2104055 (Migration)

[2021] AATA 5015

2104055 (Migration) [2021] AATA 5015 (6 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104055

MEMBER:Kira Raif

DATE:6 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 06 September 2021 at 11:36am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in protection visa application – nationality – uncle’s Pakistani identity documents – genuine Afghan tazkera – insufficient probative evidence to make a positive finding – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan born in [year]. He was granted the Protection visa in August 2011 and the Resident Return visa (RRV) in August 2016. The applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) in May 2020 and provided his response. The visa was cancelled in March 2021 and the applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 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

4. 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.

5. 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.

6. 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? 

7. 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.

8. 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?

9. 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 s. 101 of the Act.

   Primary decision

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant travelled to Australia as an Irregular Maritime Arrival in April 2011. He attended an entry interview in April 2011 and stated in that interview that his name was [applicant’s name] and that he was born in [year] in Afghanistan. The applicant claimed that he was an Afghan national and feared persecution in Afghanistan on the basis of his race (Hazara) and religion (Shia). The applicant outlined his family composition, stating that his father was deceased, his mother and four siblings were living in Pakistan and he had one sibling in Australia and one in Iran.

11. The applicant made an application for the Protection visa in August 2011 and completed Form 866. In that form,

    a.The applicant gave his name as [applicant’s name] and date of birth as [date].

    b.Referred to his family unit as his parents (father deceased), wife and daughter living in Pakistan, and his siblings.

    c.Stated that he was a citizen of Afghanistan and had no other citizenship and no right to enter and reside in any other country.

    d.Stated that he was seeking protection so as not to return to Afghanistan and, in response to the question why he left that country, referred to the information he provided in the Refugee Status Assessment. Essentially, the applicant stated that his family left their village in 1991 due to the fighting and others have told him that the Taliban targets Hazara Shia. The applicant stated that he would be killed and targeted by the Pashtoon and the Taliban because of his religion and ethnicity.

12. The applicant was granted the protection visa on 18 August 2011. He attended an identity interview in March 2018 in relation to the citizenship application and other family members were also interviewed. The applicant provided the names of his grandfather, father and uncles and indicated he had an uncle (the applicant claims this person is a cousin) [Mr A] living in Australia. Departmental records show that [Mr A] is a Pakistani citizen with Pakistani identity documents, including the Pakistani birth certificate showing the same names for his paternal grandfather and father as declared by the applicant. The delegate concluded that the applicant’s father and grandfather were Pakistani citizens and the applicant would have acquired Pakistani citizenship at birth. The delegate concluded that the applicant gave incorrect answers when completing the application form.

13. In his response to the NOICC the applicant states that his father obtained the Pakistani documents illegally through bribes and these are not genuine documents, even though the names on the documents are genuine. The applicant states that he is not a national of Pakistan but is an Afghan national and his father and grandfather are Afghan nationals. The applicant states that Afghans born in Pakistan are not eligible for Pakistani citizenship, he was born in Afghanistan and migrated to Pakistan with his family. The applicant states that his tazkera may be verified through the Afghanistan embassy in Canberra and confirms his Afghan nationality. The applicant states that his grandfather also holds an Afghan tazkera. He does not know how his uncle obtained the Pakistani documents but he migrated before the other family members. The applicant referred to a number of country reports, Tribunal decisions and other materials. The applicant presented a number of documents in his response to the NOICC, which includes the verification of his Afghan Tazkera. At the commencement of the hearing, the applicant provided to the Tribunal evidence of his travel to Pakistan which includes his Pakistani visas. The applicant states that if he was a national of Pakistan, he would not need to obtain the Pakistani visas and the fact that he did confirms that he is not a national of Pakistan.

    Relevant country information

14. Pakistan law provides for conferral of citizenship to persons by birth in Pakistan. Under Pakistan’s Citizenship Act 1951, section 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.

15. In its Country Report on Human Rights Practices for Pakistan, published 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 …
    

    [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

    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]

16. 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

17. 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, 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

18. 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 

19. 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

    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.

20. 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 

1. 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

2. 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

3. 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

4. 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 platform 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

   [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.

5. The applicant provided a submission and a number of documents to the Tribunal on 2 September 2021. The applicant outlined his immigration history and submits that there was no non-compliance and no ground for the cancellation. The applicant refers to his tazkera  which has been verified by the Afghan Embassy in Canberra and claims it is a credible document and evidence of his identity. The applicant submits that contrary to the delegate’s findings, he was born in Afghanistan and not in Pakistan. His father and his grandfather were also born in Afghanistan and his grandfather holds an Afghan tazkera. The applicant notes that if it is accepted that his father and grandfather were born in Afghanistan, then he could not have acquired the Pakistani nationality. The applicant states that due to the security situation in Afghanistan and displacement, he did not have identity documents. He was living in Pakistan illegally until his departure in 2010 and was unable to obtain Pakistani documents. The applicant submits that fraudulent documents were obtained by his father by paying someone. The applicant also addressed discretionary considerations.

6. In oral evidence, the applicant states that he was born in Afghanistan and was [age] years old when he came to Afghanistan. The applicant states that his uncle came to Pakistan long before his family and he does not know how his uncle’s family were able to obtain the Pakistani nationality. The applicant told the Tribunal that even though he communicates with his family in Australia, he could not ask how they acquired the Pakistani nationality. Given the uncle’s status was central to the delegate’s decision to cancel the applicant’s visa, the Tribunal does not accept the applicant’s evidence that he could not, or did not, speak to his uncle and cousin about the issue. The applicant then explained that his cousin holds a temporary visa and did not wish to cooperate so as not to jeopardise his own visa.

7. The Tribunal finds the applicant’s explanation about his uncle’s / cousin’s nationality inadequate. The applicant was not able to offer a satisfactory explanation as to how his uncle was able to obtain the Pakistani documents and why these documents appear to suggest that the uncle was born in Pakistan (which may also suggest that the applicant’s father was born in Pakistan). The Tribunal does not accept the applicant’s evidence that he did not fully discuss the matter with his uncle’s family.

8. The applicant told the Tribunal that he held the tazkera and attended the Afghan embassy in Australia three times during the application process. He was questioned about his place of birth and other details before he was able to get the tazkera in 2018 for the purpose of his citizenship application. The applicant’s representative submits that the applicant’s paperwork would have been sent to the authorities in Afghanistan and independent checks are carried out before the tazkera is issued and it was later verified as being genuinely issued.

9. The Tribunal places significant weight on the fact that the applicant was able to obtain the Afghan tazkera, which has been verified by the Afghan authorities as being genuine. The only evidence that would suggest that  the applicant is a national of Pakistan, and which formed the basis of the primary decision, relates to the documents held by the applicant’s uncle and the Tribunal accepts the evidence that identity documents, including birth records, can be obtained by fraudulent means in Pakistan and in his uncle’s case, may not be genuine documents. This is consistent with the available country information and in the Tribunal’s view, there is at least a real possibility that the uncle’s Pakistani identity documents are not genuine.

10. The Tribunal finds the applicant’s explanation about his own circumstances (that the family travelled from Afghanistan to Pakistan and obtained fraudulent Pakistani documents) to be plausible. The applicant’s evidence is that his family paid money to obtain the fraudulent Pakistani documents. The applicant states that now NADRA is computerised and it is easier to determine whether the documents are genuine and his documents are no longer valid.

11. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32]:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

12. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

13. In this case, the consequences are significant, involving the cancellation of a permanent visa in circumstances where the applicant had been granted protection in Australia. In such circumstances, there must be persuasive evidence to form the basis for the cancellation. In the Tribunal’s view, such evidence is not present. This is because it is plausible that the applicant and his uncle’s family obtained false Pakistani documents while in Pakistan and that the applicant was in fact born in Afghanistan as claimed. The fact that the applicant has been issued with a tazkera which was verified by the Afghan authorities as genuine supports that finding. Importantly, the country information cited above indicates that Afghan refugees born outside of Pakistan cannot obtain the Pakistani citizenship.

14. Having regard to all this information, the Tribunal has formed the view that there is insufficient probative evidence to make a positive finding that the applicant is a national of Pakistan and that he gave or provided incorrect answers in his application. The Tribunal is not satisfied that the ground for cancellation is made out.

15. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

16. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Kira Raif
    Senior Member