2106740 (Migration)

[2023] AATA 414

2106740 (Migration) [2023] AATA 414 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Besmellah Rezaee

CASE NUMBER:  2106740

MEMBER:Shahyar Roushan

DATE:3 January 2023

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 03 January 2023 at 6:10pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – bogus document – family composition – Pakistan nationality – name erroneously recorded by the Department – false death certificates for parents – spelling variations of Afghan names – sufficient documentary and other evidence – power to cancel the visa does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 116, 499
Migration Regulations 1994

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

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 18 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is a [age]-year-old national of Afghanistan. He arrived in Australia by boat [in] December 2008 as an Illegal Maritime Arrival (IMA).

3. On 13 March 2009, the applicant lodged an application for a Protection visa. He was granted a Protection visa on 19 March 2009.

4. On 2 August 2011, the applicant was listed as the sponsor for an Orphan Relative (Subclass 117) visa for his brothers, [Brother A] (born on [DOB 1]) and [Brother B] (born on [DOB 2]). On 3 August 2011, the applicant was listed as the sponsor for a further Orphan Relative visa application for another one of his brothers, [Brother C] (born on [DOB 3]). All three applications for Orphan Relative visas were refused by the Department. However, the decision to refuse the Orphan Relative visa applications of [Brother C] and [Brother B] were subsequently set aside by the then Migration Review Tribunal and remain under assessment.

5. On 30 September 2012, the applicant’s wife and [children] were granted Combined Partner (Subclass 309/Subclass 100) visas and they arrived in Australia [in] November 2012.

6. On 29 May 2013, the applicant and his [children] applied for Australian Citizenship by Conferral. [In] April 2015, a delegate of the Minister refused the application. This decision was affirmed by the General Division of the Administrative Appeals Tribunal [in] 2016.

7. On 6 September 2016, the applicant was granted a Resident Return (Subclass 155) visa.

8. On 6 June 2018, the applicant lodged a further application for Australian citizenship. This application was refused by the Department [in] May 2021.

9. On 18 May 2021, a delegate of the Minister cancelled the applicant’s Resident Return visa under s 116(1AA) of the Act, on the basis that the delegate was not satisfied as to the applicant’s identity.

   Visa cancellation

   The Notice of Intention to Consider Cancellation (NOICC)

10. On 3 February 2021, the applicant was issued with an NOICC in relation to his Subclass 155 visa, under s 116(1AA) of the Act. The NOICC stated that the applicant had provided inconsistent and contradictory information regarding his identity, his family composition and the identities of his siblings. The NOICC also stated that the applicant has been unable to provide the Department with verifiable documentation to confirm his true identity and, on his own admission, had provided a Taskera which was contrived.

11. The NOICC stated that the applicant arrived on Christmas Island [in] December 2008 and on 12 December 2008, he completed a Biodata form, identifying himself as [Applicant name variant 1, which includes Family name 1] and stating that he was [age] years of age. He claimed that he had not been known by any other names. The applicant recorded his mother’s name as [Mother A name variant 1] and her age as [age]. He also listed [number] siblings and stated that his father, [Father A], was deceased.

12. It was stated that on 13 March 2009, the applicant lodged an application for a Protection visa under the name [Applicant name variant 2, which includes Family name 1], born [DOB 4]. In his application, he stated that an alternate spelling of his name was [Applicant name variant 1]. He declared that he had not been known by any other names. He stated that he was born in, and was a citizen of, Afghanistan. He further stated that his father was deceased and that his mother was residing in Afghanistan. In an attachment to his application, the applicant listed all members of the same family unit, who were not in Australia at the time of application.

13. On 2 August 2011, the applicant was listed as a sponsor for two Orphan Relative visa applications lodged by his two brothers, [Brother A] and [Brother B]. On 3 August 2011, the applicant was listed as a sponsor for another Orphan Relative visa application lodged by his brother, [Brother C]. In this application, the applicant declared that both his parents were deceased and provided a statutory declaration, stating that he was ‘sponsoring three orphan brothers’. In support of the applications, the applicant also provided a witness deed signed by the residents and elders of [Village 1] of [District 1] (a district of Urozgan (or Uruzgan) Province), attesting that the applicant’s mother was deceased, that she had died due to cardiac disease [in] February 2009, and that they were present during the funeral procession and burial ceremony. The deed also stated that the Taliban had killed the applicant’s father and that the children have ‘no more guardian’.

14. The NOICC stated that, on 29 May 2013, the applicant applied for Citizenship by Conferral. The application was refused [in] April 2015 on the basis that he failed the character test after he was found to be in possession of three fraudulent Afghan driver’s licences, which were later confirmed to have been used to obtain fraudulent South Australia driver’s licences.

15. On 6 June 2018, the applicant lodged a further application for Citizenship by Conferral. In this application, he declared his father and mother both to have been born on [DOB 5], and ‘deceased’ in January 2007 and August 2009 respectively.

16. It was stated that Departmental records show that, following the grant of his Protection visa, the applicant had departed and re-entered Australia on a number of occasions. On one occasion, [in] May 2010, he had recorded his nationality as ‘Australian/Pakistan’ on his Incoming Passenger Card.

17. The NOICC further stated that the applicant attended an Identity Interview on 10 December 2019. As a result of the Identity Interview, the Department concluded that the applicant’s identity, [Applicant name variant 1], which he used to apply for his Protection visa and Resident visa and to sponsor his wife and [children’s] Partner visa application, was ‘not supported’.

18. The NOICC put to the applicant:

    Based on the information before me, it appears that you have provided inconsistent and contradictory information regarding your identity, your family composition and the identities of your siblings as follows:

    ·In the application for the Protection visa, you stated that you were not known by any other names. This is contrary to your admission on 10 December 2019 during the Identity Interview that your true name is “[Applicant name variant 3, which includes Family name 2]”, and not “[Applicant name variant 1, which includes Family name 1]”, which you had maintained was your true name since your arrival at Christmas Island.

    ·At your Identity Interview, you admitted that your true name is “[Applicant name variant 3]”, and that you made up the family name “[Family name 1]” on your arrival at Christmas Island. For the period between your arrival at Christmas Island in December 2008 and your attendance at an Identity Interview in December 2019, you have not attempted to advise the Department that your true name is “[Applicant name variant 3]”.

    ·In your interactions with the Department, you have maintained that your family members were known by the surname “[Family name 1]” and as such, it appears that you have misled the Department since your arrival regarding your family composition, specifically by providing, and endorsing sponsorship of your siblings, using false identities in their applications for an Orphan Relative visa:

    oAt your Identity Interview, you identified your brother [Brother C’s] true name is “[Brother C Name 2]”.

    oAt your Identity Interview, you identified your brother [Brother B’s] true name is “[Brother B Name 2]”.

    oAt your Identity Interview, you identified your brother [Brother A’s] true name is “[Brother A Name 2]”.

    For the period between your arrival at Christmas Island in December 2008 and your Identity Interview in December 2019, you did not attempt to correct information held by the Department in relation to your siblings’ identities.

    ·At your Identity Interview, you identified your brother [Brother D], was the same person you declared as your friend “[Friend Name 1]” on your arrival. Your brother [Brother D] has not previously been declared to the Department as part of your family composition until your Identity Interview. This is further evidence of your attempt to mislead the Department by knowingly providing inconsistent information since your arrival at Christmas Island in December 2008.

    ·In your Protection visa application, you declared your father as deceased and your mother alive; and in two Orphan Relative visa applications and your current Citizenship by Conferral application, you declared both of your parents as deceased. At your Identity Interview, you stated that your parents are both alive and residing in Quetta, Pakistan. Information before me recorded in departmental systems also indicates that your brother [Brother A]/[Brother A Name 2] advised the Department in September 2017 that your father and mother were alive and declared as born in “[specified years]” respectively, which is contrary to your previous declarations in your visa applications.

    ·At your Identity Interview, you stated you provided your Afghan driver licence to the South Australian Road Authority when you applied for your Australian driver licence. You confirmed that your Afghan driver licence displayed your name as “[the applicant’s name]”, which you confirmed is not your true name during the Identity Interview.

    ·You declared on your incoming passenger card [in] May 2010 that you were of “Pakistan” nationality, when you have maintained that you are of Afghan citizenship. This answer presents further inconsistent information regarding your nationality.

    To date, the only overseas document you have provided to support your identity is a copy of your Tazkera, which is in the “[Family name 1]” name, that you have stated is contrived. You have not provided verifiable identity documents supporting either the [the applicant’s name] or the [the applicant’s name variant] identity. Therefore, based on the information before me, there appears to be a ground under s116(1AA) of the Act, to consider cancelling your Resident Return visa as I am not satisfied as to your identity.

    The applicant’s response

19. On 11 February 2021, the applicant’s former representative, Mr Kamran Ghanbari, provided a response to the NOICC. Mr Ghanbari submitted that the Department made an error in the recording of the applicant’s name as ‘[the applicant’s name]’. His first name is [first name variant] and he has consistently given his middle name to the Department as ‘[middle name]’, which was erroneously recorded by a Departmental officer in 2009 as ‘[middle name variant]’.

20. Mr Ghanbari stated that the Department had given [DOB 4] as the applicant’s date of birth by choice and according to Departmental policy. The applicant was born sometime in [that year] and an accurate date of birth is often not recorded in Afghanistan.

21. Mr Ghanbari stated that in Afghan culture it is normal for children not to have a family name and if necessary, children ‘tag on’ their father’s name to their given names. The applicant has been known as [first names variant, plus] [Father A variant], ([Father A variant] being his father’s name), and the applicant gave himself the surname [Family name 1], which was used for different purposes before the applicant arrived in Australia. The applicant disclosed the name [Family name 1] on arrival when he was asked whether he had any other names he may have used. Subsequently, the applicant’s official ‘Australian name’ became ‘[Applicant name variant 1]’.

22. Mr Ghanbari submitted that the applicant and his siblings were not born with the surname ‘[Family name 1]’. A number of the applicant’s siblings have chosen to use ‘[Family name 2]’ as their surname in honour of their great-grandfather, [Family name 2 variant].

23. It was submitted that the applicant had misunderstood the question in relation to nationality on his Incoming Passenger Card, dated [in] May 2010, as another passenger had assisted him with completing the card. He believed he was being asked what country he had returned from.

24. Mr Ghanbari further submitted that the applicant had provided incorrect information in relation to his parents being deceased when sponsoring his brothers’ Orphan Relative visa applications as he feared that his siblings would face death if they remained in Pakistan.

25. Attached to Mr Ghanbari’s submission was a statutory declaration, declared by the applicant on 15 February 2021. In his statutory declaration, the applicant listed the names, current country of residence and visa status of his parents and [siblings] and stated that he was born in [Village 1] in [District 1], Afghanistan in [year]. He is Hazara and Shi’a Muslim. He entered Iran in approximately 1999 when he was [age] years old, due to the dangers posed by the Taliban at that time. He stayed illegally in Tehran and worked for a small [service] company until 2002 when he was captured by the Iranian authorities. As he did not have a valid permit or a visa, he was deported back to Afghanistan. In Afghanistan, he was employed at [a named agency] as a clerical worker. He also worked as a farmer at his family’s farm. In 2006, he left Afghanistan to go to Pakistan due to attacks by the Taliban.

26. He acknowledged that he had provided some information to the Department that was ‘not correct’ due to confusion and fear for his family’s safety. He and his family have been ‘refugees’ for most of their lives and in the past, they would try to hide their identity to avoid being spotted.

27. His brother [Brother D] has decided to use the surname [Family name 2], which has added to the confusion in relation to his siblings’ surnames. His brother chose [Family name 2] as a surname because his father’s grandfather’s name was [Ancestor A]. In Afghanistan, they do not use surnames and he can call himself any other name that he prefers. In his Identity Interview with the Department, he was asked about the surname [Family name 2], which he attributed to himself. However, he said that he did not mean to say that he used the surname [Family name 2] as he has always used the surname [Family name 1]. His parents started using the surname [Family name 2] from 2017 as his father was asked to choose a surname when he attended the Civil Registration Office in Kabul. When he (the applicant) arrived in Australia in 2008, he did not have an official surname. He told the officer in Christmas Island that he did not have a surname, but he told the officer that he has used ‘[Family name 1]’ as a surname often in response to the question ‘Have you been known by any other names?’. He does not have an official surname and it is not an Afghan cultural practice to use surnames.

28. The applicant acknowledged that in 2011 he provided death certificates for his parents, which were not genuine. He stated that his parents are alive, and they are refugees in Pakistan. The reason why he provided the death certificates was that he wanted to save his three younger brothers from death in Afghanistan.

29. The following documents were also submitted to the Department:

    ·Copy of the applicant’s South Australian issued Driver’s Licence;

    ·Copy of the applicant’s South Australian issued [Work Health and Safety] card, issued [in] January 2010;

    ·Copy of the applicant’s [Work] Registration for Building Work;

    ·Copy of an untranslated Afghanistan ID card (Taskera – [number]) in the name of [Father A variant];

    ·Copy of a translated Afghanistan ID card (Taskera – [number]) in the name of [Mother A];

    ·Copy of a passport (document [number]) issued by the Islamic Republic of Afghanistan [in] 2017 in the name of [Father A variant];

    ·Copy of a passport (document [number]) issued by the Islamic Republic of Afghanistan [in] 2017 in the name of [Mother A];

    ·Letter of support from [name], [Community Organisation 1], dated 1 February 2021;

    ·Letter of support from [name], former Manager of Community Development for [Community Organisation 2], dated 15 February 2021;

    ·Letter of support from [name], Chairperson of [a named mosque], dated 14 February 2021;

    ·A reference letter for [occupation] services from [two named customers] dated 8 February 2021;

    ·Copy of Certificate of [occupational licensing], dated 28 January 2021;

    ·Certificate of Appreciation for [a named project] given to the applicant by [a named agency], dated February 2020;

    ·Certificate of Australian Citizenship issued to the applicant’s wife and [children].

    The delegate’s decision

30. On 18 May 2021, a delegate of the Minister cancelled the applicant’s visa under s 116(1AA) of the Act. The delegate found that the applicant provided inconsistent and contradictory information to the Department regarding his name, family composition, dates of birth of family members. He had also previously provided fraudulent death certificates in relation to his parents. Given the lack of any reliable information provided by the applicant to confirm his true identity, the delegate was not satisfied as to the applicant’s real identity.

    Application for review

31. On 19 May 2021, the applicant applied for a review of the delegate’s decision. Mr Besmellah Rezaee was appointed as the applicant’s new representative.

    Pre-hearing submissions

32. On 6 September 2022, the Tribunal received a detailed submission from Mr Rezaee, outlining the case history, and the evidence relied upon by the applicant to support his claimed identity. In essence, Mr Rezaee submitted that the applicant had previously declared that he has not been known by any other names; however, this information was incorrect. The applicant corrected this information at the Identity Interview held on 10 December 2019 and has acknowledged his ‘mistake’.

33. It was submitted that the applicant adopted the surname ‘[Family name 1]’ only after he arrived in Australia. He also adopted this surname to separate his identity from that of his brother, ‘[Brother D]’ (also known as [Friend Name 1, with Family name 2]), who was already onshore in Australia and had declared his surname to be ‘[Family name 2]’. He did so in order to be able to sponsor his brothers to come to Australia. The applicant was also advised by others that he would be at risk of being deported back to Afghanistan if he declared his true identity.

34. It was submitted that the applicant’s first [names are] ‘[first names variant]’ and that ‘the discrepancy’ in his name did not arise until after the applicant arrived in Australia. He has consistently used the name ‘[first names variant]’ in his dealings with the Department. The applicant has never held any documents, other than his Australian documents, in the name ‘[the applicant’s first names]’. On arrival in Australia, the applicant declared his first [names] as being ‘[first names variant]’, which was used in the Protection visa application.

1. The applicant’s Protection visa was issued in the name ‘[first names variant]’, but his Titre de Voyage and visa grant sticker were issued in the name ‘[the applicant’s first names]’. The applicant puts this discrepancy down to an error made in the spelling of his name, which has carried over onto other Australian identity documents and his Resident Return visa application. It was not until the discrepancy arose that the applicant started to use this identity. It was submitted that the applicant had no control over the spelling of his name as reflected in his Australian documents.

2. The submission noted that the applicant’s name was spelt in different ways in official documents. For example, his name was spelled as ‘[a variant of Applicant name variant 2]’ in his Protection visa Form 866 and as ‘[another variant of the applicant’s name]’ in the witness deed attached to the Orphan Relative application for his brothers. These alternative spellings have arisen due to the lack of standard ‘orthography’ and conventional spelling within Afghanistan. Therefore, it is possible for multiple spellings of a name to exist, resulting in Afghans frequently encountering difficulties arising from ‘discrepancies in the translation’ of their names.

3. With regard to the applicant’s family composition, it was submitted that the applicant acknowledges that he had previously attributed different names to his brothers and had declared his parents to be deceased. The applicant had listed his brothers, [Brother A Name 2], [Brother C name 2] and [Brother B Name 2], under incorrect names in his Protection visa application and in connection with his brothers’ Orphan Relative visa application. He had also declared his onshore brother to be a friend, named ‘[Brother D]’, instead of referring to his brother’s true name, [Friend Name 1], in order to conceal the true relationship between them. The applicant also declared that his parents were deceased in order to be able to sponsor his brothers to migrate to Australia.

4. It was submitted that in order to receive a quicker outcome and increase the likelihood of Orphan Relative visas being granted to his offshore brothers, both he and ‘[Brother D]’ lodged separate Orphan Relative visa applications for their remaining brothers to come to Australia in the hope that one application would be expedited over another and increase the chance of visas being granted. This was because they had genuine concern for their brothers’ safety in Afghanistan. The applicant acknowledges that it was wrong to declare his parents as deceased and his brothers by different names and he is remorseful.

5. It was further submitted that the applicant is an Afghan national. He is not a national of Pakistan as was declared on his Incoming Passenger Card in 2010. This was a mistake as, when he was travelling with acquaintances, he asked someone with better English than his to complete his card. As his English was limited, he was unable to check if the information that was declared on the card was correct. It was submitted that there is no evidence to suggest that he is a national of Pakistan.

6. With regard to the exercise of the Tribunal’s discretion whether to cancel the visa, it was submitted that the purpose of the applicant’s stay in Australia is his fear of persecution in Afghanistan. The applicant is a Hazara Shi'a Muslim and at risk of facing harm by the Taliban. The applicant has established his own business and he has no remaining family in Afghanistan. He has lived in Australia for an extended period of time, and he has become ‘unfamiliar’ with Afghanistan and its people. Having spent most of his adult life abroad, the applicant would be seen as a foreigner in Afghanistan. Returning from Australia, he would also be seen to have Western values, which makes him vulnerable to being targeted by the Taliban and other anti-Western groups. He would not be trusted by other Afghans, and he would have no social connections, which are essential for surviving in Afghanistan. In short, he would not be able to survive.

7. It was submitted that the applicant has complied with all his visa conditions and he and his family will experience significant hardship if his visa is cancelled. The cancellation of his visa has affected his mental health and has also caused his family stress, anxiety and depression. The applicant supports his wife and children financially while his wife is the children’s primary carer. Should the applicant’s visa remain cancelled, his wife would not be able to cope with looking after their children by herself while supporting them financially. The applicant acknowledges that he was not truthful by providing incorrect information to the Department in connection with his brothers’ Orphan Relative visa application and he is deeply remorseful.

8. Mr Rezaee submitted a number of reports and news articles in relation to the security situation in Afghanistan and the treatment of Hazaras and Shi’as by the Taliban and other groups.

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

   ·Copy and translation of the applicant’s Taskera issued in 2003 in the Uruzgan district of [District 1] in the name of ‘[first names variant]’. The document indicates that he was [age] years old in 1382 (solar calendar). The Taskera lists the names of his father as ‘[Father A]’ and his grandfather, ‘[Grandfather A]’.

   ·Copy and translation of a Taskera belonging to the applicant’s father. The document was issued in September 2017 in the name of ‘[Father A variant]’ (sic) and indicates that the holder was [age] years old in 1976. The Taskera lists the names of the holder’s father as ‘[Grandfather A]’ and his grandfather as ‘[Ancestor A]’.

   ·Copy and translation of a Taskera belonging to the applicant’s brother. The document was issued in May 2019 in the name of [Brother A Name 2]’ and indicates that the holder was born on [DOB 6]. The Taskera lists the names of the holder’s father as ‘[Father A variant]’ and his grandfather as ‘[Grandfather A variant]’.

   ·Copy and translation of a Taskera belonging to the applicant’s sister. The document was issued in September 2017 in the name of ‘[name]’ and indicates that the holder was [age] years old in 2009. The Taskera lists the names of the holder’s father as ‘[Father A variant]’ and her grandfather as ‘[Grandfather A variant]’.

   The hearing

10. The applicant attended a hearing on 9 September 2022. The applicant’s representative, Mr Rezaee, was also in attendance. The applicant and his wife, who appeared as a witness, were assisted by an interpreter in the Hazaragi and English languages.

    Submissions

11. Following the hearing, the Tribunal received further supporting submissions from Mr Rezaee. Mr Rezaee also submitted to the Tribunal a copy of a Certificate of Discharge from Military Service issued in the name of ‘[Father A variant]’ and a statutory declaration by the applicant’s brother, [Friend Name 1].

    consideration of Claims and evidence

    The relevant law

12. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s 116(1AA).

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

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

14. Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[2] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision maker cannot be satisfied as to which, if any, is the true identity.

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

15. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The Act and Migration Regulations 1994 (Cth) do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s 499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual – PAM3 ‘General visa cancellation powers’.

    Does the ground for cancellation exist?

16. It is not disputed by the applicant that he had provided incorrect information to the Department with respect to several applications, including his application for a Protection visa. The applicant has acknowledged that in his Protection visa application he had declared his father as deceased and his mother alive; and in the Orphan Relative visa applications relating to his brothers and in a Citizenship by Conferral application, he declared both of his parents as deceased. He had also provided incorrect information in relation to his brothers’ identities, including identifying three of his brothers by false names and one brother as a friend. The applicant’s purported explanations for these misrepresentations essentially revolved around his attempts to achieve a positive migration outcome for his brothers due to their precarious circumstances.

17. The Tribunal has significant concerns in relation to the applicant’s persistently misleading conduct towards the Department in providing false information and documents in connection with various applications and processes. In doing so, he has seriously challenged the integrity of Australia’s visa related processes and has raised legitimate questions in relation to his credibility and the reliability of his claims. The Tribunal has considered the explanations provided in relation to this conduct and remains troubled by the applicant’s past persistent attempts to achieve favourable immigration outcomes through false and misleading representations. Notwithstanding, for the purposes of this review, the applicant’s past conduct and the provision of this incorrect information alone do not form a sufficient basis to reject his claims of identity or to render his identity as inconclusive.

18. Since being notified of the Department’s intention to consider cancelling his visa, the applicant has submitted a number of documents in support of his identity claims. Despite the applicant’s past conduct and misleading claims, there is insufficient evidence to support a conclusion that these documents are false or that they should not be given any weight. Having carefully considered this evidence, the Tribunal has formed the view that there are numerous common reference points within these documents that tend to support key aspects of the applicant’s identity claims.

19. The Tribunal accepts that the applicant obtained a Taskera in the name of [first names variant], whilst residing in the Uruzgan district of [District 1]. The Taskera records his father’s name as ‘[Father A]’ (sic) and his grandfather as ‘[Grandfather A]’. The Taskera does not attribute a surname to the applicant. The document also does not specify the applicant’s place of birth, but states in relation to his date of birth that he was [age] years old in 1382 (solar calendar). A solar calendar year spans across two Gregorian calendar years (from approximately 20 March of one Gregorian calendar year to 20 or 21 March of the next.[3] In this case, from March [year] to March [year]). The Tribunal accepts that, in line with past established procedures, the applicant was given the birth date of [DOB 4] upon his arrival, as his exact day and month of birth were not known. Whilst he has claimed that he was born sometime in [that year] based on an imprecise calendar conversion, his year of birth according to the Gregorian calendar may not have been accurately reported or recorded when he arrived in Australia. The Tribunal accepts that the applicant genuinely does not know his exact date of birth.

    [3] See Konstantin, B, The Persian Solar Hijri Calendar,

20. The applicant has consistently claimed that his father’s name is [Father A variant] and his mother’s name is [Mother A]. A copy of the applicant’s father’s Taskera indicates that it was issued in September 2017 in the name of ‘[Father A variant]’ (sic) and that the holder was [age] years old in 1976. The Taskera lists the names of the holder’s father as ‘[Grandfather A]’ and his grandfather as ‘[Ancestor A]’. Taskeras issued in the names of the applicant’s sister and one of his brothers also refer to their father’s name as ‘[Father A variant]’ and their grandfather as ‘[Grandfather A variant]’. A copy of the applicant’s father’s passport also shows that the document was issued in the name of [Father A variant]. In addition, the Certificate of Discharge from Military Service issued in 1974/75 demonstrates that it was issued in the name of ‘[Father A variant]’. The certificate identifies [Father A variant’s] father as ‘[Grandfather A]’. Evidence submitted in support of the applicant’s mother’s identity, including a copy of her Taskera and passport, indicate that her name is [Mother A].

21. As noted above, the Tribunal has no reason to doubt the genuineness of these documents. On the basis of this evidence, the Tribunal accepts that the applicant’s first [names are] [first names variant] and that he was born sometime between [year range] in Afghanistan. The Tribunal accepts that his father’s name is [Father A variant] (or [the variant]), his paternal grandfather’s name is [Grandfather A variant] (or [Grandfather A]) and his paternal great grandfather’s name is [Ancestor A]. The Tribunal accepts that the applicant’s mother’s name is [Mother A].

22. The Tribunal accepts as plausible and persuasive Mr Rezaee’s submissions that variations in spelling of Afghan names arise as a result of the absence of commonly adopted standardised conventions in transliteration of names. It is therefore possible for multiple English spellings of an Afghan name to exist and to have been reproduced through different processes, resulting in Afghans frequently encountering difficulties in harmonising official documents. Indeed, it is not uncommon that in the numerous documents, correspondence, submissions, and other information before the Tribunal, transliteration of the names of persons and places have varied, as in, for example: [middle name] and [middle name variant]; [Family name 1] and [a close variant]; [Father A] and [Father A variant]; [Grandfather A variant] and [Grandfather A]; and [Ancestor A] and [Family name 2 variant]. All transliterations correspond closely to the pronunciation of the relevant names in the original language. Similarly, the Tribunal accepts that various errors could arise when different authorities attempt to transliterate an applicant’s name or rely on an illiterate applicant for the ‘correct spelling’, with one initial error simply being perpetuated over time. This is evident in the misspelling or erroneous transliteration of the applicant’s first name of [first names variant] as [the applicant’s first names]. In the Tribunal’s view, this was a simple spelling error and should not be seen as an attempt by the applicant to misrepresent his first name.

23. The Tribunal is prepared to accept the applicant’s evidence that he adopted the surname [Family name 1] upon arriving in Australia and that he did not have a ‘fixed’ surname prior to that. There is ample evidence to support the view that Afghan names traditionally consist of a first name or personal name alone, without a surname.[4] In her paper ‘The Structure of Afghan Names’, Karine Megerdoomian notes that ‘many Afghans that have contact with the Western world adopt a surname.’ Citing other sources, she further notes that ‘even if an Afghan possesses a last name, the official name generally remains the first name’ and ‘an Afghan may change his last name at a whim’, but ‘altering the first one requires an application to the government and official permission.’[5]

    [4] See, for example, Evason, Nina, Afghan Culture, retrieved from 2016; and Megerdoomian, Karine, The Structure of Afghan Names, The Mitre Corporation, November 2009, Megerdoomian, ibid.

24. The Tribunal accepts that the applicant decided to adopt the surname [Family name 1] because he did not have a fixed surname and he wanted to adopt a surname different to the one adopted by his brother, [Brother D] ([Friend Name 1]), so that they could both attempt to separately facilitate the migration of their three remaining brothers from Pakistan. The Tribunal accepts that his brother, and apparently other members of the family, including the applicant’s father, have adopted the surname [Family name 2], which is derived from the applicant’s great grandfather’s name ([Ancestor A]). Again, as Megerdoomian has noted, it is not uncommon for Afghans even within the same family unit to have different surnames.[6]

    [6] Ibid.

25. According to the NOICC, the applicant had ‘admitted’ at his Identity Interview that his ‘true’ name is [Applicant name variant 3]’. The Tribunal did not have the benefit of listening to a recording of that interview or viewing a transcript. It is unclear in what circumstances or in response to what question the applicant had made this fresh admission. At the hearing, the applicant was adamant that his surname is [Family name 1], and he has never been known as [Applicant name variant 3]. He repeated that he did not have a fixed surname before arriving in Australia and he adopted [Family name 1] as a surname because he liked the name. He claimed that he had simply agreed with the Department when he was asked if he could be called by the other surname. As noted by the delegate, other than this purported admission at the Identity Interview, the applicant has provided no verifiable identity documents supporting ‘[the applicant’s first names]’. This is not surprising.

26. The Tribunal has already accepted that the applicant’s first name is [first names variant] and that he was born in Uruzgan, Afghanistan. The Tribunal has also accepted that his father’s name is [Father A variant], his mother’s name is [Mother A], his paternal grandfather’s name is [Grandfather A variant], and his paternal great grandfather’s name is [Ancestor A]. On the basis of the evidence submitted, the Tribunal accepts that the applicant’s parents are both nationals of Afghanistan. The Tribunal accepts the applicant’s explanations for the entry on his incoming passenger card [in] May 2010 that he is of ‘Pakistan’ nationality. There is no other evidence before the Tribunal to suggest that the applicant is a national of Pakistan. On the other hand, there is sufficient evidence to support the claim that he is a national of Afghanistan. The Tribunal is satisfied that the applicant is a national of Afghanistan. The Tribunal further finds that he is of Hazara ethnicity and a follower of Shi’a Islam.

1. As noted earlier, the Tribunal has significant concerns in relation to the applicant’s conduct towards the Department in deciding to deliberately provide incorrect information in connection with multiple applications and challenging the integrity of Australia’s visa related processes. Notwithstanding, the provision of the incorrect information alone does not form a sufficient basis to reject the applicant’s claims of identity or to render his identity as inconclusive. Indeed, as outlined above, the weight of the documentary and other evidence submitted supports the applicant’s claimed identity.

2. The Tribunal finds that the applicant was born in Afghanistan and is a national of that country. The Tribunal finds that the applicant’s name at birth, and the name by which he was known in Afghanistan, was [first names variant]. The Tribunal finds that the applicant adopted the surname [Family name 1] upon arriving in Australia and has maintained that name ever since. He has been issued identity documents and records in the same name, and his wife and [children], who have all been granted citizenship, bear the same surname.

3. For these reasons, the Tribunal is of the view that there is persuasive evidence of the applicant’s biodata and nationality. The Tribunal is satisfied the applicant’s identity is as claimed and explained above. The Tribunal is satisfied that the applicant’s true identity has been established.

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

   decision

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

   Shahyar Roushan
   Senior Member