2012456 (Migration)

[2022] AATA 704

2012456 (Migration) [2022] AATA 704 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012456

MEMBER:Shahyar Roushan

DATE:16 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 16 February 2022 at 2:45pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – inconsistent information provided – Pakistan citizenship – bogus identity document – race – Hazara – non-refoulement obligations – family violence allegations – true identity now confirmed – power to cancel the visa does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 46A, 116, 499
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 28 July 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 (Cth) (the Act).

   Background

2. The applicant is [age] years old. She arrived in Australia [in] December 2009 as an Unlawful Maritime Arrivals (UMA). At the time of her arrival, she was accompanied by her mother, [Ms A], and two sisters.

3. On 21 January 2010, [Ms A] made a request for a Refugee Status Assessment (RSA). The applicant and her sisters were included in the application as their mother’s dependants. They all claimed to be nationals of Afghanistan. Following a negative RSA, they applied for Independent Merits Review (IMR) of the RSA decision and on 12 July 2010 they were found to be persons to whom Australia has protection obligations.

4. On 6 August 2010, the then Minister for Immigration lifted the bar under s 46A(1) of the Act  and on 9 August 2010, [Ms A] lodged an application for a Protection visa, including the applicant and her sisters as her dependants. The applicant was granted a Protection visa on 12 August 2010.

5. On 11 January 2016, the applicant was granted a Resident Return visa (subclass 155). However, on 28 July 2020, a delegate of the Minister cancelled the visa under s 116(1AA) of the Act, on the basis that the delegate was not satisfied as to the applicant’s identity.

6. On 4 August 2020, the applicant applied for a review of the delegate’s decision. The applicant was represented in relation to the review by [Ms B].

7. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Visa cancellation

   The Notice of Intention to Consider Cancellation (NOICC)

9. On 19 May 2019, the applicant was issued with a NOICC in relation to her subclass 155 visa, under s 116(1AA) of the Act.

10. The NOICC stated that the applicant has been unable to provide the Department with reliable documentation to confirm her true identity. It was essentially contended that the applicant had relied on the identity of her mother, [Ms A], to establish her own identity. However, the latter had provided inconsistent information regarding her identity throughout her dealings with the Department.  

11. The NOICC stated that the applicant arrived on Christmas Island [in] December 2009 accompanied by [Ms A]. In an entry interview with the Department, [Ms A] made claims on the applicant’s behalf that she is a Hazara of Shi’a Muslim faith from Afghanistan who had been living in Pakistan illegally. As part of the RSA process, [Ms A] provided a Statutory Declaration outlining her claims for protection. In support of her claimed identity, [Ms A] submitted a copy of an Afghan identification certificate (Taskera) which was issued in Kabul, Afghanistan [in] 2010. [Ms A] did not submit any specific identity documents in relation to the applicant.

12. The delegate accepted [Ms A]’s Taskera at face value as proof of her claimed nationality and ethnicity. However, the delegate was not satisfied that her fear of persecution was for a Convention reason. Following an IMR recommendation that [Ms A] and her daughters were persons to whom Australia owed protection obligations, [Ms A] lodged a Protection visa application and included the applicant as a member of her family unit. [Ms A] and her daughters were granted Protection visas on 12 August 2010.

13. The NOICC stated that [Ms A] lodged a valid application for Australian citizenship [in] January 2015. As part of the citizenship application process, the Department conducted an Identity Assessment and [Ms A] was interviewed by an officer of the Department’s Identity Unit on 29 September 2016. During the identity interview, [Ms A] explained that she and her children assumed [a name related to her ethnic community], as their surname upon arrival in Australia. The identity officer did not consider this surname to be a part of her mother’s true identity. As a result of the identity interview, the officer concluded that [Ms A]’s identity was not supported as she had not provided genuine identification documents to support her claims that she was known as [Ms A] at the time of lodging her Protection visa application. The concerns in relation to [Ms A’s] identity in turn cast doubt on the applicant’s identity.

14. On her Protection visa application form, [Ms A] listed her family members, including [number] daughters and [number] brothers who all have [the same surname]. The NOICC stated that the Department had obtained financial information indicating that [Ms A] had transferred funds to two of her claimed brothers and one [sister]. The financial records indicated that [Ms A]’s brothers identified themselves as [Mr C], born on [DOB 1] and [Mr D], born on [DOB 2]. Her claimed [sister] identified herself as [Ms E], born on [DOB 3].

15. It was stated that during the citizenship interview, [Ms A] was unable to demonstrate basic knowledge about Afghanistan, including well-known locations in Kabul. This indicates that despite her claim to have lived in Kabul from [birth] to 2002, she never lived in Afghanistan, or she had moved to Pakistan at a young age.

16. It was further stated that [Ms A] had claimed to have travelled to Pakistan in 2002 with the applicant, who was purportedly injured at that time, and a friend, and that she remained in Pakistan for 10 to 12 years. The NOICC stated that this contradicts information she had provided in her Protection visa application in which she claimed to have remained in Pakistan for seven years from 2002 to 2009. The delegate also considered it highly unlikely that [Ms A] would have travelled to Pakistan with her severely injured daughter, as she had previously claimed to have not left her house in Kabul due to cultural reasons. In addition, the delegate considered it unlikely that the applicant would have travelled back to Afghanistan to obtain passports instead of applying for passports through the Embassy of Afghanistan in Pakistan. Further, the delegate did not find it credible that [Ms A] would have received thousands of US dollars in charity from her community to fund her travel to Australia as claimed.

17. The NOICC stated that the applicant lodged a valid application for Australian citizenship [in] December 2015. In response to the Department’s request for an Afghan Taskera, she submitted a Statutory Declaration dated 20 September 2017, stating that she was unable to submit a Taskera as she was unable to travel to Afghanistan and did not have any family members in Afghanistan who could assist her to obtain an Afghan Taskera.

18. The NOICC noted that Taskeras must be applied for in person. However, in connection with her citizenship application, [Ms A] submitted a Taskera issued [in] 2010, after she had already arrived in Australia. Although [Ms A] claimed that her brother had obtained the document for her, integrity checks completed by the Department had found that [Ms A]’s Taskera, issued [in] 2010, is a bogus document.

19. In addition, the NOICC stated that at her identity interview, [Ms A] stated that she was living in Pakistan illegally and did not have any Pakistani identity documents. However, she was able to admit her daughter to a public hospital, purchase medication, rent accommodation and generally go about her daily life in Pakistan without having to present identification documents. The NOICC stated that, according to the available country information, it is compulsory for Afghan refugees in Pakistan to hold Proof of Registration (PoR) cards and without them, refugees cannot go about their daily life. The NOICC concluded that [Ms A]’s responses were made to conceal her true identity along with the identity of the applicant and that the applicant may not be an Afghan citizen as claimed.

    The applicant’s response

20. On 3 June 2019, the applicant’s former representative, [Ms F], provided a response to the NOICC.  

21. [Ms F] submitted that [Ms A] has provided reliable evidence of the applicant’s identity as an Afghan national, and that the particulars outlined by the Department in the NOICC do not meet the high standard of proof required under Australian law to warrant cancellation of the applicant’s visa under s 116 (1AA) of the Act.

22. It was submitted that the applicant is a citizen of Afghanistan and that [Ms A]’s Afghan identity has been confirmed by a Taskera issued by the Ministry of Interior Affairs of the Islamic Republic of Afghanistan and supported by a verification letter from the Embassy of Afghanistan in Canberra, attesting to the authenticity of the document.

23. [Ms F] stated while the applicant has never had a Taskera, the citizenship laws of Afghanistan and Pakistan support a conclusion that the applicant is an Afghan national who is not entitled to Pakistani citizenship. She noted that country information published by the Immigration and Refugee Board of Canada confirms that even if a child is born outside of Afghanistan, they would automatically be entitled to Afghan citizenship at birth, if either or both parents are Afghan citizens.

24. In addition, [Ms F] submitted that a child born in Pakistan to Afghan citizens is not entitled to acquire Pakistani citizenship. She stated that the applicant has no existing, legally enforceable right to Pakistani nationality, or dual nationality, which is not allowed under Pakistani citizenship laws.

25. [Ms F] stated that [Ms A] had no knowledge that the Taskera she provided in 2010 was bogus. She had relied on others to obtain the document on her behalf whilst in immigration detention and believed that they had followed the correct procedures in obtaining the document. It was submitted that [Ms A] has no education or knowledge about the procedures for obtaining a Taskera and did not wilfully or knowingly provide a false document.

26. In relation to [Ms A]’s limited knowledge about Afghanistan, [Ms F] submitted that [Ms A]’s life in Afghanistan was ‘simple’ and she did not venture out of the family home often. She submitted that [Ms A] has provided evidence of her Afghan identity through her Taskera and it follows that the applicant is also an Afghan citizen.

27. In relation to [Ms A]’s financial transfers to family members, [Ms F] submitted that the information obtained on the [money] transfer documents to family members in Pakistan does not establish that either the applicant or her family members were lawfully issued Pakistani documents. She submitted that available country information confirms that Afghan nationals have been able to secure Pakistani identity documents, including Computerised National Identity Cards (CNICs) and passports using fraudulent means. [Ms F] stated that the applicant’s family in Pakistan have managed to obtain Pakistani documents through irregular channels, and that the information on Pakistani citizenship laws supports that the applicant and her family members have never held any right to acquire Pakistani nationality.

28. It was submitted that [Ms A] provided the exact dates of births of family members when prompted by the identity officer at the identity interview. At the end of the interview, she was advised that her ability to provide exact dates of birth supported the view that she had lived in Pakistan for a long period as dates are not central to the Afghan culture. [Ms F] submitted that this is not strong evidence to support a conclusion that the applicant’s identity as an Afghan national is not established, as the family has spent time in Pakistan and has therefore adopted dates of birth. 

29. [Ms F] submitted that [Ms A] has been consistent with information provided about her travel to Pakistan and to Australia. She stated that it would be an error of law for the delegate to cancel the applicant’s visa on the basis of the delegate’s findings that it is ‘unlikely’ or ‘not credible’ that [Ms A] had made the journey to Pakistan, as this would constitute a reassessment of her Protection visa claims, rather than an assessment under the relevant provisions.  

30. [Ms F] further submitted that the applicant was [age] years old when she came to Australia. She has lived her formative years in Australia and is now a mother to an Australian citizen child. As a Hazara Shi’a, the applicant is part of an identifiable group which has been recognised by the Australian authorities as requiring protection. It was submitted that the applicant’s removal from Australia would breach Australia’s non-refoulement obligations. In addition, the cancellation of the applicant’s visa will result in significant hardship to the applicant’s son, in breach of the Convention on the Rights of the Child.

31. The following documents were provided in support of the submission.

    ·Statement by the applicant (undated) responding to the NOICC. The applicant stated that she came to Australia when she was [age] years old forming relationships with the community and friends in Australia. She has complied with all visa conditions and has worked hard to support herself financially. She stated that she is not certain about the circumstances in which the ground for cancellation arose and that her mother has provided all supporting documents including a Taskera which confirms their identity. The applicant stated that she is worried that if she is detained or removed from Australia, she will be separated from her son or will have to take him to a dangerous place where his life will be at risk. She further stated that she still fears persecution in Afghanistan and is in need of protection as a Shi’a Hazara. She has also adopted a Western lifestyle which makes it impossible for her to survive in conservative countries such as Afghanistan and Pakistan.

    ·Copy and translation of a Taskera issued to [Ms A] by the Ministry of Interior Affairs of the Islamic Republic of Afghanistan [in] 2018.

    ·Letter from the Afghan Embassy in Canberra dated [in] March 2019, certifying that [Ms A]’s Taskera is a verified and genuinely issued document.

    The delegate’s decision

32. On 28 July 2020, a delegate of the Minister cancelled the applicant’s visa under s 116(1AA) of the Act on the basis that the applicant’s genuine identity is unknown to the Department. The delegate stated that the applicant has been unable to provide the Department with any reliable identity documents to confirm her own true identity.

33. The delegate stated that in the absence of reliable evidence to confirm the applicant’s parents were Afghan nationals at the time of her birth, the information available to the Department does not support her claims that she is an Afghan national.

34. Given the inconsistent information regarding her mother’s identity and the absence of identity documents for the applicant, the delegate was not satisfied that [the applicant’s name] is the applicant’s true identity.

    Application for review

    The hearing

35. The applicant attended a hearing on 18 August 2021, together with her mother and two sisters. The applicant’s representative, [Ms B], was also in attendance. As explained to the applicant, the purpose of this initial hearing was to discuss with her the issues arising in the review of the decision to cancel her visa and the nature of the additional evidence or information that may assist the Tribunal in completing the review.

    Submissions[1]

    [1] In the numerous documents, correspondence, submissions, and other information before the Tribunal, transliteration of names of persons and places have varied. Whilst the Tribunal has attempted to harmonise some, others may have been referenced in this decision record as they appeared in the source documents. All transliterations correspond closely to the pronunciation of the relevant names in the original language.

36. On 15 October 2021, [Ms B] made a submission to the Tribunal in support of the reviews by the applicant, her mother and her sisters.

37. The submission outlined the history of the visa cancellation case, the issues identified by the delegate, and the evidence relied upon by [Ms A] to support her claimed identity. [Ms B] submitted that the ground for cancellation does not arise because the Tribunal can form the requisite state of satisfaction as to the applicant’s identity. She submitted alternatively that the Tribunal should exercise its discretion not to cancel the applicant’s visa under s 116(1AA) due to the various countervailing factors weighing in the applicant’s favour. These include the applicant’s substantial ties to the community, the hardship that will flow from the cancellation outcome, and the risks of serious harm upon her return to Pakistan that would encompass a breach of Australia’s non-refoulement obligations.

38. It was submitted that the applicant, her mother and her sisters are Pakistani nationals of Hazara ethnicity and Shi’a faith. [Ms B] stated that their claimed identities are substantiated by both biometric and documentary evidence. That is, they are Shi’a Hazara women who were born in Quetta, Pakistan and are Pakistani nationals. Their identity documents also substantiate key aspects of their claimed life stories and the reasons they fled to Australia. In addition, [Ms B] stated that there is biodata evidence of [Ms A] identity in the form of photographs from 1991 to 2017.

39. It was submitted that [Ms A] name at birth was [Birth Name 1]. She did not have a last name. She was born in Quetta, Balochistan, Pakistan on [DOB 4] and resided in the Hazara-majority [named] neighbourhood. [Ms A]’s mother was [Ms G] and her father was [Mr H].[2] Her mother was born in Pakistan. Her father was born in Kandahar, Afghanistan and migrated to Pakistan at an unknown date. Her parents were both Pakistani citizens at the time of her birth and her father also held Afghani citizenship.

    [2] Also transliterated as [several variations of Mr H].

40. [Ms B] submitted that [Ms A] admits to having provided false information concerning her identity and life story when she arrived in Australia, and to have maintained that story up until the present matter before the Tribunal. She had falsely claimed to have been born and raised in Kabul, Afghanistan, and to have fled that country due to the deteriorating security situation and the threats faced by the Hazara Shi’a population. However, her actual protection claims concerned domestic violence, child custody disputes and threats of kidnapping from her ex-husband’s family. It was submitted that [Ms A] feared that her protection claims would be rejected if she admitted that she was Pakistani and so she subsequently constructed a false story to conceal her Pakistani nationality.

41. [Ms B] stated that [Ms A] married a Pakistani national, [Mr I] ([also known as Mr I variant 1]) in around 1994. He was a Sunni Muslim of Pashtun ethnicity. His family rejected the marriage because the applicant is Shi’a Hazara. They had three children together, including the applicant, born in Quetta. It was submitted that the applicant’s parents’ marriage deteriorated due to religious differences, as her father wanted to raise his daughters as Sunni Muslims, whereas her mother wanted to raise them as Shi’as. Their disagreements escalated and the relationship was marred by domestic violence. Eventually her parents divorced and initiated custody proceedings over their daughters. Before the custody proceedings began, [Mr I variant 1] was killed in a coach accident [in] June 2005.

1. [Ms B] stated that [Ms A] was given full custody of her daughters and the applicant was made the benefactor of [Mr I variant 1’s] will. Inheritance of [Mr I variant 1’s] estate was unsuccessfully contested by his brother, [Mr C], in [Court 1].  Following this, [Mr C] wanted custody of the applicant and her sisters.  He made threats of violence, forcing the applicant’s maternal uncle, [Mr D], to leave the house. [Mr C] filed a custody application, claiming that the girls belonged to his family. He commenced a series of threatening phone calls to [Ms A], claiming that she was a single woman, and he would take her children by force. [Mr C] died a year later. His brother, [Mr D], continued the custody application and also made a number of threatening phone calls, stating he would kidnap the applicant and her sisters from school.

2. [Ms B] stated that [Ms A] reported the threats to the local police station in Quetta on two occasions but was not given any assistance. She became distressed, anxious, and fearful as her husband had been violent towards her during their marriage and she believed his brothers had the same inclination to violence. In 2008, the applicant, her mother and her sisters left Pakistan on genuine Pakistani passports and travelled to [Country 1]. Two months later, they travelled to Indonesia by boat, where they remained for six months. While in Indonesia, they spent time with an Afghan family who were also of Shi’a Hazara origin. [Ms A] was told to pretend to be from Afghanistan as her case would not be accepted as a Pakistani citizen. For this reason, upon arrival to Australia, [Ms A] provided a false account of her life story that concealed her and her daughters’ Pakistani nationality. 

3. [Ms B] submitted that it is apparent that [Ms A] had a genuine fear of returning to Pakistan and that there is a reasonable prospect that a Protection visa would have still been granted to her and her children had the correct information been given. She also submitted that country information indicates that women are subject to high levels of harm in Pakistan and that a divorced woman, especially one living alone and/or with children, will be particularly vulnerable to such harm and gender-based violence. She further submitted that the applicant arrived in Australia as a young woman who was psychologically vulnerable having experienced traumatic events in Pakistan, including domestic violence. In these circumstances, it is plausible that she would be susceptible to suggestions of fabrication. 

4. [Ms B] submitted that the applicant, her mother and her sisters have expressed both remorse and regret for their actions and have taken full responsibility by providing full and frank disclosure to the Tribunal.

5. The applicant was a young child, aged [age] at the time of her arrival in Australia. She was not interviewed separately from her mother and was dependents on her mother’s Protection visa application. She stated that the applicant’s ‘extreme youth’ was no doubt a factor in her failure to weigh both the implications and consequences of providing incorrect information to a government authority.

6. Under the cover of her submission, [Ms B] provided Statutory Declarations by [Ms A] and her daughters. In her Statutory Declaration, declared on 12 October 2021, [Ms A] provided details of her identity, family background, education and employment in Australia, and explanations for why she provided incorrect information to the Department in relation to her identity and nationality.

7. In her Statutory Declaration, declared on 12 October 2021, the applicant provided the following information.

8. She was born in Pakistan on [DOB 5] and is a citizen of that country. She lived in Pakistan until she came to Australia at the age of [age]. She travelled to Australia by boat with her mother, [Ms A], and her two sisters: [Ms J] ([known as Ms J variant]) and [Ms K] ([also known as Ms K variant 1]). Her father was a Pakistani citizen and was born in that country. He was of Pashtun ethnicity. Her mother is also a Pakistani citizen and was born in that country.  

9. She was raised as a Shi’a Muslim by her mother and her family. She is married to a Shi’a Hazara and together they have [number] children. They all attend mosque and religious events regularly.

10. Her name at birth was [Birth name 2] and her Pakistani identity documents and other records are all in this name. To her knowledge, she never had a last name or family name in Pakistan. She has not used ‘[Birth name 2]’ as part of her name since she came to Australia and adopted the name [the applicant] following her arrival. Her Australian documents are all in the name of ‘[the applicant]’. Her date of birth ([DOB 5]) is reflected in all her identity documents except on her [Employer 1] medical card, which records her date of birth as ‘[DOB 5 variant]'. This is presumably a mistake.

11. Her mother's name is [Birth Name 1], but she has adopted the name [Ms A] in Australia. Her mother was born in Quetta, Pakistan. She and her family are Hazara Shi’a. Her mother is ‘a dual national of Pakistan and Afghanistan’. Her mother’s father was [Mr H variant 1]. Following the death of her grandmother, her grandfather remarried. Her grandfather died in 2019.

12. She spent a lot of time with her mother's family in Pakistan as they all lived in the same house. She has met all of her mother's siblings and knew them when they were living in Pakistan.

13. Her father, [Mr I], was a Pakistani national of Pathan ethnicity. He was employed by a [service business] in Pakistan. Apart from her father's sister, they did not meet any of her father's relatives. There is no contact between the applicant and any surviving members of her father’s family.

14. The applicant was young when her parents separated, but she recalls overhearing arguments when her father was ‘kicked out’ of the house by her maternal uncle. She knew that her parents had ‘religious differences’. After their separation, both her parents sought custody of the children. Her father died as a result of a bus accident when she was about [age] years old.

15. After her father's death, her mother began to have problems with his brothers. She was very young at that time but recalls her mother becoming very afraid about the applicant’s paternal uncles trying to take her children away by force. Subsequently her mother decided to leave Pakistan.

16. When they arrived on Christmas Island, a case worker spoke to her mother and she told them they were Hazara. There was a lot of discussion about whether they had a family name and her mother repeatedly said they did not have a family name. It was during this discussion she heard her mother say for the first time that they were from Afghanistan. The applicant and her sisters were brought up thinking this was ‘the story [they] had to tell.’ They trusted their mother to make the right decisions and knew their safety would be at risk if they did not repeat these claims.

17. She knows her mother considers herself to be Afghan. She also considers herself to be Afghan, even though she was born in Pakistan. They are Shi’a Hazara and it is very hard to explain their identity and what this means to them in a Western sense.

18. In her statutory declaration, the applicant set-out her educational and employment history. She also provided a detailed account of her fears of returning to Pakistan, her present circumstances and the likely hardship that will be experienced by her and her family should her visa be cancelled.

19. In addition, the Tribunal received Statutory Declarations and letters of support from other family and friends. In essence, the Statutory Declarations and letters listed below outline the circumstances in which [Ms A] and her daughters left Pakistan and support [Ms A]’s claims concerning the deterioration of her marriage, the domestic abuse she endured, and the threats received from and the custody case filed by [Mr I variant 1’s] brothers. They also attest to the good characters of [Ms A] and her daughters and describe their contributions to Australian society as well as the hardships they will face if returned to Pakistan.

20. The Tribunal also received a Statutory Declaration dated 15 October 2021, declared by [Ms B], annexing two file notes. The first file note is dated 24 August 2021 and records a statement made over the phone by [Ms A’s] younger brother, [Mr D]. [Mr D] stated that he is a Pakistani citizen who lives in Quetta with his [children]. His father’s name was [Mr H variant 2] and his mother’s name was [Ms G]. Both his parents were Pakistani citizens. He does not know if he holds Afghan citizenship, but he believes his father did. [Mr D] described his sister’s circumstances in Pakistan and her reasons for leaving Pakistan, including the death of her husband and the custody dispute over their daughters. He stated after threats were received from [Mr I’s] brothers, he was scared for the girls, and he would escort them everywhere for safety reasons, including to and from school. He stated that he had discussions with his sister regarding her plans to leave Pakistan and escape to Australia and was of the view that she should leave to protect her daughters.

21. The second file note is dated 12 October 2021 and records a statement made over the phone by [Ms A]’s sister, [Ms E]. [Ms E] stated that she is a Pakistani citizen, residing in Hazaratown, Quetta.  Her father’s name was [Mr H variant 2] and her mother’s name was [Ms G]. Both her parents were Pakistani citizens, and her father also had Afghani citizenship. She stated that she lived with her sister and [Mr I variant 1] in their family house in Quetta, until the applicant left with her daughters. [Ms E] stated that when [Mr I variant 1] died, his family tried to take the applicant’s daughters away, and they received threats from the girls’ uncles. She stated that she did not hear these calls but believed that they were violent. [Ms E] stated that the applicant left Pakistan for their safety as the girls were in danger of being kidnapped by their uncles.

22. In support of her identity, the applicant submitted the following documents:

    • Birth certificate issued by the Government of Balochistan, Pakistan to [Birth name 2], daughter of [Mr I] and [Birth Name 1], born on [DOB 5] in Quetta.

    ·Copy and certified translation of a document titled ‘Local Certificate’ issued by the Office of Executive District Officer (Revenue) Quetta [in] December 2007, which states that ‘[Birth Name 1]’, daughter of [Mr H variant 3], ‘is a permanent resident of Quetta district’ and belongs to the ‘Hazara tribe’. The document lists the names of her three daughters, including the applicant ([Birth name 2]).

    ·Copies of [Employer 1] medical cards for the applicant, [Birth Name 1] ([DOB 4]) and her daughters, including the applicant, [Birth name 2].

    ·Copy of an ‘Heirship Certificate’ dated [in] February 2006 and addressed to [a manager at Employer 1]. The certificate states that [Mr I] ‘has expired [in June] 2005 while travelling from Karachi to Quetta’ and left behind four legal heirs: [Birth Name 1 variant] (wife), [Ms J] (daughter), [Birth name 2] (daughter), and [Ms K] (daughter). The certificate also states that the heirs are to receive ‘salary, Pension G.P. Fund, Benevolent Fund, group Insurance, and other Departmental dues’.

23. The following documents were also submitted to the Tribunal in support of the review:

    ·Copy of a Pakistani birth certificate issued [in] November 2007 to ‘[Birth Name 1]’, born in Quetta on [DOB 4]. The certificate lists her parents’ names as ‘[Mr H variant 2]’ and ‘[Ms G]’.

    • Copy and certified translation of a document titled ‘Form B’ issued by The Government of Pakistan, Directorate General of Registration (The Interior Ministry) [in] September 1989. The document records [Ms A]’s name as ‘[Birth Name 1]’ born in [year] and lists the names of her siblings and her parents, [Ms G variant] and [Mr H].
    • Copy of [Ms A]’s Pakistani National Identity Card issued [in] 2017 under the name ‘[Ms A]’ born on [DOB 4] and stating that she is married to [Mr I].
    • Copy and certified translation of a marriage certificate which indicates that ‘[Birth Name 1]’ and ‘[Mr I variant 2]’ married in Quetta [in] March 1994.
    • Copies of [Ms A]’s Pakistani passports issued in 1991, 1996 and 2001 under [three different variations of name].
    • Copy of a ‘Services Experience Certificate’ issued [in] August 2007 which states that [Ms A], daughter of [Mr H variant 4] is a permanent employee of [Employer 2] at [Location 1] in Quetta.
    • Copy and translation of a Taskera ([number]) issued [in] 2018 in the name of ‘[Ms A]’, with her father’s name listed as ‘[Mr H variant 5]’ and her grandfather as ‘[Relative A]’. The Taskera states that she was born on [DOB 4] and records the details of her uncle’s ([Relative B]) ID.
    • Copy and certified translation of a ‘Verification Form’ issued [in] 2018, reflecting the information recorded in the Taskera ([number]).
    • Copy of a verification letter issued by the Embassy of the Islamic Republic of Afghanistan in Canberra [in] March 2019, stating that the Taskera ([number]) is a ‘verified and genuinely issued document’. 

    ·Birth certificate issued by the Government of Balochistan, Pakistan to [Ms J], daughter of [Mr I] and [Birth Name 1], born on [DOB 6] in Quetta.

    • Birth certificate issued by the Government of Balochistan, Pakistan to [Ms K], daughter of [Mr I] and [Birth Name 1], born on [DOB 7] in Quetta.
    • Copy and translation of a ‘Local Certificate’ issued to [Mr I], [in] June 1986. The certificate states that he ‘is a permanent resident of Quetta district’ from the [named] tribe, and resides at [a location in] Quetta.
    • Copy and translation of a Death Certificate issued by the Registrar Births & Deaths, [Town 1 in] Quetta, in relation to [Mr I]. The certificate records a date of death [in] June 2005 and indicates that the cause of death was ‘accidental fire’.
    • Copy and certified translation of a Pakistani National Identity Card issued to the applicant’s grandfather, [Mr H variant 1], born on [DOB 8].
    • Copy and certified translation of the applicant’s grandfather’s Taskera ([number]) issued [in] 2002 and an Afghan passport issued [in] 2005. Both documents indicate that he was born in Kandahar.
    • Copy and translation of a Taskera belonging to the applicant’s uncle, [Relative B]. The Taskera was issued [in] 2003 and lists the names of his father, [Relative A variant], and his grandfather, [Relative C].
    • Copy and translation of a news article published by the [named newspaper] [in] June 2005, which reports on an [accident]. The article names [Mr I] as one of the deceased and features his photograph.

    ·Copy of an order made by [Court 1] [in] September 2005 in relation to [Mr C’s] application for a ‘Succession Certificate’. The document lists ‘[Ms J] & others’ as respondents.

    ·Copy of a ‘Pensioner’s Portion and Pension Payment Order’ issued by the Office of the Director of Pension, [at Employer 1], Lahore, to ‘[Ms J]’.

    • Copy of a document titled ‘Condolence message’ issued by [a manager at Employer 1] [in] December 2005, in response to the death of [Mr I variant 3].
    • Copy of a marriage certificate certifying that the applicant and [her husband] married [in] June 2019. 
    • Copies of educational records and certificates issued to the applicant. 

24. In addition, [Ms B] submitted a bundle of country information reports. These include articles and reports on the topics of identity documentation, citizenship and naming practices in Pakistan, dated variously between March 2006 and March 2020. She also submitted reports by DFAT, the UK Home Office, the International Labour Organisation (ILO) and news articles dated between 2011 and August 2021 on the situation for single women in Pakistan. In addition, [Ms B] submitted reports by DFAT, the National Commission for Human Rights Pakistan, Minority Rights Group International and an article by The Economic Times dated between 2018 and 2021 on the risks faced by Hazara Shi’as in Pakistan. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

25. 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 grounds set out in s 116(1AA).

26. A visa may be cancelled under s 116(1AA) if the Minister or the Tribunal is not satisfied as to the visa holder’s identity. An example provided in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (at p 24) of when this ground may be made out is if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to, the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine.[3]   

    [3] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill (Cth), p 24, at [16].

27. Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[4] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision maker cannot be satisfied as to which, if any, is the true identity.

    [4] PAM3 – Visa Cancellation instructions – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140) – s 116(1AA) – Not satisfied as to identity (reissue date 1/7/17).

28. 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. The Act and Migration Regulations 1994 (Cth) do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s 499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual – PAM3 ‘General visa cancellation powers’.

    Does the ground for cancellation exist?

29. At the hearing held on 18 August 2021, it was revealed for the first time that the applicant is in fact a national of Pakistan and that information previously provided on her behalf by her mother in relation to her claims of identity was false.

30. The Tribunal is unimpressed by the significant delay in the disclosure of information and evidence in support of the applicant’s true identity and has significant concerns in relation to her conduct towards the Department in providing false information in connection with various applications and processes. In doing so, she has seriously challenged the integrity of Australia’s visa related processes and has raised legitimate questions in relation to her credibility. The Tribunal, however, is mindful of the fact that the applicant was only [age] years old when she arrived in Australia and that she had relied entirely on her mother for the provision of relevant information, including information to support her identity. In any event, her past conduct and the provision of this incorrect information alone do not form a sufficient basis to reject the applicant’s claims of identity or to render her identity as inconclusive.

31. In support of the application for review, various pieces of supporting evidence and statements were submitted, which led the Tribunal to form the view that there is strong, credible and genuine documentary evidence to support the applicant’s claims regarding her true identity as put forward in connection with her review application.

32. In her Statutory Declaration of 12 October 2021, [Ms A] stated that her name at birth was [Birth Name 1]. She is a national of Pakistan. She was born in Quetta on [DOB 4]. She is also ‘a national of Afghanistan’ as her father was born in Kandahar, but she has never been to Afghanistan. She is of Hazara ethnicity and Shi’a faith. She speaks Hazaragi and Urdu. She lived with her family in [Town 2], in the [named] neighbourhood of Quetta, which is a predominantly Hazara area. She did not have a surname in Pakistan and adopted the name ‘[Ms A]’ upon coming to Australia.

1. [Ms A] stated that both her parents are deceased. Her mother’s name was [Ms G variant] and her father’s name was [Mr H].[5] Her parents were both Pakistani citizens and her father was also an Afghan citizen. They were both Hazara Shi’a and their families originally came from Afghanistan. Her father was born in Kandahar, Afghanistan, and used to travel back to Kandahar regularly to visit family. She does not know how her father came to Pakistan or how he became a Pakistani citizen. She further stated that she attended school in Pakistan and worked as [an Occupation 1] in Quetta. She married [Mr I], a Pakistani national and a Sunni Muslim of Pathan ethnicity, in March 1994. They divorced a year before his accidental death in 2005. They had three daughters together: the applicant, born on [DOB 5], [Ms J] (known as ‘[Ms J variant]’), born on [DOB 6] and [Ms K] (known as ‘[Ms K variant 1]’), born on [DOB 7].

   [5] See note 2, above.

2. The Tribunal also received numerous other credible pieces of evidence to support the true identity of [Ms A]. This evidence included a copy and certified translation of her birth certificate issued by the Government of Balochistan, Pakistan [in] November 2007. The document records her name as ‘[Birth Name 1]’ and indicates that she was born on [DOB 4] in Quetta. The document lists her father’s name as ‘[Mr H variant 2]’ and her mother’s name as ‘[Ms G]’. It also refers to her father’s Pakistan National Identity Card number ([number]), issued in the name of [Mr H variant 1], born on [DOB 8]. The Tribunal also received a copy and certified translation of [Mr H variant 1’s] Taskera ([number]), issued [in] 2002 and his Afghan passport, issued on [in] 2005. Both documents indicate that [Mr H variant 1] was born in Kandahar and list his father’s name as [Relative A variant]. The Taskera also refers to his grandfather’s name as [Relative C]. A copy and translation of a Taskera belonging to [Ms A]’s paternal uncle, [Relative B], lists the names of the holder’s father and grandfather as [Relative A variant] and [Relative C], respectively. 

3. The information contained in [Ms A]’s birth certificate is consistent with information recorded in another official document, namely ‘Form B’ issued by The Government of Pakistan, Directorate General of Registration (The Interior Ministry) [in] September 1989. The document appears to be a family register and lists the names of [Ms A]’s parents, [Ms G variant] and [Mr H variant 6], and their [number] children. The document records [Ms A]’s name as ‘[Birth Name 1]’ born in [year].

4. A copy of [Ms A]’s Pakistani National Identity Card (no [number]), issued [in] 2017, records her name as ‘[Ms A]’, born on [DOB 4], and indicates that she had married [Mr I]. This accords with the contents of a marriage certificate submitted by [Ms A], indicating that ‘[Birth Name 1]’ and ‘[Mr I variant 2]’ married in Quetta [in] March 1994. The identity card features [Ms A]’s photograph and signature. [Ms A]’s Pakistani passports, issued in 1991, 1996 and 2001 record her name as [three different variations] respectively and her date of birth as [DOB 4]. 

5. The information and evidence provided by [Ms A] is consistent with the contents of the applicant’s Statutory Declaration of 12 October 2021. In her Statutory Declaration, the applicant stated that she was born in Pakistan to Pakistani citizen parents on [DOB 5]. She is a citizen of Pakistan and she lived in that country until she came to Australia at the age of [age]. Her name at birth was [Birth name 2] and her Pakistani identity documents and other records are all in this name. She adopted the name ‘[the applicant’s name]’ after she came to Australia.

6. In support of her identity, the applicant submitted a copy of a birth certificate issued by the Government of Balochistan, Pakistan to [Birth name 2], daughter of [Mr I] and [Birth Name 1], born on [DOB 5] in Quetta. The certificate appears to have been issued at the request of the applicant’s grandfather, [Mr H variant 2] and refers to his Pakistani National Identity Card number ([number]). The certificate also refers to [Ms A]’s Pakistani National Identity Card number ([number]) and [Mr I]’s Pakistani National Identity Card number ([number]), which is also reflected on [Mr I’s] death certificate. The Tribunal has no reason to doubt the genuineness of this birth certificate.

7. In addition, she provided a copy of a ‘Local Certificate’ issued by the Office of Executive District Officer (Revenue) Quetta [in] December 2007. The document states that ‘[Birth Name 1]’, daughter of [Mr H variant 3], ‘is a permanent resident of Quetta district’ and belongs to the ‘Hazara tribe’. The document refers to [Ms A]’s Pakistani National Identity Card number ([number]) and lists the names of her three daughters: [Ms J], [Birth name 2] and [Ms K] ([Ms K variant 1]).

8. Having carefully considered these documents, as well as the various supporting statements submitted, the Tribunal has formed the view that there is strong, credible and genuine documentary evidence to support [Ms A]’s claims regarding her true identity as put forward in connection with the review application. On the basis of the applicant’s birth certificate, the Tribunal accepts that she is the daughter of [Ms A] and that the documents submitted support her claims regarding her true identity.

9. The Tribunal accepts that [Ms A] is a national of Pakistan. The Tribunal accepts that [Ms A] was born in Quetta, Pakistan on [DOB 4] to Pakistani national parents with Afghan lineage. The Tribunal accepts that her name at birth was [Birth Name 1]. The Tribunal accepts that she is of Hazara ethnicity and Shi’a faith. The Tribunal accepts that she married and was subsequently divorced from [Mr I], a Pakistani national. The Tribunal accepts that [Mr I] died in a car crash in 2005.

10. The Tribunal finds that the applicant’s name is [Birth name 2] and that she was born in Quetta, Pakistan on [DOB 5] to Pakistani citizen parents. The Tribunal finds that the applicant is the daughter of [Ms A] and [Mr I]. The Tribunal finds that both her parents were born in Pakistan. The Tribunal finds that the applicant is a national of Pakistan. The Tribunal accepts that prior to her departure from Pakistan, she resided with her family in Quetta. The Tribunal further accepts that the applicant adopted the name ‘[the applicant]’ when she arrived in Australia. The Tribunal accepts that she has never lived in Afghanistan and that the claims put forward on her behalf with regard to her Afghan nationality or experiences in Afghanistan were false.

11. In her Statutory Declaration of 12 October 2021, the applicant stated that her mother is ‘a dual national of Pakistan and Afghanistan’. This claim was also made by [Ms A] in her evidence to the Tribunal, presumably on the basis that her father was an Afghan citizen. Whilst the Tribunal is prepared to accept that [Ms A] may be entitled to Afghani citizenship by descent, the Tribunal does not accept that she is in fact a national of Afghanistan as the Afghan documents she was or is in possession of are either bogus or contain inaccurate information. For example, the Taskera ([number]) issued [in] 2018 to [Ms A] and subsequently verified by the Embassy of Afghanistan in Australia contains incorrect information in relation to her name, her date of birth, her place of birth, her father’s name and her grandfather’s name. The Tribunal does not accept that any Afghan identity document issued to [Ms A] is a legitimate and lawful document that would support the claim that she is a national of Afghanistan.  

12. Moreover, under section 14 of the Pakistan Citizenship Act 1951 (Act II of 1951) ‘if a person is a citizen of Pakistan under the provisions of this Act and is at the same time a citizen or national of any other country he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan.’ The same section, however, allows for dual citizenship with respect to certain countries mentioned in the law or notified by the Government of Pakistan.[6] Currently, Pakistan explicitly allows dual citizenship with 21 countries only, not including Afghanistan.[7] The Tribunal finds that [Ms A] is not a citizen of Afghanistan and that she only holds citizenship of one country, namely Pakistan.

    [6] Pakistan Citizenship Act 1951 (Act II of 1951), See also Farhat, Syed Nadeem, Citizenship Laws of Pakistan: A Critical Review, Policy Perspectives, Vol. 16, No. 2 (2019), pp. 59-85,

    [7] Pakistan Ministry of Interior, Directorate General of Immigration & Passports, Dual Nationality, Dual Nationality - DGI&P (dgip.gov.pk).

13. As the Tribunal has found that the applicant’s mother is not a national of Afghanistan, the Tribunal finds that the applicant is a citizen of Pakistan only and that she is not in fact a national of any other country.

14. In any event, the applicant is not purporting to rely on any Afghan identity documents to support her identity. The applicant has asserted that her true identity is as stated in her Statutory Declaration of 12 October 2021 and the Tribunal, on the basis of the recent compelling supporting evidence submitted, has accepted her assertions in relation to her true identity.

15. For these reasons, the Tribunal is of the view that there is strong and persuasive evidence of the applicant’s biodata and nationality. The Tribunal finds that whilst the applicant used a false identity to obtain her Protection visa, her true identity has now been confirmed. The Tribunal is satisfied the applicant’s identity is as claimed and explained above. The Tribunal is satisfied that the applicant’s true identity has been established.

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

    DECISION

17. 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.

    Shahyar Roushan
    Senior Member