is a citizen of Pakistan, the Tribunal has kept in mind the gravity of the decision and the central relevance of such a finding and it has exercised caution in evaluating the factual foundation for such a finding.

40. The Tribunal has further taken into account that there is no onus on [the applicant] to establish a ground to cancel his visa does not exist; it is for the Minister to establish the ground does exist.[5] The Tribunal must be positively satisfied the ground exists, and not that it is possible the ground exists.

    [5] Zhao v MIMA [2000] FCA 1235 at [25] and [32].

    Is [the applicant]’s father deceased?

41. In summary, the delegate relied on the following:

    ·     An anonymous allegation was received by the Department that [Ms B] is [the applicant]’s wife and [Mr C] is his brother.

    ·     DNA tests show [Ms A] is not the mother of [the child].

    ·     [Ms A] stated at interview with the Department that [the applicant]’s previous wife, and the mother of [the child], is [Ms B].

    ·     [Ms A] stated at interview that [the applicant]’s parents are alive and she visits them in Quetta.

    ·     [The applicant] and [the child] appear in photographs, subsequently deleted, on [Ms B]’s social media accounts.

    ·     [Mr C], [Ms B] and [the applicant] all send money to [Mr D]. These transfers are entitled “family support or assistance”.

    ·     [Mr D] is the name given by [the applicant] for his father.

    ·     The address of [Mr D] on the money transfers is [Name] Road, Quetta, in Pakistan. [The applicant] gave this as his address in his entry interview.

42. Of this information, matters that could show his father is still living are:

    ·     He names his father [Mr D], and [the applicant]  sends money to a person of this name.

    ·     The address provided for [Mr D] in transferring money is the same address [the applicant] provided in his entry interview.

    ·     [Ms A] stated at interview that [the applicant]’s parents are living and she visits them in Quetta.

43. In his response to the s 107 notice, [the applicant] provided a statutory declaration and further documents. As it is relevant to the matters that could show his father is living, he declared:

    ·     The money sent to [Mr D] was for rent and family support for his brother, his wife and his child. He would also donate money for people in need.

    ·     [Mr D] is a neighbour of his brother [Mr F]. He sent money to [Mr D] as his brother is a drug addict and [Mr D] is an honest person.

    ·     [Mr D] does not have a bank account with [Name] Bank because he is an Afghan national. There is no requirement for him to hold a bank account to receive the money. They send [Mr D] the receipt when they transfer money to him. He takes the receipt to the bank to receive the money. Nothing else was required to receive money from the bank.

    ·     What the bank advertises on its website about requiring a CNIC is different from its actual practice.

    ·     [Mr D] is not his father. He lives in the same suburb as [the applicant]’s family and is a neighbour.

    ·     [Name] Road is not just road, it is a large area consisting of thousands of people and houses.

    ·     His parents are not alive. [Ms A] declared that they are alive by mistake and meant that she was visiting his family not his parents.

    ·     He can provide a statement from [Ms A] and a death certificate for his father.

1. It is difficult to discern the information provided with this statement, as documents on the Department file are not dated when they are received, and it is not clear from the file who has provided each document. As it relates to whether his father is still living, it appears [the applicant] provided:

   ·     A statement from [Ms A] that [the applicant]’s father died in 2006. [Ms A] states that whatever she had stated [at interview] was about the family of his uncles and his brothers and sisters, and that she had discussed his uncle’s family.

   ·     A summary of money transfers through Ria showing transfers from [the applicant] to:

   o   [A named person], [Name] Road

   o   [A named person], Karachi Pakistan

   o   [Mr D], [Name] Road, Quetta

   o   [A named person], [Name] Road, Quetta; and

   o   [A named person], [Name] Road, Quetta.

2. At hearing, [the applicant] reiterated in oral evidence that he sent money to [Mr D] because his brother has a drug addiction and he could not send money to his brother as he was not giving the money to his wife and child.

3. In regard to the interview with [Ms A], she was talking about his brothers and sisters. He said why would he say his parents were dead if they were not? [The applicant] said [Ms A] was living with his mother and assisting her. He said [Ms A] assisted his sister on the death of his mother.

4. The information that supports the contention that [the applicant]’s father is alive is that money transfers have been made to a person with the same name as his father, the address provided in the money transfers is the same as his stated address in his entry interview, and [Ms A] said at interview his parents were alive.

5. Having examined maps of the area, the Tribunal is satisfied that [Name] Road comprises an area that contains many residences, and that this does not establish by itself that [the applicant]’s father is alive. The Tribunal considers little weight can be given on this information to establish his father is alive.

6. The Tribunal is not prepared to infer in the absence of any other information that the most likely explanation for transferring to a person of the same name is that the person to whom the money is transferred is [the applicant]’s father. [The applicant] has provided a reason for the transfers to this person as he states his brother is addicted to drugs and was not giving the money he sent to family members as intended.

7. [The applicant] has given evidence, and [Ms A] has provided a statement that she was referring to his uncles and brothers when she referred to visiting his family.

8. The evidence of [the applicant] was given under affirmation, including his statutory declaration and a statement from [Ms A]. This must be weighed against evidence that money was transferred to a person with the same name as [the applicant]’s father, and a report by the delegate that [Ms A] said at interview she visited [the applicant]’s parents.

9. While there is some evidence that shows that [the applicant]’s father may be alive, the Tribunal does not consider this is sufficient to positively establish that his farther is alive, and that [the applicant] has provided incorrect information in his visa application that his father is deceased.

   Is [the applicant] a citizen of Pakistan?

10. The second piece of incorrect information alleged to have been provided by [the applicant] is that he is a citizen of Afghanistan. The delegate found he is a citizen of Pakistan. This relies on a chain of reasoning as follows:

    ·     [The applicant]’s father is alive;

    ·     [The applicant] transfers money to his father;

    ·     To receive the money, [the applicant]’s father has to have a Pakistani identity card, a computerised national identity card (CNIC);

    ·     Therefore, [the applicant]’s father is a citizen of Pakistan; and

    ·     Therefore, [the applicant] is a citizen of Pakistan.

11. The Tribunal is not satisfied that [the applicant]’s father is living. However, even if it were satisfied, it would not necessarily accept each of the steps in this chain of reasoning had been established.

12. The delegate also refers to [Ms A] being unfamiliar with a taskira (Afghan identity document) and states this shows her taskira is bogus. As [Ms A] states she has lived in Pakistan her whole life, the delegate concluded she is a citizen of Pakistan which in turn made it more likely that [the applicant] is a citizen of Pakistan. The Tribunal does not accept this line of reasoning.

13. [The applicant] has provided a copy of an original and a translation of a verification from the Islamic Republic of Afghanistan, Afghanistan Central Civil Registration Authority, attesting to his identity. This includes his photograph and was issued [in] February 2021.

14. The Department was unable to verify whether this document was genuine. The document provides consistent information about his date and place of birth. [The applicant] provided the taskira and translated taskira of those who attested to his identity, and who he names as his uncle and cousin. The documents are reported to be issued by the National Statistics and Information Authority, which is consistent with the issuing authority for identity documents.[6]

    [6] DFAT Country Information Report Afghanistan 27 June 2019, Australia: Department of Foreign Affairs and Trade (DFAT), 27 June 2019, pp. 51-52.

15. The Tribunal is not satisfied on the information before it that [the applicant] has provided incorrect information in his visa application that he is a citizen of Afghanistan. It follows from this that the Tribunal is also not satisfied that the alleged incorrect information about his claim to require protection as a citizen of Afghanistan is incorrect.

    CONCLUSION

16. There are elements to [the applicant]’s narrative, particularly about his relationship to [Ms B] and [Mr C], that attract doubt. However, doubt does not mean a ground to have his visa cancelled has been established. The Tribunal has found it is not satisfied that his father is still living or that he is a citizen of Pakistan, and therefore it is not satisfied he has provided incorrect information under s 101 of the Act.

17. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Kate Millar
    Senior Member