2006288 (Migration)

[2022] AATA 462

2006288 (Migration) [2022] AATA 462 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2006288

MEMBER:Kira Raif

DATE:3 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2022 at 12:05pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the visa holder’s identity – bogus identity document – family composition – DNA testing confirmed family relationships – ground for cancellation has not been established – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 101, 107, 116
Migration Regulations 1994

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 13 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan. He was granted the protection visa in April 2010 and the Resident Return visa (RRV) in July 2015. In May 2019 the applicant was issued with the Notice of Intention to Consider Cancellation under s. 116(1AA) of the Act. The applicant provided his response to the NOICC in July 2019 and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant did not hold a hearing in this case but had a direction hearing, which was attended by the applicant’s representative, in July 2021.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

5. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The applicant arrived in Australia ass an Irregular Maritime Arrival in January 2010. He made a request for a Refugee Status Assessment on the basis that he was a transport driver and travelling on the roads which were exposed to the danger of the Taliban. In April 2010 the applicant was found to be a refugee and was allowed to make an application for a protection visa. The applicant made the application for the Class XA Protection visa on 16 April 2010 and completed Form 866B as part of that  application. In that form, the applicant

   a.gave his name as [the applicant’s name] ([DOB 1]) and stated that he had not previously made any other application to the Department

   b.provided no answer to the question whether he had been known by other names

   c.stated that there were no members of the family unit in Australia but there were members of the family unit not in Australia

   d.gave details of his spouse, [number] children, [number] siblings and stated that his parents were deceased.

7. The applicant included with the application his Afghan tazkera. He was granted the protection visa on 2 April 2010.

8. In June 2014 the applicant made the application for the Australian citizenship. He listed his parents but did not list his spouse, children and siblings. The applicant included a copy of the same tazkera that was provided in support of his protection visa application. The Department conducted inquiries to verify the authenticity of the tazkera in March 2017. In June 2017 the Afghanistan Central Civil Registration Authority informed the Department that the tazkera was not registered and was fraudulently made.

9. The Department carried out the Forensic Biometric checks which included a facial examination of the photograph of the applicant taken upon his arrival in Australia and it was found that it matched with two other identities on the Departmental records, that of [Alias A] ([DOB 2]) and [the applicant’s name] ([DOB 1]). The Forensic Facial Image Examiner concluded in May 2019 that the images for [Alias A] and [the applicant’s name] represented the same person.

10. The primary decision record indicates that in May 2006 the applicant made an application for a Remaining Relative visa which was refused in November 2006. The applicant included in that application his facial image and information about his identity and family composition referring to his father (and sponsor), mother, [number] siblings, spouse and son. The applicant included in that application an Afghan tazkera in the name of [Alias A], a copy of his Afghan passport in the same name, his marriage certificate and other materials.

11. The delegate concluded that the applicant provided inconsistent information about this identity in his dealings with the Department. His application for the Remaining Relative visa was made in a different identity. The applicant failed to disclose his personal contacts in Australia as he was previously sponsored for the Subclass 115 visa by his father and Departmental records show that his father had been resident in Australia since 2001 and was in Australia at the time the applicant made the application for the protection visa.

12. The delegated noted that in his Remaining Relative visa application, the applicant

    a.declared both parents, [specified siblings], spouse and son. In his protection visa application the applicant stated that  both parents were deceased and he declared [different siblings], spouse and [different number] sons. In his citizenship application the applicant declared his father and mother but no siblings, spouse or children.

    b.stated his partner’s name as [Partner A] (dob [specified]) and his son’s name as [Son A] (dob [specified]). In his protection visa application the applicant stated his spouse’s name to be [Alias B] and his son’s name as [Alias C].

13. The delegate noted that  the applicant failed to provide credible or consistent information to establish his identity and the only document to establish his identity in the name of [the applicant’s name] was a tazkera which was found by the Afghan authorities not to be genuine.

14. In response to the NOICC the applicant stated that at birth he was known as [applicant’s name variant] and he had been known as [the applicant’s name] since his arrival in Australia. The applicant states that since birth he had also been known as [Alias A variant], [the applicant’s name] and [applicant’s name variant]. The applicant states that there is no formal use of family names in Afghanistan and the dates of birth are approximate. The applicant states that a genuine tazkera would identify him as [applicant’s name variant], son of Khoda Dad. The applicant states that his father arrived in Australia around 2000 and adopted the family name [name] and he had been granted the Australian citizenship in that name. The applicant states that he married [Partner A alias B] in 2002 and had provided her genuine tazkera and marriage certificate. In 2006 his mother and siblings came to Australia on Partner visas. He concealed information about family in Australia on advice of people smugglers who told him it would result in his visa being refused.

15. The applicant states that in June 2010 he obtained the Afghan Tazkera in the name of [the applicant’s name] and tazkeras for his children which incorrectly list their place of birth as Afghanistan rather than Pakistan.

16. At the Tribunal’s request, the applicant had undertaken DNA testing with his relatives in Australia, in particular, his claimed father [Father A variant] and the claimed brother [Brother A]. On 3 February 2022 the Tribunal received the DNA test which confirm the two relationships. That is, the applicant’s father is [Father A variant] and his brother is [Brother A variant]. In the Tribunal’s view, these relationships, and certainty about the applicant’s family composition, are important factors in establishing his identity. The Tribunal considers it significant that there is nothing in the primary decision record that raises any concerns about these family members and their personal characteristics and their own identities. That is, if their identities are known and established, and the applicant’s relationship to them is proven, the applicant’s own identity can be determined through such relationships.

17. It appears the applicant does not have, or has not presented, valid identity documents and that he had used different identities in his various interactions with the Department, as well as provided inconsistent information about family composition. These are the factors that led to the cancellation of his visa. However, the Tribunal does not consider that one’s identity can only be established through formal documentation. The Tribunal is satisfied the applicant is the son of [Father A variant], whose identity has been established. On that basis, the Tribunal is satisfied as to the visa applicant’s identity. The Tribunal has formed the view that the ground for cancellation set out in s. 116(1AA) has not been established.

18. The Tribunal is mindful that the applicant did provide incorrect answers when applying for the protection visa by failing to declare another identity he has been known by, by failing to declare his previous visa application and the presence of family members in Australia. The applicant appears to have breached s. 101 of the Act by completing the application form in a way that incorrect answers were given or provided. However, this is not the basis on which the applicant’s visa has been cancelled. Should the delegate determine that the applicant should be issued with a new NOICC under s. 107 on the basis that the applicant failed to comply with s. 101, these matters can be given further consideration.

19. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Kira Raif
    Senior Member