2104741 (Refugee) [2021] AATA 3961 (13 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2104741
COUNTRY OF REFERENCE: Pakistan
MEMBER:Michael Hawkins AM
DATE OF ORAL DECISION: 13 August 2021
TIME OF ORAL DECISION: 10.26am (QLD time)
DATE OF WRITTEN STATEMENT: 30 August 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 August 2021 at 1:44pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information in the visa application – nationality – Pakistan citizenship – identity and age details – religion – Shia – race – Hazara – unaccompanied Hazara Shia minor – torture – fear of killing – employment – restrictions and attacks on Hazara Shias in Pakistan – non-refoulement obligations – decision under review set asideLEGISLATION
Migration Act 1958, ss 101, 107, 109CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with sections 101(a) and 101(b) of the Act in respect of answers he had provided in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, [Friend A].
The applicant was represented in relation to the review by his registered migration agent.
The Tribunal gave its decision on the review at the conclusion of the hearing on 13 August 2021. The following are the reasons for that decision.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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,…
Continue reading 2104741 (Refugee)
Sign in free to access the full text
Details
- AGLC
- 2104741 (Refugee) [2021] AATA 3961
- Case
- [2021] AATA 3961
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant who had previously been granted a protection visa. The dispute centred on whether the applicant had provided incorrect information or failed to provide required information in their initial protection visa application, which could justify the cancellation of their visa under section 109 of the Migration Act 1958 (Cth).
The Tribunal was required to determine if the applicant had failed to comply with sections 101(a) and 101(b) of the Act, as particularised in the notice of intention to consider cancellation. Specifically, the Tribunal had to ascertain whether the applicant had omitted to answer certain questions and provided false or misleading information regarding their identity, age, nationality, and the circumstances of their flight from their country of origin.
The Tribunal found that the delegate had properly formed the necessary state of mind to issue the notice under section 107 of the Act and that the notice itself complied with statutory requirements. However, upon reviewing the evidence, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal noted that while the applicant had provided documents supporting their claim to be a Pakistani citizen and had used a different name and date of birth in their protection visa application, the applicant's subsequent submissions, including a statutory declaration and various identity documents, provided a more comprehensive picture. The Tribunal was satisfied that the applicant had provided evidence of their true identity and citizenship, and that the initial discrepancies, while significant, did not necessarily lead to the conclusion that the applicant had failed to engage Australia's protection obligations. The Tribunal's decision to set aside the cancellation was based on its overall assessment of the applicant's claims and the evidence presented.
The Tribunal was required to determine if the applicant had failed to comply with sections 101(a) and 101(b) of the Act, as particularised in the notice of intention to consider cancellation. Specifically, the Tribunal had to ascertain whether the applicant had omitted to answer certain questions and provided false or misleading information regarding their identity, age, nationality, and the circumstances of their flight from their country of origin.
The Tribunal found that the delegate had properly formed the necessary state of mind to issue the notice under section 107 of the Act and that the notice itself complied with statutory requirements. However, upon reviewing the evidence, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal noted that while the applicant had provided documents supporting their claim to be a Pakistani citizen and had used a different name and date of birth in their protection visa application, the applicant's subsequent submissions, including a statutory declaration and various identity documents, provided a more comprehensive picture. The Tribunal was satisfied that the applicant had provided evidence of their true identity and citizenship, and that the initial discrepancies, while significant, did not necessarily lead to the conclusion that the applicant had failed to engage Australia's protection obligations. The Tribunal's decision to set aside the cancellation was based on its overall assessment of the applicant's claims and the evidence presented.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. Extracts of the Act relevant to this case are attached to this decision. What are the issues before the Tribunal? 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. Has the delegate reached the requisite state of mind to give the applicant the s.107 notice? Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). 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 applicant has not complied with one or more of the relevant provisions. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.Was there non-compliance as described in the s.107 notice?What were the particulars of the non-compliance set out in the notice? On 2 October 2019, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with sections 101(a) and 101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:Particulars of the possible non-compliance:[In] May 2010 you arrived on Christmas Island as an irregular maritime arrival (IMA).On 22 June 2010 you were interviewed by a departmental officer with the assistance of an interpreter in the Hazaragi language.During this interview you identified yourself as [Alias 1] and stated the following claims:·You were born in Ghazni, Afghanistan on [DOB 1].·You are a citizen of Afghanistan and hold no other right of residence or citizenship in any other country.·You illegally entered and resided in Pakistan as an undocumented person in 2000 and illegally departed in 2010 making your journey to Australia.·Your father’s name is [Father B name variant] and your mother’s name is [Mother C].·You identify as Hazara and you are a Shia Muslim.·Your father is missing and you suspect he was taken by the Taliban and may have been killed. You cannot return to Afghanistan because you fear suffering the same fate as your father who was killed by the Taliban. You have nothing left in Afghanistan.·In Pakistan, you were beaten and tortured (stabbed with a knife) by the Balochi people because you are Hazara and a Shia Muslim.On 22 February 2011 you lodged a Form 866 – Application for a Protection (Class XA) visa. This application included the following components which you completed in full.·Part B – Persons included in this application and family composition.·Part C – Application for an applicant who wishes to submit their own claims to be a refugee.Your name is listed on this application as [Alias 1]. You provided your date of birth as [DOB 1] in answer to question 7 of part C of the Form 866.Also at question 7 of part C of the Form 866, you listed that you were [age] years of age (at the time you lodged the application for a Protection visa).You provided information as an attachment to part B of the Form 866 in answer to question 19 where you were asked to provide information about your parents. In the attachment titled ‘Family Composition’ you listed your father’s name as [Father B] and that he is missing or presumed dead since 2001. You listed your father’s citizenship as ‘Afghan’.You also listed your mother’s name as [Mother C variant], your sister [name] and your brother [name]. You listed their citizenship as ‘Afghan’.You provided a statement in a Statutory Declaration dated 24 October 2010 as part of your Refugee Status Assessment (RSA). This statement was also referenced in your Protection visa application. Your claims are set out below:·Your family originates from the Jaghori district in the Ghazni province in Afghanistan. You belong to a Hazara family and you are the eldest of your siblings ([age] years of age).·You recall your father was a labourer and he owned land in [Area 1], Afghanistan.·You fled Afghanistan because of the Taliban. Your father was taken by the Taliban. You suspect your mother had paid someone to take you and your family to Quetta, Pakistan where you continued to live undocumented (illegally) for 10 years until 2010.·Your mother’s landlord (in Quetta) assisted you to enrol in a school where you completed nine years of schooling.·Your father escaped the captivity of the Taliban and came to Quetta when he found out you, your mother and your siblings had all gone to Pakistan. He remained with you in Quetta for one month before he returned to Afghanistan. You claimed he never returned to Quetta.·You undertook part-time work as [an Occupation 1] however you were subjected to beatings by the ‘Balochi’ employees because of your religion and being the only Hazara employed with the business. You decided to leave your employment because of the harassment, and you were unable to find any other work.·You cannot go back to Afghanistan because you fear the Taliban (who may have killed your father) and that as a ‘young boy’ (minor) you have no remaining family support or protection in Afghanistan.In your application for a Protection visa you provided the following answers to the below listed questions:At question 4 of part C of the Form 866, which asked “What other names have you been known by?” you did not provide an answer to this question.At question 19 of part C of the Form 866, which asked “Your citizenship at birth?” you did not provide an answer to this question.At question 20 of part C of the Form 866, which asked “Your current citizenship” you answered, “N/A”.At question 21 of part C of the Form 866, which asked “Do you hold any other citizenship or are you a national of any other country?” you indicated your answer by placing a tick in the checkbox marked ‘No’.At question 22 of part C of the Form 866, which asked “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” you indicated your answer by placing a tick in the checkbox marked ‘No’.At question 23 of part C of the Form 866, which asked “if you are stateless, how, when and why did you lose your citizenship?” you answered, “N/A”.At question 41 of part C of the Form 866, which asked “I am seeking protection in Australia so that I do not have to go back to?” you answered, “Afghanistan”.As part of the Refugee Status Assessment (RSA) you provided a Statutory Declaration dated 24 October 2010. You referred to this Statutory Declaration in your application for a Protection visa in the below listed questions of part C of the Form 866.At question 42 of part C of the Form 866, which asked “Why did you leave that country?” you answered, “See statement attached to RSA application”.At question 43 of part C of the Form 866, which asked “What do you fear may happen to you if you go back to that country?” you answered, “See statement attached to RSA application”.At question 44 of part C of the Form 866, which asked “Who do you think may harm/mistreat you if you go back?” you answered, “See statement attached to RSA application”.At question 45 of part C of the Form 866, which asked “Why do you think this will happen to you if you go back?” you answered, “See statement attached to RSA application”.At question 46 of part C of the Form 866, which asked “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” you answered, “See statement attached to RSA application”.Your Protection visa was granted on 23 February 2011, on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugee Convention. You claimed that you could not return to Afghanistan because you were a minor with no remaining family support in Afghanistan. You feared persecution or death by the Taliban who you claimed had captured and possibly killed your father in Afghanistan. You also stated you could not return to Pakistan because you were harassed, and on occasion beaten, by the Balochi employees at your workplace. They harassed you because you were Shia, undocumented and because you were the only Hazara employed by the business.These claims were fundamental to the determination that you are a person to whom Australia has protection obligations. Notably, in the decision to grant you a Protection visa, the delegate considered:“The claimant is [an age] year old boy of Hazara ethnicity and Shia religion. He fled to Pakistan with his family when he was [age] years old after his father was taken by the Taliban. He is the eldest male in his family. The claimant fears that he would be harmed in Afghanistan by the Taliban or other Pashtuns because he would be Hazara and Shia. He fears he will be at greater risk because he is a minor, he has not lived there since he was [age] years old, he has no links or support in Jaghori and he will be imputed, as a Hazara, to support the Government. He would have no employment in Jaghori and expects he would have to travel out of Jaghori to obtain an income, thereby increasing the risk of harm from the Taliban, Pashtuns or other anti-government elements.…with the Taliban undisputedly controlling the roads around Jaghori; with the drought and limited economic opportunities forcing residents to travel for income; with word spreading about persons returned from Australia; and with children particularly vulnerable to exploitation and abuse – I consider that an unaccompanied Hazara Shia minor returning to Jaghori alone after 11 years, without any links or support and attempting to find an income and a home has a real chance of suffering serious harm because he is an unaccompanied minor, because he is a Hazara Shia and because of his imputed support for the government.Although there is no campaign to target Hazaras, and although the Taliban are not acting effectively within Jaghori itself, they are controlling the roads in and out of the area. There is more than a remote chance (and it is not far-fetched) that a young Hazara Shia returning alone to an area surrounded by Taliban without any links or shelter and seeking an income, in the lead up to an election, would face serious harm because of his vulnerable age, imputed political opinion, ethnicity and religion…The claimant is an uneducated, minor who has never lived in Kabul and has no connections there. Whilst it might be acceptable to expect an adult Hazara to relocate and assimilate in Kabul, the delegate does not consider it reasonable or acceptable to expect a minor to relocate and assimilate into a city for which he has no family ties nor support networks”The delegate accepted your claims that you were a citizen of Afghanistan, a minor, and that you did not have a right to enter or reside in any other country. The delegate was satisfied you had a real chance of suffering persecution and therefore you could not return to Afghanistan.On 10 July 2017 and in support of your application for Australian citizenship, you provided a Pakistan National Identity card (Number: [PNIC 1]) to the Department. The identity card contains your photograph and listed your name as [the applicant] (date of birth [DOB 2]).Your Pakistan National Identity card is evidence you are a citizen of Pakistan and suggests you were not a minor ([age]) as claimed in your Protection visa application or at the time of your arrival on Christmas Island in 2010. Your Pakistani National Identity card shows you are also known by another name which you failed to disclose to the Department in your application for a Protection visa. Further, as a citizen of Pakistan, you do have a right to enter and remain in Pakistan with full access to the rights and privileges as a citizen, as well as, the safety and protections of the Pakistani government as afforded to its citizens.You provided your father’s Pakistan National Identity card (Number: [PNIC 2]) which lists his name as [Father B] (date of birth: [DOB 3]). Your father’s identity card was issued [in] 2014. Your father’s Pakistan National Identity card is evidence your father is a citizen of Pakistan. According to part 14 of the Pakistan Citizenship Act 1951, dual citizenship or nationality is not permitted in Pakistan.1 Therefore your father is not a citizen of Afghanistan as claimed in your application for a Protection visa. Your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan which raises the possibility he was not captured by the Taliban or had disappeared as you had claimed in your application for a Protection visa. It is also apparent that your father’s name is not [Father B] as claimed in your Protection visa application.You provided your mother’s and your brother’s Pakistan National Identity cards which are evidence they are also Pakistani citizens. As Pakistani citizens, you and your family would not have ‘illegally’ entered Pakistan as undocumented persons after you claimed to have fled the Taliban in Jaghori, Afghanistan. According to part 6, 7 and 8 of the Pakistan Citizenship Act 1951, the provisions by which a person can acquire Pakistani citizenship (although possible) are restrictive and largely dependent on that person’s, or their father’s or grandfather’s, history of residing in or migrating to the territories now included in Pakistan before January 1952.According to part 6 of the Pakistan Citizenship Act 1951, acquiring Pakistani citizenship through migration requires a person to have migrated to the territories (now included in Pakistan) from any territory in the Indo-Pakistan sub-continent, with the intention of residing permanently in those territories prior to January 1952.2This suggests you and your family are more likely to have acquired Pakistani citizenship by birth or descent. It appears highly unlikely that you have since acquired Pakistani citizenship after illegally entering Pakistan as claimed in your Protection visa application. As you and your family are confirmed to be Pakistani citizens, it is reasonable to assert that you and your family would not have required the assistance of your mother’s landlord to obtain enrolment for you in a school, nor would you have had any legal limitation precluding you from employment in Pakistan.As you claimed to have been an undocumented non-citizen in Pakistan, the delegate in deciding to grant you a Protection visa assessed your protection claims in reference to Afghanistan.It is apparent that you were an adult at the time of your arrival in Australia and that all your family members are documented Pakistani citizens. Together with the evidence that your father is alive, suggests your claims for a Protection visa were not correct. As a citizen of Pakistan, it is apparent you have a right to enter and reside in Pakistan with the effective protection of the Pakistani government as is afforded to all other Pakistani citizens, and this was the case at the time you applied for your Protection visa.On the basis of the above evidence, I consider that at the time of lodging your application for a Protection visa you were a documented citizen of Pakistan and therefore your claims for a Protection visa, that you fled Afghanistan in fear of the Taliban, were not correct.Non-compliance with s.101(a)I consider that you have not complied with section 101(a) of the Migration Act because in support of your Protection visa application and in order to satisfy the legislative requirements for the grant of a visa, you did not provide an answer to the following questions.You did not provide an answer to question 4 of part C of the Form 866 where you were asked “What other names have you been known by?” This information is relevant to your Protection visa application because you are known as [the applicant] which appears to be your true and correct name which was not disclosed at the time you applied for a Protection visa.You did not provide an answer to question 19 of part C of the Form 866, where you were asked “Your citizenship at birth?” This information is relevant to your Protection visa application because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.Non-compliance with s.101(b)I consider that you have not complied with section 101(b) of the Migration Act because in support of your Protection visa application and in order to satisfy the legislative requirements for the grant of a visa, you provided incorrect information to the Department.Specifically, I consider that you have provided incorrect information in the application form in the following manner:At question 1 of part C of the Form 866 where you were asked “what is your full name?” you answered [Alias 1]. This information is incorrect because your true and correct name is [the applicant] as is listed on your Pakistani National Identity card (Number: [PNIC 1]).At question 7 of part C of the form 866, you listed that you were born on [DOB 1] ([age] years of age at the time you completed and lodged the application for a Protection visa). This information is incorrect because your correct date of birth is [DOB 2] as is listed on your Pakistani National Identity card (Number: [PNIC 1]). Therefore, you were not a minor as claimed at the time of your arrival on Christmas Island and in the Form 866.You answered “N/A” to question 20 of part C of the Form 866, where you were asked “Your current citizenship” This information is incorrect because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.At question 21 of part C of the Form 866, you answered ‘No’ to the question which asked, “Do you hold any other citizenship or are you a national of any other country?” This information is incorrect because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.At question 22 of part C of the Form 866, you answered ‘No’ to the question “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” This information is incorrect because you are a citizen of Pakistan and therefore you do have a right to enter and reside in Pakistan.At question 41 of part C of the Form 866, where you were asked “I am seeking protection in Australia so that I do not have to go back to?” you answered “Afghanistan”. This information is incorrect because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.At question 42 of part C of the Form 866, where you were asked “Why did you leave that country?” you answered “See statement attached to RSA application”. In your statement, you claimed you and your family fled Afghanistan during a period when the Taliban were active in your (claimed) home district of Jaghori. You claimed that your father was later taken and presumed to have been killed by the Taliban when he returned to work on his land in [Area 1]. Fearing the same fate as your father in Afghanistan, as well as experiencing harassment and a lack of suitable employment opportunities in Quetta, you decided to leave Pakistan. This information is incorrect because you and your family (including your father) are documented citizens of Pakistan and therefore you and your family are not citizens of Afghanistan as claimed in your application for a Protection visa. On the basis that your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan, it raises the possibility he was not captured and killed by the Taliban in 1999 or, ‘had never since returned from Afghanistan’, as claimed in your application for a Protection visa.At question 43 of part C of the Form 866, where you were asked “What do you fear may happen to you if you go back to that country?” you answered “See statement attached to RSA application”. In your statement, you claimed you and your family fled Afghanistan during a period when the Taliban were active in your claimed home district of Jaghori. You claimed that your father was later taken and presumed to have been killed by the Taliban when he had returned to work on his land in [Area 1]. You claimed you fear returning to Afghanistan because the Taliban had captured and killed your father and as “a young boy” ([age] years old at the time) you claimed you had no remaining family in Afghanistan to protect you against the Taliban.This information is incorrect because your Pakistani identity documents indicate that you were born on [DOB 2] and therefore you were not a minor at the time of lodging your Protection visa application. Further, you and your family (including your father) are citizens of Pakistan and therefore you and your family are not citizens of Afghanistan as claimed. On the basis that your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan, it raises the possibility he was not captured by the Taliban in 1999 or ‘had never since returned from Afghanistan’, as claimed in your application for a Protection visa.At question 44 of part C of the Form 866, where you were asked “Who do you think may harm/mistreat you if you go back?” you answered “See statement attached to RSA application”. In your statement, you stated you would suffer the same fate as your father who you claimed was captured and possibly killed by the Taliban in Afghanistan. This information is incorrect because your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan. This is credible evidence that your father is alive and raises the possibility he was not captured by the Taliban in 1999 or, had disappeared as claimed in your application for a Protection visa. You and your family (including your father) are documented citizens of Pakistan. Your family continue to reside in Pakistan as documented citizens. Therefore you would not be captured or killed, or face persecution by the Taliban in Afghanistan.At question 45 of part C of the Form 866, where you were asked “Why do you think this will happen to you if you go back?” you answered “See statement attached to RSA application”. In your statement, you claimed you would be captured or killed by the Taliban because your father was captured and presumed to have been killed by the Taliban in Afghanistan. You claimed that as “a young boy” ([age] years old at the time) you had no remaining family in Afghanistan to protect you against the Taliban. As noted earlier in this Notice, this information was central to the delegate’s decision to grant you a Protection visa. This information is incorrect because you are a citizen of Pakistan and were not a minor as claimed at the time of lodging your Protection visa application. Your family continue to reside in Pakistan as documented citizens. On the basis that your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan, this raises the possibility he was not captured by the Taliban in 1999 or ‘had never since returned from Afghanistan’, as claimed in your application for a Protection visa.At question 46 of part C of the Form 866, where you were asked ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?” you answered “See statement attached to RSA application”. In your statement, you claimed the authorities of Afghanistan could not protect you from the Taliban. In addition, you claimed that as “a young boy” ([age] years old at the time) you had no remaining family in Afghanistan to protect you. This information was central to the decision to grant you a Protection visa. This information is incorrect because you are a documented citizen of Pakistan and you were not a minor as claimed at the time of lodging your Protection visa application. Your family continue to reside in Pakistan as documented citizens.The incorrect information you appear to have provided in your Protection visa application was material to the decision to grant your Protection visa and therefore it is likely you may not have engaged Australia’s protection obligations.Consequently, I consider that you have not complied with section 101(a) and 101(b) of the Act because you have not provided answers to all questions and it appears that you have provided incorrect information to the above listed questions in your Protection visa application.
Decision
Reasons for decision
The applicant had submitted the following documents to the Department:·Submission dated 17 October 2019 by migration agent [named];·Statutory Declaration by [the applicant] dated 16 October 2019;·Pakistani Passport issued to [the applicant] (Passport Number [specified]);·Pakistani Birth Certificate issued in the name of [the applicant];·Electronic file titled ‘Local Residence Certificate’ containing a copy of an untranslated document displaying the visa holder’s photograph and his Pakistani National Identity card number [PNIC 1], signed by the Executive District Officer, Quetta (Pakistan);·Employment letter issued to [Alias 1 variant] for [Employer 1] dated 24 October 2019;·Character Reference letter dated 25 October 2019 in relation to [Alias 1 variant] and signed by the visa holder’s manager [named] of [Employer 1];·Medical referral letter dated 10 April 2012 regarding treatment for [Alias 1 variant]; and ·[Agency 1] card issued to [Alias 1 variant].Departmental decision to cancel the applicant’s visa under s.109 of the Act The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 31 March 2021. The Department did not interview the applicant. Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to provide an answer to certain questions and failed to give correct information regarding his identity and protection claims in Form 866C of his protection visa application. The Department made the following findings:In relation to section 101(a) the visa holder did not provide an answer to question 4 and 19 of part C of the Form 866, which asked (Q4) ‘What other names have you been known by?’ and (Q19) ‘Your citizenship at birth?’. Therefore, I consider the visa holder has not complied with section 101(a) of the Act because the visa holder did not provide an answer to question 4 and 19 of part C of the Form 866. I consider the visa holder did not provide a response to these questions in order to avoid providing details of his true name and true citizenship, which would have contradicted his claimed identity as an Afghan minor under a different name.On 10 July 2017 the visa holder provided a Pakistani National Identity card (Number: [PNIC 1]) to the Department. The identity card displays his name as [name] (date of birth: : [DOB 2]).I consider the Pakistani National Identity card is evidence the visa holder is a citizen of Pakistan and further suggests he was not a minor ([aged]) as claimed in his Protection visa application. The visa holder’s Pakistani National Identity card shows he is also known by another name which the visa holder has not disclosed to the Department in his application for a Protection visa.Furthermore, as a citizen of Pakistan, the visa holder does have a right to enter and remain in Pakistan with full access to the rights and privileges as a citizen, as well as, the safety and protections of the Pakistani government as afforded to its citizens.The visa holder also provided his father’s Pakistan National Identity card (Number: [PNIC 2]) which lists his name as [Father B] (date of birth: [DOB 3]). The visa holder’s father’s identity card was issued [in] 2014. His father’s Pakistan National Identity card is evidence the visa holder’s father is a citizen of Pakistan. According to part 14 of the Pakistan Citizenship Act 1951, dual citizenship or nationality is not permitted in Pakistan. Therefore, as a Pakistani citizen, his father cannot also be a citizen of Afghanistan as claimed in the visa holder’s application for a Protection visa. The visa holder’s father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan which confirms he was not captured by the Taliban or had disappeared in contradiction to what the visa holder had claimed in his application for a Protection visa. It is also apparent that the visa holder’s father’s name is not [Father B] as claimed in the visa holder’s Protection visa application.The visa holder also provided his mother’s and his brother’s Pakistani National Identity cards which are evidence they are also Pakistani citizens. As Pakistani citizens, the visa holder and his fa mily would not have ‘illegally’ entered Pakistan as undocumented persons after he claimed to have fled the Taliban in Jaghori, Afghanistan. As the visa holder and his family are confirmed to be Pakistani citizens, it is reasonable to assert that the visa holder and his family would not have required the assistance of the visa holder’s mother’s landlord to obtain enrolment in a school, nor would the visa holder have had any legal limitation precluding him from employment in Pakistan.As the visa holder claimed to have been an undocumented non-citizen in Pakistan, the delegate in deciding to grant a Protection visa assessed the visa holder’s protection claims in reference to Afghanistan.It is apparent that the visa holder was an adult at the time of his arrival in Australia and that all his family members are documented Pakistani citizens. Together with the evidence that the visa holder’s father is alive, suggests the visa holder’s claims for a Protection visa were not correct. As a citizen of Pakistan, it is apparent the visa holder has a right to enter and reside in Pakistan with the effective protection of the Pakistani government as is afforded to all other Pakistani citizens, and this was the case at the time he applied for his Protection visa.On the basis of the above evidence, I consider that at the time of lodging the application for a Protection visa, the visa holder was a documented citizen of Pakistan and therefore the visa holder’s claims for a Protection visa, that he fled Afghanistan in fear of the Taliban, were not correct.In response to the Notice, the visa holder has provided a statement as well as documentary evidence in support of his correct name, date of birth and his citizenship status in Pakistan. Therefore, the visa holder has provided incorrect information in his application for a Protection visa where he stated that his name was [Alias 1] (DOB [DOB 1]) and that he was born in Jaghori, Afghanistan.The visa holder provided incorrect information in his statement attached to his Protection visa application in relation to his father being taken and presumably killed by the Taliban in Afghanistan. The visa holder stated that he could not return to Afghanistan in fear that he may suffer the same fate as his father. Therefore I consider the visa holder has not complied with section 101(b) of the Act.Pre-hearing submissions dated 29 April 2021
Ratio Decidendi
Legal Principle Established
The representative submits the current security situation in Pakistan is extremely volatile and that the recent advances made by the Taliban in Afghanistan are likely to spill over into Pakistan. The representative submits some analysts believe that despite assurances made by the Pakistani government, official support for the extremist ideology of the Taliban has never really gone away. The representative submits the Tehreek-e-Taliban Pakistan (TTP) have long been known for their active anti-Shia Muslim ideology and that the increasing Pakistani-wide anti-Shia rhetoric emanates from the Afghan, Pashtun and Baluch extremist groups, as well as the Punjab Assembly and increasingly, the mainstream population.Statutory declaration from the applicant, sworn 3 August 2021 The applicant states he continues to rely on his statutory declaration sworn on 16 October 2019. He confirms his true name is [the applicant] and he agrees the identity he used to enter Australia is false. The applicant claims he lived his entire life in [his home town in] Mariabad, Quetta, Pakistan, which is a predominantly Hazara area. He claims his parents were both Pakistani citizens of Hazara ethnicity. The applicant claims he first received ill treatment because of his ethnicity in year 7 at [a named] High School, which was located on the border of the Pashtun and Hazara areas. He claims the perpetrators were Pashtun and Baluch students. He claims Pashtun and Baluch students targeted and abused him during his walk home after school because of his appearance and religious practices. The applicant claims that in 2004 when he was [age]-years-old, he was participating in the tenth of Muharram (Ashura) parade in [a location] when it was targeted by bombers and snipers. He claims he and his friend ran through the [named location] and jumped over the wall, where they were found by a Punjabi man, who helped them ring his mother to confirm he was alive. The applicant claims that in 2008 when he was [age]-years-old, store-keepers and pedestrians stopped what they were doing and hurled abuse and threats at him as he rode on his pushbike to a technical training centre where he was studying. He claims he used to vary the route he took and tried to disguise himself by wrapping his face in black shawls called ‘longis’. He claims the students in his class treated him with hostility and abuse. He claims he could not finish the course because it was too dangerous and the teaching staff refused him access to equipment he required to properly study. The applicant claims that during his time at the technical training centre in 2007 or 2008, he had an apprenticeship in a workshop near [a location] where he worked under a Punjabi man who accepted him. He claims he was the only Hazara on the street and he was targeted for verbal, physical and sexual abuse by the Pashtun and Baluchi people. He claims his [body part] was [injured] after an assault and he had to put his [body part] back into place to get himself home. He claims his [body part] never properly healed and it still gives him trouble today.