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

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
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2109126 (Migration)

Details

AGLC: 2109126 (Migration) [2022] AATA 2313
Case: [2022] AATA 2313
Decision Date: 15 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 200 (Refugee) visa of the applicant. The dispute arose from the applicant's visa application, where the delegate determined that the applicant had provided incorrect information regarding his identity, including his name, date of birth, place of birth, citizenship, and possession of travel and identity documents. The delegate subsequently cancelled the applicant's visa based on this alleged non-compliance.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his visa application, thereby constituting a failure to comply with section 101(b) of the Migration Act 1958. This, in turn, would determine whether the Minister's power to cancel the visa under section 109 of the Act was enlivened. The Tribunal was required to assess the validity of the applicant's claims regarding his Afghan citizenship and the circumstances under which he obtained Pakistani identity documents.

The Tribunal considered extensive country information regarding Pakistani citizenship law and the prevalence of corruption and fraudulent document issuance in Pakistan. It noted that Afghan refugees and their children generally cannot legally acquire Pakistani citizenship. The applicant provided substantial evidence, including official Afghan documents and statements from relatives and community members, to support his claim of being an Afghan national born in Afghanistan. The Tribunal found this evidence highly persuasive, concluding that the applicant was indeed an Afghan citizen and that his Pakistani documents were unlawfully obtained through fraud and bribery, rendering them invalid. Consequently, the Tribunal was not satisfied that the applicant had provided incorrect information regarding his name, date of birth, place of birth, or citizenship. Furthermore, the Tribunal determined that the applicant's answer regarding the possession of valid travel or identity documents was not incorrect, as his Pakistani documents were deemed invalid.

Based on these findings, the Tribunal concluded that there was no non-compliance by the applicant as particularised in the notice issued under section 107 of the Act. Accordingly, the discretionary power to cancel the applicant's visa did not arise. The Tribunal set aside the delegate's decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 200 (Refugee) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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, 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. 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 EVIDENCESection 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. 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?The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.The non-compliance identified and particularised in the s.107 notice 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.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]. The Court’s comments would be applicable to cancellations under s.109 of the Act. 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].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. The applicant has official documents showing him to be a citizen of Pakistan and a citizen of Afghanistan. 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.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.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. 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].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. 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. 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.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. 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.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 DocumentsIn the applicant’s subclass 200 visa application form he wrote ‘No’ to the question ‘Do you have a travel of identity document’. 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. 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.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.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.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.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.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.DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.Melissa McAdamMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

Decision

Reasons for decision

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 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 TribunalPre-Hearing Submission 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 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. 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. 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

Ratio Decidendi

Legal Principle Established

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