2012458 (Migration)

[2022] AATA 702

2012458 (Migration) [2022] AATA 702 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012458

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 2:41pm

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 – substantial community ties – 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 and her three daughters, [Ms A], [Ms B] and [Ms C], arrived in Australia [in] December 2009 as Unlawful Maritime Arrivals (UMA). 

3. On 21 January 2010, the applicant made a request for a Refugee Status Assessment (RSA), claiming to be a national of Afghanistan. However, she was assessed not to be a refugee. She subsequently applied for Independent Merits Review (IMR) of the RSA decision and on 12 July 2010 she was found to be a person to whom Australia has protection obligations.

4. [In] August 2010, the then Minister for Immigration lifted the bar under s 46A(1) of the Act to allow the applicant to lodge a Protection visa application. On 9 August 2010, she lodged an application for a Protection visa, which was granted on 12 August 2010.

5. On 13 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 D].

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.

   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)

8. On 14 February 2019, the applicant was issued with a NOICC in relation to her Subclass 155 visa, under s 116(1AA) of the Act. The NOICC stated that the applicant had provided inconsistent information regarding her identity, including her citizenship, throughout her dealings with the Department. The NOICC also stated that the applicant has been unable to provide the Department with reliable documentation to confirm her true identity and had submitted a bogus Taskera.

9. It was stated that the applicant had attended an entry interview with the Department following her arrival on Christmas Island [in] December 2009. At that interview she claimed to be a Hazara of Shi’a Muslim faith from Afghanistan who had been living in Pakistan illegally. As part of the RSA process, the applicant provided a Statutory Declaration outlining her claims for protection. She also submitted a copy of an Afghan identification certificate (Taskera) which was issued in Kabul, Afghanistan [in] 2010. The delegate accepted her Taskera at face value as proof that she was a Hazara from Afghanistan. However, the delegate was not satisfied that her fear of persecution was for a Convention reason. Following an IMR recommendation that the applicant is someone to whom Australia owed protection obligations, she lodged a Protection visa application and was subsequently granted a Protection visa on 12 August 2010.

10. The applicant lodged a valid application for Australian citizenship [in] January 2015. As part of the citizenship application process, the Department conducted an Identity Assessment. The applicant was also interviewed by an officer of the Department’s Identity Unit on 29 September 2016. As a result of the identity interview, the officer concluded that the applicant’s identity was not supported as she had not provided genuine identification documents to support her claims that she was known as [the applicant] when she lodged her Protection visa application.

11. The NOICC stated that during the identity interview, the applicant explained that she assumed [a name related to her ethnic community], as her surname upon arrival in Australia. The identity officer did not consider her surname to be a part of her true identity.

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

13. It was stated that during the citizenship interview, the applicant 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.

14. It was further stated that the applicant had claimed to have travelled to Pakistan in 2002 with her daughter, [Ms A], 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 she 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 her daughters would travel 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 the applicant would have received thousands of US dollars in charity from her community to fund her travel to Australia as claimed.

15. In relation to the applicant’s identity documents, the NOICC stated that Taskeras must be applied for in person. However, the applicant’s Taskera was issued [in] 2010 when she was already in Australia. At the interview, the applicant had explained that her brother obtained the document for her. Integrity checks completed by the Department had found that the applicant’s Taskera, issued [in] 2010, is a bogus document.

16. In addition, the NOICC stated that at her identity interview, the applicant 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 applicant’s response

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

18. [Ms H] submitted 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. She stated that the applicant is a citizen of Afghanistan. The applicant’s identity is confirmed by a Taskera issued by the Ministry of Interior Affairs of the Islamic Republic of Afghanistan, as well as a verification letter from the Embassy of the Islamic Republic of Afghanistan in Canberra, attesting to the authenticity of the document.

19. [Ms H] stated that the citizenship laws of Afghanistan and Pakistan support a conclusion that the applicant is an Afghan national who is not entitled to Pakistani citizenship. Whilst the applicant was born in Afghanistan, she submitted 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. In addition, 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.

20. [Ms H] submitted that the applicant 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 she was in immigration detention and believed that they had followed the correct procedures in obtaining the document. It was submitted that the applicant has no education or knowledge of the procedures for obtaining a Taskera and did not wilfully or knowingly provide a false document.

21. In relation to her limited knowledge about Afghanistan, [Ms H] submitted that the applicant’s life in Afghanistan was ‘simple’ and she did not venture out of the family home often. She submitted that even if the applicant never lived in Afghanistan or moved to Pakistan at an early age, it does not follow that she is not by law considered an Afghan citizen, or that she is the holder of Pakistani citizenship.

22. In relation to the financial transfers to family members, [Ms H] submitted that the information contained in the [money] transfer documents to family members in Pakistan does not establish that either the applicant or her family members are in possession of 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 H] 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.

23. It was submitted that the applicant provided the exact dates of births of family members when prompted 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 H] 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.

24. [Ms H] submitted that the applicant 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 the applicant had made the journey to Pakistan, as this would constitute a reassessment of her Protection visa claims, rather than an assessment under the s 116 provisions.

25. [Ms H] further submitted that as a Hazara Shi’a, the applicant is part of an identifiable group, which has been recognised by the Australian authorities as requiring protection. She stated that the applicant has been through significant hardship throughout her life and arrived in Australia as the sole parent of three young girls, who are now young adults with children of their own. She submitted that the cancellation of the applicant’s visa may result in the cancellation of her daughters’ visas. This would in turn impact her Australian citizen grandchildren causing significant mental anguish for the family.

26. The following documents were attached to the submission:

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

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

    The delegate’s decision

27. On 28 July 2020, a delegate of the Minister decided to cancel the applicant’s visa under s 116(1AA) of the Act. The delegate was satisfied that grounds exist under s 116(1AA) of the Act to consider cancellation of the applicant’s Resident Return (Subclass 155) visa as she was not satisfied as to the applicant’s identity. She was further satisfied that the grounds for cancelling the visa outweigh the reasons not to cancel the visa.

    Application for review

    The hearing

28. The applicant attended a hearing on 18 August 2021. The applicant’s representative, [Ms D], 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.

29. On 15 October 2021, [Ms D] made a submission to the Tribunal in support of the reviews by the applicant and her three daughters.

30. The submission outlined the history of the visa cancellation case, the issues identified by the delegate, and the evidence relied upon by the applicant to support her claimed identity. [Ms D] 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 and her daughters’ substantial ties to the community, the hardship that will flow from the cancellation outcome, and the risks of serious harm upon their return to Pakistan that would encompass a breach of Australia’s non-refoulement obligations.

31. It was submitted that the applicant and her daughters are Pakistani nationals of Hazara ethnicity and Shi’a faith. [Ms D] stated that the applicant and her daughters’ 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 D] stated that there is biodata evidence of the applicant’s identity in the form of photographs from 1991 to 2017.

32. It was submitted that the applicant’s 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. Her mother was [Ms I] and her father was [Mr J].[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 elsewhere as [several variations of Mr J].

33. [Ms D] submitted that the applicant 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 the applicant 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.

34. [Ms D] stated that the applicant married a Pakistani national, [Mr K] ([also known as Mr K variant]) in around 1994. He was a Sunni Muslim of Pashtun ethnicity and worked for [Employer 1]. His family rejected the marriage because the applicant is Shi’a Hazara. They had three children together, born in Quetta, [Ms A] (born [DOB 5]), who later adopted the name ‘[Ms A]’ on her arrival to Australia, [Ms B] (born [DOB 6]) and [Ms C] (born [DOB 7]), also known as [Ms C]. It was submitted that the applicant’s marriage deteriorated due to religious differences, as [Mr K variant] wanted to raise their daughters as Sunni Muslims, whereas the applicant wanted to raise them as Shi’as. Their disagreements escalated and the relationship was marred by domestic violence. Eventually they divorced and initiated custody proceedings over their daughters. Before the custody proceedings began, [Mr K variant] was killed in a coach accident [in] June 2005.

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

36. [Ms D] stated that the applicant 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 and her daughters left Pakistan on genuine 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. They recommended that the applicant pretend to be from Afghanistan as her case would not be accepted if she were found to be a national of Pakistan. For this reason, upon arrival to Australia, the applicant provided a false account of her life story that concealed her Pakistani nationality. 

1. [Ms D] submitted that it is apparent that the applicant 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. She had undergone a stressful journey of travelling by boat to Australia with three young daughters and was unfamiliar with the formal legal processes associated with a Protection visa application. [Ms D] submitted that under these circumstances, it is plausible that she would be susceptible to suggestions of fabrication. 

2. [Ms D] submitted that the applicant and her daughters have expressed both remorse and regret for their actions and have taken full responsibility by providing full and frank disclosure to the Tribunal. The applicant’s daughters were young children at the time they arrived in Australia ([under age] years old). They were not interviewed separately to their mother and were dependents on her Protection visa application. She stated that their extreme youth was no doubt a factor in their failure to weigh both the implications and consequences of providing incorrect information to a government authority.

3. Under the cover of her submission, [Ms D] provided Statutory Declarations by the applicant and her daughters. In her Statutory Declaration, declared on 12 October 2021, the applicant 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.

4. In addition, the Tribunal received Statutory Declarations and letters of support from the applicant’s family and friends. In essence, the Statutory Declarations and letters listed below outline the circumstances in which the applicant and her daughters left Pakistan and support the applicant’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 K variant’s] brothers. They also attest to the good characters of the applicant and her daughters and describe their contributions to Australian society as well as the hardships they will face if returned to Pakistan.

5. The Tribunal also received a Statutory Declaration dated 15 October 2021, declared by [Ms D], annexing two file notes. The first file note is dated 24 August 2021 and records a statement made over the phone by the applicant’s younger brother, [Mr F variant]. [Mr F] stated that he is a Pakistani citizen who lives in Quetta with his t[young] children. His father’s name was [Mr J variant 1] and his mother’s name was [Ms I]. Both his parents were Pakistani citizens. He does not know if he holds Afghan citizenship, but he believes his father does. [Mr F] described his sister’s circumstances in Pakistan and 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 K]’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 her plans to leave Pakistan and escape to Australia and was of the view that she should leave to protect her daughters.

6. The second file note is dated 12 October 2021 and records a statement made over the phone by the applicant’s sister, [Ms G]. [Ms G] stated that she is a Pakistani citizen, residing in Hazaratown, Quetta.  Her father’s name was [Mr J variant 1] and her mother’s name was [Ms I]. Both her parents were Pakistani citizens, and her father also had Afghan citizenship. She stated that she lived with her sister and [Mr K variant] in their family house in Quetta, until the applicant left with her daughters. [Ms G] stated that when [Mr K variant] 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 the calls making these threats but believed that they were violent. [Ms G] stated that the applicant left Pakistan for their safety as the girls were in danger of being kidnapped by their uncles.

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

   • Copy of a Pakistani birth certificate issued to the applicant [in] November 2007. The certificate indicates that the applicant, [Birth Name 1], was born in Quetta on [DOB 4], and lists the names of her father ‘[Mr J variant 1]’ and her mother ‘[Ms I]’.
   • 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 the applicant’s name as ‘[Birth Name 1]’ born in [year] and lists the names of her siblings and her parents, [Ms I variant] and [Mr J].
   • Copy of the applicant’s Pakistani National Identity Card issued [in] 2017 under the name ‘[applicant’s first name]’ born on [DOB 4] and stating that she is married to [Mr K].
   • 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 J variant 2], ‘is a permanent resident of Quetta district’ and belongs to the ‘Hazara tribe’. The document lists the names of her three daughters, [Ms A], [Ms B] and [Ms C].
   • Copies of the applicant’s Pakistani passports issued in 1991, 1996 and 2001 under the names [variations of the applicant’s name].
   • Copies of [Employer 1] Medical Cards for the applicant, [Birth Name 1] ([DOB 4]) and her daughters, [Ms B] (born [DOB 6 variant]) and [Ms C] (sic) (born [DOB 7]).
   • Copy and certified translation of a marriage certificate which indicates that ‘[Birth Name 1]’ and ‘ [Mr K]’ married in Quetta [in] March 1994.
   • Copy of a ‘Services Experience Certificate’ issued [in] August 2007 which states that [the applicant], daughter of [Mr J variant 3], is a permanent employee of the [Employer 2] at [Location 1] in Quetta.
   • Copy and translation of a Taskera ([number]) issued [in] February 2018 in the name of ‘[the applicant]’, with her father’s names listed as ‘[Mr J variant 3]’ and her grandfather as ‘[Mr L]’. The Taskera states that she was born on [DOB 4] and records the details of her uncle’s ([Uncle A]) ID.
   • Copy and certified translation of a ‘Verification Form’ issued [in] January 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, which states that the Taskera ([number]) is a ‘verified and genuinely issued document’. 
   • Birth certificate issued by the Government of Balochistan, Pakistan to [Ms A], daughter of [Mr K] and [Birth Name 1], born on [DOB 5] in Quetta.
   • 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 A]’.
   • Birth certificate issued by The Government of Balochistan, Pakistan to [Ms B], daughter of [Mr K] and [Birth Name 1], born on [DOB 6] in Quetta.
   • Birth certificate issued by The Government of Balochistan, Pakistan to [Ms C], daughter of [Mr K] and [Birth Name 1], born on [DOB 7] in Quetta.
   • Copy and translation of a ‘Local Certificate’ issued to [Mr K], [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 Birth & Deaths, [Town 1], Quetta, in relation to [Mr K]. 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 father, [Mr J variant 4], born on [DOB 8].
   • Copy and certified translation of the applicant’s father’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, [Uncle A variant]. The Taskera was issued [in] 2003 and lists the names of his father, [Mr L 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 K] as one of the deceased and features his photograph.
   • Copy of an order made by [Court 1] [in] September 2005 in relation to [Relative A’s] application for a ‘Succession Certificate’.  The document lists ‘[Ms A] & others’ as respondents.
   • Copy of a document titled ‘Condolence message’ issued by [a manager of Employer 1] on 2 December 2005, in response to the death of [Mr K variant].
   • Copy of a ‘Heirship Certificate’ dated [in] February 2006 and addressed to [a manager at Employer 1]. The certificate states that [Mr K] ‘has expired [in June 2005]’ and left behind four legal heirs: [the applicant] (wife), [Ms A] (daughter), [Ms B] (daughter), and [Ms C] (daughter). The certificate also states that the heirs are to receive ‘salary, Pension G.P. Fund, Benevolent Fund, group Insurance, and other Departmental dues’.
   • Copy of a letter dated 13 October 2021 by [a doctor] stating that [Ms A] is pregnant, with a due date [in] May 2022.
   • Copy of a marriage certificate certifying that [Ms A] and [her husband] married [in] January 2021.
   • Copy of a marriage certificate certifying that [Ms B] and [her husband] married [in] June 2019. 
   • Copies of educational records and certificates issued to the applicant and her daughters. 

8. In addition, [Ms D] 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 D] 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

9. 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).

10. 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].

11. 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).

12. 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?

13. At the hearing held on 18 August 2021, the applicant revealed for the first time that she had previously been untruthful in relation to her claims of identity and that she is not in fact a citizen of Afghanistan.

14. The Tribunal is unimpressed by the applicant’s significant delay in disclosing information and evidence in support of her 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 has considered the explanations provided in relation to this conduct and remains troubled by the applicant’s past persistent attempts to achieve favourable immigration outcomes through false and misleading representations. Notwithstanding, for the purposes of this review, 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.

15. In her Statutory Declaration of 12 October 2021, the applicant 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 ‘[the applicant]’ upon coming to Australia.

16. She stated that both her parents are deceased. Her mother’s name was [Ms I variant] and her father’s name was [Mr J].[5] Her parents were both Pakistani citizens and her father was also an Afghan citizen. They were both Hazara Shi’a and their families 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 is [among] her parents’ [number] children. [Number] of her siblings ([number] sisters and [number] brothers) are still alive.

    [5] See note 2, above.

17. The applicant attended school in Pakistan and worked as [an Occupation 1] in Quetta. She married [Mr K], 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, [Ms A] (known as ‘[Ms A]’), born on [DOB 5], [Ms B], born on [DOB 6] and [Ms C] (known as ‘[Ms C]’), born on [DOB 7].

18. In support of her Statutory Declaration, the applicant submitted numerous credible evidence to support her true identity claims. This evidence included a copy and certified translation of her purported 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 J variant 1]’ and her mother’s name as ‘[Ms I]’. It also refers to her father’s Pakistan National Identity Card number (see below).

19. The information contained in the applicant’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 the applicant’s parents, [Ms I variant] and [Mr J variant 5], and their [number] children. The document records the applicant’s name as ‘[Birth Name 1]’ born in [year].

20. The applicant provided identity documents belonging to her father, including a copy and certified translation of a Pakistani National Identity Card ([number]) issued to [Mr J variant 4], born on [DOB 8]. The document lists the holder’s father’s name as [Mr L variant]. The applicant also submitted a copy and certified translation of her father’s Taskera ([number]) issued [in] 2002 and an Afghan passport issued [in] 2005. Both documents indicate that he was born in Kandahar and list his father’s name as [Mr L variant]. The former also refers to his grandfather’s name as [Relative C]. A copy and translation of a Taskera belonging to the applicant’s paternal uncle, [Uncle A variant], lists the names of the holder’s father and grandfather as [Mr L variant] and [Relative C], respectively.

21. A copy and translation of a marriage certificate submitted by the applicant indicates that ‘[Birth Name 1]’ and ‘[Mr K]’ married in Quetta [in] March 1994. A copy of the applicant’s Pakistani National Identity Card ([number]), issued [in] 2017, records her name as ‘[applicant’s first name]’, born on [DOB 4], and indicates that she had married [Mr K]. The identity card features the applicant’s photograph and signature. The applicant’s Pakistani passports, issued in 1991, 1996 and 2001 record her name as [three variations] respectively and her date of birth as [DOB 4]. 

22. The applicant also submitted a copy 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 J variant 2], ‘is a permanent resident of Quetta district’ and belongs to the ‘Hazara tribe’. The document refers to her National Identity card number ([number]) and lists the names of her three daughters: [Ms A], [Ms B] and [Ms C].

23. In addition, the applicant provided a copy of a ‘Services Experience Certificate’ issued [in] August 2007, stating that [the applicant], daughter of [Mr J variant 3], is a permanent employee of the [Employer 2] at [Location 1] in Quetta.

24. 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 the applicant’s claims regarding her true identity as put forward in connection with her review application.

25. The Tribunal accepts that the applicant 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 a national of Pakistan. 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 K], a Pakistani national. The Tribunal accepts that prior to her departure from Pakistan, she resided with her family in Quetta and was a permanent employee of the [Employer 2] at [Location 1] also located in Quetta.

1. 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. As acknowledged by her in her Statutory Declaration of 12 October 2021, she gave false information to the Department about her identity, nationality and the reasons she fled to Australia out of fear that she would be deported to Pakistan.

2. The applicant has claimed that she is also an Afghan national on the basis that her father was an Afghan citizen. As already noted, she provided copies of a Taskera and an Afghan passport issued in her father’s name. Whilst the Tribunal is prepared to accept that the applicant may be entitled to an Afghan 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. In her evidence, the applicant has not denied that the Taskera issued [in] 2010 and submitted to the Department in support of her Protection visa application was bogus. However, she has claimed that Taskera ([number]) issued [in] February 2018 is a ‘genuine’ document. The Tribunal accepts that the applicant’s daughter had arranged through intermediaries for this document to be issued by relying on a Taskera in the name of the applicant’s paternal uncle. However, despite the document having been verified by the Afghan Embassy in Canberra [in] March 2019, the applicant has acknowledged that the Taskera 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 the document is a legitimate and lawful document that would support the claim that the applicant is a national of Afghanistan.

3. 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 the applicant is a citizen of Pakistan only and that she is not in fact a national of any other country.

   [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).

4. 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 more recent supporting evidence submitted, has accepted her assertions in relation to her true identity.

5. 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.

6. 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

7. 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