2109126 (Migration)

[2022] AATA 2313

2109126 (Migration) [2022] AATA 2313 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Nazir Daawar

CASE NUMBER:  2109126

MEMBER:Melissa McAdam

DATE:15 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.

Statement made on 15 June 2022 at 2:14pm

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – incorrect information in the visa application – identity details – Pakistan citizenship – alternative passports – taskera records – valid travel documents – power to cancel the visa does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 116
Migration Regulations 1994

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Tarasovski v MILGEA (1993) 45 FCR 570
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 200 (Refugee) visa under s 109(1) of the Migration

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Section 107 Notice, NOICC

3. On 3 February 2021 the Delegate issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa under s.107 of the Act.  In the NOICC the Delegate set out the following:

   I consider that there has been non-compliance with the following section of the Migration Act 1958:

   Section 101 Visa applications to be correct
   A non-citizen must fill in or complete his or her application form in such a way that:
   (b) no incorrect answers are given or provided.
   …

   [In] June 2013 you lodged a Refugee (subclass 200) visa application via the Australian High Commission in Kuala Lumpur. As part of this application you were interviewed by a departmental officer [in] August 2013. During that interview you stated (in summary):

   You fled your home country Afghanistan in August 2004 to Pakistan.
   You were in Pakistan for almost 20 days and left Pakistan in September 2004 and travelled to Malaysia by air where you have lived illegally since.
   The agent took away all your documents upon arrival in Malaysia.
   You are an Afghani citizen and do not hold citizenship with any other country.
   You have never been issued a valid travel document.
   You have never been known by any other names.

   You fled Afghanistan because your life was in danger. Your father was a commander of the Hizbe-Islami and when the Taliban arrived, you relocated to Pakistan.

   As part of your Refugee visa application, you completed form 842 ‘Application for an Offshore Humanitarian visa – Refugee and Humanitarian (Class XB) visa’ and provided the following answers (in italics):

   At question 2 on page 7:
   Family name [Name]
   Given names [Name]
   Date of birth [DOB 1]
   Place of birth
   Town/city PAKTIKA
   Country AFGHANISTAN
   Citizenship AFGHAN

   At question 21 on page 20:
   Give details of any valid travel documents (eg. passports) or identity cards/documents held by all people included in this application.
   Do you have a travel or identity document? No
   Attach a statement explaining what happened to your documents.

   At question 25 on page 23:
   What is the name of the country you have a fear of returning to? Afghanistan

   At question 26 on page 23:
   When did you leave the country you fear returning to? [date] / 08 / 2004

   At question 27 on page 24:
   How did you leave the country you fear returning to? Illegally
   Describe how you arranged to leave illegally
   I came to Pakistan, and for Afghan people no need to have any documents to stay there, after that thru by egent (sic), I arrange the documents to come to Malaysia, when I arrive to Malaysia and I come out from Klia Malaysia airport the egent (sic) was run away and did not return my any documents.

   At question 29 on page 24:
   What do you believe may happen to you, or the people included in your application, if you were to return to that country?
   I cannot live they, because its very dangerous for me and for my life to stay there, I also have family enemy, the distroid (sic) everything, burn my house and also waiting to kill me, thats why I run away from my country.

   At question 30 on page 24:
   Who do you think may harm or mistreat you if you go back to that country?
   If I go back, my enemy are waiting to kill me, they will not leave me a life (sic) and make my life worst.

   In support of the application, you provided a United Nations High Commissioner for Refugees (UNHCR) Resettlement Registration form, [number], for [Applicant’s name], registration date [in] September 2004, refugee status date [in] September 2007.

   Your UNHCR Resettlement Registration form contained the following information (in summary):

   You are an Afghan refugee of Pushtoon ethnicity and Islamic faith.

   You were born [on DOB 1] in [Village 1 in] Paktika Province, Afghanistan.

   You fled to Pakistan with your family when you were approximately [age] years old and lived there until 2003.

   You and your family then returned to Afghanistan and lived there until you fled in 2004 due to your father’s involvement in Hikmatyar’s political party (Hizbe-Islami). When the Taliban took control of Afghanistan around 1995, your father resigned from the political party and took the family to Pakistan as he faced harassment from the Taliban.

   In Pakistan, you and your family lived in Manshera where you lived with the Afghan community. You did not have any legal status and you were not allowed to study in Pakistan.

   After the fall of the Taliban rule, you and your family returned to Afghanistan in 2003 and your father started receiving threatening letters.

   One day when you were returning from the market, you were physically assaulted until you became unconscious by a group of armed men unknown to you. You woke up in hospital after the incident. Your family subsequently received more threatening letters and your father and brother were also assaulted by a group of men.

   Shortly after the assault on your father and brother, they were killed on their way to the mosque. Your family believes the culprits were distant cousins who were Taliban supporters and wished to drive your family away for revenge so that they could claim your family land.

   After your father’s and brother’s funeral, another brother went missing. You then sought refuge at your [uncle’s] house for a few days.

   Fearing harm if you remained in Afghanistan, you fled to Pakistan at the advice of your mother and uncle however you did not feel safe in Pakistan as you feared you would be kidnapped or killed like your father.

   Your uncle then arranged an agent to transport you to Europe but the agent took you to Malaysia via plane a few weeks later. When you arrived in Malaysia in September 2004, the agent stole your passport and money and left you in Kuala Lumpur.

   You fear that you will be targeted and killed by the same people who attacked and killed your father and brother if you return to Afghanistan. You believe that you will be targeted because your father was a local leader of a party that was against the Taliban and due to land disputes.

   The UNHCR Resettlement concluded that ‘resettlement to a third country is the only viable option to ensure international protection of the applicant for whom there is neither repatriation nor local integration prospects.’

   Based on the above information and having satisfied all relevant criteria, you were granted your Refugee visa [in] May 2015.

   [In] July 2015, you arrived in Australia holding your Refugee visa.

   Since the grant of your visa, the Department has received information that you are the bearer of:

   Pakistani passport number [P1], issued under the name of [Alias A], born [DOB 2] in Gujrat, Pakistan, son of [Father name A], passport issued [in] 2015, valid until [2020]; nationality Pakistani and citizenship number [C1];

   Pakistani passport number [P2], issued under the name of [Alias A], born [in year] in Gujrat, son of [Father name A], valid until [2016]; identity card number [IC1]; permanent address in Pakistan [Address 1 in] Gujranwala;

   Pakistani passport number [P3], issued under the name of [Alias A], born [year] in Gujrat, son of [Father name A], valid until [2013], identity card number [IC1]; and

   Pakistani national identity card number [C1] issued in the name of [Alias A], born [DOB 2], son of [Father name A], issued [in] 2008, expiring [in] 2018; present address as [Address 2 in] Kuala Lumpur, Malaysia; permanent address as [Address 1 variant in] Gujranwala, Pakistan; stating ‘[Alias A] is entitled visa free entry into Pakistan’.

   The Department sought verification of the above documents through the Pakistani authorities.

   The authorities confirmed the authenticity of passport numbers [P1], [P2] and [P3]; and national identity card [C1] and their holder’s credentials including date of birth, father’s name, passport issue, expiry dates, citizenship number (borne on passport number [P1]) and identity card numbers (borne on passport numbers [P2] and [P3]). No discrepancies were noted in any of the documents.

   As such, it appears you are a citizen of Pakistan under the name [Alias A], born [DOB 2] in Gujrat, Pakistan, son of [Father name A], and holder of Pakistani national identity card [C1]. The national identity card number [C1] also matches the citizenship number recorded on passport number [P1] and matches the identity card numbers listed on passport numbers [P2] and [P3].

   Based on the above information, it appears you provided incorrect answers and information in your application for your Refugee visa as follows:

   Form 842 ‘Application for an Offshore Humanitarian visa – Refugee and Humanitarian (Class XB) visa’

   At question 2 on page 7:

   Family name [Name]
   Given names [Applicant’s name]
   Date of birth [DOB 1]
   Place of birth
   Town/city PAKTIKA
   Country AFGHANISTAN
   Citizenship AFGHAN

   I consider this answer to be incorrect because since the grant of your Refugee visa the Department has received information that you were the holder of a Pakistani passport, number [P1], issued to [Alias A] (born [DOB 2]) in Gujrat, Pakistan, bearing citizenship number [C1]. This information appears to indicate your name is [Alias A], born [DOB 2] in Gurjat, Pakistan, and that you are a citizen of Pakistan, which contradicts the answer you provided in your Refugee visa application whereby you claimed your name is [Applicant’s name variant], born [on DOB 1] in Paktika, Afghanistan and that you are an Afghan citizen. Your Pakistan citizenship is confirmed by passport numbers [P2] and [P3] which were both issued to [Alias A], born [year] in Gujrat and bearing identity card number [IC1] which matches national identity card number [C1] and the citizenship number on passport [P1].

   At question 21 on page 20:

   Give details of any valid travel documents (eg. passports or identity cards/documents held by all people included in this application).
   Do you have a travel or identity document?
   No

   I consider this answer to be incorrect because the Department has received information that at the time of lodging your visa application:

   - You held a valid Pakistani passport, number [P3], issued to [Alias A] (born [DOB 2]), son of [Father name A], identity card number [IC1], passport valid until [2013]; and

   - You held a valid Pakistani national identity card, number [C1], issued to [Alias A] (born [DOB 2]), son of [Father name A], issued [in] 2008, expiring [in] 2018.

   I consider the correct information is that you had a valid travel document, namely Pakistani passport, number [P3], issued to [Alias A] (born [DOB 2]), valid until [2013]; and that you held a valid identity document, namely a Pakistani national identity card, number [C1], issued to [Alias A] (born [DOB 2]), issued [in] 2008, expiring [in] 2018.

   Based on the above information, your Refugee (subclass 200) visa is liable for cancellation under section 109 because it appears that you have not complied with section 101(b) of the
   Migration Act 1958.

   What you can do
   Before a decision can be taken on whether to cancel your visa, the Migration Act 1958 gives you the opportunity to comment on the possible non-compliance and to give a written response why your visa should not be cancelled. Your response should provide reasons:

   why you think you have complied, or why you have not complied, with s109; and
   why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied, as the delegate may disagree with you); and

   provide any supporting evidence.

   You must provide your response in writing within 14 calendar days after you are taken to have received this letter.

   Response to NOICC

4. On 15 February 2021 the applicant provided the following written materials in response:

   -A submission from the applicant’s Solicitor to the effect that the applicant did not provide incorrect information in his visa application.

   -A statement by the applicant in which he writes:

   I am an Afghan from Afghanistan. I am a Pashtoon. I was born and raised in Afghanistan. I was born in [Village 1 variant], [in a named] District or Paktika province of Afghanistan. We have been living there for centuries. We are indigence inhabitants of that geographical location and my family owns acres of rich agriculture land. My family left Afghanistan due to the danger to our family in 2004 and migrated to Pakistan.

   Currently some of my family members still live in Pakistan but some has returned to our village to look after our agricultural land and properties.

   I have never been a resident or citizen of Pakistan. My father had never been a resident or citizen of Pakistan. I am a citizen of Afghanistan only and I can provide the department my tazkera (National ID) which my family obtained when returned to Afghanistan for family business matter in particular the division of our land and properties because our father passed away. I can ask my family member to send me that tazkera if you want to. Further my all relatives and my entire tribe live in Afghanistan mainly in Paktika province.

   I am an Australian permanent resident. I did not provide any false or misleading information to the Australian government including in my refugee (subclass 200) visa application.

   I do not have a right to reside in any country except Australia including Pakistan. My family was refugee migrants in Pakistan. I never had the citizenship of any other country including Pakistan. l believe the documents you have referred to be all those fake documents which were obtained by smugglers agents for the purpose of deporting Pakistan for refugee settlement somewhere safe around the world and later for staying safe and for employment purposes in Malaysia. I cannot confirm the passport number and the citizenship number as I do not have copies of those documents. Some of them were taken by the agents after my arrival to Malaysia and the rest were destroyed after they were getting expired. But I believe I had given copies of those documents to a female I was in an intimate relationship with her and she was filling my forms and do all of my immigration and employment forms as I didn't have much education and was not able to fill those forms. Those all forms in department of immigration are filled by her with her hand writings. She was also my authorised and exempt person while my application for refugee visa was under process. Please refer to form 956 signed on 24 May 2014. Her name is [Ms A], born [DOB 3]. Her email was [specified]. She is also an Afghan. She is also Pashtoon like me. She lived and worked in Kuala Lumpur with her children and parents. I believe she is still living there as she become a resident of Malaysia. She had a daughter from her previous marriage and was divorced at that time.

   I and [Ms A] were in an intimate relationship with each other and this is why she was helping me in my life. I trusted her and provided her with copy of all those fake documents I obtained for various purpose. I did that for security purposes as due to corruption in Malaysia, Malaysian Police would always pick on foreigner like me with no documents from our home country Afghanistan. ln case if I get arrest by Malaysian Police she can at least have copy of my documents for my release. Those fake documents obtain for employment purpose were obtained because of the level of corruption in Malaysia. Without passport no one will employ you or give you any jobs. Further without passport no one could move around Malaysia.

   l believe the copies of those fake documents provided to the department are those in [Ms A’s] possession. The reason why [Ms A] provided to the department is revenge and animosity. The reasons why she did this I will explain here below: Me and [Ms A] were in an intimate relationship. After l was given Australia permanent residency, I came to Australia in 20I5. We kept in contact with each other. In [April] 2016 I travelled to Malaysia to visit [Ms A] and her family. Upon my arrival to Kuala Lumpur [Ms A] told me that she had problem in obtaining Malaysian citizenship with authority for the reason she was single. She asked me to marry her so she can obtain Malaysian citizenship. She was my close friend and she helped me a lot and I would do anything for her to help. I agreed. It was about [date range in] April 2016 I went to Australian embassy in Kuala Lumpur and obtained a certificate confirming I was single. You can verify this with Australian embassy in Kuala Lumpur. To the best of my memory, she took me to a marriage registry [location]. We formalised our Islamic marriage there and she obtained the marriage certificate that she wanted for obtaining Malaysian permanent residency. Later sometime after my arrival back to Australia we kept in touch through telephone and internet. After our marriage she changed. She became more demanding financially. I could not afford to satisfy her financial needs, and this brought some argument and difficulties between us. Further she demanded I provide her with sponsor so she can apply for spouse visa to come to Australia with her family. I truly could not afford it at the time, and she became abusive and made several threats. One of the threats was, that she had all the copies of those fake documents in her possession and she would provide them to the Australian government and the department of immigration, informing them that I lied to the department and I was a Pakistani. I did not pay attention as I knew those documents are fake and she knows that as well as we obtained some of them together and she witnessed that I paid for those documents.

   I at this stage understood that she wanted me for financial benefits and for Australian visa. We had an argument, and she became very abusive and I became upset and told her not to contact me anymore. She made the threat and I told her to go ahead with it. After that we cut our relationship and in 2018, I was toId that I was divorced by her in Kuala Lumpur, Malaysia.

   I believe she provided copies of those documents to the department to take revenge and to create problems for me in Australia. However, I would never think that the department would believe those allegations. I did not lie to the department in my forms and I am not a Pakistan resident or citizen and those documents are all fake. I authorise the department to verify those documents with Pakistan NADRA authorities.

   Here I would like to advise that all Afghan refugees living illegally in Pakistan travel out of Pakistan using Pakistani fake documents. It is a big industry in Pakistan. All those Afghans working in Saudi Arabia, Kuwait, United Arab Emirates, and other golf countries travelled on fake Pakistani passports and citizenships. Pakistani fake citizenship in needed to obtain fake passports. In fact all information in those passport except photos belong to the Pakistani citizens who are there in Pakistan or passed away. Fake documents are being issue and later cancelled or suspended after the person is out of Pakistan. This is a usual practice in Pakistan and it is a bug business for Pakistani authorities. Further all Afghans traveling for Muslim pilgrimage to Saudi Arabia from Pakistan, obtain Pakistani documents like this and travel using those documents. All Afghan mujahideen were traveling using Pakistani fake documents obtained the way I explained above. I believe the department of immigration and Australian government already knows that but l thought it is worth mentioning it here for confirmation and to make sure it is brought to your attention.

   I believe I provided the department with correct information and therefor I satisfied section 109 of the Migration Act 1958 and my visa should not me cancelled. Here I provided you with facts why these documents were provided to the department and I give full authority to the department to verify for identity with Afghanistan and also obtain information in relation to those fake documents from relevant Pakistan authorities. I am providing this considering section 108 of the Migration Act 1958.

   I apologies for the inconvenience caused by my personal conduct with that [Ms A] and I am glad my relationship is over with her. I feel sorry for her as I had genuine feeling for her, but her intention seemed different than mine. I was grateful for helping me but l did not know she had her own agenda. I can only wish her all the best even though she did this. l also blame myself for all this inconvenience to some degree and it had occurred due to me naivety and trust. I am sincerely remorseful for that.

   I have been living in Australia since my arrival. I have settled in Australia. I call Australia home. I accept and respect Australian laws and Australian values. I love Australia and I work hard every day for the development and building of Australia. I am a person of a good character. I did not do anything wrong or breached any laws knowingly and intentionally.

1. On 1 June 2021 the applicant’s Solicitor submitted copies of Afghan National ID Cards stated to belong to the applicant’s brother.

   Delegate’s Decision

2. The delegate decided that the applicant had provided incorrect answers in his visa application, as particularised in the NOICC, and decided to cancel the applicant’s visa.

   Information to the Tribunal

   Pre-Hearing Submission

3. On 5 April 2022 the applicant submitted a copy of his Afghan Tazkira, issued in [2021], with an English translation, to the Tribunal.

   Tribunal Hearing

4. The applicant appeared before the Tribunal on 12 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. 

5. At the commencement of the hearing the applicant submitted copies of his recently issued Afghan Birth Certificate, a letter from [an official] of [Community Organisation 1] confirming that the applicant is an Afghan citizen, and media articles regarding corruption and obtaining fake identity documents in Pakistan.

6. The following is a summary of the oral information provided by the applicant at the hearing:

   a.The applicant has a sister and a brother.  His sister [lives] in Paktia with her husband.  Her husband’s family is from Paktia. The applicant’s brother [lives] in Kabul with his wife and children.  He sometimes works in the bazaar.  The applicant’s [other sister] died six or seven years ago from cancer. The applicant’s mother passed away about ten years ago.

   b.The applicant has [uncles] who live in Paktia.  The applicant’s mother is from Paktia.  The applicant’s family lived on the border region of Paktia and Paktika.  His village [Village 1 variant] is in the border district of [district name].

   c.The applicant had [specified relatives] but they are all dead.  They have children who are still living in [Village 1 variant].  The applicant has no contact with [these relatives].

   d.The applicant’s brother obtained a duplicate of the applicant’s Tazkira in Afghanistan and sent it to him by post. The village Malik confirmed the identity of the applicant. The applicant’s father’s and grandfather’s registration details were checked. Then the Tazkira was issued.  The English translation contains a mistake as the registration number should be ‘[correct number]’ not ‘[incorrect number]’.

   e.The name [Brother B], on the Tazkira, is the applicant’s half brother.  His father had a previous marriage.  The applicant does not know what happened to his father’s first wife.  After the applicant’s father married his mother [Brother B] lived with them. The applicant has no contact with [Brother B].  The applicant does not have any other half-siblings.

   f.The applicant was sent a copy of his Afghan Birth Certificate by his brother through the [named] phone app. The applicant provided his brother’s Afghanistan phone number to the Tribunal.  His brother used the applicant’s Tazkira to obtain the Birth Certificate.  It was based on the official English translation of the Tazkira.

   g.[One sibling and their spouse] do not have identity documents because they are village people.  In Afghanistan people don’t obtain these documents unless they want to do things like transfer land.

   h.The applicant used his Pakistan identity documents to work in Malaysia.  He also used them to travel back to Pakistan once when his mother was very sick and dying.  He paid money to agents in Kuala Lumpur and Pakistan to pass through the airports. He was in Pakistan for about one month.

   i.The applicant did not run a business in Pakistan with his brother.

   j.The applicant’s uncle in Pakistan made the Pakistan identity documents for the applicant after the applicant left Afghanistan and was in Pakistan for about 20 days.

   k.The applicant does not have any family photos as his people do not take photographs.  Maybe his brother has some photographs of the two of them together. The applicant will ask him.

   l.The Tribunal asked the applicant why he made lengthy trips outside of Australia after he arrived here. The applicant responded that he went to Pakistan because of his family.  He got married there and has children there.

   m.The applicant got married for a second time in Pakistan in 2017.  His wife’s name is [name]. She is a citizen of Afghanistan from Paktia.  She is not related to the applicant’s family.  The applicant’s [uncle] arranged the marriage for the applicant.  She is from a nearby village in Afghanistan called [name].  She does not have any Afghan identity documents.  She lives in Rawalpindi.  She lives sometimes with the applicant’s brother and sometimes with her father.  She travels back and forth between Pakistan and Afghanistan. She travels between Afghanistan and Pakistan by road through the border [near] Quetta.  People do not need papers to cross the border.

   n.The applicant and his wife have [number] children, [ages specified].  They were born at home in Afghanistan.  They do not have any identity documents.  The applicant has some photographs of himself, his wife and children. He will submit these to the Tribunal.

   o.The applicant’s brother’s oldest child is [age range].  He goes to school in Kabul.  The applicant will ask his brother if he can send any evidence that his son attends school in Kabul.

   p.The applicant has not returned to Afghanistan since he left there.

   q.The Tribunal put to the applicant that the department had information that his Pakistan passports have been verified as genuine. The applicant responded that in Pakistan one can gets documents by going to the NADRA office and paying money. An agent obtained the documents for the applicant.  The applicant’s uncle found the agent, the applicant did not meet the agent. The applicant provided his photographs and signed a form.  He does not know if the passports are genuine or not.  They were obtained through corruption.

   r.The applicant does not know anyone from his village in Australia.  There are older Afghans in Australia who might know the applicant’s ancestors.  The applicant will ask them to write statements for him.  Afghans know the applicant is an Afghan because of his accent.  The applicant will also try to get information from his cousins in his village to show that the applicant is from there.

   s.The applicant has complied with all his other visa conditions.  He has not broken any laws in Australia.  He has worked in Australia.

   t.He wants to bring his family to Australia. Since the Taleban took control of Afghanistan his wife has not been allowed to leave the house.  They are dependent upon the applicant.

   Post-Hearing Submission

7. On 26 April 2022 the applicant’s Agent submitted copies of further materials to the Tribunal.  The materials are not individually described and not all are translated. In the agent’s covering email he writes:

   All these attachments in four emails are documents from family members and relative, some property documents from his home village, statements, brother’s children’s photos in front of there school in Kabul and their school results, family photos of brother, children, cousins, wife, and himself. There are also documents from his uncle who was a military officer in Afghanistan. Uncles’ education documents, army id cards and pension cards. Document is Dari and in Pashto are translated into English.

8. The materials are:

   -A letter dated 18 April 2022 from [Leader A], the [leader] of [Community Organisation 2].  He writes that he has lived in Australia since 2001 and is an Australian citizen. His [uncle] lives in [Village 1 variant] in Afghanistan and he is a close relative of the applicant, who was also resident in [Village 1 variant].  [Leader A] has been in contact with the applicant in Australia since 2015. The applicant works as a volunteer at the [organisation, which] strongly supports the applicant’s case.

   -A letter of support from an Afghan friend who confirms the applicant is an Afghan citizen.

   -Several Afghan identity documents in Pashto or Dari languages.

   -Family photographs including some in which the applicant appears. The photographs of the applicant show him holding [specified children].

   -A photograph of [number] children standing outside an Afghan School.

   -The applicant’s [relatives’] Afghan school papers.

   -Translations of the applicant’s cousins’ Afghan ID documents.

   -Translation of [the applicant’s relative’s] Tazkira.

   -A [Ministry] of Defence Certificate dated [1989] in the name of “[Uncle A]”.

   -Translation of [Uncle A’s] Afghan ID documents.

   -A letter from the sons of [Uncle A], who are resident in Paktika province, confirming that the applicant is their cousin.

   -A letter from several villagers of [Village 1 variant] confirming that the applicant was born in [Village 1 variant], he has a house there, his father and grandfather’s graves are there, and he was a resident there. The letter includes several Tazkiras in the names of the people who signed the letter.

   -The applicant’s official stamped Afghan Birth document with accompanying documents showing the document was obtained and translated from the Ministry in Kabul.

   -A letter from a certified translator in Afghanistan that six pages of the documents brought to the translator by [a named relative], were too old to be legible so translations of them were not possible.

   Country Information

9. The DFAT Thematic report on Political and Security Developments in Afghanistan (August 2021 to January 2022), published on 14 January 2022, contains the following:

   Identification

   The taskira is the primary form of identification for Afghan citizens. Taskiras act as the primary document necessary to obtain other forms of identification including passports. They are also required for employment and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property. According to the UK Home Office, from 2018 the Government of Afghanistan began to issue a new form of the paper taskira (printed in colour) as well a digital version. The new e-taskira cards were launched in May 2018 and contain a watermark security feature and microchip to comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. Earlier taskiras were printed on plain paper, either in black-and-white or colour, depending on the date of issue. Other than stamped seals, they do not include any security features. Issuing officers at district population registration offices completed paper-based taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.

   It is not known what will become of either version of the taskira under the Taliban. Local sources say the Taliban has undertaken to continue issuing them, on paper only, but the level of integrity underlying the system is unclear. Furthermore, DFAT assesses it is unlikely the Taliban will be willing or able to maintain the digital e-taskira system. In September 2021, the Taliban announced it would be issuing its own taskiras and passports including the words ‘Islamic Emirate of Afghanistan’ but that it would continue to recognise taskiras and passports issued by the Islamic Republic of Afghanistan. As at December 2021, the Taliban was issuing passports using the old document format. 

10. The latest DFAT Country Information Report on Afghanistan, published in June 2019 states:

    DOCUMENTATION
    The National Statistics and Information Authority (NSIA) is the authority responsible for issuing taskiras. The NSIA was previously known as the Afghanistan Central Civil Registration Authority, and prior to that the Population Registration Directorate (PRD), which operated within the Afghan Ministry of Interior (MOI). Since its renaming in 2019, the NSIA has operated as a separate entity. NSIA Headquarters are located in Kabul, with other representative offices located in police headquarters and district-level police offices in provincial police departments throughout Afghanistan. NSIA headquarters is the central repository for all taskira records and currently holds almost 23 million individual entries, although records held prior to 1973 are not centralised.

    NSIA field offices manually record the details of birth and deaths. Each location holds two registers, which are completed simultaneously when data is entered. When the registers become full (approximately 1,000 records),both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged. One register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.

    National Identity Cards (Taskira/ Tazkira)
    The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras.

    In May 2018, President Ghani announced the official launch of the electronic taskira (the e-taskira), becoming the first person to be issued with one. The new e-taskira cards contain a watermark security feature and microchip and comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. The card contains printed data in English, Dari, and Pashto, including the bearer’s full name, person identification number, place and date of birth, issuing authority, and dates of issue and expiry. The card is valid for either five or ten years and there is no lower age limit to issuance. It is unclear how many Afghans are in possession of e-taskiras, or what the timeline is for distribution.

    Earlier taskiras were printed on plain paper, and include ethe names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.

    Birth Certificates
    Authorities did not historically issue birth certificates, which remain far from common. The high number of home births makes the process of registering births challenging. Reporting of birth dates is unreliable, and reported dates are likely to be approximate. DFAT understands that the Ministry of Public Health now issues birth certificates through a small number of maternity hospitals. However, parents can obtain a taskira for their newborn child by registering the birth with the Ministry of the Interior’s population registration office.

    Marriage Certificates
    Most Afghan marriages are based on an informal document (nikah nama) that is signed by the couple and witnesses in the presence of a mullah, who acts as marriage celebrant. While symbolic, the nikah nama has no legal significance in and of itself. Article 61(a) of the Civil Code mandates that married couples must register their marriage with a family/civil court(or Afghan diplomatic mission) for it to be considered legally valid. In practice, however, the vast majority of marriage contracts are not validly registered. Most Afghan couples reportedly consider the social recognition of their marriage to be sufficient, and only take steps to register their marriage when a certificate is required for litigation or for presentation to a foreign government for the purpose of international travel.
    The official marriage contract book (nikah khat) is a 16-page stapled paper booklet with a dark green cover. The booklets are issued in Pashto and Dari. A completed booklet carries the photographs of the couple and witnesses/attorneys with a wet stamp of the Supreme Court (or diplomatic mission) across the photographs. The relevant court issues the certificate soon after the marriage but before any child is born from the relationship. Two witnesses are required to testify a couple’s marriage in the court.

    Many married couples seek to have their marriage officially recognised after a substantial time has elapsed since the marriage ceremony and the marriage has produced children. In such cases, a local court will issue a wasiqa rather than a nikah khat. A wasiqa is a one-page document that verifies the couple’s marriage status based on the testimony of five witnesses. The wasiqa is valid for use in relation to legal and administrative matters within Afghanistan only.

    Passports
    The MOI’s Passport Directorate in Kabul is responsible for the issuance of passports, which are machine-readable. Requirements for adult passport applicants are a valid taskira and a number of passport photographs. The applicant’s fingerprints are digitally recorded and entered into a database. Provincial passport offices located throughout the country print and issue passports.
    Passports contain information on the bearer’s first name, surname (or father’s name), occupation, photograph, date and place of birth, date of issue, and expiry date. They do not contain information about the bearer’s religion or ethnicity.

    Passports have a five-year validity period. Diplomatic missions can issue passports to Afghans based abroad.

    PREVALENCE OF FRAUD
    Document fraud is a major issue in Afghanistan. Because the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued based on false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras, given they are the primary document used to obtain other forms of identification. The issuance of the new e-taskira should help in mitigating this risk (see National Identity Cards (Taskira/ Tazkira), but there is likely to be a significant time lag between the introduction of the new taskira and its widespread implementation.

    The Ministry of Foreign Affairs (MFA)has a section responsible for verifying civil documents with issuing authorities to prevent any manipulation of official records. This attestation assists Afghan missions and foreign governments in accepting the authenticity of the document. Whilst MFA attestation provides an extra level of integrity to the documentation, international agencies report that there have been cases of documents with MFA attestation subsequently being independently verified as non-genuine.

    Pakistan Nationality

11. DFAT’s thematic report on Hazaras in Afghanistan and Pakistan advises that more recent arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services[1].  The 2019 DFAT Country Information Report on Pakistan notes that many Afghan refugees do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a Taskira or UNHCR registration documents.[2]

    [1] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14

    [2] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.

1. The Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man. Relevant to this consideration, Section 4 provides that every person born in Pakistan after the commencement of the Act shall be a citizen (except those born in Pakistan to a father who was an enemy alien in Pakistan), Section 5 provides that a person is a citizen if his parent was a citizen of Pakistan (Noting exceptions for those born outside the territory or in the service of a government), Section 9 allows a person granted a certificate of naturalization under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalization or allowing the government to register any person as a citizen.[3]

   [3] The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >

   The Naturalization Act allows a person to be granted a certificate of naturalization if they are not a minor, are neither a citizen of Pakistan or a citizen of any state which does not allow Pakistan citizens to be naturalized, has resided in Pakistan for the twelve months before the application and for a period of years prior to that time, is of good character, had adequate knowledge of a language gazetted by the Government, and intends to reside in Pakistan.[4]

   [4] The Pakistan Naturalization Act 1926, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >

   The country information demonstrates however that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan after 1962.  According to an article in Foreign Policy:

   Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[5]

   [5] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,

2. The European University Institute has provided a comprehensive and detailed report on Pakistan citizenship law. In this report, the author notes that ‘Over time, an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels.’[6] The report references a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). In this case Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistan national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and Aliens.[7]

   [6] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5 Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5-6 >

   In 2018 the Islamabad High Court in Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 (Mahmud), stated that all persons born in Pakistan except Afghan refugees were entitled to citizenship.

3. The Foreigners Act provides for the regulation of the entry, presence and departure of foreigners who are defined in the act as any person who is not a citizen of Pakistan.[8] Whilst registered Afghan refugees have a ‘special status’, excluding them from citizenship as above, unregistered Afghans in Pakistan are considered by the government to be aliens and illegal immigrants who may claim only alien registration, work permits and non-refoulement under customary international law.[9]

   [8] Sections 14, 2 of the Foreigners Act 1946.

   [9] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >

   In September 2018 then Prime Minister Khan proposed a law which would have provided citizenship to Afghans born in Pakistan, and a private members bill would have extended this to Afghans living in Pakistan for 20 years or greater and had been registered. The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019, with the committee observing that the proposed amendment would have serious repercussions on the security and economy of the country and that the provinces of Sindh, Khyber Pakhtunkhwa, and Balochistan held serious reservations against the statement made by the Prime Minister. This appears to reflect a widely held perception in Pakistan that Afghans are a security threat and an economic drain on the country, despite evidence to the contrary.[10]

   [10] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >

   The CODE report also notes that:

   Initially, the Government of Pakistan did not maintain a proper record and database of refugees entering and leaving Pakistan. Since Pakistan’s national registration system was newly established at the time of the arrival of the refugees, and the mechanism for enquiry and verification of nationality was inadequate, some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA. Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees. On April 17, 2018, Mrs. Nusrat Sahar Abbasi, a member of the Sindh Assembly stated on the floor of the house that about 500,000 foreigners, including Afghan refugees, had fraudulently obtained Pakistan’s CNICs and had registered themselves as voters.[11]

   [11] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >

   DFAT’s Country Information Report, published in February 2019, provides the following information on corruption and document fraud in Pakistan:

   Corruption is widespread and systemic. The private sector GAN Business Anti-Corruption portal claims the Pakistan government is unable to guarantee integrity in state bodies and prevent corruption, despite an adequate legal framework. Transparency International’s 2017 Corruption Perceptions Index ranked Pakistan 117th out of 180 countries, equal with Ecuador, Egypt, Gabon and Togo….

   Bribery, is prevalent in law enforcement, procurement and provision of public services. The judiciary is not seen as reliably independent and has been accused of shielding corrupt political practices from prosecution. …

   CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.

   Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

   Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.

   …  DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. Extracts of the Act relevant to this case are attached to this decision.

6. 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?

7. 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.

8. The non-compliance identified and particularised in the s.107 notice provided to the applicant was non-compliance with s.101(b), in that the applicant provided incorrect information in his subclass 200 visa application regarding:

   ·His name.

   ·His date of birth.

   ·His place of birth.

   ·His citizenship.

   ·Whether or not he possessed a travel document.

   ·Whether or not he possessed an identity document.

9. There is no onus upon an applicant to establish that a ground for cancellation does not exist.  Generally, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister, or on review, the Tribunal.[12]  In a matter involving a visa cancellation under s.116 of the Act, Zhao v MIMA, the Court stated:

   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.[13]

   [12] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

   [13] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

10. The Court’s comments would be applicable to cancellations under s.109 of the Act.

11. In the civil context, Dixon J in the High Court held that:

    the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.[14]

    [14] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 362].

12. While this principle may not have direct application in administrative law, the Tribunal considers it is appropriate to bear in mind the gravity of the consequences in deciding whether the ground for cancellation is made out.[15]

    The Applicant’s Identity

    [15] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16], the principle explained by the High Court in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on the old s.20, the precursor to ss.101-109.

13. The applicant has official documents showing him to be a citizen of Pakistan and a citizen of Afghanistan. 

14. The applicant claims the Pakistani documents were unlawfully obtained and that he has no right to Pakistan nationality and is not a citizen of that country.  He claims the Afghan documents are lawfully obtained and issued and that he was born in Afghanistan and is an Afghan citizen.

15. The applicant has provided a great deal of evidence to support his claim he was born in Afghanistan and is a citizen of Afghanistan.  This evidence is from wide ranging sources.  It includes officially issued documents to the applicant and to numerous family members and relatives.  He has provided personalised statements from Afghan representatives in Australia as well as from relatives and villagers from his claimed home village, and from his brother and brother’s family in Kabul.  The documents include supporting materials regarding the provenance of the documents and how they were obtained.  The photographs submitted also indicate that the applicant has a wife and [number] children in either Afghanistan or Pakistan.

16. The Tribunal considers that the amount of documents the applicant has been able to procure from Afghanistan in the short time following his Tribunal hearing, indicates he maintains very close connections with the country. 

17. In short the evidence provided by the applicant is highly persuasive that the applicant is an Afghan national born in [Village 1] or [Village 1 variant] in Paktika province.  According to available information,[16] ‘[Village 1]’ and ‘[Village 1 variant]’ are alternative or interchangeable names for the village.

    [16] [Source deleted].

18. On the basis of the credible evidence presented by the applicant the Tribunal is satisfied that the applicant is who he claims to be, namely [Applicant’s name], born in Paktika Province, Afghanistan in [year] and that he is a citizen of Afghanistan.

19. The country information referred to above highlights the high level of corruption in Pakistan which lends itself to the availability of fraudulent documents and unlawfully issued official documents.

20. The Tribunal accepts the available information that dual nationality is not possible between Afghanistan and Pakistan.  There is no indication that the applicant has renounced his original Afghanistan nationality. There is also no apparent indication that the applicant falls within any category that would allow him to readily obtain Pakistan nationality.  According to the information set out above it is not possible for someone of the applicant’s profile to legally acquire Pakistan nationality.  On the basis of the country information considered above, there appears no process by which the applicant could have lawfully acquired Pakistan citizenship.

21. The Tribunal notes that the Pakistan authorities have informed the Australian authorities they believe the applicant to be a Pakistan national, based upon the documents issued to him by the Pakistan authorities.  However, if the documents were issued as a result of fraud and corruption, then they are not of themselves determinative of nationality.

22. In view of the likelihood that the applicant obtained his Pakistani documents through fraud and/or bribery, and that he has no legal right to them, the Tribunal finds that they are not lawfully obtained documents and do not establish that the applicant has citizenship in Pakistan.

23. On the basis of the above findings the Tribunal is not satisfied that the applicant provided incorrect information in his subclass 200 visa application in relation to his name, date of birth, place of birth, or citizenship.

    The Applicant’s Travel and Identity Documents

24. In the applicant’s subclass 200 visa application form he wrote ‘No’ to the question ‘Do you have a travel of identity document’. 

25. The applicant does possess Pakistan Passports and Pakistan National Identity Cards and seems to have possessed these at the time of his subclass 200 visa application.  The Pakistan authorities have confirmed that the documents were officially issued. However it has been accepted that these documents were unlawfully obtained.

26. In full, question 21 of the subclass 200 visa application form states:

    Give details of any valid travel documents (eg. passports) or identity cards/documents held by all people included in this application. Note: If you do not have any documents, please explain why - do not obtain fraudulent documents.

27. The dictionary meaning of the word ‘valid’ is “legally sound, effective, or binding; having legal force; sustainable in law”.[17]  The Tribunal also notes that law enforcement agencies, such as Interpol, consider fraudulent documents to include genuine documents which were fraudulently obtained.[18]

    [17] See e.g. the Macquarie Dictionary.

    [18] See Interpol, ‘Identity and Travel Document Fraud’, >

    As the applicant’s Pakistan documents were unlawfully obtained and he was not legally entitled to them, as he was not a citizen of Pakistan, the Tribunal considers that the documents are not valid documents.

28. There is no indication that the applicant was holding valid Afghan travel or identity documents at the time of his subclass 200 visa application. The Afghan Tazkira he submitted to the Tribunal was issued in 2021.

29. There is no other indication that the applicant held a valid Travel or Identity document at the time of his subclass 200 visa application in 2013.

30. Given the above, the applicant’s answer on the visa application form regarding whether or not he held valid travel or identity documents, was not incorrect.

31. The Tribunal is therefore 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

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.

    Melissa McAdam
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d) setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a) deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.