2004699 (Migration)

2004699 (Migration) [2021] AATA 2071 (26 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2004699
MEMBER:Frances Simmons
DATE:26 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.

Statement made on 26 March 2021 at 5:16pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) – Subclass 200 (Refugee) visa – incorrect information in application – fraudulent identity documents –citizenship – race – Hazara – religion – Shia – Pakistani passport – claims to be citizen of Afghanistan – fraudulently obtained genuine identity documents – ablility of children of Afghan father and Pakistani mother to acquire citizenship in Pakistan – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109, 375A, 438
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Kumar v MIMA [1999] FCA 156
MIEA v Wu Shan Liang (1996) 185 CLR 259
SCAN v MIMIA [2002] FMCA 129
Zhao v Minister for Immigration [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims that he is an Afghan citizen of Hazara ethnicity and Shia Muslim faith. On 6 March 2013 he was mandated as a refugee by the United Nations High Commissioner for Refugees (UNHCR) and referred to Australia for permanent resettlement. On 25 February 2014 he was granted an Offshore Refugee (Subclass 200) (Refugee) visa (the refugee visa).
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 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act). The delegate cancelled the visa on the basis that the applicant provided incorrect information when he applied for the refugee visa.
The issue in the present case is whether the grounds for cancellation are 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Tribunal
The Tribunal has before it the Departmental file relating to the cancellation of the applicant’s visa. On 20 June 2017 the delegate sought to restrict the disclosure of material on this file by issuing a non-disclosure certificate purportedly under s.438 of the Act. However, as this case concerns the cancellation of a Subclass 200 visa the power to issue a non-disclosure certificate arises under Part 5 of the Act. Therefore, the Tribunal wrote to the Department and invited the Department to reconsider the certificate. On 20 January 2021 the Department revoked the s.438 certificate and issued a certificate under s.375A of the Act.
In the Tribunal’s opinion the certificate issued pursuant to s.375A is valid. Section 375A permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. The Tribunal is satisfied that the certificate states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. In any event, the Tribunal is of the view that the adverse information that the Department relied on in making its decision was properly disclosed to the applicant in the Notice of Intention to Consider Cancellation (NOICC).
Before the hearing, the Tribunal issued a summons to the Department with respect to the offshore humanitarian file [file number deleted]. After initially responding that the file could not be found, the Department located the file and provided it to the Tribunal. This file contains a record of the information that the applicant provided to a Departmental official when he was interviewed about his application for a Subclass 200 visa and a record of a Refugee Resettlement Form (RRF) completed by the UNHCR. There is also information which indicates that the applicant declared he was an Afghan citizen when he sought asylum in [Country 1] between 2002 and 2009.
Background
The applicant arrived in Australia [in] April 2014 on a Subclass 200 visa that was granted on 25 February 2014. The applicant lodged his application for an Offshore Refugee (Subclass 200) visa on 11 April 2013. In this application he claimed to be an Afghan citizen of the Hazara ethnicity and the Shia Muslim faith. He claimed that he fled from Afghanistan to Pakistan before marrying a Pakistani citizen and then subsequently married a Pakistani citizen and had three children. Between 2002 and 2009 he sought asylum in [Country 1] as an Afghan national before he was deported to Afghanistan.
On 16 April 2013 a Departmental officer from the Australian Embassy in [Country 2] interviewed the applicant about his application for the refugee visa. By operation of s.99 of the Act the information he provided during that interview is taken to be answers to questions in his visa application. In the delegate’s decision record, this information is summarised as follows.
·The visa holder claimed his family left Afghanistan in 1987 to Quetta, Pakistan.
·In 2003 he applied for asylum in [Country 1], however his application was refused in 2004 because the situation in Afghanistan had changed as the Taliban were gone.
·In 2009 he was deported back to Afghanistan, because the [Country 1] government determined it was safe for him to be returned to Afghanistan.
·He was asked if his wife could sponsor him to stay in Pakistan, he replied: ‘No, because there isn’t a law for that’.
·He used a bogus Pakistani passport to depart Pakistan, which had his photograph and name on it, and was thrown into the sea between [Country 3] and [Country 2].
When the applicant applied for the Subclass 200 visa the applicant provided a Refugee Resettlement Form (RRF) completed by the UNHCR with his visa application. The delegate noted that by operation of s.99 of the Act the following information in that RRF is taken to be answers to questions in his Refugee visa application before summarising the information in the RRF as follows:
·     He is a [age] year old Afghan national of Hazara ethnicity who professes the Muslim Shia faith.
·     He originated from [Village 1], [of] Jaghuri district, Ghazni.
·     He and his family left Afghanistan in 1986/1987 to Quetta, Pakistan due to the war with the Russians.
·     His father was a member of [Political Party 1]. After this party was defeated by [Political Party 2], a powerful commander named [Mr A] seized his family land.
·     In approximately 1990 he travelled to Iran and remained there until 2003, while he visited Pakistan occasionally in 2001 and 2002.
·     He married a Pakistani national whose family originates from Afghanistan.
·     He has three children who could not obtain Pakistani nationality as the citizenship law adopts the patriarchy system.
·     His parents passed away and he does not have any siblings.
·     In 2003 he went illegally to Europe and sought asylum in [Country 1]. His application was rejected and he was deported back to Afghanistan in 2009. After a short period, he returned to Pakistan.
·     In 2010 he returned to his area of origin in Afghanistan and was targeted by [Mr A] and the Taliban, who alleged he had spent some time in Europe and had returned to Afghanistan to serve the Afghan government or the European countries authorities as a spy. He fled back to Pakistan.
·     In 2011 he left Pakistan because the situation was not secure.
·     He fears returning to Afghanistan as the Taliban believes he is a spy, as a result he would be captured and executed.
In the interview with the delegate, he translated part of the [Country 1] National Anthem into Dari. He claimed his application for asylum in [Country 1] was refused because the situation in Afghanistan had changed and the Taliban had been defeated. He was deported back to Afghan in 2009, and then went to Pakistan. From Pakistan he travelled to [Country 2] with the assistance of a smuggler and used a bogus Pakistani passport to depart Pakistan, which had his photo and name on it. The passport was thrown into the sea between [Country 3] and [Country 2] as advised by the smuggler.
The Departmental official who assessed the applicant’s application for a Subclass 200 visa interviewed the applicant and considered the RRF from the UNHCR. The official found that the applicant was an Afghan national who was living in [Country 2]. The official found that the applicant had been ‘mandated as a refugee by the UNHCR and referred to Australia for permanent resettlement’. While the official considered the applicant’s account of his experiences in Afghanistan suggested that his difficulties stemmed from ‘generalised crime and civil disorder’ rather than individualised persecution, the official gave due consideration to the fact that the applicant had been mandated as a refugee by the UNHCR and was therefore satisfied that the applicant had a well-founded fear of persecution in Afghanistan.
On 4 July 2014, the review applicant submitted an application to the Department to sponsor his wife, [Ms B] (DOB [deleted]), and his children, [Miss C] (DOB [deleted]), [Mr D] (DOB [deleted]) and [Mr E] (DOB [deleted]), to migrate to Australia under the ‘split family’ provisions. In this application he listed himself as an Afghan citizen, and his wife and children as Pakistani citizens. The application was accompanied by a copy of his children’s child registration certificates issued by the Pakistani government and birth certificates issued by the Government of Balochistan, Pakistan. The birth certificates record that the children were born in Quetta, Pakistan and provide the Computerised National Identity Card (CNIC) numbers of [Given Name 1], their father, and [Ms B], their mother. The certificates also record that their paternal grandfather is called [Mr F] and provide a National Identification Card (NIC) number for this person.
After considering this information, the Department made inquiries with the Pakistani authorities to verify the CNIC issued to the applicant.
On 26 March 2019, the delegate sent the applicant an NOICC of his visa, which stated (in part):
The Pakistani Government’s National Database and Registration Authority (NADRA) is an independent and autonomous agency under Ministry of Interior, Government of Pakistan that regulates government databases and statistically manages the sensitive registration database of all the national citizens of Pakistan.
According to NADRA’s website, only Pakistani citizens over 18 years of age are eligible to be issued a CNIC. The CNIC number [deleted] was verified with NADRA who confirmed the CNIC was genuine and belonged to [Given Name 1], son of [Mr F].
The NOICC informed the applicant that his CNIC has been verified by NADRA and, relying on this evidence, it alleged that the applicant did not comply with s.101(b) of the Act because when he lodged his refugee visa application he was a citizen of Pakistan and not, as he had claimed, a citizen of Afghanistan.
Was the notice of cancellation valid?
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.
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 NOICC noted that the applicant lodged an application for an Offshore Refugee (Subclass 200) visa on 11 April 2013 in which he stated he was a citizen of Afghanistan The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in relation to information the applicant provided in the interview with the official from the Australian embassy in [Country 2] on 16 April 2013 in relation to his claims and in the RRF, which was provided with his application. The particulars of the information were identified as follows:
·     The applicant was asked if his wife could sponsor him to stay in Pakistan and he replied ‘no because there isn’t a law for that’.
The delegate considered this answer was incorrect because applicant’s children have Pakistan birth certificates which indicate that he is a holder of Pakistan CNIC. The delegate considered that as only Pakistani citizens can be issued a CNIC this indicates that the applicant is a citizen of Pakistan and has a right to reside and work legally in Pakistan.
[Miss C] and [Mr D]’s births were registered before he lodged his refugee visa application indicating that at that time the applicant was a Pakistan citizen. The delegate considered the applicant provided incorrect information about his citizenship and that the correct information was that he was already a Pakistan citizen so he did not require his wife or anyone else to sponsor him.
·     The applicant used a bogus Pakistani passport to depart Pakistan, which had his photograph and his name on it.
The delegate considered this was incorrect because it was ‘highly unlikely since the applicant was] eligible to hold a genuine Pakistani Passport [the applicant] would have instead chosen to obtain a fraudulent one, keeping [his] genuine name and image on it’. The delegate considered that this indicated he departed Pakistan en route to Australia using a legitimately issued Pakistani passport and that this was evidence he was a Pakistani citizen at the time of lodging his refugee visa application.
·     The applicant is a [age] year old Afghan national of Hazara ethnicity and the Muslim Shia faith.
The delegate considered this answer was incorrect because his children’s Pakistan birth certificates indicate that he is a holder of Pakistan CNIC and only Pakistani citizens can be issued a CNIC. The delegate noted that under Pakistani law, Afghani refugees do not qualify for Pakistani citizenship and the correct information was that he was a Pakistani citizen.
·     The applicant has three children who could not obtain Pakistani nationality as the citizenship law adopts the patriarchy system.
The delegate considered that this information was incorrect because the births of his two children were registered before the applicant applied for a refugee visa. When their births were registered, the applicant was the holder of a Pakistani CNIC, which indicates that at the relevant time he was a Pakistani citizen. The NADRA child registration certificate showed that his children have been issued with Pakistani CNICs. The delegate considered that only Pakistani citizens can be issued with a CNIC and therefore the applicant’s children are Pakistani citizens. The delegate stated that under Pakistani law, children of Afghan refugees do not qualify for Pakistani citizenship, even if their mother is a Pakistani citizen.
·     The applicant fears returning to Afghanistan as the Taliban believe he is a spy and as a result he would be captured and executed.
The delegate considered the information was incorrect because the applicant’s children’s birth certificates and his Pakistan CNIC confirm that he is a citizen of Pakistan and therefore has a right to reside and work legally in Pakistan. As a Pakistani citizen, he would not have to return to Afghanistan and could reside permanently in Pakistan with his family. Therefore, the delegate considered he provided incorrect information when he stated he feared returning to Afghanistan.
The five instances in which the applicant was alleged to have provided incorrect information all concerned his alleged failure to provide correct information about his citizenship.
The applicant was advised that he could comment on the possible non-compliance and give a written response as to why his visa should not be cancelled. He was advised that his response should provide reasons as to why he thought he had complied, or why he had not complied, with s.101(b) of the Act, why his visa should not be cancelled and provide any supporting evidence. He was advised of the timeframe within which he was required to respond in writing. He was advised of the two-step process when deciding whether to cancel his protection visa and that his written response would be taken into consideration. He was advised of the matters that would be taken into account when considering whether his protection visa should be cancelled, including r.2.41 of the Migration Regulations 1994 (the Regulations), and was advised to address these matters and any other matter he thought relevant in his response.
The NOICC also informed the applicant that his obligations under ss.104 or 105 of the Act continue. He was also informed of the provisions of ss.108, 109, 111 and 112 of the Act.
The applicant’s response to the allegations of non-compliance
In the response to the NOICC, the applicant disputed that there was non-compliance.[1] In a statutory declaration dated 8 April 2019, [the applicant] maintains he is an Afghan citizen, not a Pakistani citizen.[2] He declared that he was an Afghan national born in [Jaghori], Ghazni Afghanistan to [Mr G] and [Ms H] in or around [year]. He claims his great great grandfather’s name was [Family Name 1] which is why he uses the family name [Applicant Family Name (which incorporates Family Name 1)] as his family name and that he has used this as his family name in Australia and [Country 1].
in[1] The applicant responded to the NOIC on 9 April 2019, 10 April 2019, 13 May 2019, 15 June 2019, 25 June 2019, 8 October 2019, 10 October 2019, 2 November 2019, 6 November 2019 and 16 December 2019.
[2] Statutory Declaration of [applicant name] dated 08/04/2019.
The applicant claims that he left Afghanistan with his father when he was around [age] before travelling to Iran on his own to work.[3] In June 2001 he returned to Quetta and married a Pakistani citizen. He declares that he obtained a fraudulent Pakistani CNIC to enable him to travel to and from Iran and claims that ‘thousands of Afghan refugees in a similar situation to myself obtained a fake Pakistani CNIC card and matching Pakistani passport in order to make life practically possible’. The applicant provides details about the cost of obtaining this documentation fraudulently and explains an agent helped him to obtain a fraudulent CNIC by bribing NADRA officials, and then he subsequently paid money to renew his CNIC due to bribery. He claims that he had a non-genuine Pakistani passport and CNIC and that the father’s name in his CNIC is fictious but that [Given Name 1] is his given name.
[3] Statutory Declaration of [applicant name] dated 08/04/2019, paras [9]–[10].

The applicant declares he had an Afghani National Identity Booklet (taskira) as a child but that this taskira was no longer in his possession. He sought asylum in [Country 1] in 2002 as a Hazara Shia Afghan citizen. When he sought asylum in [Country 1], he asked his wife to post his original taskira booklet to [Country 1] to show the [Country 1] authorities. His taskira recorded his name as ‘[Given Name 2]’ son of [Mr G], grandson of [Mr I]. The [Country 1] authorities certified that he was an Afghan national and he was eventually deported from [Country 1] to Kabul. His deportation occurred suddenly, and he was not allowed to take possessions with him. His original taskira was lost when he was detained by [Country 1] immigration compliance.
The applicant declares that his father was born in Afghanistan and he had a copy of his father’s taskira. His mother and father are now deceased. In April 2019 he attended the Afghan Embassy in Canberra to apply for a replacement taskira and for original taskiras for his three children. The applicant provided the Afghan Embassy with a copy of his father’s taskira and he completed a National Identity Verification Form. Following the instructions of the embassy, he posted the identification form to an agent in Kabul.
The applicant’s statutory declaration was accompanied by the documentation he submitted to the Afghan embassy in Canberra,[4] including a copy of the taskira of his father, [Mr G], as well as copies of taskiras said to belong to his brothers.
[4] [Applicant’s] Afghan Embassy Canberra Identification Verification issued 2 April 2019, translated 9 October 2019; [applicant’s] Afghan Embassy Canberra Identification Verification issued 2 April 2019, re-translated 7 April 2019.
The applicant’s wife provided a statutory declaration dated 8 April 2019, in which she corroborated the applicant’s claims. She explained that [the applicant]’s taskira was not returned by the [Country 1] authorities and that she organised Pakistani passports for her children based on the applicant’s Pakistani passport (which was not genuine) and CNIC in 2016 as she was desperate to satisfy the visa requirements and take the children to Australia to join her husband.
The applicant subsequently provided a replacement taskira (no.[deleted]) issued on [date] June 2019 in the name of [Given Name 2 with Applicant Family Name]. On 2 November and 5 November 2019, the applicant provided taskiras for his three children, [Miss C], his daughter; his two sons, [Mr E]; and [Mr D].[5] The applicant also provided photographs of the biodata pages of passports issued in 2019 by the Republic of Afghanistan.[6]
[5] [children’s taskera ID numbers];
[6] The MoFA attested taskiras and passports for the applicant’s three children.
The applicant also submitted copies of the documents that had been obtained from the Pakistani authorities in relation to his children. These documents include: birth certificate and Pakistani passport for [Miss C]; birth certificate and Pakistani passport for [Mr E]; birth certificate, CNIC and Pakistani passport for [Mr D]. The applicant also provided a translated copy of a document from the Government of Pakistan – National Database and Registration Authority (Ministry of Interior) confirming the registration of the applicant’s three children’s birth certificates dated 17 April 2014 as well as an earlier document from the Government of Pakistan – National Database and Registration Authority (Ministry of Interior) confirming the registration of his three children dated 3 December 2010.
The applicant submitted a translated copy of the Government of Pakistan National Identity Card for [Given Name 1], the applicant. With respect to the variation in his name, in his statutory declaration he stated he was an Afghan national born [in] Jaghori in Ghazni province of Afghanistan to [Mr G] and [Ms H] in [year]. His parents are both now deceased. His grandfather’s name was [Mr I], his great grandfather’s name was [name] and his great great grandfather’s name was [Family Name 1], which is why he used the family name [Applicant Family Name], or descendent of [Family Name 1]. He used this name in Australia and [Country 1] but it did not appear on Afghanistan identity documents until recently when he asked that it be added.
The applicant provided a translated copy of the Government of Pakistan National Identity Card for [Ms B], the birth certificate for [Ms B], and a translated copy of the marriage certificate between [Given Name 1] and [Ms B]. The applicant also submitted a translated copy of a document from the Government of Pakistan Directorate General of Registration (Ministry of Interior) listing the names of all members of [named] household (his wife’s parents) dated 3 September 1989.
The applicant claims that he is an Afghan citizen, not a Pakistan citizen. While the applicant denies there is non-compliance in the way described in the s.107 notice, in the response to the NOICC it is submitted that he would be subject to serious harm if forced to return to Afghanistan or Pakistan. He claims that he is identifiable as a Hazara due to his facial features and mother tongue (Hazaragi). It is not safe for Shia Hazaras in Pakistan, he has no friends or family outside of Quetta, and he is now at greater risk to return to Pakistan as he lived in a Western nation for over three years. He claims to fear being deported to Afghanistan by the Pakistani government. He submits that Australia has protection obligations in relation to his Hazara ethnicity, Shia religion, imputed political opinion, and as a failed returned asylum seeker from a Western nation and/or someone with connections in a Western nation. He claims he fears that as a Shia, his family will also be attacked in Afghan. He fears harm in Afghanistan and Pakistan by the Taliban Daesh, LeJ, SSP, Jesh Mohammad, ASWJ or other extremist groups.
The applicant’s brother-in-law and mother-in-law are in Australia (via spouse visa sponsorship, and his brother-in-law subsequently sponsored his mother).
On 5 March 2020 the delegate decided to cancel the applicant’s visa. The delegate concluded the applicant did not comply with s.101(b) of the Act. The delegate found the applicant was a Pakistani citizen and therefore had provided incorrect information with respect to his claims to be a citizen of Afghanistan. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. With respect to the applicant’s claims that as a member of a persecuted minority group he was a person to whom Australia had protection obligations, the delegate noted it would be open to the applicant to make a protection visa application.
Application for review
Before the hearing, the Tribunal received a statutory declaration by the applicant dated 1 February 2021. The applicant reiterates the claims he made in his earlier statutory declaration and provides details about how and when he obtained and then renewed his CNIC in Pakistan. With respect to his name, the applicant stated his Afghan National Identity recorded a formal name of [Given Name 2] and his family called him [Given Name 1], which was a shortened version of his name. When he was deported from [Country 1] he lost his Afghan National Identity Booklet. He told the UNHCR that he thought his name on that document was [Given Name 2] but he could not produce this document, and [Given Name 1] was recorded on his UNHCR forms.
The applicant provided two statutory declarations by [Mr J] (the applicant’s brother-in-law) dated 1 February 2021 and 15 September 2020, in which Mr [J] set out on the basis on which he believes the applicant to be an Afghan citizen. Mr [J] declares that the applicant did as others would in similar circumstances and acquired a Pakistani CNIC by fraudulent means.
The applicant also provided a statutory declaration from [Ms K], the applicant’s mother-in-law, dated 5 February 2021. [Ms K] declares that the applicant is the husband of her daughter and an Afghan citizen. [Ms K] recalls that she and her husband migrated from Afghanistan to Pakistan in the 1950s and that they are both Pakistani citizens and that her children are Pakistani citizens.
The applicant provided a character reference from the President of [an Australian Afghan community group] dated 25 January 2021, which states that the applicant is a kind man of good character and an Afghan Hazara Shia from Jaghori. The applicant currently works as a [occupation] and he also provided two character references, both dated 25 January 2021, from companies that employ him as a subcontractor.
The applicant appeared before the Tribunal on 24 February 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. At the time the hearing was scheduled, it was not possible to hold in-person hearings because of the COVID-19 pandemic and the applicant consented to attend a hearing conducted by Microsoft Teams. The applicant was represented in relation to the review by his registered migration agent. The applicant requested that the Tribunal take evidence from his wife, who is resident in Pakistan, and another family member but having considered all the evidence including the statutory declarations from the proposed witnesses, the Tribunal has determined it is able to proceed to a decision based on the evidence before it.
At the hearing the applicant maintained he was an Afghan citizen and that he was not legally entitled to citizenship in Pakistan. He speaks Hazaragi and Dari. He used to speak some [Country 1] but no longer speaks this language. He described paying money to obtain Pakistani identity documentation, including a CNIC and then a passport. He first paid money to obtain fraudulent identity documentation in 2002, after he had married his wife in 2001, because he planned to travel to Iran for work and to do so without documents would be both expensive and dangerous. His wife, who he said was born in Pakistan, was a citizen of Pakistan, but it was impossible for him to obtain citizenship by marrying his wife.
The applicant told the Tribunal he sought asylum in [Country 1] on the basis that he was a refugee from Afghanistan, and he feared for his life. When he was removed from [Country 1] he was removed to Kabul. He travelled from Kabul to Quetta. He subsequently applied for a Pakistani passport and national identity card and made the journey to Australia as it was insecure and unsafe for Hazaras in Pakistan. With the assistance of an agent, he travelled to [Country 2] using a Pakistani passport he obtained in his own name in 2011. He stated that he destroyed his passport en route to Australia at the instruction of the smuggler.
The applicant gave evidence he had [number] brothers, who he named, and a sister who is deceased. [Number] brothers currently reside in Jaghori in Afghanistan and his younger brother lives in Iran. His father was an Afghan citizen who was born in Afghanistan and worked for a political party, which he identified as [Political Party 1]. He claimed that he did not disclose that he had siblings in Afghanistan to the UNHCR or the Department because they lived independently from him and he did not intend to deceive the authorities. He claimed that the [brothers] who remain in Afghanistan are older than him and remained in Afghanistan after he fled.
With respect to the citizenship of his children, the applicant gave evidence that he previously believed that his children were unable to acquire Pakistani citizenship because he was an Afghan refugee. Without citizenship they couldn’t get into schools, so they paid for them to get citizenship. More recently, he has read that they can get citizenship through their mother, but he honestly did not think this was possible. The applicant told the Tribunal that his children were able to be issued with taskiras based on his taskira. He claimed that they had obtained these documents by travelling to Afghanistan with their mother.
Analysis and findings
The Tribunal has considered whether there is non-compliance in the way described in the s.107 notice. The scope of the Tribunal’s review is restricted to whether there was non-compliance in the way described in the s.107 notice, rather than just deciding whether there was non-compliance. It is not open to the Tribunal to decide whether there was non-compliance other than that particularised in the s.107 notice.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[7]
[7] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
It follows that to cancel a person’s visa under s.109, the Tribunal must reach a positive state of satisfaction that the ground for cancellation exists. This must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[8] It has been stated that the principles in Briginshaw v Briginshaw[9] have no direct application in the context of administrative decision making.[10] However, where administrative action results in the cancellation of a permanent protection visa it is appropriate to have regard to:
the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact][11]
[8] Zhao v Minister for Immigration [2000] FCA 1235 at [25] and [32].
[9] (1938) 60 CLR 336.
[10] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed.
[11] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362].
In considering whether the grounds for cancellation are made out the issue the Tribunal must consider is whether there is non-compliance in the manner particularised in the s.107 notice. If the Tribunal decides that there was no non-compliance in the way described in the notice, then the cancellation power does not arise for consideration.
Underpinning the five alleged instances of non-compliance in the NOICC is the allegation that the applicant incorrectly claimed that he was a citizen of Afghanistan when the true situation was that he was a citizen of Pakistan.
The applicant has presented his life story to the UNHCR, the Department, the Tribunal and the [Country 1] authorities. At all times he has maintained he is an Afghan citizen. To the Tribunal he denied that he was a Pakistani citizen and maintained that, while he had married a Pakistani citizen, at the time he applied for the refugee visa he did not believe that this marriage provided him or his children with a legitimate pathway to obtain Pakistani citizenship. He gave evidence that, in addition to disclosing to the official who assessed his Subclass 200 visa that he used a passport issued in his name with his image to depart Pakistan, he also recalls telling the interviewer that he held a fake Pakistani CNIC card which had been discarded during his boat journey from [Country 3] to [Country 2] along with his passport. While the record of this interview refers to the applicant’s claim that he left Pakistan using a bogus Pakistani passport, there is no specific reference to a CNIC card. However, given that there is no audio recording or transcript of the interview and the applicant did disclose that he had acquired a bogus Pakistani passport with his name and image and that a CNIC is required to obtain a passport, the Tribunal is prepared to accept that the applicant did disclose that he had fraudulently obtained a CNIC in his own name.
The Tribunal considers some aspects of his evidence about his family composition and his immigration history are problematic. In seeking to establish that he is an Afghan citizen the applicant disclosed that he had [number] siblings, with [number] surviving elder brothers residing in Afghanistan and [a] younger brother residing in Iran. The applicant claims that he did not disclose that he had siblings in Afghanistan because they lived independently from him and he did not intend to deceive the authorities. The Tribunal has some difficulty with this explanation for non-disclosure.
The Tribunal considers the failure to provide accurate information about his family composition raises about the credibility of his testimony. The Tribunal also notes that in evidence to the Tribunal the applicant did not refer to certain claims he made to the UNHCR about his experiences in Afghanistan after he was deported from [Country 1] to Afghanistan. The Tribunal considers that it is possible that the applicant may have exaggerated the difficulties that he has personally experienced in Afghanistan in the past and notes that his earlier failure to provide information about his siblings in Afghanistan meant that his interlocutors did not ask questions about these family members.
The Department did not cancel the visa on the grounds that the applicant provided incorrect information about his family composition or his name. It is not open to the Tribunal to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice. The basis for the cancellation was that the applicant provided incorrect information about his citizenship. The evidence relied upon by the delegate to cancel the visa was that the applicant held a CNIC that had been verified by NADRA and his three children also held valid Pakistani identity documentation.
To cancel a person’s visa under s.109, the decision maker must be satisfied that the ground exists. A mere suspicion is not sufficient to ground the cancellation; there must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The Tribunal has therefore considered whether the information on the Departmental file and the country information provides a sufficient basis for the Tribunal to reach a positive state of satisfaction that the applicant is, in fact, a citizen of Pakistan and that his claims to be a citizen of Afghanistan are false.
The applicant’s claims to be an Afghan citizen
The applicant has consistently claimed to be of Hazara ethnicity and Shia faith and of Afghan citizenship. The applicant participated in the Departmental and UNHCR processes with the assistance of interpreters in the Hazaragi and Dari languages. He claims his facial features identify him as being of Hazara ethnicity and he speaks Hazaragi, as well as Dari. The UNHCR accepted that the applicant was a Hazara and this finding was not questioned by the delegate. In its most recent Country Information Report on Afghanistan, DFAT noted:
The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.

The Tribunal accepts that the applicant is a Hazara and a Shi’a. Hazaras generally originate in Afghanistan but systematic discrimination and targeted violence have led to decades of persecution and displacement. In this context, the Tribunal has considered the applicant’s claim that he was born in Jaghori, Afghanistan to parents of Afghan nationality and that he left Afghanistan and travelled to Pakistan in the late 1980s. In considering the question of the applicant’s nationality, the Tribunal has had regard to the following information regarding the Afghan Hazara ethnic minority group residing in Pakistan:
The Hazara ethnic minority has a long history of persecution due to their Shia faith. In Afghanistan they are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.
At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.
Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan. In Afghanistan the most prevalent identity document is a taskera certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskera certificate is often accepted for preparing official documents, including Afghan passports.
The ease with which bogus Afghan documentation can be obtained — in either Afghanistan or Pakistan — makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.
Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents. It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[12]
[12] 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.
In the Tribunal’s opinion, the applicant’s narrative about his nationality and place of birth has been consistent over time. He has consistently said that he is a Hazara Shia Muslim born in around [year] in Afghanistan and that he left Afghanistan in around 1987. The Tribunal finds the information the applicant has provided about his race, religion and place of birth has been consistent in his interactions with the UNHCR and the Department.
The applicant has consistently stated that he was born in Jaghori, Afghanistan. In response to the NOICC, he provided primary identity documents of Afghanistan, the taskiras for himself, his father, his brothers and his children. The central Afghan identity paper (taskira) has existed (in various forms) since the 1970s,[13] however no iteration of taskiras, including the most recent, can be assumed to be genuine.[14] The applicant did not present Afghan identity documentation when he was assessed to be a refugee by the UNHCR. However, after interviewing the applicant, the UNHCR official was satisfied that the applicant was an ethnic Hazara from [Village 1], [of] Jaghuri district in Ghazni. The UNHCR official considered that the applicant ‘showed a good knowledge of relevant locations in his country of origin commensurable with someone originating from that place’ and the available cartographic evidence was in line with the applicant’s statements about his movements within Jahjori district. The official found that the applicant was an ethnic Hazara and fluent in Dari language.
[13] ‘Afghanistan: Issuance of taskera (tazkira) inside or outside of Afghanistan; information contained in the document during the Taliban and post-Taliban period’, Immigration and Refugee Board of Canada, 18 December 2007, p. 1, CIS1ACBC921033; ‘A Guide to Afghan Documents’, Fraud Prevention Unit, United States Embassy, Kabul, published by Wikileaks, 1 June 2011, p. 5, 20190116100937; ‘Afghanistan: Distribution of Controversial Electronic Identity Cards Launched’, Library of Congress, 19 July 2018, CXBB8A1DA37968 ; ‘AFG106237.E Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019)’, Research Directorate, Immigration and Refugee Board of Canada, 6 February 2019, 20190513144756.
[14] ‘A Guide to Afghan Documents’, Fraud Prevention Unit, US Embassy, Kabul, Wikileaks, 1 June 2011, 20190116100937; Access to Tazkera and other civil documentation in Afghanistan’, Norwegian Refugee Council, 8 November 2016, CIS38A80123743; ‘For Afghans, Name and Birthdate Census Questions are not so simple’, The New York Times, 10 December 2014, CX1B9ECAB8456.
The Tribunal accepts that the applicant is married to a Pakistani citizen and the father of three children born in [specified years]. He has consistently said that he sought asylum in [Country 1] between 2002 and 2009 before being deported to Afghanistan in 2009. Independent information before the Tribunal confirms the applicant was resident in [Country 1] during this period and that he informed the [Country 1] authorities he was an Afghan national. The applicant’s claims to be an Afghan citizen of Hazara ethnicity were accepted as credible by the UNHCR and by the Departmental official who interviewed him in relation to application for a Subclass 200 visa. He also disclosed to the Departmental official that he left Pakistan using a Pakistani passport issued in his name, but which he claimed was bogus.
The applicant disclosed to the UNHCR and the Department that his wife was a Pakistan citizen and he had three children who were born in Pakistan. In assessing the applicant’s claims, the UNHCR reviewed Pakistani citizenship law and concluded that ‘it is not legally possible for the PRA nor his offspring to obtain Pakistani citizenship’. In reaching this conclusion, the UNHCR referred to a statement published by the Pakistan ministry of Interior which states that children born to a Pakistani mother and a foreign national father after April 2000 are supposed to be treated as citizens of Pakistan, but goes on to examine the operation of s.10 of the Pakistani Citizenship Act, which prescribes the conditions for granting Pakistani citizenship to the foreign spouses of Pakistani men and the Pakistani citizenship rules, which require persons claiming citizenship by descent to establish their relationship with their father and that their father be a citizen of Pakistan.
The Tribunal accepts that the applicant has sought to verify his Afghan identity through the process initiated by the Embassy of the Islamic Republic in Afghanistan in Canberra. [15] The Embassy website explains:
The Embassy of Islamic Republic of Afghanistan is not the authority to issue Tazkira (Afghan National ID). Only part of the process for obtaining a Tazkira in absentia can be initiated through this Embassy. An Afghan, who wish to obtain a Tazkira, can initiate the process at this Embassy based on having one of her/his paternal relatives’ Tazkira including father, grandfather, siblings, uncles (father’s brothers), aunts (father’s sisters) and cousins of father’s side.
[15] Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039
According to the Embassy website, an interview is conduct with the applicant at the embassy and after the completed form is submitted at the embassy, the Embassy prepares ‘a document package’. This document package is sent to the Afghanistan Central Civil Registration Authority (ACCRA) under cover of an official letter from the Embassy. A copy of the document package is also sent to the Consular Affairs Directorate of the Ministry of Foreign Affairs (MoFA), while the original package is returned to the applicant. The Embassy website explains:
The applicant should send the original package to her/his representative or relative in Afghanistan, whose details are included in the application form, for further assessment and processing. After this, the file is closed at the Embassy and requires NO further follow up.
[16] Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039
If the applicant fulfils all the requirements and is deemed entitled for a Tazkira by ACCRA, he/she will be issued an Afghan Tazkira in absentia by ACCRA. Applicant’s representative or relative, mentioned in the application form, can collect the original Tazkira from ACCRA, Afghanistan (NOT from the Embassy).”[16]
The Tribunal has considered the Afghan identity documentation submitted by the applicant. The Tribunal notes that it is possible to obtain a duplicate for Afghans who live abroad and who have previously been in possession of a taskira.[17] The Danish National ID Centre published information about taskiras on 16 May 2019, referring to the newest iteration of the paper taskira, without providing specific details of the information given on it:
The A4 paper version of the tazkera has been issued since 2001. According to the Swiss Refugee Council, every clerk has its own style, when it comes to fill the tazkera by hand. In the original version printed in Pashto, there is no room for surnames, as these are traditionally not used in Afghanistan, and there is no information regarding the mother of the applicant either.
Tazkera do not contain information about the date of birth or the place of birth. Instead, tazkeras normally contain the year its owner was born or an estimate of the person´s age at the moment the document was issued. According to the Immigration and Refugee Board of Canada, the place of birth is not indicated either on the document. The “place of birth” field on tazkera refers to the birth place of the applicant´s father, who also will have applied for the document on behalf of the applicant. It can also refer to the place where the family comes from. Although surnames and dates of birth do not appear in the original version of the document, they are found on English translations of the document. In these cases, surnames are the product of individual choices and it is normal for siblings to choose different surnames.[18]
[17] Landinfo, Country of Origin Information Centre, ‘Afghanistan: Tazkera, passports and other ID documents’, 22 May 2019, p.16 Afghanistan: National Identity card (Tazkera), Danish National ID Centre, 16 May 2019, p.7 20190520111530.
As the delegate’s decision notes, document fraud is a major issue in Afghanistan, and this is particularly problematic in the case of taskiras.[19] There are a number of reports showing what is required to obtain a taskira: a completed application form, passport sized photos and a copy of the taskira of a male relative on the father’s side (if the applicant does not have a birth certificate).[20] As to whether or not a family member can obtain a taskira for another adult family member, country information suggests that the presence of an individual (over the age of seven) is mandatory.[21] However country information also indicates the procedure for obtaining taskiras varies depending on where the application is submitted (districts or provincial capital cities); staff issuing and approving documentation do not always have proper training and knowledge of the laws; and that in some cases personal connections and bribes help with the documentation process and the official process for obtaining taskiras may not be followed.[22]
[19] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.54.
[20] Landinfo, Country of Origin Information Centre, Report, Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, p.7, Research Directorate, Immigration and Refugee Board of Canada, AFG106237.E, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019), 6 February 2019.
[22] 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
While the Tribunal recognises the inherent limitations of documentary evidence of the applicant’s identity, the Tribunal accepts that the applicant has also taken steps to verify his Afghan identity through the Embassy of the Islamic Republic in Afghanistan. The applicant also appears to have relied on the replacement taskira he obtained to acquire taskiras for his children and then passports have been issued for his children based on the information in the taskiras. While the delegate did not make specific findings about this documentation produced by the applicant in response to the NOICC, the delegate noted that it is easy to obtain non-genuine taskira documents and that this documentation was only provided in response to the NOICC and the Pakistani identity documentation was obtained at an earlier date. The Tribunal notes that DFAT reports that this is particularly problematic given taskiras are the primary document used to obtain other forms of identification. In such circumstances, the Tribunal considers the replacement taskira, the taskiras for the applicant’s children and MFA attestation are not determinative. However, the Tribunal gives some weight to the documents the applicant has produced in considering his evidence about his claimed nationality and identity.
The applicant’s claim to be an Afghan national has been presented consistently to the UNHCR, the [Country 1] authorities, the Department and the Tribunal. The UNHCR considered in detail his ability to discuss the area in Afghanistan in which he claims he grew up and concluded his claim to be an Afghan national from Jaghori district in Ghazni province was credible. While not determinative, the sworn statements of his family members also support his claim that he is an Afghan citizen. However, the evidence set out above must now be considered against the evidence that led the delegate to conclude the applicant had provided incorrect information about his nationality.
Does the fact that the applicant has a CNIC support the conclusion that he is a citizen of Pakistan, not Afghanistan?
In the cancellation decision the delegate relies on the fact that the applicant has a CNIC and that, when the Department made inquiries with the relevant Pakistani authority, NADRA, the Department was informed that the CNIC number was valid. The birth registration certificates for the applicant’s children were also verified as valid as was the CNIC for his eldest son.
In response to the NOICC, the applicant claimed that he told the Departmental official that interviewed him for his offshore humanitarian visa that he had departed Pakistan on a Pakistani passport bearing his name and image but that it was fraudulently obtained. The applicant’s evidence is that he obtained a fraudulently obtained a Pakistani CNIC card in the early 2000s to facilitate his travel to Iran for work and that he had renewed the fraudulent CNIC on multiple occasions. The applicant maintains that while his CNIC may have been genuinely issued it was fraudulently obtained as he had no legal entitlement to obtain Pakistani citizenship and identity documentation. He maintains that it is possible to pay for a CNIC and a passport and that this is what he did. He claims his fraudulently obtained identity documents were then relied upon to register the birth of his children and to obtain passports on their behalf. He denied that the person named as his father on the Pakistani identity document is his father (he suggested the name may be fictious but said he did not know) and maintained that his father was born in Afghanistan.
It is notorious that national identity documentation is available through both official and unofficial means in Pakistan, and document fraud is ubiquitous.[23] However, the delegate did not accept the applicant’s claim that his CNIC was fraudulently obtained reasoning that:
… NADRA, which maintains the primary national identity database of Pakistani citizens, has blocked or refused to renew CNICs of suspected Afghan citizens. Pakistan does not recognize dual nationality with Afghanistan and only citizens of Pakistan can be issued with a CNIC. The visa holder’s CNIC was verified with NADRA who confirmed the CNIC is genuine and that he is recognised as a citizen of Pakistan.
[23] ‘DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, p. 71, 20190220093409; ‘Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees’, Human Rights Watch, 13 February 2017, pp. 28-32,CISEDB50AD247; DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 1 September 2017, ss. 5.43–45, CISEDB50AD5515
However, the country information indicates that genuine documents can be obtained through fraudulent means. Documentation including National Identity Cards, CNICs, passports, and PoR Cards, are subject to counterfeiting and being obtained by fraudulent means, and significant numbers of Afghans have illegally obtained identity documents in Pakistan.[24] One report, for example, estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[25]
[24] ‘NADRA is disrupting demographics in Balochistan by issuing fake ID cards’, The Nation (Pakistan), 7 August 2015, CXBD6A0DE19423, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17, DFAT, 9 March 2005, CX116630, ‘Afghan refugees’ Pakistani passports, identity cards illegal: NA told’, PAK Tribune, 17 November 2005, CX142357. ‘Situation and return of Afghans in Pakistan’, DFAT, 19 April 2000, CX41729, ‘Pakistani/Afghan mixed marriages’, Country Information Report No.123/01, DFAT, 23 April 2001, CX52331, ‘Afghans holding Pakistani passports’, Country Information Report No.124/01, DFAT, 24 April 2001, CX52333, ‘Unregistered Afghans to be treated as illegal immigrants’, IRIN News, 22 November 2006, CX165588.
[25] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660.
Anthropologist Alessandro Monsutti has examined the existence of large Hazara networks in Pakistan and observed the relative ease with which Hazaras may enjoy access to work, housing and identity documents.[26] According to Monsutti, connections play a significant role in the capacity of someone in Pakistan to gain identity documentation and evidence of citizenship irregularly. This means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. [27]
[26] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan’, Alessandro Monsutti, Routledge, 2005, pp. 101, 111, 120–121, CIS29035; see also ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’’, Monsutti, A, 15 December 2014, CIS2F827D91802. See also ‘Participatory Needs Assessment of Afghan Refugees in Balochistan 2014’, United Nations High Commissioner for Refugees, October 2015, CISEC96CF14180.
[27] ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’’, Monsutti, A, 15 December 2014, CIS2F827D91802.

Corruption is endemic in Pakistan, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[28] A May 2018 report by the Danish National ID Centre recorded that ‘it is easy as well as almost risk-free to bribe officials at all levels of the Pakistani administration…according to a diplomatic source, there is, in general, little or no risk associated with acquiring forged documents or genuine documents with false content’ (emphasis added).[29] The most recent DFAT report states:
Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.
…
Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.
[28] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.
[29] ‘Pakistan: The Pakistani passport and its trustworthiness’, Danish National ID Centre, 30 May 2018, p. 4, 20190205113506 (the same report notes ‘A local lawyer elaborated that it is very easy to bribe the secretary at a Union Council and the lawyer explained that one of the reasons is that the secretary is often poorly paid. The same lawyer added that the type of corruption where a person pays a bribe to facilitate the issuance of a document in which the person is legally entitled to, is endemic’.)
DFAT assesses that ‘government efforts have reduced the incidence of bribery and fraud but have not eliminated it’. For example, CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud and the authorities can and do cancel fraudulent CNICs.[30] However, while NADRA can identify fraudulent documents:
… detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.[31]
[30] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.
[31] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.
The issuance of bogus, or fraudulently obtained genuine NICs to Afghan refugees is of concern to NADRA with ongoing verification and blocking of NICs issued to Afghans.[32]
A report by CODE Pakistan notes that:
Initially, the Government of Pakistan did not maintain a proper record and database of refugees entering and leaving Pakistan. Since Pakistan’s national registration system was newly established at the time of the arrival of the refugees, and the mechanism for enquiry and verification of nationality was inadequate, some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA. Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees. On April 17, 2018, Mrs. Nusrat Sahar Abbasi, a member of the Sindh Assembly stated on the floor of the house that about 500,000 foreigners, including Afghan refugees, had fraudulently obtained Pakistan’s CNICs and had registered themselves as voters.[33]
[32] ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p. 145, St Martin’s Press, New York, in: ‘Pakistan: Shias Muslims’, 20 November 2015, COISS, p. 27, CRF909496121
[33] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
In 2018 a report in the Express Tribune noted that, according to the chairman of NADRA, some Afghan nationals obtained CNICs by pretending to be related to Pakistani nationals and that these CNICs had been blocked.[34] Another report describes obtaining passports and national identity cards is a persistent problem for members for the Shia Hazara community as the authorities ask applicants to prove that they have not ‘emigrated’ from Afghanistan’.[35]
[34] UK Home Office, Country Information Note - Pakistan: Documentation, Version 2.0, March 2020, Pakistan: Situation and treatment of Shia [Shi’a, Shi’i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias (2017-January 2020) Research Directorate, Immigration and Refugee Board of Canada.
The delegate’s decision concludes that the applicant is a Pakistani citizen because he holds a CNIC that has been verified by NADRA as genuine. However, the applicant maintains that he obtained Pakistani identity documents through fraudulent means. The applicant has previously disclosed that he has acquired a Pakistani passport through fraudulent means and that the country information indicates that some Afghans residing in Pakistan have been able to obtain NICs, CNICs, passports and other identity documents but not through legal means as they have no legal right to acquire such documentation.
While it is true that in recent years Pakistani authorities have taken action to reduce the incidence of fraud and some fraudulently obtained CNICs have been stopped, the country information indicates that it is possible to obtain ‘Genuine’ CNICs with fraudulent feeder documents and that there is little risk involved in doing so. As it is possible to obtain genuine documents through fraudulent means, NADRA records may not indicate the person or persons have a genuine right to hold the documents obtained.
Was the applicant able to acquire Pakistani citizenship?
The Tribunal has considered whether there is sufficient evidence for it to reach a real state of satisfaction that the applicant is in fact a national of Pakistan, in circumstances where firstly, the applicant has consistently claimed to be an Afghan citizen and; secondly, the applicant claims he obtained a CNIC through fraudulent means and the country information indicates that some Afghans residing in Pakistan have been able to obtain NICs, CNICs, passports and other identity documents even though they have no legal right to do so.
The Tribunal accepts that the applicant is a Hazara Shia and notes that Hazara have lived historically in central Afghanistan. Because Hazaras were the targets of discrimination and violence, first at the hands of the Soviet backed regime and then the Taliban, many Hazara seek refuge in Pakistan:
Some Hazara families’ origins in Quetta can be traced back to the late 19th century, though the majority of the community immigrated in two waves – the first during the Soviet occupation of Afghanistan from 1979 onwards, and the second in 1996, when the Taliban regime in Afghanistan began to target the Hazara.[36]
[36] EASO, Pakistan Country Overview, August 2015, >
The UNHCR found the applicant’s claims to be an Afghan citizen of Hazara ethnicity and Shia faith to be credible noting that the applicant was ‘knowledgeable about relevant locations’ in Afghanistan, ‘consistent with the information provided at registration and needs assessment interview’, fluent in the Dari language, and ‘did not make any statements that might put his Afghan identity into question’. In light of ‘positive credibility indicators’, the RRF states ‘the PRA’s claim that he is an ethic Hazara from Jaghuri, Ghazni is deemed credible’.
The delegate noted that the applicant had been referred to Australia as a UNHCR mandated refugee with a well-founded fear of persecution in Afghanistan and does not appear to have doubted that the applicant is a person of Hazara ethnicity. However, the delegate found that the applicant has provided incorrect information about his nationality because NADRA verified the applicant’s CNIC.
However, in circumstances where the country information indicates that genuine documents can be fraudulently obtained, the applicant’s claims to be an ethic Hazara from Jaghori Ghazni have been consistently made, and the delegate did not make specific findings about how the applicant acquired Pakistani citizenship, the Tribunal considers it relevant to examine the applicant’s claim that he had no legal entitlement to Pakistani citizenship.
Pakistan’s Citizenship Act 1951 includes provision for citizenship by birth, by descent and by migration.[37] Section 4 provides that every person born in Pakistan after the commencement of the Act shall be a citizen (except those born in Pakistan to a father who was an enemy alien in Pakistan). Section 5 provides that a person is a citizen if his parent was a citizen of Pakistan (noting exceptions for those born outside the territory or in the service of a government). Section 9 allows a person granted a certificate of naturalisation under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalisation or allowing the government to register any person as a citizen.[38] The Naturalization Act allows a person to be granted a certificate of naturalisation if they are not a minor, are neither a citizen of Pakistan or a citizen of any state which does not allow Pakistan citizens to be naturalised, has resided in Pakistan for the twelve months before the application and for a period of years prior to that time, is of good character, had adequate knowledge of a language gazetted by the Government, and intends to reside in Pakistan.
[37] ‘Pakistan Citizenship Act 1951’, 18 April 2000, 20190207160648; ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, p. 39, 20200312102402.
[38] ‘Pakistan Citizenship Act, 1951’, 18 April 2000, 20190207160648.
The passage of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) had the effect of deeming migrants to Pakistan prior to 18 April 1951 to be Pakistani nationals.[39] However, while the Citizenship Act includes provision for citizenship by birth, by descent and by migration, in practice the country information indicates that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan prior to 1962.[40] The government of Pakistan has not conferred citizenship on Afghan refugees or persons of Afghan descent, who were born in Pakistan,[41] despite being the subject of legal challenge in the past.[42] According to an article in Foreign Policy:
Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[43]
[39] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660.
[40] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14 (Country information details that the Hazara were recognised as a local tribe of Balochistan in 1962 by the Governor of West Pakistan, and that this allowed the Hazara resident at this time to be recognised as Pakistan nationals and granted citizenship).
[41] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, p. 30, 20200312102402.
[42] For example; ‘NADRA submits reply in Hafiz Hamdullah citizenship case’, Pakistan Today, 23 November 2019, 20191127145641.
[43] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,
A report published by the European University Institute 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.’[44]
[44] 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 >
In the case of Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai) 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.[45] In this case, the Court observed that:
"Sections 4 and 5 of the …[Citizenship Act] read together would provide that every person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth and subject to the provisions of section 3 a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth.
[45] 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
The Court then considered the situation of Mr Sanai, a young man who was born in Pakistan to Afghan refugee parents. The Court observed his father had, in reliance on false information managed to obtain a National Identity Card and Pakistan passport, which had then been cancelled. However, while the position of Mr Sanai was that since he had been living in Pakistan for so long and intended to remain in Pakistan he had become a Pakistani national, the Court reasoned:
The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens."[46]
[46] Ghulam Sanai v. The Assistant Director, National Registration Office, Peshawar and another PLD 1999 Peshawar 18
Applying this reasoning, Afghan refugees are considered to be foreigners and aliens under the Foreigners Act 1946, which 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[47] and therefore the ‘long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law.’[48] 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.[49]
[47] Sections 14, 2 of the Foreigners Act 1946.
[48] ‘Report on Citizenship Law: Pakistan’, European University Institute, Faryal Nazir, 01 December 2016, CIS38A80125116.
[49] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
As well as provision for citizenship by birth, descent, migration, naturalisation, there is also provision for a non-national woman to become a Pakistani citizen by marrying a Pakistani man.[50] However, a foreign man cannot acquire citizenship of Pakistan on marrying a Pakistani woman. A report by EASO in May 2020 reported:
…there are many instances of intermarriages among Pakistanis and Afghans. According to Pakistani law any woman marrying a Pakistani man can get Pakistan nationality but if a Pakistani woman gets married to any foreigner, the man will not be entitled for nationality. So, the Pakistanis who married Afghan girls are living peacefully and their children also have Pakistani nationality on the basis of their father’s ID cards while Pakistani women who married Afghans are facing issues not only for themselves but for their children too.[51]
[50] Pakistan Citizenship Act 1951, 18 April 2000, 20190207160648; see also The Pakistan Citizenship Act 1951, accessed at
[51] ‘Pakistan - Situation of Afghan refugees’, European Asylum Support Office (EASO), May 2020, 20200528100254, p.50.
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.[52]
[52] 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
In 2018 the Islamabad High Court in Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 cited with approval the decision in Sanai and held that all persons born in Pakistan except Afghan refugees were entitled to citizenship.[53]
[53] Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 (Mahmud)
DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire the Pakistani National Identity Cards required to access government and other services.[54] According to DFAT, Hazara arrivals from Afghanistan typically do not have citizenship, instead being able to access immigration cards which provide some rights including access to drivers’ licences.[55] Many Afghan refugees, specifically those in Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a taskira or UNHCR registration documents.[56]
[54] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14.
[55] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.
[56] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.

While DFAT indicates that Hazara children born in Pakistan are entitled to Pakistan citizenship, no source is attributed for this statement and it is inconsistent with the country information available to the Tribunal and referred to by the delegate. As noted above, the Courts have held that the children of Afghan refugees cannot claim citizenship by birth as their parents have a ‘recognised refugee status and they would be deemed foreigners and aliens under the law’ and therefore the law that governs their residence in Pakistan is the Foreigners Act 1946.’[57] Multiple sources indicate that, despite the unconditional birth-right citizenship provided in Pakistan’s Citizenship Act,1951, the claims of children of Afghan refugees born in Pakistan are denied at both administrative and judicial levels.[58]
[57] Report on Citizenship Law: Pakistan, Nazir, F, EUDO Citizenship Observatory, December 2016, pp.5-6,
CIS38A80125116; Ghulam Sanai v. The Assistant Director, National Registration Office, Peshawar and another PLD 1999 Peshawar 18
[58] ‘Country Reports on Human Rights Practices for 2019 – Pakistan’, US Department of State, 11 March 2020, pp.29-30, 20200312102402; ‘Report on Citizenship Law: Pakistan’, Faryal Nazir, European University Institute, December 2016, pp.5-6, CIS38A80125116; ‘Birthright Citizenship Around the World’, Law Library of Congress, November 2018, pp.30 and 45, 20190306112250.
Furthermore, while children born in Pakistani with one Pakistani parent should be eligible for citizenship under the Citizenship Act by both birth and descent,[59] in practice the children of an Afghan refugee father and a Pakistani citizen mother appear unable to acquire citizenship because of the patriarchy system. An October 2016 News Deeply article states:
Afghan children born in Pakistan do not qualify for citizenship, Pakistan’s interior minister, Chaudhry Nisar Ali Khan, recently told parliament. Even those born to a Pakistani mother and Afghan father would not qualify. Shamim Bibi’s husband and sons have been banished from Pakistan. Shamim is Pakistani and her husband is Afghan, making her one of the many Pakistani women facing the dilemma of separation from their families.
[59] The Pakistan Citizenship Act, 1951 (as amended to 2000); see also the information provided at which is referred to in the statutory declaration of the applicant.
[60]
“Our families have divided now. They have sent my husband to Afghanistan, [and he] has also taken my sons along with him,” she told reporters outside the Peshawar Press Club during a protest.[60]
An August 2016 article in The Nation states:
The minister went on to clarify that the children of Afghan refugees were Afghans and not entitled to the privilege, even if their mothers were Pakistani citizens. Interestingly, under the Pakistan Citizenship 1951 Act, as originally in force, any person born in Pakistan after commencement is a citizen of Pakistan. This birthright citizenship has not been extended to the Afghan refugees at any point in history due to political and security reasons. According to a clause of the 1951 Act citizenship may also be concurred by descent if one parent has the Pakistani Citizenship. But the parent referred to in this clause is the father and not the mother, and thus even though the mothers of the children of the Afghan refugees may be Pakistani, she forfeits the right to demand a citizenship for her child when she marries a non-Pakistani.[61]
[61]
In 2017, the Pakistan government announced a programme that aimed to provide ‘Afghan Citizen’ cards to up to one million undocumented Afghans in Pakistan.[62] Information published by UNHCR noted the cards would serve to provide legal protection from arbitrary arrest, detention or deportation under Pakistan’s Foreigner’s Act, to provide regularisation of their status until the Afghanistan government could issue passports.[63] According to available information, by late May 2019, approximately 850,000 cards had been issued.[64]
[62] ‘Afghans dream of stepping out of the shadows with Pakistan ID scheme’, United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815.
[63] ‘Afghans dream of stepping out of the shadows with Pakistan ID scheme’, United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815.
[64] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155.
In September 2018, Pakistan Prime Minister Imran Khan proposed a law to grant citizenship to Afghan refugees born in Pakistan,[65] and a private members bill would have extended this to Afghans living in Pakistan for more than twenty years who were registered as refugees. The Prime Minister stated that “We will... god willing give (passports) to those Afghans whose children were born here and grew up in Pakistan…”[66] The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019.[67] In response to political backlash, Khan said he had raised refugee citizenship “just to initiate a debate”,[68] and shifted responsibility to a parliamentary committee which was asked to examine the possibility of extending citizenship to Pakistani-born children of refugees and stateless persons.[69] No information was located that indicated that the committee has made progress toward implementation of the plan, or that any Afghans in Pakistan have been conferred citizenship under the plan.[70]
[65] ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Pakistan’s Imran Khan skirts issue of Afghan refugees’ citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718.
[66] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946.
[67] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,
[68] ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘Pakistan’s Imran Khan skirts issue of Afghan refugees’ citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718; ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356; ‘Pakistan, Afghanistan, UNHCR sign declaration on return of refugees’, Tribal News Network (Pakistan), 19 June 2019, 20190624155044; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656.
[69] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, p. 30, 20200312102402.
[70] ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356..
The country information set out above indicates that there is currently no legal process by which Afghans in Pakistan after 1962 may legitimately acquire citizenship, regardless of whether they are living in the community without registration or if they have the status of registered refugees. The applicant has consistently claimed that he was born in Afghanistan and that his father was born in Afghanistan. But while the question of his father’s nationality is relevant to the question of whether the applicant has provided incorrect information about his citizenship, the delegate’s decision does not directly address the applicant’s claims about his place of birth or where his father was born. The delegate’s decision does refer to the discrepancy between the name given by the applicant for his father in his application for the visa and his children’s birth certificates, which name [Mr F] as the applicant’s father. However, neither the NOICC or the decision indicate that the NIC for [Mr F] was verified by NADRA and the applicant maintains that [Mr F] is not his father or a person to known to him. The applicant claims that his father is [Mr G], an Afghan citizen, born in Afghanistan and now deceased. The applicant denies that [Mr F] is his father or any person known to him and maintains that he obtained the CNIC and other identity documents fraudulently, a claim which the Tribunal considers is plausible in the context of the country information which indicates that many Afghan refugees have obtained CNICs this way.

100. The applicant has given consistent evidence that he was born in Afghanistan and later, as an adult, acquired Pakistani identity documentation through bribery. The applicant claimed to be an Afghan citizen when he sought asylum in [Country 1], when he was interviewed by the UNHCR, and when he was interviewed in relation to his application for a Subclass 200 visa. The UNHCR found his claim to be Hazara Shia of Afghan nationality to be credible and that he ‘showed good knowledge of relevant locations in his country of origin commensurable with someone originating from that place’. The country information before the Tribunal indicates significant numbers of Afghan citizens obtained CNICs to which they had no legal entitlement and, in the absence of other evidence that contradicts or directly undermines the applicant’s evidence about his place of birth and his father’s citizenship, the Tribunal cannot be satisfied that the applicant has provided incorrect information about his citizenship.
101. On the evidence before it, the Tribunal finds that the applicant was born in Afghanistan, as were his parents. The Tribunal finds that the applicant has married a Pakistani citizen and his three children were born in Pakistan, but this does not create a legal pathway to citizenship for the applicant or his children. This is because the Courts have held that Afghan refugees who arrived in Pakistan after 1962 and the children of Afghan refugees born in Pakistan after 1962 cannot claim citizenship under the Citizenship Act as the law that governs their residence in Pakistan is the Foreigners Act 1946.[71] On the basis of the evidence before it, the Tribunal finds that the applicant is and was at the time of the visa application a citizen of Afghanistan.
[71] Report on Citizenship Law: Pakistan, Nazir, F, EUDO Citizenship Observatory, December 2016, pp.5-6,
CIS38A80125116.
Was there non-compliance of the type described?
102. On the evidence before it, the Tribunal finds that at the time of his visa application and his interview with the Departmental official on 13 April 2013 the applicant was a national of Afghanistan and no other country. Having weighed all the evidence before it, the Tribunal finds that there is insufficient evidence to reach a positive state of satisfaction he provided incorrect information about his citizenship.
103. In reaching this conclusion, the Tribunal has given weight to the fact that the applicant has a Pakistani CNIC, which NADRA has verified as valid. The applicant maintains that he obtained his CNIC through fraudulent means and that his identity documentation was then relied upon to obtain identity documentation for his children. The country information set out above indicates that it is possible to obtain genuine CNICs and passports through fraudulent means and that many Afghan refugees residing in Pakistan have done so. The applicant told the Departmental official who assessed his Subclass 200 application that he had a Pakistani passport issued in his name and image. While greater efforts have been made in recent years to detect CNICs that were obtained through fraudulent means, the country information indicates that there is little risk in seeking to obtain genuine documents through fraudulent means and detecting fraudulent obtained documents is not always possible.
104. The country information indicates that there is no legal process by which Afghans in Pakistan after 1962 may legitimately acquire citizenship and that if a child of an Afghan refugee is born in Pakistan, that child is not entitled to Pakistani citizenship, even if the child’s mother is a Pakistani citizen. The applicant has consistently maintained that he was born in [year] in Afghanistan and his father was born in Afghanistan. There is insufficient probative evidence for the Tribunal to reach a positive state of satisfaction that the applicant’s father was born in Pakistan. While the Tribunal acknowledges that the fact that the applicant holds Pakistani identity documents may invite suspicion, he has provided a plausible explanation (he obtained Pakistani identity documents through fraudulent means) and at the time he applied for the visa he made disclosures (notably that he left Pakistan using a bogus passport in his own name) that are consistent with this explanation.
105. Overall, the Tribunal considers the applicant has provided consistent oral testimony about his nationality to the UNHCR, the Department and the Tribunal. Independent records confirm that he declared that he was an Afghan national to the [Country 1] authorities. He has taken the steps available to him through the Afghan embassy in Canberra to obtain a replacement taskira and provided Afghan identity documentation for himself and his family members. While the visa was not cancelled on the basis that the applicant provided incorrect information about his name, he has explained the variations between [Given Name 1] and [Given Name 2] and why he adopted the surname [Applicant Family Name]. Given the country information about the reliability of Afghan identity documents, the Tribunal does not consider the production of this documentation to be conclusive, but the applicant’s efforts to verify his identity through the Afghan embassy does tend to weigh in his favour as does the testimony from family members and an Australian community leader that he is an Afghan citizen.
106. While the applicant’s failure to provide accurate information about family composition is of concern, his failure to disclose this information at an earlier point in time does not provide a basis upon which to conclude that he provided incorrect information about his nationality. Similarly, while he may have exaggerated certain elements of his recent experiences in Afghanistan in his narrative to the UNHCR, this does not disturb the UNHCR’s assessment, based on his oral testimony and knowledge of local geography and political conditions, that his claim to be a Hazara Shia from Jaghori in Ghazni province Afghanistan is credible.
107. On the evidence before it, the Tribunal finds that the applicant is and was at all relevant times a citizen of Afghanistan and that he does not, and has not at any time in the past, held Pakistani citizenship.
108. With respect to the first allegation of non-compliance, the Tribunal is not satisfied that the applicant provided incorrect information when, in response to a question about whether his wife could sponsor him to stay in Pakistan, he replied ‘no because there isn’t a law for that’. Having found that the applicant is an Afghan citizen, the Tribunal accepts that he could not become a Pakistani citizen by marriage to a Pakistani citizen.[72]
[72] ‘Pakistan - Situation of Afghan refugees’, European Asylum Support Office (EASO), May 2020, 20200528100254.
109. With respect to the second allegation of non-compliance, the Tribunal is not satisfied that the applicant provided incorrect information when he told the official that interviewed him about his refugee visa applicant that he used a bogus Pakistani passport to depart Pakistan. This claim was not doubted at the time the applicant applied for the refugee visa and the country information indicates it is possible to obtain genuine identity documents in Pakistan, including passports, fraudulently. The Tribunal has found that the applicant is an Afghan national and accepts that he fraudulently obtained genuine Pakistani identity documents. It follows that the Tribunal is not satisfied that the applicant provided incorrect information about having used a bogus Pakistani passport in his own name to depart Pakistan.
110. With respect to the third allegation of non-compliance, the Tribunal notes that the fact that the applicant is of the Hazara ethnicity and Shia Muslim faith was not doubted by the delegate. For the reasons set out above, the Tribunal is not satisfied that the applicant is a Pakistani citizen and accepts he is, as he has always claimed to be, an Afghan citizen of Hazara ethnicity and Shi’a faith. The Tribunal therefore concludes that there is no non-compliance of the type described.
111. With respect to the fourth allegation of non-compliance, the Tribunal is not satisfied that the applicant provided incorrect information when he stated his children were not entitled to Pakistani citizenship. The weight of country information (discussed above) indicates that if a child of an Afghan refugee is born in Pakistan, that child is not entitled to Pakistani citizenship, even if the child’s mother is a Pakistani citizen. This is also consistent with the applicant’s evidence which was that he was Afghan refugee, that his fraudulently obtained CNIC was relied upon to acquire Pakistani identity documentation for his children and that, at the time he applied for the refugee visa, he believed his children had no legal entitlement to citizenship in Pakistan. The Tribunal is therefore not satisfied that he provided incorrect information when he stated that his children were not entitled to Pakistani citizenship.
112. With respect to the fifth allegation of non-compliance, the delegate also found that the applicant provided incorrect information when he claimed to fear return to Afghanistan at the time of his application for a Refugee visa because the applicant had the right to legally reside in Pakistan as a Pakistani citizen. The Tribunal has concluded that there is insufficient information to conclude that the applicant is now or ever was a citizen of Pakistan and accepts that the applicant is a citizen of Afghanistan. There is no other evidence identified in the delegate’s decision upon which to conclude that the applicant provided incorrect information when he claimed to fear returning to Afghanistan. The Tribunal is therefore not satisfied that he provided incorrect information when he claimed to fear harm on return to Afghanistan.
113. To cancel a person’s visa under s.109, the decision maker must be satisfied that the ground exists. A mere suspicion is not sufficient to ground the cancellation; there must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The Tribunal is not satisfied, based on the available evidence, that the applicant is a Pakistani citizen or that he provided incorrect information about his Afghan citizenship. It follows that there was no non-compliance of the type alleged in the notice given under s.107 of the Act.
114. In submissions the applicant drew attention to the violent and volatile situation in Afghanistan. He also expressed fears about the dangerous situation in which his wife and three children are living in Quetta in Pakistan, explaining that the security situation for Hazaras is worsening. The Tribunal accepts that the applicant comes from an ethnic and religious minority group that continues to face discrimination and violence both in Pakistan and Afghanistan.[73] These issues would have been relevant to the consideration of Australia’s non-refoulement obligations if the Tribunal had been required to consider whether the visa should be cancelled, but as there was no non-compliance of the type described in s.107 it is unnecessary to discuss this issue further.

[73] Australian Government Department of Home Affairs Country of Original Information Services Section (COISS), Return and Relocation Afghanistan (23 October 2020); ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, 20190220093409.
CONCLUSION
115. For the reasons given, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. 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
116. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.
F.Simmons
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and

(b) no incorrect answers are given or provided.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.

105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)     an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.

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.

[2021] AATA 2071

26 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

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