2104050 (Migration)

[2021] AATA 4488

2104050 (Migration) [2021] AATA 4488 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104050

MEMBER:Kira Raif

DATE:30 September 2021

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 September 2021 at 11:55am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – Pakistan citizenship – fraudulent identity documents – race – Hazara – credibility issues – applicant was proposed for visa by her spouse – Australian citizen children – disability services for a child – best interests of the children – non-refoulement obligations – decision under review set aside        

LEGISLATION
Migration Act 1958, ss 101-105, 107, 109, 140, 359
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (the Act).

2. The applicant was born in [year] and claims to be a national of Afghanistan. She was granted the Global Special Humanitarian (GSH) visa in July 2011 and a Resident Return visa (RRV) in August 2017. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) and she provided her response to it in June 2020. The applicant’s visa was cancelled on 23 March 2021 and the applicant seeks review of the delegate’s decision.

3. The applicant’s two children were included in the application for review made by the applicant. However, their visas were cancelled under s 109 and involve separate decisions made by the delegate. The visas were not cancelled by the operation of law. Both children have subsequently made their own applications for review which are before the Tribunal. As such, the Tribunal finds that in this matter, the Tribunal has no jurisdiction in relation to the children. The Tribunal would make separate decisions in relation to the two children.

4. The applicant appeared before the Tribunal on 13 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

7. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa can constitute grounds for cancellation of the currently held visa.

   Did the notice comply with the requirements in s 107?

8. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

9. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s 107. The Tribunal is satisfied that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101 and 103.

    Primary decision

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for the Global Special Humanitarian (GSH) visa in Subclass 202 in November 2009 and was proposed in that application by her husband. The application included the applicant’s two children and other relatives. As part of that application, the applicant completed Form 842 in which she provided the following answers:

    a.    the applicant gave her name and date of birth and stated that she was born in Jaghori, Afghanistan, and was a citizen of Afghanistan,

    b.    she had been resident in Pakistan since April 2008,

    c.     the applicant stated that she left Afghanistan illegally and had a fear of returning to Afghanistan, claiming her family was targeted by the Taliban as Hazaras. The applicant stated that in Pakistan, the family were living illegally and were also targeted by the extremists.

12. The applicant also completed Form 80 in which she gave her personal details and stated that she was a citizen of Afghanistan. The applicant included with her application the Afghan tazkera as proof of identity. She was granted the GSH visa on 21 July 2011.

13. In October 2015 the applicant made an application for the Australian citizenship. In that application, the applicant gave her personal details and stated that she was an Afghan national. In March 2018 the applicant attended an identity interview, with other family members. During that interview it is stated that the applicant had admitted to being a citizen of Pakistan, stating that her father and grandfather were Pakistani citizens and that she held the passport and a national ID card of Pakistan. The applicant also stated that she has a cousin in Australia and Departmental records show him to be a citizen of Pakistan with Pakistani identity documents. The delegate notes that under the Pakistani Citizenship Act, the applicant would have acquired Pakistani citizenship at birth if her father was a Pakistani citizen.

14. The delegate notes that in her GSH visa application, the applicant provided the tazkeras for herself, her children and [number of in-laws]. [Number] of these were issued in 2007 and one in 2008, yet they are numbered sequentially and all show the same father. The applicant confirmed in her interview that she does not have the same father as her [in-laws]. In March 2018 the applicant’s tazkera was referred to the Document Examination Unit and it was determined that the document had been legitimately manufactured but fraudulently altered.

15. The delegate concluded that the applicant did not comply with s 101 because she confirmed  a Pakistani citizen possessing Pakistani identity documents and not an Afghan national as claimed in her GSH. The delegate also found that the applicant did not comply with s 103 because the Afghan tazkera which she provided with the application was a bogus document.

16. In her response to the NOICC the applicant stated that she was stressed and confused when questioned about her nationality during the citizenship identity interview and that her father and grandfather were born in Jaghori. The applicant denies being a Pakistan national but states she is an Afghan national and her father and grandfather were Afghan nationals. The applicant claims that her family had been living in Pakistan and her father bribed to obtain fraudulent Pakistani identity documents, as thousands of Afghan refugees had done. The applicant states that people born to Afghan parents in Pakistan are not eligible for the Pakistani citizenship. The applicant confirmed that she is fearful of returning to Afghanistan and she is not a citizen of Pakistan and the fact that the family held fraudulent Pakistani documents does not mean they are citizens of Pakistan. The applicant explained how the fraudulent documents were prepared so it would appear that the grandparents acquired the Pakistani citizenship. The applicant did not comment on her cousin’s Pakistani nationality.

17. With respect to the tazkera, the applicant states that the documents were obtained from the Afghan Consulate-General in Quetta and she could not check their authenticity, believing them to be genuine. The applicant also states that her marriage certificate was issued by the Afghanistan Consulate-General in Quetta and she believed it to be a genuine document and it is the fault of the Consulate if the document was fraudulent.

18. The applicant included a number of documents in support of her Afghan nationality, including the Afghan tazkeras for herself and her sister and grandfather, her marriage certificate, and country information concerning the availability of document fraud in Pakistan. (The applicant presented copies of these documents to the Tribunal.) The delegate noted that while the sister’s tazkera matched the applicant’s identification of her father and grandfather, that sister was not mentioned in the applicant’s own GSH visa application. The delegate also preferred the Pakistani nationality documents to the applicant’s and her family’s tazkeras as evidence of their nationality.

19. The delegate rejected the applicant’s claims. The delegate noted that the applicant’s father would have been over the age of 40 if the family migrated to Pakistan in the 1990s as the applicant claims, and it would have been unlikely for him to appear as a minor to be included in the identity documents prepared for her grandfather, particularly as he would need to attend in person to have a photograph taken. The delegate also noted that the applicant’s cousin, [named], is her first paternal cousin and he had provided Pakistani identity documents which identify his grandfather as [Grandfather A] while the applicant also claims that her father paid a bribe to be included on the family composition of a Pakistani national by the name of [Grandfather A]. The delegate considered it implausible that the applicant’s father and his brother (the applicant’s uncle) both paid a bribe to be included in the identity documents of the same person or a person by the same name. This is particularly so as the applicant claims her cousin’s family migrated well before her own family. The delegate considered it more likely that [Grandfather A] is the biological grandfather of the applicant and her cousin and a citizen of Pakistan, rendering the applicant and her cousin Pakistani nationals. The delegate reached this conclusion despite the provision of a tazkera by the applicant, noting in particular that the first tazkera provided by the applicant was found to be a bogus document.

    Relevant country information

20. Pakistan law provides for conferral of citizenship to persons by birth in Pakistan. Under Pakistan’s Citizenship Act 1951, s 4 provides for citizenship for all children born in Pakistan, and provides freedom from discrimination by of race, ethnicity or religion.[1] In practice, however, the government of Pakistan has not conferred citizenship on Afghan refugees or persons of Afghan descent, who were born in Pakistan,[2] despite being the subject of legal challenge in the past.[3]

    [1] 'Pakistan Citizenship Act 1951', 18 April 2000, 20190207160648; ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p.39, 20200312102402.

    [2] ‘Country Reports on Human Rights Practices for 2019 – Pakistan’, US Department of State, 11 March 2020, p.30, 20200312102402

    [3] For example; 'NADRA submits reply in Hafiz Hamdullah citizenship case', Pakistan Today, 23 November 2019, 20191127145641.

    Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources, including The National, The Express Tribune, Dawn, and Tolo News.

21. In its Country Report on Human Rights Practices for Pakistan, published on 11 March 2020, the United States Department of State noted that the government of Pakistan does not accord Pakistani citizenship to the children of Afghan refugees and did not accept refugees for resettlement from other countries:[4]

    The passage of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) impacted the ability to obtain national identity documents in Pakistan after 1952 and had the effect of deeming migrants to Pakistan prior to 18 April 1951 to be Pakistani nationals.[5] Subsequently, a declaration made by the Pakistan government in 1962 that conferred tribal status upon Hazaras and other ethnic groups, generated uncertainty about the legal status of Hazaras in Pakistan and their access to citizenship at law.[6] The United States Library of Congress’ Birthright by Citizenship Around the World report observed that despite the unconditional provision for citizenship by birthright in Pakistan, the claims of children of Afghan refugees born in Pakistan are denied at both administrative and judicial levels.[7] In practice, the operation of Pakistan’s Foreigners Act 1946, has enabled the direct displacement of rights to naturalisation and citizenship by birthright, for Afghan refugees and, indirectly, it has enabled the implied exclusion of these rights to their Pakistani‑born descendants.[8] Referring to a 1999 judicial decision in Peshawar,[9] a report published by the European University Institute noted that Pakistan law regards Afghan refugees, who may also be parents, to be foreigners and aliens under the Foreigners Act 1946 and that the ‘long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law.’[10] ‘relevant officials had been issued directives to not consider any proof of immigration from the 60s or 70s as valid and report such documentation so (Computerised National Identity Cards) CNICs of these individuals be blocked.’ [sic][11] We do not know who took the decision, but the new policy is that any Afghan family which migrated after 1951 will be considered illegal immigrants and their CNICs will be blocked after separate verification from the Special Branch and Intelligence Bureau (IB) …

    The decision was probably taken after reports emerged that several refugees who managed to get CNICs had purchased land using backdated documents … The instructions are clear cut. Any document from 1951 onward will not be accepted and all those who migrated subsequently will be considered illegal immigrants.[12]

    [4] ‘Country Reports on Human Rights Practices for 2019 – Pakistan’, US Department of State, 11 March 2020, p.30, 20200312102402

    [5] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [6] See: ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p.145, St Martin’s Press, New York, in: ‘Pakistan: Shias Muslims’, 20 November 2015, COISS, p.27, CRF909496121

    [7] 'Birthright Citizenship Around the World', Law Library of Congress, 01 November 2018, pp.30, 45, 20190306112250

    [8] 'Birthright Citizenship Around the World', Law Library of Congress, 01 November 2018, p.45, 20190306112250

    [9] Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18

    [10] 'Report on Citizenship Law: Pakistan', European University Institute , Faryal Nazir, 01 December 2016, CIS38A80125116

    [11] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [12] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

22. According to the same report, information sourced from an Intelligence Bureau official indicated that as a result of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) anyone who moved to Pakistan after this date ‘would have to apply for nationality as per the procedures set by the government.’[13] Further information from the official indicated ‘(a)fter the introduction of this Act, no person could automatically become a Pakistani national by purchasing land or obtaining a CNIC’ due to verification of Afghan refugees.[14]

    [13] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [14] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

23. In 2017, the Pakistan government announced a programme that aimed to provide ‘Afghan Citizen’ cards to up to one million undocumented Afghans in Pakistan.[15] The programme commenced in Islamabad and Peshawar, where the largest number of undocumented Afghans, such as Hazara refugees, reside. Information published by United Nations High Commissioner for Refugees (UNHCR) noted the cards would serve to provide legal protection from arbitrary arrest, detention or deportation under Pakistan’s Foreigner’s Act, to provide regularisation of their status until the Afghanistan government could issue passports.[16] The programme was arranged under Pakistan’s Comprehensive Policy on the Voluntary Repatriation and Management of Afghans, and included a six-month period scheduled to target undocumented Afghans in Islamabad and Peshawar.[17] According to available information, by March 2018, over 175,000 cards had been issued out of over 878,000 applications.[18] By late May 2019, approximately 850,000 cards had been issued.[19] According to information provided by a government spokesperson in May 2019, there were 850,000 Afghan Citizen cardholders, 500,000 unregistered Afghans and 1.4 million PoR cardholders.[20]

    [15] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp.8-9, 20191101144018

    [16] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp.2-2, & 8-9, 20191101144018

    [17] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp.2-2, & 8-9, 20191101144018

    [18] ‘Documentation of Undocumented Afghans at Afghan Citizen Card (ACC) Centers’, International Organisation for Migration, March 2018, CIS7B83941489. This press release from a think tank that focuses on Afghan refugee issues claimed in March 2018 that 900,000 cards had been issued: ‘Pakistan Takes Afghan Refugees As A Humanitarian Issue, And Not A Political One; Tahir Khan At CRSS–ASC Youth Forum’, Afghan Studies Center (Pakistan), 29 March 2018, CXBB8A1DA40056

    [19] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155

    [20] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155

1. On 18 September 2018, Pakistan Prime Minister Imran Khan announced plans to grant citizenship to Afghan refugees,[21] although the Prime Minister did not specify whether citizenship would be granted to Afghans born in Pakistan or to all those who live in Pakistan.[22] According to the same report, Prime Minister Khan stated:

   "We will ... god willing give (passports) to those Afghans whose children were born here and grew up in Pakistan" …

   "When you are born in America, you get the American passport. It is the practice in every country in the world, so why not here? Why are we so cruel to these people? They are humans".[23]

   [21] ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Pakistan's Imran Khan skirts issue of Afghan refugees' citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718

   [22] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946

   [23] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946

2. In response to political backlash, the government shifted responsibility for the overseeing administration of the policy to a parliamentary committee.[24] No information was located that indicated that the committee has made progress toward implementation of the plan, or that any Afghans in Pakistan have been conferred citizenship under the plan.[25]

   [24] ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘Pakistan's Imran Khan skirts issue of Afghan refugees' citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718; ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356; ‘Pakistan, Afghanistan, UNHCR sign declaration on return of refugees’, Tribal News Network (Pakistan), 19 June 2019, 20190624155044; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656.

   [25] ‘For Afghan Refugees, Pakistan Is a Nightmare – but Also Home’, Foreign Policy, 9 May 2019, 20190614160356; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656; ‘Only 1 In 3 Pakistanis Believe That The Government Of Pakistan Should Allow Afghans To Remain In Pakistan’, Gallup Pakistan, 4 March 2020, 20200330114828

3. According to information published by the United States Department of State on 11 March 2020, the government of Pakistan established a parliamentary committee to evaluate the possibility of extending citizenship to Pakistani-born children of refugees and stateless persons.[26] In early 2019, Pakistan media reported the government permitted Afghan refugees to open bank accounts in Pakistan.[27]

   [26] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p.30, 20200312102402

   [27] ‘Pakistan’s Govt Allows Afghan Refugees To Open Bank Accounts’, Tolo News (Afghanistan), 26 February 2019, 20190227074310; ‘Bank accounts promise to Afghan refugees in Pakistan comes true’, Dawn (Pakistan), 5 June 2019, 20190606103550

4. Proof of Residence (PoR) Cards issued by the National Database and Registration Authority (NADRA) to Afghans registered with the UNHCR, who arrived before February 2007, provide for freedom of movement and temporary legal status within Pakistan.[28] Many, however, did not register, with estimates varying between one and three million Afghan refugees who did not register and obtain PoR cards.[29] In 2019, the government extended the validity of the PoR cards until the end of June 2020.[30]

   [28] ‘Conditions for asylum caseloads: Afghan refugees’, Department of Foreign Affairs and Trade, 19 July 2010, CX246370; ‘World Refugee Survey 2009 – Pakistan’, US Committee for Refugees and Immigrants, 17 June 2009, CX5E56FED19048

   [29] 'Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees', Human Rights Watch, 13 February 2017, p.30, CISEDB50AD247. See also: 'Fact Sheet UNHCR Pakistan Registration Information Project for Afghan Citizens (RIPAC)', United Nations High Commission for Refugees (UNHCR), 01 October 2009, CX235649

   [30] ‘Pakistan extends stay of Afghan refugees’, Gulf News, 28 June 2019, 20190716133522

5. National identity documentation is available through both official and unofficial means in Pakistan, and document fraud ubiquitous.[31] Documentation including National Identity Cards, CNICs, passports and PoR cards are subject to counterfeiting and being obtained by fraudulent means, and significant numbers of Afghans have illegally obtained identity documents in Pakistan.[32] One report, for example, estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[33] Anthropologist and Hazara expert Alessandro Monsutti examined the existence of large and complex Hazara networks and observed the relative ease with which Hazaras may enjoy access to work, housing and identity documents.[34] Monsutti indicated connections play a significant role in the capacity of someone in Pakistan to gain identity documentation and evidence of citizenship irregularly:

   Access to Pakistani papers depends on personal connections more than on recognized formal rights. It means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. [35]

   [31] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 20 February 2019, p.71, 20190220093409​​; 'Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees', Human Rights Watch, 13 February 2017, pp.28-32,CISEDB50AD247

   [32] 'NADRA is disrupting demographics in Balochistan by issuing fake ID cards', The Nation (Pakistan), 7 August 2015, CXBD6A0DE19423, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17, DFAT, 9 March 2005, CX116630, ‘Afghan refugees’ Pakistani passports, identity cards illegal: NA told’, PAK Tribune, 17 November 2005, CX142357. ‘Situation and return of Afghans in Pakistan’, DFAT, 19 April 2000, CX41729, ‘Pakistani/Afghan mixed marriages’, Country Information Report No.123/01, DFAT, 23 April 2001, CX52331, ‘Afghans holding Pakistani passports’, Country Information Report No.124/01, DFAT, 24 April 2001, CX52333, ‘Unregistered Afghans to be treated as illegal immigrants’, IRIN News, 22 November 2006, CX165588.

   [33] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

   [34] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan', Alessandro Monsutti, Routledge, 2005, pp.101, 111, 120–121, CIS29035. In a 2014 email to the department, Monsutti elaborated on this point, noting, ‘Access to Pakistani papers depends on personal connections more than on recognized formal rights. It means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. I know many Hazaras in Quetta who came from Afghanistan in the 1970s and never got Pakistani papers. They may own a house in Quetta, have not been to Afghanistan for more than 30 years, without being formally Pakistani citizens’. ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’', Monsutti, A, 15 December 2014, CIS2F827D91802. See also 'Participatory Needs Assessment of Afghan Refugees in Balochistan 2014', United Nations High Commissioner for Refugees, October 2015, CISEC96CF14180

   [35] ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’', Monsutti, A, 15 December 2014, CIS2F827D91802

6. Monsutti also observed the government of Pakistan ‘readily granted [Hazaras] Pakistani papers to offset Pashtun influence in the region’ between 1971 and 1977.[36]

   [36] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan', Alessandro Monsutti, Routledge, 2005, p.104, CIS29035

7. The protracted residence of Afghan refugees in Pakistan has continued to manifest issues associated with Pakistan’s citizenship restrictions.[37] Pakistan officially hosts around 1.4 million registered Afghan refugees. A Refugee Summit convened in Islamabad in February 2020 examined the longstanding challenges faced by the governments of Afghanistan and Pakistan,[38] while United Nations Secretary-General António Guterres resolved to continue promoting cooperation on region-specific support platforms to assist voluntary repatriation and sustainable reintegration of refugees in Afghanistan, stating: ‘I want to reaffirm that the preferred durable solution for refugees has always been voluntary repatriation in safety and dignity to their country of origin. This is also true for Afghan refugees.’[39] 

   Assessment of the applicant’s claims and evidence

   [37] ‘Only 1 In 3 Pakistanis Believe That The Government Of Pakistan Should Allow Afghans To Remain In Pakistan’, Gallup Pakistan, 4 March 2020, 20200330114828; 'Refugees mark 40 years at ‘mini Kabul’ in Pakistan', Agence France Presse (AFP) - France, 16 February 2020, 20200217155129; 'Afghan refugee crisis not over yet: UNHCR', Mohammad Zafar, Express Tribune (Pakistan), 16 February 2020, 20200217145504; ‘A different kind of pressure: The cumulative effects of displacement and return in Afghanistan’, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, 20200113181041 ‘For Afghan Refugees, Pakistan Is a Nightmare – but Also Home’, Foreign Policy, 9 May 2019, 20190614160356

   [38] 'Arrivals from Afghanistan Exceeding Arrivals from Syria as Returns Hit Historical Low, Secretary-General Tells Pakistan Conference on Hosting Afghan Refugees', United Nations Secretary-General, 17 February 2020, 20200219104307. See also: 'Repatriation of Afghan refugees', Pakistan Observer, 3 March 2020, 20200303122159; ‘Pakistan to close border with Iran, Afghanistan over coronavirus’, New Straits Times, 14 March 2020, 20200316114441; ‘Flow Monitoring - Spontaneous Returns of Undocumented Afghans from Pakistan (24th November - 7th December 2019)’, International Organisation for Migration (IOM), 22 January 2020, 20200123160906.

   [39] For further details of the statement made by the United Nations Secretary General, please see: 'Arrivals from Afghanistan Exceeding Arrivals from Syria as Returns Hit Historical Low, Secretary-General Tells Pakistan Conference on Hosting Afghan Refugees', United Nations Secretary-General, 17 February 2020, 20200219104307.

8. In oral evidence to the Tribunal, the applicant claims she is a citizen of Afghanistan and not a citizen of Pakistan, and the applicant states that her father and grandfather are citizens of Afghanistan and they obtained bogus Pakistani documents. The applicant states that the details on these false documents were completely incorrect, so she went to school under a boy’s name, but the documents had the correct father’s and grandfather’s surname, which is all that mattered. The Tribunal is unable to verify the applicant’s evidence and her claim that she was only able to obtain a boy’s document which she used while in Pakistan.

9. The applicant states that she is not sure how her family and her uncle’s family were able to get bogus documents with the same family details, even though they migrated years apart. The applicant states that as a woman, she was not consulted and not involved. While that may be the case, the Tribunal considers the applicant’s explanation inadequate because in the absence of a satisfactory explanation as to how the bogus Pakistani documents were obtained by the two families, with same or similar details despite being issued years apart, the Tribunal may not accept the applicant’s evidence that such documents are in fact bogus. The applicant suggested that when a bribe was paid, they could have requested any information to be put on the documents but that appears to contradict her claim that her father was only able to obtain a boy’s identity for her so she had to attend school under a boy’s name. That evidence would suggest that it is not as easy as the applicant claims to obtain false documents through a bribe. In such circumstances, the fact that the applicant’s father and paternal uncle had Pakistani documents with the same name for a father, even though issued years apart, offers a strong indication, in the Tribunal’s view, that the documents were in fact genuine.

10. The applicant also told the Tribunal that she did not know how her cousin was able to get the Pakistani documents. The applicant told the Tribunal that she never saw these documents but she does not appear to dispute that such documents may exist, she simply claims that she is unaware of how these were obtained. Again, the Tribunal is of the view that in the absence of a meaningful explanation of how the applicant’s paternal cousin was able to obtain the Pakistani documents (to which the primary decision refers), the fact that he did may indicate that the applicant’s cousin, his father (the applicant’s paternal uncle), as well as the applicant’s own father were Pakistani nationals, which would also indicate that the applicant herself is a Pakistani national if born in Pakistan.

11. The applicant claims that the Pakistani identity documents were fraudulent and she refers to the availability of document fraud in Pakistan and the use of fraudulent documents by Afghan refugees. The Tribunal accepts the applicant’s evidence, which is consistent with the available country information, about the widespread availability of document fraud and the common practice of Afghan refugees obtaining fraudulent Pakistani documents. The Tribunal also acknowledges the applicant’s evidence about how the documents were obtained specifying her father and grandfather as Pakistani nationals. However, the information indicates that those who arrived in Pakistan prior to the change in government policy were able to acquire Pakistani citizenship. That is, if the applicant’s father and grandfather migrated to Pakistan, they would have been entitled to the Pakistani citizenship and it is not impossible, nor implausible, that the applicant’s father and grandfather were able to acquire the Pakistani citizenship. The fact that the applicant’s father and grandfather were from Afghanistan would not necessarily preclude the possibility of the applicant acquiring the Pakistani citizenship, depending on when her family migrated to Pakistan.

12. The applicant claims, essentially, that she is a national of Afghanistan, and she provided her Afghan tazkera and other identity documents, as well as identity evidence relating to her father and grandfather and her Pakistani visas, evidencing she was not a national of Pakistan. The Tribunal acknowledges that evidence, as well as the verification of her Afghan tazkera and, normally, would give significant weight to such documents. However, in the particular circumstances of this case, the Tribunal has decided to give these no weight. This is because the information in the primary decision record indicates that the applicant had previously presented in support of her GSH bogus tazkeras that had been altered and a bogus marriage certificate. The Tribunal has also formed the view that the applicant is not a person of credibility, for the reasons stated below. As such, the Tribunal has formed the view that the documents submitted by the applicant, as well as her evidence, are unreliable. The Tribunal notes, in particular, the country information which indicates that bogus documents are as readily available in Afghanistan as they are in Pakistan.

13. With respect to the provision of bogus tazkeras in the past, the applicant explained to the Tribunal that she approached the Afghan embassy in Quetta and she was not allowed to go into the office and others had created the documents. The applicant claims that because the documents came from the official channel, they trusted the documents to be correct and they did not think to check. The applicant claims that the fathers’ names are different on the tazkeras.

14. The Tribunal acknowledges that the Afghan tazkera now presented by the applicant has been verified. The applicant claims that to get the current tazkeras, she had to go through the formal process, including identification of herself as an Afghan national, and she was required to provide tazkeras for family members and show her ‘roots’ and these were verified in Afghanistan. The applicant claims that she would not have been able to obtain the tazkera if she could not prove her Afghan nationality. The applicant told the Tribunal that she presented her grandfather’s tazkera and answered questions at the interview. However, the questions at the interview required self-reported information and the Tribunal would give such self-reported evidence no weight in the applicant’s circumstances. As for the grandfather’s tazkera, the applicant states that her grandfather always had his tazkera and it is a genuine tazkera which had been verified. However, the applicant also told the Tribunal that when she attended the interview with the Afghan authorities to get the tazkera, she did not inform the authorities that she claimed to be a citizen of Pakistan in her citizenship interview. It is thus likely that the Afghan authorities did not have full and accurate information before them when conducting the verification, and in the Tribunal’s view, that affects the probative value of the verification process and of the documents.

15. The Tribunal considers it most significant that when interviewed in relation to her Australian citizenship application, the applicant did confirm that she and her relatives were Pakistani nationals. That is consistent with the country information that indicates that the applicant’s grandfather could have acquired the Pakistani citizenship if he arrived in Pakistan at the time when citizenship was available to Afghan refugees (and he could have held a genuine Afghan tazkera at the time, which would not prevent him from acquiring the Pakistani citizenship). If the applicant’s grandfather or father acquired the Pakistani citizenship, their descendants born in Pakistan would also be Pakistani citizens.

16. The applicant provided a number of explanations for her evidence at the citizenship interview. In her oral evidence to the Tribunal, the applicant denied that she stated at the citizenship interview that she was a national of Pakistan or that her father was a Pakistan citizen but stated that she did admit to attending a school in Pakistan. Having listened to the recording of the interview, the Tribunal finds that claim to be entirely untrue as the applicant did state she was a national of Pakistan.

17. The applicant also told the Tribunal that she never claimed to be a citizen of Pakistan at the citizenship interview. She claims that it was the interviewing officer who insisted she was a Pakistani citizen and she simply agreed to whatever was being stated. Having listened to the recording of the interview, the Tribunal finds that claim entirely untrue as the applicant was asked what country she was a citizen of and she answered Pakistan.

18. The applicant explained in her evidence to the Tribunal that she was stressed and confused during the interview and made mistakes. The Tribunal does not accept the applicant’s explanation. The Tribunal is of the view that the applicant would have recognised the significance of that interview and the importance of providing accurate and truthful information, and it is standard practice at such interviews for the applicant to be warned of the need to provide truthful information and the liability for providing untruthful information. The Tribunal is of the view that the applicant would have recognised the importance of telling the truth in that interview, and if she was unable to provide truthful information for any reason she would have indicated that. That is, no matter how stressed or distracted she may have been, the Tribunal does not accept that the applicant would admit to being a national of Pakistan if she never held that nationality.

1. The applicant’s written evidence to the Tribunal is that she was too nervous or stressed at the interview to recall her father’s and grandfather’s country of nationality. The Tribunal finds that evidence implausible. Either the applicant’s father and grandfather were Pakistani citizens or they were Afghan nationals and acquired fraudulent Pakistani documents through bribery and never held Pakistani nationality. The two versions cannot coexist, and in such circumstances the Tribunal considers it implausible that the applicant would claim – for any reason including stress and confusion – that one version was true when she now claims it was entirely false and the other version was true. In the Tribunal’s view, the more likely explanation is that the applicant did provide truthful information in her identity interview and that her father and grandfather did hold the Pakistani citizenship but the applicant subsequently realised that this would be inconsistent with her GSH visa claims and therefore decided to provide a different version.

2. The Tribunal is also of the view that the applicant would have been presented with every opportunity at the citizenship interview to explain her circumstances and her claimed nervousness, forgetfulness, concern for the children, etc. Having listened to the recording of the interview, the Tribunal notes that the applicant did not raise any issues. At no time during the interview did the applicant claim that she was too nervous, stressed, forgetful or worried to be able to participate at the interview and answer questions. Indeed, the interview appears to have been conducted in a relaxed atmosphere, the applicant was offered a break and many opportunities to present whatever evidence she wished. The Tribunal does not accept the applicant’s explanation that she was disadvantaged because she communicated in English as the applicant’s English proficiency appears to be excellent. The applicant was also offered an interpreter and had an opportunity to raise any concerns with the interpreting at the time of the interview. The Tribunal has formed the view that the applicant’s present claims of being too stressed and incapable of presenting evidence at the citizenship interview is nothing more than a recent invention and an attempt to explain the adverse evidence the applicant gave at that interview.

3. The applicant told the Tribunal that during the interview, she received a phone call that the person she arranged to pick up her young children from school could not do it and she was worried about her children. The applicant states that she ‘pleaded’ with the interviewer to let her go and collect her children but she was not allowed to leave. The applicant states that because of her concern for the children, she did not know what she was saying and simply agreed to what the interviewer asked. The applicant provided a further explanation to the Tribunal in her written submission of 28 September 2021, in response to the Tribunal’s correspondence pursuant to s 359A of the Act in which she has, essentially, offered the same explanations for the evidence she had given in her citizenship interview as she did in oral evidence to the Tribunal. For the reasons stated elsewhere, the Tribunal does not accept the applicant’s explanations.

4. Having listened to the recording of the interview, the Tribunal finds the applicant’s claims entirely untrue. The recording of the interview shows that at no time did the applicant receive any calls or messages during the interview, and the applicant did not at any time mention her need to leave to pick up the children from school. The applicant claims in her post‑hearing submission that her phone was switched off but she received the message but the recording of the interview shows that the applicant did not indicate at any time that she was worried about her children or that she was unable to continue with the interview because of her concern for the children or any other matter. The entirety of the applicant’s explanation appears to have been fabricated for the purpose of explaining the applicant’s admission at that interview that she was a national of Pakistan, which the applicant has now determined was not in her best interests and which she now disputes.

5. The applicant told the Tribunal that she was under pressure and the interviewer kept telling her she was a citizen of Pakistan but she never accepted that and never claimed to be a citizen of Pakistan. As noted above, the Tribunal has formed the view that this claim is entirely untrue as the recording of the citizenship interview indicates that the applicant was asked what country she was a national of and she stated Pakistan. She also confirmed that she held a Pakistani passport and later admitted that she had a Pakistani ID card. These were not admissions that were uttered by the interviewer to which the applicant said ‘yes’ as she appears to suggest to the Tribunal now. These were admissions that were expressly made by the applicant.

6. The Tribunal has formed the view that the applicant has been entirely untruthful in her evidence to the Tribunal concerning the circumstances of her citizenship interview and the admissions she had made in that interview. The Tribunal has formed the view that the applicant gave truthful evidence in that interview when claiming to be a national of Pakistan because she wanted to confirm her identity for the purpose of obtaining the Australian citizenship. Having now realised that the admission has led to the cancellation of her permanent visa, the applicant has determined that different evidence would be more beneficial to her in her circumstances, and the applicant had fabricated some explanations for the admissions she had earlier made.

7. The fact that the applicant told untruths to the Tribunal concerning the circumstances of her citizenship interview causes the Tribunal to conclude that the applicant is not a person of credibility and that her present evidence is not reliable. The Tribunal considers the applicant’s evidence at the citizenship interview concerning her Pakistani nationality to be preferable to her evidence to the Tribunal. The applicant’s evidence at the citizenship interview is that she is a national of Pakistan.

8. The Tribunal also notes that the applicant had provided bogus documents in the past, including the tazkeras and the marriage certificate in her GSH visa application.

9. The applicant told the Tribunal the earlier tazkeras were issued by the Afghan embassy and she had approached the formal channels and had no way of verifying the documents. With respect to the marriage certificate, the applicant also states that she obtained the document through the official channels and she was unaware of the issues. The applicant states that the witnessing of the documents is a male business and the witnesses were male, she did not know them and did not know their names, so she could not explain why the name of the witness on her marriage certificate was different on other documents presented to the Department.

10. Evidence before the Tribunal also indicates that the applicant’s Afghan driver licence was a bogus document. The applicant told the Tribunal that she approached the Afghan consulate in Pakistan to get the document and had to sit the test. The applicant submits that the Afghan consulate was responsible for the issuance of various identity documents. The Tribunal does not consider it plausible that a consulate would have the authority to issue a licence in circumstances where the applicant did not have one previously. This is not the case where the licence had to be renewed or the existing licence reissued. The applicant’s evidence is that she learned to drive in Pakistan but approached the Afghan consulate to obtain the licence, and the Tribunal does not accept the Afghan consulate would have issued her with an Afghan licence in circumstances where the applicant had never driven in Afghanistan, had not demonstrated knowledge of the Afghan road rules and on the basis of her driving lessons in a different country. Importantly, in her citizenship identity interview, the applicant admitted that she was aware that her Afghan driving licence was a bogus document, contrary to her oral evidence to the Tribunal that it was not bogus and her post‑hearing written evidence that she was unsure or unaware that it was bogus. Again, the Tribunal has formed the view that the applicant had been deliberately untruthful in her evidence to the Tribunal, which supports the Tribunal’s view that the applicant is not a person of credibility and that her evidence is unreliable.

11. The applicant also admitted to providing her Afghan licence to obtain the driver licence in Australia. The Tribunal has formed the view, on the basis of the applicant’s evidence at the citizenship interview, that the applicant was aware that her Afghan driver licence was a bogus document and the applicant’s reliance on a bogus document to obtain the Australian licence also suggests to the Tribunal the applicant’s willingness to rely on fraudulent information or bogus documents when dealing with the authorities to obtain a benefit.

12. The applicant’s ability to obtain bogus documents (whatever the applicant’s involvement was in that process) suggests to the Tribunal that the documents presented presently are not of probative value. Even if the applicant was entirely uninvolved in the preparation of the bogus tazkeras and the marriage certificate in the past, and even if the Tribunal were to accept her claim that the documents were issued incorrectly by the Afghan authorities, the applicant’s evidence indicates that official documents issued by the Afghan authorities are unreliable, and in such circumstances the Tribunal does not consider that they can be given any weight. With respect to the applicant’s tazkera, this is also the case because, as noted above, the Tribunal is not satisfied the Afghan authorities had all the information before them when issuing the tazkera, and in such circumstances the Tribunal considers any verification process to be deficient.

13. The Tribunal acknowledges the applicant’s evidence that she had to obtain the Pakistani visas to travel to Pakistan and would have given her biometrics and she was not recognised as a citizen of Pakistan during these trips. However, the applicant has provided no evidence to satisfy the Tribunal that the authorities in Pakistan had the biometric information about all of their citizens at the time of her travel so that she would have been recognised as a Pakistani citizen at the time of entry. That is, if the applicant chose to present herself as a national of Afghanistan during her travel, it is not apparent to the Tribunal that the border authorities in Pakistan would have necessarily recognised the applicant as a national of Pakistan rather than Afghanistan.

14. The applicant’s evidence at the citizenship interview, coupled with the Pakistani identity documents for other relatives and the applicant’s ability to provide bogus Afghan identity documents in the past, altogether offer strong evidence, in the Tribunal’s view, that the applicant is a national of Pakistan. The Tribunal accepts that the applicant obtained Pakistani visas, which she would not have been required to do if she was a national of Afghanistan. However, the Tribunal is also of the view that having claimed to be a national of Afghanistan in her GSH visa, the applicant may have wished to maintain that falsehood and therefore she would have made that claim in her overseas travel.

15. The applicant claims that her family’s Pakistani documents had been cancelled by NADRA now that their system has been computerised. However, the applicant presented no evidence to support that assertion and she told the Tribunal that she did not think it was relevant. The Tribunal does not accept that explanation, given that the very basis for the cancellation of her visa arises because the applicant was considered to be a national of Pakistan and the Pakistani documents were bogus. The cancellation of her Pakistani documents would thus be highly relevant, if not central to her claims, and the Tribunal does not accept the applicant (or her representative) did not appreciate the significance of evidence showing the Pakistani documents had been cancelled. The Tribunal also notes that some time has passed from the time of the Tribunal hearing when this issue was discussed, to the time of this decision, and the applicant has made no indication that she is seeking evidence of the action by NADRA. The applicant then told the Tribunal that there was nothing concrete to show that the documents had been cancelled and her mother was told that when she approached NADRA. Having formed the view that the applicant is not a truthful or credible witness, the Tribunal is not prepared to accept the applicant’s assertions without probative evidence. The Tribunal does not accept the family’s Pakistani documents have now been cancelled and does not accept the claimed cancellation evidences her Afghan nationality.

16. Having regard to the above information, and the concerns set out above with respect to the applicant’s evidence, the Tribunal prefers the evidence given by the applicant in her citizenship interview. There the applicant claimed to be a national of Pakistan and stated that she held a Pakistani passport and a Pakistani ID card. The Tribunal finds, having regard to that evidence, that the applicant was a national of Pakistan when applying for the GSH visa. The Tribunal finds that when answering the question on the application form, the applicant claimed to be a national of Afghanistan and did not mention the Pakistani citizenship. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that there was non-compliance with s 101 of the Act.

17. Information in the primary decision record indicates that when applying for the GSH visa, the applicant included her Afghan tazkera. This document was assessed by a document examiner and was found to have been genuinely issued but fraudulently altered. The Tribunal further finds that the applicant’s marriage certificate submitted with the GSH was a bogus document because the name of one of the witnesses on that certificate appeared to be different in other documents submitted to the Department. The applicant explains that the fault lies with the issuing authorities and she had no control over the issuance of the documents, as she had approached the official channels, and had no way to check the authenticity of the documents. The Tribunal does not necessarily accept the applicant’s explanation, but in any case, in the Tribunal’s view, s 103 applies whether or not the applicant was aware that the documents were bogus documents.

18. The Tribunal reasonably suspects that the applicant’s tazkera submitted in support of her GSH visa application is a bogus document because it had been altered by a person without authority to do so. The Tribunal reasonably suspects the applicant’s marriage certificate submitted with the GHS visa application is a bogus document as it was obtained because of a false or misleading statement, whether or not made knowingly. The Tribunal finds that the applicant gave, or caused to be given, to the Minister or an officer, bogus documents. The Tribunal finds that the applicant did not comply with s 103 of the Act. Thus, irrespective of the applicant’s nationality and even if the above findings with respect to her nationality are entirely incorrect and the applicant is genuinely a national of Afghanistan and not a national of Pakistan, the Tribunal would find that the applicant gave a bogus documents with her GSH visa, being her tazkera and marriage certificate, and that she had not complied with s 103.

19. For these reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

20. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

21. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994. They are as follows.

    The correct information

22. The Tribunal has formed the view that the applicant is a national of Pakistan. That is the correct information.

    The content of the genuine document (if any)

23. The Tribunal found that the applicant’s tazkera was not a genuine document. A genuine document would have a different serial number. The Tribunal has also found that the applicant’s marriage certificate was not a genuine document and a genuine document would not name a witness who was known under a different name in other documents submitted to the Department.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

24. An applicant’s identity is central to any visa assessment. The applicant included, as evidence of her identity, a tazkera and a marriage certificate, both of which were bogus documents. The applicant also claimed in her application that her family were targeted in Afghanistan and fled Afghanistan as a result of that persecution. The applicant claimed that her family were living in Pakistan illegally. The Tribunal is of the view that these claims are entirely untrue as the Tribunal has concluded that the applicant was a citizen of Pakistan.

25. However, the Tribunal is mindful that the applicant was granted the GSH visa on the basis of the proposal by her partner. The relevant provision at the time the application was made, cl 200.211, required the applicant to either establish that she was facing discrimination or to be proposed by another person. In this case, it appears that the applicant was proposed by her spouse, so that she could have met the requirements of cl 200.211(2) irrespective of her country of nationality and the circumstances in that country. Thus, while the Tribunal considers the information about the applicant’s nationality to be relevant to her identity (and therefore the decision to grant was based on incorrect information), the applicant’s country of nationality appears to be of far lesser significance in circumstances where the applicant relied on the proposal by her spouse.

    The circumstances in which the non-compliance occurred

26. The applicant explained to the Tribunal that in order to get her tazkera and marriage certificate, she had approached the Afghan authorities but she was not allowed to enter the building. She claims that because the documents were obtained from the official sources, she believed them to be genuine and had no means of checking. The applicant submits she was not involved in the preparation of these documents. The applicant told the Tribunal that she did not think of checking the documents or the numbering on the tazkeras, while the witness on the marriage certificate was specified by another person.

27. The Tribunal has formed the view that the applicant is not a person of credibility, for the reasons stated above, and the Tribunal is not convinced that the applicant has provided an entirely truthful account of how the bogus documents were obtained. In any case, the Tribunal is of the view that the applicant is a national of Pakistan and finds that the applicant would have been well aware of her country of nationality. The Tribunal finds that the provision of an incorrect answer in relation to her country of nationality was done deliberately and intentionally.

    The present circumstances of the visa holder

1. The applicant told the Tribunal that her two daughters are academically gifted and they would have no future in Afghanistan. The applicant refers to the discrimination of Shia Muslims in Afghanistan and the harm that she and her family would experience. The Tribunal is prepared to accept these claims (which are addressed more fully below) but is mindful that the daughters’ visas have been cancelled through a separate process and are independent of the present review. The Tribunal does not consider that the outcome of this review would in any way affect the consideration of the daughters’ circumstances and, importantly, will not lead to the daughters having to leave Australia and return to Afghanistan.

2. The applicant states that her youngest child has been born with a disability and is receiving speech therapy, physiotherapy and occupational therapy and needs ongoing medical care which would not be available to him in Afghanistan. Again, while the Tribunal accepts that evidence, the Tribunal considers the child’s ability to remain in Australia and access to various services would not be affected by the cancellation of the applicant’s visa. This is because the child is an Australian citizen and the applicant has not satisfied the Tribunal that the NDIS services would be withdrawn depending on the applicant’s visa status.

3. The applicant refers to the severe stress she has experienced as a result of her visa being cancelled and she claims she is unable to take care of the children as a result. Following the hearing, the applicant provided to the Tribunal a psychological report. It is of considerable concern to the Tribunal that the applicant saw a psychologist after the Tribunal hearing and when preparing her response to the Tribunal’s s 359a correspondence and she told the Tribunal in oral evidence that she was unable to see one earlier. It seems that the applicant had seen the health professional for the purpose of obtaining the medical report to support her claims to the Tribunal.

4. The Tribunal is prepared to accept that the applicant suffers from depression. However, the applicant has not satisfied the Tribunal that as a result of her mental state, she is unable to care for the children or that she would be unable to continue such care if her visa is cancelled. That is, the Tribunal does not accept that the cancellation of the visa would affect the applicant’s ability to care for the children.

   The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

5. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

   Any other instances of non-compliance by the visa holder known to the Minister

6. There are no other known instances of non-compliance.

   The time that has elapsed since the non-compliance

7. The application for the GSH visa was made in November 2009 and close to 12 years has passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

8. There are no known breaches of the law.

   Any contribution made by the holder to the community

9. The applicant told the Tribunal about the voluntary activities she has been involved in. The Tribunal accepts that the applicant has contributed to the community through voluntary work.

10. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

11. There are no persons who would be affected by consequential cancellation under s 140. The visas held by the applicant’s two children had been cancelled under s 109 of the Act.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

12. The applicant has four minor children. Two of her children are Australian citizens and the elder two children were holders of visas that have now been cancelled.

13. The applicant provided to the Tribunal a number of documents concerning her children’s study and involvement in the community. The applicant told the Tribunal that her daughters are high achievers academically and would have no future in Afghanistan. The applicant spoke about her son’s health needs and the ongoing medical support he requires, which would be unavailable to him in Australia. The applicant claims that her third child suffers from [a severe medical condition] and the cancellation of her visa would cause her significant stress, which would also affect her children. In her submission to the Tribunal of 28 September 2021, the applicant provided some statements from her children, as well as other supporting statements.

14. The Tribunal accepts that it is in the best interests of the four children to remain with their parents. Given the present uncertainty in Afghanistan and the unsafe situation for Hazaras in Pakistan, the Tribunal is prepared to accept that it is in the best interests of these children to remain in Australia.

15. The Tribunal notes, however, that the applicant is eligible to seek other visas in Australia, in particular, a partner visa and a protection visa. The Tribunal has also formed the view that Australia’s non-refoulement obligations would not be breached, and that if it is determined that the applicant is owed protection she would be permitted to remain in Australia. The Tribunal has formed the view that there is very little (or no) likelihood that the applicant would have to depart Australia. The applicant refers to the high cost of making another visa application and claims she has no funds for a partner visa or for legal representation for the protection visa, but the applicant has not presented any financial records relating to her family and has not satisfied the Tribunal that she would be unable to make another visa application onshore if her visa was cancelled. The Tribunal has formed the view that the applicant will be able to make another visa application onshore and does not consider that the applicant would be required to leave Australia if her present visa is cancelled.

16. That is, the cancellation of the applicant’s visa is unlikely to result in her departure from Australia and the applicant’s separation from her children (or the need for the children to leave Australia). In such circumstances, the Tribunal does not consider that the cancellation of the visa would adversely affect the best interests of the children.

17. The Tribunal has also rejected the applicant’s claims that as a result of her visa being cancelled, she would be unable to care for the children.

    Whether the cancellation would lead to the person's removal in breach of Australia's non‑refoulement or family unity obligations

18. The Tribunal accepts that Hazaras face discrimination in Pakistan and it accepts that the applicant’s circumstances may require consideration. However, the applicant is eligible to make an application for a protection visa onshore (even if she claims she cannot afford a partner visa).

19. The applicant presented various reasons why she could not apply for the protection visa, stating that she cannot afford a lawyer and does not understand how the process works or how to complete the forms without representation. The Tribunal does not accept the applicant’s evidence. Even if the applicant was unable to complete the forms and prepare her own application (evidence which the Tribunal does not accept) and even if she was unable to pay for professional advice (a claim for which the applicant presented no supporting evidence), the applicant would be able to access help from various organisations that provide free immigration advice to asylum seekers and migrants. The Tribunal has formed the view that much of the applicant’s evidence in this respect has either been untruthful or exaggerated, and the Tribunal does not accept her evidence that the applicant would be unable to make an application for a protection visa onshore.

20. The applicant also told the Tribunal that she has been involved in community organisations and had approached the Red Cross for assistance and the Tribunal is of the view that the applicant could access advice on who can provide her with the necessary support. The Tribunal has formed the view that the applicant would be very capable of making an application for a protection visa if her visa is cancelled.

21. The Tribunal acknowledges that the process and the delay may cause the applicant additional stress and discomfort but the Tribunal finds that Australia’s protection obligations would not be breached as a result of the cancellation of the applicant’s visa because the applicant has other visa options in Australia.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

22. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas she can apply for onshore. (Relevantly to the applicant, this would include a partner visa and a protection visa.) The applicant may be subject to an exclusion period in relation to some visa applications made offshore. The cancellation of a permanent visa would result in the applicant losing some benefits that she may have been entitled to as a permanent resident of Australia and she told the Tribunal that her Centrelink payments had been affected.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

23. The applicant claims that her children were registered under Medicare and Centrelink, and because her visa was cancelled, it may also affect the children’s access to Medicare and her son’s access to NDIS. The Tribunal does not accept that the child’s access to NDIS (noting that the child is an Australian citizen) would be affected as a result of the applicant’s visa being cancelled. The applicant claims that her Centrelink payment has been cancelled as a result of her visa being cancelled and that has caused the family financial hardship. Although the applicant failed to present any financial record or evidence of the family’s financial circumstances, the Tribunal accepts that if the applicant lost her Centrelink income, it may have affected the family’s financial position. Generally, the Tribunal accepts that some hardship would be caused to the applicant and her family by the cancellation of her visa.

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s 101 and s 103 of the Act and that there are grounds for cancelling her visa.

25. The Tribunal has formed the view that the applicant had been untruthful about her country of nationality and that she is a national of Pakistan rather than Afghanistan. The applicant is likely to have been born in Pakistan rather than Afghanistan and these matters are relevant to her identity and therefore to the decision to grant her the visa. The Tribunal has formed the view that the applicant continued to be untruthful in her subsequent dealings with the Department and the Tribunal, and the applicant’s subsequent behaviour weighs in favour of the cancellation.

26. However, the Tribunal accepts that the cancellation of the visa could cause hardship to the applicant. This is because the applicant would lose her entitlements as a permanent resident and may be required to go through a lengthy and costly process of seeking another visa to enable her to remain in Australia with her family. While the Tribunal has formed the view that the best interests of the children would not be affected by the cancellation if the applicant is not required to leave Australia, the Tribunal acknowledges that the uncertainty associated with any visa process, and the delays, may adversely affect the applicant’s wellbeing and the family in general. The Tribunal also acknowledges that the high cost of a new application (and the possibility of review fees) may cause financial hardship to the family.

27. The Tribunal has formed the view that the decision to grant the visa was based on incorrect information but places weight on the fact that the applicant may have been entitled to the visa due to the nomination by her partner, irrespective of her country of nationality.

28. Overall, the Tribunal has formed the view that the presence of the applicant’s four children in Australia, the special needs of her youngest child which require the applicant’s continuous and ongoing support, the hardship that would result from the cancellation, including the financial hardship associated with a new visa application and its potential to affect the applicant’s health and wellbeing, and the situation affecting Hazaras in Pakistan (and Afghanistan) are all matters that do not favour cancellation. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

30. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member

    
    
    

Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources, including The National, The Express Tribune, Dawn, and Tolo News.