2118425 (MIGRATION)
[2024] AATA 547
•21 January 2024
2118425 (MIGRATION) [2024] AATA 547 (21 JANUARY 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ahmad Dostizada
CASE NUMBER: 2118425
MEMBER:Wayne Pennell
DATE:21 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 21 January 2024 at 2:13pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) – repeated false and misleading information about identity – inconclusive authenticity of Tazkira – Hazara ethnicity – Shi’a Muslim – failing to declare his full name within the applications to the Department – impact on mental health – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 46, 116, 375, 423
Migration Regulations 1994, Schedule 2CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 a review of a decision dated 1 December 2021 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under section 116 of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa under section 116(1AA) of the Act on the basis that the delegate was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 22 September 2023 and 6 November 2023 to give evidence and present arguments. The applicant was represented in relation to the review hearings which were conducted with the assistance of an interpreter in both the Hazaragi and English languages.
APPLICANT’S BACKGROUND AND IMMIGRATION HISTORY
Applicant’s arrival at Christmas Island and protection visa application
To fully explain the circumstances in respect to the applicant’s identity, and his lengthy association with the Department involving a number of different applications, it is important for those circumstances be outlined.
The applicant initially arrived as an irregular maritime arrival by boat at Christmas Island on [date] July 2010. He sought to engage Australia’s protection obligations and he identified himself as [Applicant Name]. He claimed he was born in Afghanistan in [year] and was a [age] year old unaccompanied minor. He did not have any identification documents in his possession to prove his identity or his citizenship as an Afghan national.
On 21 July 2010, the applicant took part in an ‘entry interview’ with an officer from the Department. During that interview, he claimed that he fled to Pakistan because his father refused to join the Taliban to fight, so the Taliban killed him (his father). He said that his mother told him the Taliban wanted to occupy the family’s land and that they (the Taliban) would also kill the applicant because he was a Shi’a Muslim. He claimed that he left Afghanistan between 2002 and 2003 and fled to Pakistan. As revealed later, his claim about his father being killed by the Taliban was a fabrication.
He told the Department that after he arrived in Pakistan, he worked for approximately three years as a [Occupation 1] and in 2006, the Pakistan authorities deported him back to Afghanistan. He claimed that to make a living in Afghanistan, he worked as a street vendor. He did not stay in Afghanistan for very long and he returned to Pakistan where he met with a smuggler who provided him with identity documents which allowed him to travel to another country. In late 2006 he travelled to [Country 1] where he worked for three years in a [workplace]. He was able to save enough money to fund his travel Australia.
At the time he participated in the entry interview, he provided the following names in respect to the composition of his immediate family.
(a)Father – [Mr A] – born in [year] – deceased in 2003.
(b)Mother – [Ms B] – born in [year] – residing in Afghanistan.
(c)Sister – [Ms C] – born in [year] – residing in Afghanistan.
(d)Sister – [Ms D] – born in [year] – residing in Afghanistan.
(e)[Mr E] (male cousin) – born in [year] – residing in Afghanistan.
(f)[Ms F] (female cousin) – born in [year] – residing in Afghanistan.
The applicant went on to claim that his mother was caring for his cousins, [Mr E] and [Ms F] because his maternal aunt had died. He also said had never been in contact with anyone in Australia and that he had never previously applied for a visa to enter Australia. The Department later discovered that those claims were untrue.
Later, on 23 October 2010, the applicant made a request for a Refugee Status Assessment (‘RSA’). In support of that request, he provided a statutory declaration in which he outlined his statement of claims. He also provided additional documents that replicated questions contained in the application form for a protection visa and a Form 80 – Personal Particulars.
The applicant deposed in his statutory declaration that his father was in the Ord-e-Milly (military), and had been on his way to work when he was captured by the Taliban. The Taliban held his father captive for about a week before killing him and dumping his body in their village. As already explained, this claim is a fabrication.
Within the Form 80, he provided the following names as family composition:
(a)Father – [Mr A] – age unknown – deceased.
(b)Mother – [Ms B] – age [age] – residing in Afghanistan.
(c)Sister – [Ms C] – age [age] – residing in Afghanistan.
(d)Sister – [Ms D] – age [age]– residing in Afghanistan.
(e)Female Cousin – [Ms G] – age [age]– residing in Afghanistan.
(f)Female Cousin – [Ms F] – age [age] – residing in Afghanistan.
When the RSA was completed,[1] the delegate found that the applicant’s fears of persecution were well founded. The delegate also found that he was a refugee. He then lodged an application for a protection visa.[2] In that application, his name was recorded as [Applicant Name], born on [date].
[1]On 21 January 2011.
[2]On 7 April 2011.
The Tribunal considers it important to identify at this point that at the time of making his applications and providing a statutory declaration to support his claims, he was represented by a qualified Australia Legal Practitioner, and he was assisted by a suitably qualified interpreter.
When completing Part B of his application, the applicant was asked at Question 1 to provide the details of ALL persons included in the application, that is, those people claiming to be refugees and members of the same family unit.[3] The only person he nominated was himself (emphasis added).
[3]Part B of the Form 866 of the application, at Question 1.
He was further asked within Question 3 of Part B if any person named in Question 1 previously made any other type of application to the Department (including a Parent visa). The applicant’s response was to tick the box marked “No”. As noted above, the only person named person in Question 1 was the applicant himself (emphasis added).
Later in the application, the applicant was re quired to complete Question 8 of Part B which asked if there were any members of his family unit who were in Australia at that time, but had not been included in his application. He responded by ticking the box marked “No”. This claim supported what he said to the Departmental officer during his entry interview when he claimed that he had never been in contact with anyone in Australia. This was later revealed to be a fabrication as he had an older brother who had arrived in Australia a number of years earlier, and had been granted Australian citizenship. As it is explained later in these reasons, the applicant’s brother was a nominated sponsor for him and other members of his family in applications previously lodged with the Department in 2007 and 2009. This was another example of the applicant providing misleading information to the Department (emphasis added).
Returning to the questions asked in Part B of the application, he was also asked within Question 9 if there were any members of his family unit who were not in Australia at the time of the application being made. He confirmed there was and provided an attached list of the names of his family members. Those family members were described as:
(a)[Mr A] (father), date of birth unknown – deceased.
(b)[Ms B] (mother) aged[age] and residing in Afghanistan.
(c)[Ms C] (sister) aged [age] and residing in Afghanistan.
(d)[Ms D] (sister) aged [age] and residing in Afghanistan.
(e)[Ms F] [surname unknown] (cousin and family dependant) aged [age] and residing in Afghanistan.
(f)[Ms G] [surname unknown] (cousin and family dependant) aged [age] and residing in Afghanistan.
The application then asked the applicant at Question 10 as to whether he had any close relatives who were IN AUSTRALIA at the time of the application being made. He responded by ticking the box marked “No”. As explained above, he had an older brother living in Australia, but failed to make that disclosure (emphasis added).
In addition to completing Part B of the application, the applicant also completed Part C. He was asked in Question 1 of Part C for his full name. He responded by providing the name [Applicant Name]. He then was then asked at Question 4 if there were any other names he had been known by. He did not provide a response to this question. He also provided his date of birth in Question 7 as [date] and his age was [age] (emphasis added).
As already identified above, the Tribunal notes that throughout the application process of applying for a protection visa, the applicant was assisted by a qualified Australian Legal Practitioner who identified herself as [name], a Barrister and Solicitor from the Melbourne based law firm, [named]. He was also assisted by [Mr H], who is an accredited Dari interpreter. He signed both Part B and Part C of the application confirming that the information that he provided in both forms was correct and up to date in every detail.
The Tribunal also notes that he completed a statutory declaration dated 23 October 2010, which corresponds with the date of him signing Part B and Part C. That document is reproduced into these Reasons as follows:
I, [Applicant Name] of Christmas Island Detention Centre, Christmas Island make the following declaration under the Statutory Declarations Act 1959:
Background:
My name is [Applicant Name] and I am a [age] year old male born in. My ethnicity is Hazara and my religion is Muslim Shia. My mother and two sisters and two cousins remain in Afghanistan. My father is deceased; he was killed when I was [age] years old while working in the army fighting Taliban.
Why I left my country:
My father was working for Ord-e-Milly (Military), my father was in uniform and on his way to work. The Taliban captured him, they detained him for approximately one week. At the end they dumped his body at our village.
I was [age] years old and the only male in the family. I would be in danger as the Taliban would kill all males related to anyone working in the Ord-e-Milly.
I left and went to Pakistan, there were other people from our village fleeing Afghanistan so I accompanied them. The same people helped me find a job which also had a room for me sharing with five other people.
I was in Pakistan for approximately for one year when the Police arrested me and detained me for not having any identity documents and working illegally.
After approximately three years I returned to Afghanistan, however when I returned there was another villager captured by Taliban and his body dumped in the village shortly after. I was very afraid and was unable to go outside as in fear of the Taliban.
I only stayed a few weeks then returned to Pakistan where I tried to get some form of identity to avoid the harassment of the police. The smuggler told me he could get me a false passport and take me to another country. I was taken to [another country] and stayed there for a few weeks then taken to [Country 1] where I remained for 3 years living there illegally before taken to [a third country].
What I fear might happen if I go back to my country:
I cannot go back to Afghanistan as I fear I will be killed by the Taliban.
Who I think will harm or mistreat me if I go back:
The Taliban
Why I believe they will harm or mistreat me if I go back:
I will be killed because I am Hazara and Muslim Shi'a and also because my father was in the military. I believe that they will recognise me wherever I go and rumours will spread advising them of where I am.
I have no other relatives living in Afghanistan, I heard that my Uncle has left.
Why I believe that the authorities in my country will not protect me if I go back:
The authorities do not have protection so they cannot guarantee protection for me.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
Declared by [Applicant Name] on the 23RD day of October 2010 after the same had been translated by [Mr H] from the English language to the Dari language.
The statutory declaration as outlined above consisted of two pages, with the applicant signing both pages, including immediately beneath the above declaration as to the truthfulness of what he had deposed.
Included at the bottom of the second page was the following statement which was signed by the interpreter.
I, [Mr H] am proficient in the English language and the Dari language, and have faithfully translated the contents of this statement to [Applicant Name].
The applicant’s application for a protection visa was subsequently assessed by the delegate and based on the information he provided, he was granted a protection visa on 13 April 2011. The visa was to cease on 13 September 2016.
The Tribunal is aware that during the term of the protection visa, the applicant made two trips out of Australia. The first trip took place when he departed Australia on [date] August 2013. He remained out of Australia for approximately three months, returning on [date] November 2013. The applicant told the Tribunal that he travelled to Pakistan and the purpose of that trip was to marry his wife.
His second trip took place when he departed Australia on [date] April 2015. He remained out of Australia for approximately four months, returning on [date] August 2015. The applicant told the Tribunal that he travelled to Pakistan and the purpose of that trip was visit his wife and family and spend time with them.
Citizenship by Conferral application
On 26 May 2016, the applicant lodged an application for Australian Citizenship by Conferral. Contained within page two of the electronic form of that application was a query for him to respond to. He was asked if he had ever been known by, or used, any other names, dates of birth or gender, including patronymic names, maiden names, clan or tribal names. The applicant provided the answer of “No”. This response was later discovered to be incorrect as he was previously referred to in his mother’s 2007 application as [Alias 1], born [date] (emphasis added). That application is discussed later in these reasons.
Subsequently, on26 May 2017 the Department asked the applicant to provide a number of documents, including his personal particulars (Form 80) (emphasis added), along with copies of:
(a)His Tazkira and an English translation completed by a NAATI qualified translator;
(b)Both his mother’s and his father’s Tazkiras and translations into English;
(c)His Afghan drivers licence; and
(d)Any identity documents issued to him from Afghanistan or Pakistan.
On 6 June 2017. The applicant provided his personal particulars and completed a completed Form 80 along with a letter in which he said:
As I have previously recorded in my interview that I did not have any (Tazkira) from Afghanistan. I was [age] years old when we fled and became refugee in Pakistan, recently I have contacted my mother who is still in Pakistan told me that she and my dad had (Tazkira) but it was burned down and looted our other items by Taliban when they attacked our village. Since she lives in Pakistan she cannot return to Afghanistan due to safty reason. Also I do not have any other family member left in Afghanistan to obtain one for me. For all this reason I am really sorry that I cannot provide my (Tazkira) and the Tazkira for my parents. Also if my dad was alive he would definitely help me get my (Tazkira) but he was killed when I was [age] years old by the Taliban. When I got my QLD driver licence I have lost my overseas driver licence because I did not see any point keeping it. That’s why I can’t find that overseas licence now.
Within the Form 80, the applicant had provided particulars of the composition of his family members as:
(a)[Mr A] (father), age unknown – deceased.
(b)[Ms B] (mother), born [date] and now residing in Pakistan.
(c)[Ms C] (sister), born [date] and now residing in Pakistan.
(d)[Ms D] (sister), born [date] and now residing in Pakistan.
Contained within the Form 80 was Question 47 which asked the applicant if he had any personal contacts in Australia. That question explained that personal contacts included visa sponsors, any relatives, friends, family members and acquaintances in Australia. The applicant answer to that question was “No”. Again, this response is misleading and incorrect and he failed to disclose that he had an older brother living in Australia, and according to the earlier 2007 application, his brother was [name] (emphasis added).
Identified above was the applicant’s response to the Department on 6 June 2017. That response related to the Department asking him to provide Tazkiras for himself and his parents. He told the Department that he recently contacted his mother who was still in Pakistan. She told him that his parents’ Tazkiras had been destroyed or looted along with other items by the Taliban when the Taliban attacked their village.
He went on to say that because his mother lives in Pakistan, she cannot return to Afghanistan because of safety reasons and he does not have any other family members living in Afghanistan to obtain a Tazkira for him. For that reason, he cannot provide Tazkiras for himself and his parents.
The Tribunal notes that at this stage, it was approximately seven years after he had arrived in Australia and he was still claiming that his father was killed by the Taliban and that is why he and his family fled Afghanistan to Pakistan.
When examining the applicant’s immigration records held by the Department, the Tribunal identified that shortly after telling the Department that he could not get the Tazkira for him and his parents because the reasons explained above, the applicant flew to Pakistan. He departed Australia on [date] August 2017 and returned approximately three months later on [date] November 2017.
Upon his arrival back at the Brisbane International Airport, he was spoken to by officers from the Australian Border Force and his baggage searched. A Tazkira for the applicant was found in his possession. The discovery of that document is discussed in greater detail later in these reasons.
Associated applications by applicant’s family members – adverse information.
2007 application
Returning to the issue of the applicant’s application for citizenship, at a subsequent time, the Citizenship delegate discovered what is described as ‘adverse information’ during the assessment of his application.
That adverse information related to the applicant being included in an application for a Global Special Humanitarian (subclass 202) visa, lodged with the Department on 12 October 2007 by his mother, [Ms B] (‘2007 application’).
In that 2007 application, the applicant’s mother listed her date of birth as [date] and she nominated the applicant was her dependant. At that time, the applicant was identified in that application as [Alias 1], born [date].
During the Department’s assessment of the merits of that 2007 application, and with the assistance of an interpreter, interviews were undertaken on 19 May 2008. Those people interviewed were the applicant’s mother, the applicant’s sisters [Ms I] and [Ms J], as well as the applicant. The applicant’s testimony at the Tribunal’s review hearing was that he could not recall being interviewed by a Departmental officer about that 2007 application.
The Tribunal notes that within the Department’s file is a typed precis, or more easily described as a record of the notes from those interviews. The applicant’s mother is recorded as saying that her eldest son went missing in Afghanistan. This information is supported by the applicant’s own testimony at the review hearing when he said that although he does not recall ever meeting his eldest brother, he is aware that his brother is missing in Afghanistan.
When the applicant’s mother filed her application, she told the Department said that her family had moved from Afghanistan to Pakistan in 2005 because her husband (the applicant’s father) was ill and needed medical treatment. He has since passed away, however, there is a slight variation to when she said he passed away. In the body of the application (Question 8 of Form 842) she said he passed away on 16 December 2006, but in interview precis document it has her being recorded as telling the Departmental officer that the applicant’s father had passed away a year earlier (the below passage is extracted from the document as it is typed in the document provided to the Tribunal):
My family moved to Pakistan due to my husband was ill and he passed away on the 16-12-2005 and because we have no land or any ouse back ome in Afghanistan we are staying in Pakistan since in a renting accommodation and we have no guiding even here. My son is supporting financially and we would like to join line in australia because he is settled there.
She indicated that apart from her son who was missing in Afghanistan and the applicant, she had another son who was already at that time in Australia. She said that he had travelled to Australia by boat seven years prior to the interview, putting his arrival sometime around 2001. She said that the rest of the family were not on his application when he arrived because he decided to save his own life. It seems from what she told the interviewer that when her husband was very ill, this son returned to Pakistan to visit his ill father.
When the applicant’s sisters [Ms I] and [Ms J] were interviewed, they both confirmed that the family had moved to Pakistan from Afghanistan because their father was ill and he needed medical treatment.
When the applicant was interviewed he provided his name as [Alias 2], which is what his name was listed his mother’s application. At that time, he said he was aged [age] but he did not know his full date of birth. He confirmed that the person making the application was his mother, and they were living in Quetta. He explained that the family left Afghanistan three years ago because his father was very sick and they went to Pakistan to get him some medical treatment.
2009 application
The adverse information also related to another application for a Refugee and Humanitarian (subclass XB-200) visa filed with the Department on 9 April 2009 by the applicant’s sister, [Ms J] (‘2009 application’). The applicant’s name was recorded in that application as [Alias 3], born [date] and he was listed as [Ms J]’s dependant.
Those 2007 and 2009 applications failed because the applications did not meet the criteria provided within the Regulations and there were not compelling reasons to grant the visas.
In respect to the 2009 application by the applicant’s sister [Ms J], the Department wrote to her on 30 January 2010 to advise that her application was unsuccessful. Within a number of months, the applicant arrived at Christmas Island in a boat. The Tribunal is of the view that when assessment is undertaken of the timing of the refusal of the 2009 application and the applicant’s arrival at Christmas Island, his arrival was a planned exercise which he undertook only after both the 2007 and 2009 applications failed.
The degree of planning was later outlined by the applicant. On 28 June 2017, the Citizenship delegate wrote to him and he was invited to respond to the adverse information in respect to the 2007 and 2009 applications. He was asked to address the inconsistencies within the information he had provided to the Department, in particular his identity of [Applicant Name], born [date] was questionable.
Shortly thereafter, on 25 July 2017, the applicant provided to the Citizenship delegate a response in which he said:
I was born in Afghanistan and I am shia Muslim, I was very young when we became refugee in Pakistan due to the war in Afghanistan, since I was very young I been bullied and never had a happy childhood, my older brother did make an application for us to join him here in Australia back in 2007 but it was refused on two occasion, after that my mom was worried about my safety because being Hazara we were targeted by other ethnic Groups, many hazara's were killed and many were left injured, due this reason I spoke to My brother in Australia but he told me that he could not sponsor us anymore I had argument with him many times over the phone, finally I forced my mom to send me to Australia illegally through people smuggler, she find one other relative of us who knew the People smuggler and everything was arranged, I left Pakistan but my mother was not happy at all, now I look back and I know I have made a good choice because in Pakistan we faced many problems, we did not have any legal documents and also the killing of Hazara were continuing, I thought I would die once rather being dying every day from fear, when I arrived here in Australia I discussed with few people about my past and they advised me to change my name otherwise I would be sent back because in the past I was refused, for that reason I changed my name, since then I am known as [Applicant Name], believe me I have suffered a lot and I did not want to be sent back, please kindly accept my application for citizenship and help me to rebuild my life in Australia, if I was educated I would not make this mistake at all I am very sorry hope you forgive me for my mistake, I have never been in trouble with authority and never been involved in any kind of crimes (emphasis added).
The Tribunal notes that within that response he concedes and/or claims:
(a)There had been an application for a visa made prior to him arriving at Christmas Island in 2010, but it had been refused on two occasions;
(b)He had been the subject of those two applications; and
(c)His older brother made the applications in 2007.
Although he made those concessions, by this stage, he still did not tell the Department the correct circumstances as to his father’s death, and he did not rectify his misleading claim that his father was killed by the Taliban.
It is noted by the Tribunal that although the applicant’s response does not refer to the name of the two applications which were made relating to him, it is taken from his letter that he is conceding that he had a brother living in Australia; and indeed those two unsuccessful applications were made prior to the applicant’s arrival at Christmas Island in 2010.
Those concessions relating to the prior applications and his brother already living in Australia is contrary to the information he provided within Part B and Part C of his 2010 application for a protection visa. As already identified, at the time of that application being lodged, he was represented by a qualified Australian legal practitioner who was described in the application as a Barrister and Solicitor from Melbourne. He was also assisted by a qualified and approved interpreter.
The Tribunal otherwise accepts that the making of that application was undertaken with the assistance of a competent legal practitioner and the interpreter. What the Tribunal does not accept are his comments within the above letter where he suggests that he had received advice from a ‘few people’ and they ‘advised’ him to change his name otherwise he would be sent back because he had been refused a visa in the past.
The Tribunal notes that within the above response letter, he disclosed that he forced his mother to send him illegally to Australia by using a people smuggler. That was achieved by his mother having a relative who knew the smuggler, and as the applicant said; everything was arranged for him to illegally enter Australia.
When carefully assessing that disclosure, the Tribunal considers that there exists a distinct flavour in what that the applicant said that shows he was completely complicit in encouraging his mother to make the arrangements for him to illegally travel to Australia by boat.
Within the letter, the applicant also disclosed that when he arrived here in Australia he discussed his past circumstances with few people. The Tribunal understand that he is referring to other asylum seekers on Christmas Island and he claimed that these people advised him to change his name otherwise he would be sent back home if it was discovered the Department had previously refused to grant him a visa. He claimed that because he received that advice from those “people” to change his name, he did so. He does not deny that he gave his name as [Applicant Name], and since then he has been known by that name.
He claims that he was encouraged by others to provide untruthful information to the Department about himself and his circumstances. He also claims he had a lack of knowledge of, and was unfamiliar with Australian law and Australian values and he followed the advice from a people smuggler who influenced him to provide different information.
The Tribunal rejects that claim because as already identified, he was represented and assisted by a qualified legal practitioner and interpreter when he completed his protection visa application; and he signed a statutory declaration attesting (falsely) to the truthfulness of the contents of that document.
When any logical assessment is undertaken by the applicant’s disclosure to the delegate of his providing a name other than his birth name, the only reasonable conclusion that could be reached is that he provided false information as to his true identity, or at the very least incorrect information.
After considering the contents of the applicant’s letter, the delegate’s assessment of the applicant’s application for Australian Citizenship by Conferral was that it should be refused because the delegate was not satisfied as to his identity. The Tribunal is aware that the applicant applied to the Tribunal to review that decision, but later, on 12 December 2018 he withdrew his application.
THE APPLICANT’S RESIDENT RETURN VISA
On 13 September 2016, the applicant lodged his application for a Resident Return visa. The date of the application coincided with the expiry of the protection visa granted to him on 13 April 2011. It is noted that the name he used in his application for a Resident Return visa was [Applicant Name], born [date]. The visa was subsequently granted.
Within the first page of the application form, the applicant was asked, “Are you currently, or have you ever been, known by any other names? These may include names before marriage, aliases or any alternative spelling in any of your names, or full spelling of initials of names included in your passport.” (emphasis added). The applicant’s response to that question was, “No”. Again, this was an incorrect response which the Tribunal considers to be misleading.
The Tribunal is aware that since that visa has been granted, the applicant has made three international trips out of Australia. He told the Tribunal that he had travelled to Pakistan on each of those three trips.
The first trip involved his departure on [date] September 2016, which is almost two weeks after he was granted the visa. He remained out of Australia for approximately six weeks, before returning on[date] November 2016.
In respect to his second trip, he departed Australia on [date] August 2017 and spent almost three months out of the country before returning on [date] November 2017. When he arrived back in Australian at the Brisbane International Airport, he was spoken to by officers from the Australian Border Force and a search was undertaken on his baggage. That search and the items of interest located are discussed in greater detail later in these reasons.
His third and final trip out of Australia took place in 2019. He departed Australia on [date] July 2019 and remained out of the country for approximately seven weeks, returning on [date] August 2019.
On 22 June 2021, the delegate issued to the applicant a notice of intention to consider cancelling his Resident Return (subclass 155) visa (‘NOICC’) pursuant to section 116 of the Act. Within the notice, he was provided with significant grounds for that decision. Much of the specifics of those grounds have already been already discussed in these reasons, and they relate particularly to his identity. He was invited to comment on those grounds and give reasons why his visa should not be cancelled.
Part of the grounds outlined to the applicant related to when he was spoken to by Border Force officers when he returned to Australia on [date] November 2017 after he had travelled to Pakistan and his baggage was searched.
He told the Border Force officers his name was [Applicant Name] but he had previously been known as [Alias 1]. He said that he was told to change his name before applying for a Refugee visa. That comment was similar to what he had disclosed in his letter to the Citizenship delegate on 25 July 2017, which was prior to his departure to Pakistan on [date] August 2017.
During a search of the applicant’s baggage a number of identity documents were found:
(a)Titre De Voyage in the name of [Applicant Name];
(b)Queensland Heavy Vehicle Driver Licence in the name of [Applicant Name];
(c)Medicare card in the name of [Applicant Name];
(d)Original Tazkira document for [Applicant Name] son of [Mr K (with similar spelling to Mr L)], along with an English translation (this is purportedly the applicant’s Tazkira);
(e)Original Tazkira document for [Mr K] son of [name], along with an English translation (this purportedly was a Tazkira for the applicant’s father);
(f)Original Tazkira document for [Ms B] daughter of [name], along with an English translation (this purportedly was a Tazkira for his mother).
Subsequent to those documents being located in the applicant possession, on 20 February 2018, the Tazkiras naming the applicant and his parents were referred by the Department to the Australian Immigration Office in Dubai for assessment.
Confirmation was later received from the Afghanistan Central Civil Registration Authority (‘ACCRA’) that the Tazkiras for the applicant’s parents were verified as genuine, however the Tazkira document for the applicant was invalid:[4]
According the rule and regulations Registration Directorate, ID cards that are issuing (sic) in the year 2017 beyond the national identity verification (NIVC) without having documents of this center (NIVC) are not valid by reason of: such identity card is issued in the absence of person and has no validity.
[4]Confirmation received on 7 May 2018.
On 25 May 2019, the applicant wrote to the Department and requested a reconsideration of his application for Australian Citizenship by Conferral application. Included with that request were copies of identity documents consisting of:
(a)The applicant’s Tazkiras, document number [Reference 1], date of birth of [date], and accompanied with English translation; and
(b)An ‘Islamic Republic of Afghanistan, National Statistics and Information Authority – NSIA, National Identity Verification Center’ document, numbered [Number 1]-Canberra, reference number [Reference 1].
The Tazkira found in his possession at the Brisbane Airport was seized by the Border Force officers and is not the same Tazkira provided by the applicant to the Department on 25 May 2019.
The applicant was later requested[5] by the Department to provide the original of those documents. He complied with that request and the original documents were sent by the Department to a Forensic Document Examiner (‘FDE’) for determination in respect to their authenticity. On 23 September 2019, the FDE finalised the assessment, and the result for each of these documents was ‘inconclusive’.
[5]On 11 June 2019.
Financial transactions – money sent to Pakistan.
The Department established that funds had been transferred internationally by the applicant on seven occasions between June 2013 and August 2016. The recipient of those transfers was a person referred to as [Mr L (with similar spelling to Mr K)]. Within the 2007 application for a visa, the applicant’s name was recorded as [Alias 1] and his father’s name was [Mr K]. Because of the similarity of the names, it appears that the Department suspected that the applicant father was alive during that period and the applicant was sending him money.
The applicant was asked about those money transfers, and he explained in a statutory declaration dated 4 July 2021 that he transferred money to [Mr L], who is the son of [name] in Quetta Pakistan. [Mr L] is a Pakistani and lives in Quetta. The applicant explained that his mother borrowed money from [Mr L] to fund the applicant’s journey to Australia in 2010, and the money was to repay that debt.
The applicant provided a statutory declaration from [Mr L] dated 2 July 2021 in which he ([Mr L]) deposed that in 2011 he lent money to the applicant’s mother, and since then, the applicant has repaid that loan in instalments between 2013 and 2016. [Mr L] also confirmed that although his name is the same as the applicant’s father, he is not the applicant’s father, but rather a neighbour of the applicant’s mother. The Tribunal notes that [Mr L] dates the loan of the money around 2011, yet the applicant arrived in Australia in 2010. The Tribunal does not consider that the discrepancy of a year is a factor of concern in respect to [Mr L]’s recollections given the passage of 11 years between when the loan was given to when he made his statutory declaration.
When assessing the information contained within the 2007 and 2009 applications made by the applicant’s family members, it appears from the interview undertaken with the applicant’s mother that she confirmed that the applicant’s father had passed away long before those transactions were made to [Mr L]. Therefore, the Tribunal accepts that the applicant’s father was decease at that time of those transactions, and the recipient of those transfers was his mother’s neighbour, [Mr L]. IN accepting this evidence, the Tribunal is satisfied that the only reasonable inference that can be drawn from the applicant’s earlier claim to the Department that he funded his own trip by working in [Country 1] for three years is just another significant inconsistency.
Applicant’s response to the NOICC
On 22 June 2021, the delegate wrote to the applicant and advised that there appears to be a ground pursuant to section 116 of the Act for cancellation of his Resident Return (subclass 155) visa granted on 13 September 2016.
Within that letter, the delegate outlined the specific particulars and told the applicant that the delegate considered that the information he provided in relation to his identity was contradictory and at times, significantly inconsistent. Therefore, the delegate determined that the information was unreliable in establishing his identity.
The delegate also considered that the applicant had not provided verifiable documentation or evidence that supports his identity, his family composition and their dates of birth, as well as his life story and previous visa applications, and identified the following:
1. In your Protection visa application, you stated that you were not known by any other names. This is contrary to your admission on 25 July 2017 in response to the Citizenship application invitation to comment, that you were previously known as [Alias 3] and [Alias 4], born [date]. This means that on your arrival to Australia on[date] July 2010, you were likely aged [age] years and therefore, you were not an unaccompanied minor.
2. In your interactions with the Department, you have maintained that your family members were known by the surname "[Name 1]". As such, it appears that you have misled the Department since your arrival regarding your family composition, specifically by providing false names and misleading dates of birth for each family member. I consider that this casts doubts over the truthfulness of information you provided to the Department, in conjunction with your other claims as per below.
3. In your Protection visa application and RSA request, you declared your cousins [Ms G] and [Ms F] as being dependant family members, after their mother (your maternal aunt) had died. There is no information before me that indicates your mother had siblings, or that [Ms G] and [Ms F] are dependant family members. I further note that your cousins were not declared as part of your family composition in either the Global Special Humanitarian or Refugee visa application forms. I consider that the declaration of these individuals claiming to be part of your family unit after your arrival may have been an attempt to establish family ties. This may have enabled you to later sponsor these individuals for visas to Australia, who were not a part of your family unit.
4. In your Entry Interview, your Protection visa application and RSA request, you declared that you had no contacts in Australia and had never previously applied for a visa for Australia. Based on the information before me, including your subsequent admission during the assessment of your Citizenship application, I consider that you maintained this incorrect information in an attempt to conceal your previous interactions with the Department as [Alias 3] and [Alias 4], born [date].
5. In your Entry Interview, Protection visa application and RSA request, you declared that the Taliban in Afghanistan killed your father sometime in 2003. This information is contradicted by the information before me that indicates your father died in Pakistan in 2006 of cancer as declared in the Global Special Humanitarian and Refugee visa application forms in 2008 and 2009. As these two applications were refused prior to your arrival as an IMA, I consider that you may have claimed the Taliban killed your father in an to attempt to secure a favourable outcome in relation to your Protection visa application. I consider that such a significant discrepancy in your claims made in each of your visa applications, casts considerable doubt over the veracity of your claims for protection.
6. In your interactions with the Department, you have maintained that your father [Mr K] was deceased, providing a variation in the cause of death on more than one occasion. I consider the financial information before me indicates you made IFTIs to beneficiaries with the same name as your father, between June 2013 and August 2016. I consider you may have misled the Department regarding the death of your father, in order to obtain favourable outcomes on your visa applications.
7. On your arrival in Australia, your Protection visa application, and in your Australian Citizenship by Conferral application, you claimed you could not to provide any identity documents. You stated you could not provide documents because you were [age] years old when you fled Afghanistan, and later, the documents were "burned by fire" and again that because the Taliban killed your father when you were [age] years old, and you could not find his documents. From a baggage examination conducted in November 2017 at Brisbane International Airport, you were found to have in your possession a Tazkira (document number [Reference 2]) in the name [Applicant Name]/. From its assessment of the document, ACCRA deemed this Tazkira to be invalid as you were not in Afghanistan in order to obtain the Tazkira.
8. On 11 June 2019, the Department requested you to provide the original Tazkira (document number [Reference 1]) and, document ([Number 1]-Canberra) issued by 'Islamic Republic of Afghanistan, National Statistics and Information Authority — NSIA, National Identity Verification Center", displaying the reference number: [Reference 1]. The Department ascertained that the quality of the security features on the Tazkira (document number [Reference 1]), limits the ability to determine whether the document is legitimately manufactured and issued. Therefore, the Department has not been able to confirm the authenticity of the Tazkira. As such, you have failed to provide any verifiable and credible identity documents to support your claimed identity as [Applicant Name].
9. I consider that between your arrival in July 2010, you have provided an invalid Tazkira in the name of [Applicant Name] found in a baggage examination in November 2017, and a Tazkira which was not able to be verified in June 2019. The fact that neither of these documents support your claimed identity as [Applicant Name], [Alias 1] or [Alias 3], leads me to further question your claims made throughout your immigration history with the Department.
The applicant was invited to respond to the information provided by the delegate and show why the ground or grounds for cancellation did not exist, or give reasons why his visa should not be cancelled, and he was asked to provide supporting evidence. Five business days was given for his response.
In responding, the applicant provided a statutory declaration signed on 4 July 2021. For the purpose of accuracy the contents of his statutory declaration have been reproduced as follows:
I, [Applicant Name] (alias [Alias 1]) of [address], make the following declaration under the Statutory Declaration Act 1959:
1. I am making this statutory declaration in support of my application not to cancel my Resident Return (subclass 155) visa granted on 13 September 2016.
2. The lack of knowledge and unfamiliarity with Australian law and values and advice from people smuggler influenced me provide different information. I kindly request the Department to take into account the unfortunate circumstances I was into at that time which also affected my subsequent dealings with the Department. I strongly regret and feel remorse that I failed to declare information that was conflicting. My intentions were not corrupt but only shows my struggle to survive and protect myself and my family.
3. Please note that the statements I provided on 7th of June 2017 and 25th of July 2017 were not complete. I did not consult with a lawyer before submitting these two statements. I am going to correct some of the information and also provide new information previously undisclosed. I do so because I wish to set all matters in front of the delegate of the Minister, so that all the information is clear and there are no unnecessary complexities.
My background
4. I was born in [Town 1], [District 1] Afghanistan. My birth name is [Alias 5, comprised of Name 2 and Name 3]. I have been known among family and friends both as "[Name 2]" and "[Name 3]". I am about [age] years old in 2021. My older brother, [name] arrived in Australia in approximately 2000.
5. In his application he provided my name as "[Alias 5]" but it was misheard and misspelled as "[Alias 2]". He did not follow this up to correct the spelling of my name.
6. Later, my [brother] sponsored my mother and I was included as dependent child in the applications in 2007 and in 2009. In both applications my name was spelled as "[Alias 2]" in accordance with my brother's initial application in 2000. Both applications were refused.
7. In 2007 and 2009 application, my surname was provided as "[Name 4]". This surname was chosen by my brother upon his arrival in Australia in 2000. In Afghanistan, father's name is used as surname and in some cases grandfather name is used as surname. I do not know why my brother provided [Name 4]" as our family name. I did not choose [Name 4] as my surname in 2007 and 2009 application. I was under 18 when these applications were lodged.
8. There are two dates of birth recorded with the Department of Home Affairs. The first date of birth provided by my brother in 2007 and 2009 offshore application; and the second one provided by myself in my entry interview in Australia in 2010.
9. I do not know exact date of birth for myself. In Afghanistan there is no birth certificate issued. We lived in rural areas and there is no custom of recording date of birth. I only provided an estimate age. The day, month and year was calculated by the Department. My mother believes that I am [age] years of age in 2021. She does not know the day, month or year of my birth because she is illiterate.
10. I do not know why my birth year was recorded [date] in 2007 and 2009 applications because I did not fill and did not confirm it. I strongly believe my brother must have provided an estimate age for all his siblings in his 2000 application and the Department selected [date] as my date of birth.
11. There is about three years of difference in the date of birth provided by my brother in 2000 and the date of birth provided by myself in 2010. This mistake is common among Afghan citizens because their date of birth is not recorded and after passage of time, the birth year is miscalculated and is provided only by estimation. The variance of two or three years is common among Afghan citizens.
12. My mother has confirmed that I am [age] years old in 2021. Therefore, I would like to continue with my current date of birth as [date].
13. Please note that [Alias 5] is a compound name. "[Name 2] means [deleted] and [Name 3] means [deleted]." [Name 3] is an independent name and can be used by itself but [Name 2] is mostly joined with another independent name. For example: [examples deleted]. This is why I chose "[Name 3]" which is the main part of my compound name. In 2010, I provided my first name as "[Name 3]" omitting [Name 2].
14. Upon my arrival in Australia in 2010 the emphasize was put that I should have a family name and so, I provided "[Name 1]" as my surname. Please note that my surname is only repeat of my given name. In Afghanistan and Pakistan, I was known and referred to as "[Alias 5] son of [Mr K]". It is not common to use family name in Afghanistan and Pakistan. This is why I never had a family name prior to 2010.
15. I have lived as a refugee my entire life; I did not understand the complex legal system of Australia. I never fully realised and never received education that would enable me to analyse complicated situations. I do not come from a society with an effective government where I could be raised as an informed and knowledgeable person. On my journey towards Australia in 2010, a lot of information was exchanged among people. The most trusted and accepted information came from people smugglers and individuals who had family contacts within Australia. I discussed and later followed advices from these people who told me not to disclose my previous applications with the Department. I feared return to Pakistan and Afghanistan at that time and still do so.
Family composition
16. I sincerely apologize and regret for not providing correct list of siblings in Australia on previous times. My complete list of-siblings are as follows:
1. Mother [Ms B]
2. Father [Mr K]
3. Sister [Ms J]
4. Sister [Ms I]
5. Brother [name]
6. Brother [name]
17. The family composition in 2010 and subsequent applications with the Department is not correct. I provided unreal names in my entry interview, protection application and citizenship applications from 2010 onwards. I regret and sincerely apologize for this.
My father [Mr K]
18. My father, [Mr K] passed away of illness in Quetta Pakistan. The cause of death for my father in 2010 application is not correct. Prior to arriving in Australia, I discussed my situation with other detainees who suggested that I should not disclose 2007 and 2009 applications and that I should tell the Department my father was killed by Taliban. I regret and sincerely apologize for this.
19. From 2013 to 2016, I have transferred money to [Mr L], son of [name] in Quetta Pakistan. [Mr L] is Pakistani and lives in our area. My mother had borrowed money to fund my journey to Australia. I have attached an affidavit from [Mr L] whom I retuned his loan in instalment.
Tazkera
20. The Tazkera and Afghan passport submitted in 2007 and 2009 applications were prepared by an agent in Afghanistan. The given name in Tazkera was "[Alias 2]"; according to the sponsor application. The Afghan Passport under the name of [Alias 2] was obtained from Afghan Embassy in Quetta by my mother. I cannot comment whether these two documents are genuine as I was not involved in obtaining them and also, the documents do not have my real name in it.
21. The Tazkera "[Applicant Name]" found at Brisbane International Airport on [date] November 2017 was prepared by an agent. My intentions were to verify this Tazkera before submitting it to the Department. However, it was found at the airport and was taken into consideration. I was never given the opportunity to verify it with the Afghan Embassy in Canberra. I never planned to submit it without verification.
22. I applied for a Tazkera through Afghan Embassy in Canberra. Later, I provided original copies of the documents to the Department upon their request. I do not know why the Department has not been able to verify this Tazkera. I attended an appointment at the Afghan Embassy in Canberra and filled the application form for Tazkera. The Afghan Embassy took a copy of my father's Tazkera. If the Department allows me further time, I can follow this up with Afghan Embassy in Canberra.
23. "[Name 3]" is part of my compound name. I would like to keep "[Name 3]" as my given name in Australia.
24. In 2010 I provided "[Name 1]" as my surname and it is only repeat of my given name. I have never used [Name 1] before 2010 because there was no need for a family name in Afghanistan or Pakistan. "[Name 1]" is the surname I started using in Australia and I would like to keep it the same.
25. I am aware that providing false documents and information to the Department can result in cancellation of my visa but I request the Department to consider my compelling circumstances. I apologize and I am ashamed of my actions. I request the Department to provide me with an opportunity to rectify this information.
Dealings with Department and form filling
26. I confess that I have been reckless and irresponsible in my dealings with the Department. The application forms for my first citizenship, partner application and second citizenship were completed by my friends. I take the liability for being negligent because I am illiterate and my understanding is less. But I do acknowledge my mistake and I say sorry to the Department.
Why should my visa be not cancelled?
27. I was found to be a refugee due to my ethnicity as Hazara and Shia religion in 2010. As a young, Hazara and Shia man I always feared persecution at the hands of religious extremists. The years I spent in Afghanistan and Pakistan I witnessed and experienced discrimination, humiliation, harassment and inhuman treatment inside society. These reasons have contributed adversely in my mental health and childhood. Yet, in the previous 11 years of life in Australia, a change in my behaviour and upbringings have made a better person out of me. For the first time I felt valued and respected as an individual in Australia.
28. I am citizen of Afghanistan and do not hold other nationality and does not have a right to enter and reside in a third country. As the United States and international troops are negotiating peace deal with Taliban and have announced withdrawal from Afghanistan, the number of attacks against Hazara minorities in Afghanistan, especially Kabul has increased.
29. I have lived for eleven years in Australia. I am a law-abiding individual and have worked and paid my taxes since 2011 and now working as a [Occupation 2] on full time basis. I am not a risk to the health, safety or good order of the Australian community or any individual. Australia is my home and I have lived here for eleven years and have spent my youth and now entering into adulthood.
30. My current visa allows me to work with peace of mind. I provide financial support to my family in Quetta Pakistan. If my visa is cancelled, I will lose my work rights and most likely employment opportunities. This will not only impact my livelihood but of my family in Pakistan.
31. Currently I am suffering from "Ophthalmology" and have been placed for surgery at [a] Hospital and Health Service. My eye condition is already impacting my health and mental well-being, If my visa is cancelled at this sensitive time, the impact of it on my health will be severe.
32. Throughout my dealings with the Department, I have tried my best to cooperate and provide true answers. On occasions that I have failed to tell the truth were influenced by fear of visa cancellation and return to Afghanistan. I request the Department to take into account the hopeless circumstances I was into at that time and conditions under which I was persuaded to submit those applications. I never intended to mislead the Department for any wrong purposes but only to protect myself. I have never deliberated to misinform or deceive the Department for criminal or illegal purposes but only to maintain safety and well-being of myself and now my family.
What refusal would mean to me and my family
33. In Australia, I have experienced how life is different compare to Afghanistan and Pakistan. As a human being I have freedom and dignity here. I have made friends from different ethnicities and religions. I have had opportunities that was never available to me in Afghanistan and Pakistan. I am uneducated but have tried my best to learn English and communicate with fellow Australians.
34. I am married and my wife is in Quetta Pakistan. If my visa is cancelled the partner application will be affected too. It has been more than five years that my wife and I are living in separate countries. I was hoping to reunite with my wife in Australia and start our family.
35. I will be emotionally and psychology in peace if I am given final opportunity and my visa is not cancelled. I will not have to worry about uncertainty of my condition in Australia or return to Afghanistan where human is treated worse than animal.
Other material provided by the applicant was a letter from Queensland Health relating to a medical procedure received on 5 July 2021; an email received on 22 September 2021 containing country information; and documentation and an explanation regarding his Tazkira received on 28 October 2021.
On 1 December 2021, the delegate notified the applicant of the cancellation of his Resident Return visa pursuant to section 116 of the Act. He was provided with the NOICC and the delegate’s reasons for that decision. The applicant subsequently applied to the Tribunal on 6 December 2021 to review that decision and the Tribunal scheduled a hearing on 22 September 2023 in regard to his review application.
PRE-HEARING SUBMISSIONS
Leading up to the review hearing, on 19 September 2023 the applicant’s representative provided pre-hearing submissions to the Tribunal. It was submitted that the applicant was from the [Town 1] [in] the [District 1] province of Afghanistan. He is a Hazara and Shi’a Muslim. He arrived in Australia seeking refuge on[date] July 2010 and was later found to be a genuine refugee due to his ethnic and religious identity being Hazara and Shia from Afghanistan. Since then, he has been residing in Australia and has worked in multiple jobs and most recently has been working as a [Occupation 2]. The Tribunal notes that on 21 September 2023 the applicant provided a letter which confirmed that he is currently employed.
In regard to his name, the submissions suggested that his name is [Name 3] and that his family and friends know him as “[Name 2]” and “[Name 3]” when he came to Australia, he chose his given name [Name 3] and omitted “[Name 2]” and he has since adopted surname “[Name 1]”. It was also submitted that at the time of those 2007 and 2009 applications which were completed by his brother in Australia, the applicant was a minor, he was illiterate and a lay person.
It was also submitted that the applicant had been given incorrect advice by people around him and told not to disclose the previous 2007 and 2009 visa applications and not to declare his brother in Australia as this would be detrimental to his claims for protection and that he could be potentially sent back to Afghanistan.
He relied upon the explanation that he was a lay person with no education background, and being naïve as to potential consequences of providing incorrect information to the Department. He acknowledged that he had made a poor judgement decision to provide incorrect information to the Department and failed to declare his brother in Australia, his true family composition, and previous applications, and he continued to repeat these mistakes in his dealings with the Department out of fear of being sent back to Afghanistan. Notwithstanding this, the Tribunal notes that no reference was made in his submissions to him being represented and assisted by an Australian lawyer after his arrival, and yet he still maintained his adopted identity.
In respect to why he travelled to Australia, the submissions outlined that he fled Afghanistan because his life was at risk there due to his religious and ethnic identity and since arriving in Australia he has worked hard and supported himself and his family in Pakistan, and he has paid his fair share of taxes and has never been in trouble with the law. It was also submitted that he had complied with the conditions of his visa and if the visa was cancelled, he would become an unlawful non-citizen and liable to be detained and potentially deported to Afghanistan. This would cause significant deterioration in his physical health, along with his mental health and general well-being if his visa remains cancelled and he is detained in immigration detention centre. It would also cause significant financial hardship to him, his wife and other family members in Pakistan.
In respect to the legal consequences arising from the decision to cancel the visa, the submissions outlined that because of the operation of section 46(A) of the Act, the applicant, as an unauthorised maritime arrival, is unable to apply for a further visa unless the Minister lifts the bar. It was said that even if the Minister were to lift the bar, due to the operation of section 48 of the Act a non-citizen who has a visa refused or cancelled may only apply for a particular visa, and because of the operation of section 48A of the Act, where a protection visa holder has had their visa refused or cancelled, they cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. He drew the applicant’s attention to section 35A(3) of the Act which provides what encompasses a protection visa and specifically includes temporary protection visas. The Minister may grant a visa, whether or not the applicant has applied for it, under section 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.
The submissions went on to argue that when these legislative pathways are considered, it is clear that the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, section 196 of the Act provides that an unlawful non-citizen must be kept detained in immigration detention until removed. Due to the current situation in Afghanistan, he cannot be removed and the only alternative option left would be prolonged detention.
In conclusion to the submissions, it was outlined that the applicant had never been charged with or convicted of any offence in Australia and he was not a threat or a security risk. He has sponsored his wife for partner visa and that application is pending. If his visa remains cancelled, that application will also be refused and the effect of this would be prolonged separation of the applicant from his wife.
Included with those submissions was the following material.
(a)A Landinfo Report, Afghanistan: Tazkira, passports and other documents;
(b)A report dated October 2021 regarding documentation problems for asylum seekers and refugees from Afghanistan;
(c)A news article from the New York Times (online) dated 10 December 2014 relating to Afghans, name and birthdate census questions are not so simple;
(d)An Australian National University report dated 9 October 2021 titled On the Return of Hazaras to Afghanistan;
(e)Tazkira for the applicant in both original and translated language versions.
Notwithstanding that the applicant did not specifically make any reference to that material in the pre-hearing submissions, the Tribunal has nevertheless given careful consideration to the material when undertaking an assessment of the issues of this case.
REVIEW HEARING
Section 375A Certificate
The Tribunal has been provided with the Department’s file in relation to the cancellation of the visa held by the applicant. The Department has placed restrictions on a number of documents contained within that file and had issued a certificate pursuant to section 375A of the Act.[6]
[6]Certificate issued 13 December 2021.
The purpose of the certificate being issued was the disclosure of the nominated documents would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
Because the Department has certified in writing that the disclosure, otherwise than to the Tribunal, of any matter or information contained in those documents would be contrary to the public interest for any reason specified in the certificate, and the Tribunal has been notified in writing that section 375A of the Act applies to those documents or information; the Tribunal must do all things necessary to ensure that those documents or the information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the applicant’s review.
At the commencement of the hearing, a copy of the section 375A certificate was provided to the applicant’s representative. The certificate was signed and clearly relates with the stated public interest reasons on the certificate. Neither the applicant or his representative made submissions with respect to, or challenge, the validity of the certificate.
Further material provided by the applicant.
On 22 September 2023, the applicant participated in a review hearing. It was discovered that the applicant had not provided some documents he sought to rely upon, and during the hearing his representatives arranged for the following material to be sent to the Tribunal.
(a)A letter dated 1 July 2021 under the official letterhead of [Organisation 1], and signed by the President of that association, [Mr M];
(b)A letter dated 1 July 2021 (two copies) under the official letter head of [Organisation 2] and signed by the President, [Mr N];
(c)A translated copy of a statutory declaration from the applicant’s mother, [Ms B], dated 2 July 2021; and
(d)A translated statutory declaration (two copies) from [Mr L] dated 2 July 2021.
In regard to the letters nominated above in paragraph 104(a) and (b), neither [Mr M] nor [Mr N] gave evidence at the review hearing. The contents of [Mr M]’s letter described that at the time of writing the letter, he had known the applicant for about 10 years and he was aware that the applicant had applied for Australian citizenship. He also described that the applicant was known to him as [Alias 5]. It appears that the purpose of [Mr M] writing the letter was because he had been asked to write the letter to confirm his identity within the Hazara community.
Similar to [Mr M]’s letter, [Mr N] wrote that he knew the applicant by the names [Alias 5] and [Applicant Name]. [Mr N] had known the applicant since 2018, and he commented that because the applicant had not met with his family for a long time, he was suffering from tension, anxiety and depression. [Mr N] said there was a concern about his mental health. The Tribunal does not accept that [Mr N] is qualified to make any assessment about the applicant’s mental health and those comments do not carry any weight so far as the determination of this matter.
On the issue relating to the suggestion by [Mr M] and [Mr N] that the applicant is known to them as [Alias 5], the Tribunal notes that neither of them appeared at the review hearing and give evidence in regard to knowing the applicant as [Alias 5]. As such, they could not be asked specifically about the contents of their letters, or the circumstances surrounding each of them purportedly knowing the applicant as [Alias 5]. Nor could the veracity and the credibility regarding those claims be assessed. It is difficult for the Tribunal to accept that notwithstanding all of the applicant’s formal identification documents he has obtained since he had been in Australia identifies him as [Applicant Name], he is known by others as [Alias 5]. Therefore, the Tribunal places no weight upon the claims made by [Mr M] and [Mr N] that they know the applicant as [Alias 5].
The statutory declaration of [Ms B] (the applicant’s mother) described the composition of her family. She said that the applicant was named [Alias 2] and that he was her son. At the time of making her declaration in 2021, she estimated that his age was [age]. She went on to confirm the making of the 2007 and 2009 applications, but said that although the correct name of [Alias 5] was given in the applications it was misspelt as [Alias 2].
In respect to the statutory declaration from [Mr L] dated 2 July 2021, the contents of the statutory declaration have already been discussed by the Tribunal in paragraphs 76 to 79 of these Reasons in respect to the applicant sending money to [Mr L].
Applicant’s evidence at the review hearing
Throughout the hearing process, it was found that the information provided by the applicant was contrary to the position he had always maintained in respect to his name and the fate of his late father. As it has already been identified in these Reasons, the applicant has always maintained that his name was [Applicant Name] and that his family had to flee Afghanistan because the Taliban killed his father. He no longer holds that position.
When describing his family composition during the hearing, the applicant said that his father’s name was [Mr K] but he had passed away in Pakistan sometime around 2004 or 2005. His mother is [Ms B] and she lives in Pakistan with the applicant’s wife. His brother [arrived] in Australia before the applicant arrived and he lives in Australia and is an Australian citizen. His sister [Ms I] has also relocated to Australia about seven years ago and she lives with her husband. His other sister [Ms J] still lives in Pakistan. He had an older brother called [name] who is missing in Afghanistan. He cannot recall ever meeting him.
When asked why he and his family left Afghanisan, he said that he was not sure as his mother never told him why they left Afghanistan and moved to Pakistan, although he did recall that the Taliban were capturing and killing people and the was a lot of danger around. The Tribunal found that his responses to the questions on this issue were vague and when pressed as the circumstances that led up to his family relocating to Pakistan, he said that he recalls they left Afghanistan because there was fighting between different groups and there was unrest and the Taliban was taking people and torturing them.
In regard to the reasons for his family relocating from Afghanistan to Pakistan, the Tribunal accepts the explanation given by the applicant’s mother in her statutory declaration that the family moved because the applicant’s father required medical treatment. That explanation is corroborated by what she said in her 2008 interview with the Department.
When asked about his father and whether his father was with him in Pakistan, the applicant confirmed that when he and his family moved to Pakistan, his father passed away sometime around 2004 or 2005. Clearly his father had not been killed by the Taliban as he had always claimed.
When asked about the 2007 and 2009 visa applications where his brother was sponsoring the family to come to Australia, the applicant confirmed that he was nominated in those earlier applications, but claimed that he did not know at the time what name he was nominated as. When asked about the Department’s interview process in 2008 relating to the family’s 2007 application, he said that he could not recall speaking to anyone from the Department, but knew that his mother had been interviewed.
When discussing his 2010 trip to Australia, he said that with the help of his mother, a people smuggler was arranged to assist him in coming to Australia. The obvious timeline to what had occurred between 2007 and 2010 was that the applicant’s older brother had already established in Australia and was in a position to sponsor his family coming to Australia. An application was made in 2007 which was subsequently rejected. A second application was made in 2009 and it was also rejected. Within a number of months of that second application being rejected by the Department in 2010, the applicant arrived in Australia by way of a people smuggling boat and claimed to be an unaccompanied minor and gave false and misleading information about his true identity.
The applicant’s evidence at the review hearing was to confirm that he had misled the Department when he was interviewed at Christmas Island when he arrived. He told the Department that his father had been killed by the Taliban. At this point during the hearing he undertook a blame shifting exercise by saying that unfortunately he had received the wrong information and advice by fellow asylum seekers and refugees on Christmas Island. They told him to claim that his father was dead and that he had been killed by the Taliban.
He said that because he was not aware of Australia’s laws, he was very frightened of what the Australian Government would do and unfortunately he listened to unsound advice from other refugees when they told him that if his application was rejected he would be deported back to Afghanistan. He then claimed that if he knew back then what would ultimately happen to him and his visa applications (as what was happening now), he would not have made the same mistake of being untruthful. He said that he made a mistake and mislead the Department and he wanted to apologise for doing that.
The Tribunal accepts and is satisfied that at this time in his life, he was very young, he was in a foreign country, the surroundings and the people were not familiar to him, and he faced the prospect of being deported back to Afghanistan. However that factor is somewhat annulled because he nevertheless received significant support during his arrival process and was represented by a qualified Australian legal practitioner who would have provided sound and competent advice to him through the valuable assistance of an appropriately qualified interpreter.
He agreed with the Tribunal’s assessment of the evidence that at the time he was at Christmas Island he was legally represented by an Australian legal practitioner, as well as being assisted by an interpreter. He agreed that those people representing and assisting him questioned him about his identity, along with his personal particulars and his family composition. He also told the Tribunal that his legal representative at that time told him to be truthful. He accepted that he told the Department in his application that he did not have any members of his family or close relatives living in Australia and he did that because of the Department previously refusing him a visa.
When discussing his identity, he told the Tribunal that prior to coming to Australia, he was known as [Name 2] but since being here he is known as [Name 3], and all his identification reflects that he is well known in the community as [Name 3] and he no longer uses the name [Name 2]. This evidence is inconsistent with the contents of the letters from [Mr M] and [Mr N] who claimed that they know the applicant as [Alias 5]. This is a further example why no weight should be placed upon their evidence and the letters.
When careful assessment is undertaken of his evidence that he no longer uses the name [Name 2], it is clear to the Tribunal that because he mislead the Department on Christmas Island by saying that he was an unaccompanied minor and telling them that his name was [Applicant Name], what has since occurred is that all of his Australian identification documentation have been in that assumed name.
This did not happen by mere coincidence, it happened because the applicant gave false and misleading information at the time of his arrival in Australia about his true identity, and the Tribunal is satisfied that he did that because he had been twice rejected a visa in 2007 and 2010, and he was aware that had his true identity been revealed there was a real possibility he would have been returned to his family in Pakistan or Afghanistan.
2016 Citizenship application discussion
The Tribunal discussed with him the circumstances of his 2016 application for citizenship. It was around this time that questions were being raised about his true identity. When assessing the 2016 citizenship application, on 7 June 2017 he responded to correspondence from the Department, and in a handwritten letter he said:
I [Applicant Name] would like to make the following statement in regards to further documentation (Tazkera) requested by you.
As I have previously recorded in my interview that I did not have any (Tazkera) from Afghanistan I was [age] years old when we fled and became refugee in Pakistan, recently I have contact my mother who is still in Pakistan told me that as he and my dad had (Tazkera) but it was burned down and looted our other items by Taliban when they attacked our village, Since she lives in Pakistan she can not return to Afghanistan due to safety reason. Also I do not have any other family member left in Afghanistan to obtain one for me for all this reason I am I am really sorry that I can not provide my (Tazkera) and the Tazkira for my parents. Also if my dad was alive he would definitely help me get my (Tazkera) but he was killed when I was [age] years old by the Taliban. When I got my Qld drivers licence I have lost my overseas driver licence because I did not see any point keeping it, that’s why I can’t find that overseas licence now.
Thanks for your help in advance.
[Applicant Name][date]
When scrutinising the contents of that letter, even when applying for his citizenship, the applicant still continued to provide misleading information that his father was killed by the Taliban, and because of the Taliban his family fled to Pakistan. That is contrary to the comments made by his mother in 2008 when she told the Department during an interview that the family moved to Pakistan because the applicant’s father required medical treatment, and passed away in Pakistan.
When asked about that letter at the review hearing, the applicant said that he told his friend what to write and his friend wrote that letter for the applicant. He told the Tribunal that he was not aware if his family had any Tazkiras, that was just a guess that he put in the letter.
The Tribunal observes that much of [Dr P] assessment of the applicant’s symptoms which are displayed in her report mirrored those which are expressed in [Mr O]’s report. A particular striking difference between [Dr P]’s assessment and report and [Mr O]’s report was the applicant told [Dr P] that he had twice attempted suicide in the previous six months and on a daily basis he experiences suicide ideation. Notwithstanding there being a complete absence of any such assessment by [Mr O], or that the applicant had told him about his suicide attempts and suicide ideation, the Tribunal does note that there had been six consultations between the applicant and [Mr O] over a seven month period.
Both psychological reports outlined that for the past few years, and more significantly since 2021, those symptoms as expressed above have manifest themselves. The commencement of those symptoms appears to coincide with the decision of the delegate to cancel his visa and the Tribunal is satisfied that the evidence does not show that prior to that time, there was any suggestion or evidence that he was experiencing any mental health issues. In respect to his present symptoms, the Tribunal accepts the evidence and assessment of both Psychologists, however, finds that those symptoms correlate with the concerns the applicant has about his future when considering the cancellation of his visa.
Further discussions with the applicant – country information
The Tribunal was in possession of freely available country information from the internet about foreigners in Pakistan, in particular foreigners who marry Pakistani nationals. Subject to section 424AA of the Act, this information was discussed with the applicant. Because the applicant was appearing before the Tribunal, the Tribunal exercised its discretion to give him clear particulars of that country information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review.
The Tribunal’s discussions about the topic about whether the applicant can return to and live in Pakistan is in response to his submissions and arguments to that effect. Although the Tribunal is satisfied that the recent ruling of the Peshawar High Court allows him to reside in Pakistan, that satisfaction is not the determining factor for the Tribunal’s decision in this matter when assessing the provisions of section 116 of the Act.
In giving him clear particulars of that information, the Tribunal, as far as was reasonably practicable, made sure he understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the delegate’s decision. The applicant was invited to comment on or respond to the information and he was also advised that he may seek additional time to do so, and if he did, then the Tribunal would adjourn the proceedings for a reasonable time to allow him that additional time. He declined the invitation and opportunity for that additional time.[7]
[7]Migration Act 1958 (Cth), s 424AA.
The country information discussed with the applicant related to a news article from the online news service, Dawn, which reported that proceedings were underway in the Peshawar High Court and the new article was titled Pakistan women’s Afghan husband entitled to Pakistan Origin Card. The contents of that report were outlined to the applicant that because he is married to a Pakistani woman, there did not appear to be any impediment to him returning to live in Pakistan.
The applicant explained that he cannot go back to Pakistan and live with his wife because he was not a Pakistani citizen and the Pakistan government is forcing Afghan people to return to Pakistan. However, the Tribunal is satisfied that his evidence was devoid of any reference to the status of his mother and sister who have remained living in Pakistan. If on his argument, he would be forced to return to Afghanistan as he says, then it would be expected that because his mother and sister still live in Pakistan, the same would apply to them. However, he did not refer to those members of his family being sent back to Afghanistan.
FURTHER POST-HEARING SUBMISSIONS
On 10 November 2023, the applicant’s representative sent to the Tribunal a number of documents including:
(a)Further submissions. Those submissions referenced information about the Pakistan Origin Card and were in response to the country information the Tribunal’s discussed with the applicant in the hearing;
(b)LeJ statement dated 2 August 2023. Although this document was provided and it appears to be a translated although it is not explained what relevance it has to the applicant’s submissions or his application;
(c)Dawn News article dated 22 February 2023 relating to a news article about notices issued in Pakistan origin card case’ and
(d)Dawn news article in respect to reports of Hazara killings in Balochistan.
The Tribunal has carefully considered all of the information contained within the submissions and the other country information provided by the applicant’s representative.
Other country information
The Tribunal has taken notice of a recent decision of the Peshawar High Court on 1 December 2023. Judgment was held in favour of a partitioner who filed against the government of Pakistan. In its judgment, the Peshawar High Court relaxed the rules for Afghan refugees who have married Pakistani men or women.
The detailed 33 page judgment marks a significant step towards facilitating the lives of Afghan refugees who have chosen to build their lives in Pakistan. The court’s directive allows Afghan nationals married to Pakistanis to apply for Pakistan Origin Cards (POCs), a document that grants them certain rights and privileges associated with Pakistani citizenship. This move aims to streamline the process for Afghan refugees seeking to regularize their status in Pakistan and integrate into society seamlessly. The court’s decision emphasises the importance of simplifying the marriage registration process for Afghan-Pakistani couples, eliminating the mandatory requirement of a passport and identification cards for POC applications in cases of marriage.
Additionally, the court mandates that POC cards be issued promptly following security clearance, ensuring that eligible individuals are not subjected to unnecessary delays. In instances where the Pakistan National Database and Registration Authority (NADRA) rejects an application, the court has directed that the applicant be provided with a detailed written explanation of the reasons for rejection. This transparency measure aims to safeguard the rights of applicants and ensure fair treatment.
The country information provides that the Court’s decision has been welcomed by Afghan refugees and their Pakistani spouses, who have long faced challenges in navigating the complexities of Pakistani immigration laws. The relaxation of rules and simplified procedures are expected to alleviate the burdens faced by these couples and allow them to focus on building their lives together in Pakistan.[8]
[8]PHC eases rules for Afghan refugees marrying Pakistanis, Pakistan Today, 6 December 2023, accessed 18 January 2024; Peshawar High Court, Naureen Masood v Government of Pakistan through Secretary, Ministry of Interior, Islamabad, Judgment of Justice Wiqar Ahmad, 1 December 2023, accessed 18 January 2024.
In a recent on-line news article published by the news organisation, Arab News Pakistan on 2 December 2023, it was reported that the Peshawar High Court heard arguments of lawyers representing the petitioners, the federal government and the NADRA. The Peshawar High Court approved the applications of more than a hundred Afghan nationals, who are married to Pakistanis, seeking POCs and ordered authorities to process their applications once they fulfill legal formalities and rules. Based on their marriages with Pakistanis, around 109 Afghan nationals had filed petitions in the court seeking POCs, which are issued by the Pakistan NADRA to foreigners married to Pakistani citizens and allows them all rights except the rights to vote, contest election or to get a passport.[9]
[9]Court orders issuance of Pakistan Origin Cards to over 100 Afghan spouses of Pakistanis, Arab News Pakistan, 2 December 2023, accessed 18 January 2024.
In another online news article published on 1 December by Hum News, it is reported that the Peshawar High Court ordered issuance of POCs for Afghan men married to Pakistani women. The Peshawar High Court has directed the issuance of POCs to 109 Afghan nationals married to Pakistani women. The Peshawar High Court heard the pleas of Afghan nationals who sought POCs. The applicants argued that the lack of travel documents for their Afghan husbands was causing difficulties for their Pakistani spouses.
After hearing the argument, the Court ruled in favour of all 109 Afghan nationals, declaring them eligible for POCs. The court directed the authorities concerned to issue POCs to Afghan nationals in accordance with the law. Advocate Saifullah Muhib Kakakhel, who represented the applicants, stated that he was seized with 102 cases involving Afghan nationals with many of these individuals having their children born in Pakistan and are currently pursuing education and leading to various challenges for their families. It was highlighted that holders of POCs enjoy all rights as non-citizen Pakistanis but are unable to obtain passports or cast votes. On 17 November 2023, the Peshawar High Court had previously issued an order to issue PCOs to five Afghan citizens, marking a precedent in facilitating the legal status of Afghan nationals married to Pakistanis.[10]
[10]PHC orders issuance of POCs for Afghan men married to Pakistani women, Hum News, 1 December 2023, accessed 18 January 2023.
When careful assessment is given to that country information just discussed, in particular the judgment and reasons of the Peshawar High Court, the Tribunal gives greater weight to, and prefers that evidence over and above the applicant’s submissions and evidence that he could not relocate to Pakistan and live with his wife.
Non-refoulement
The Tribunal considers that at this point in these Reasons, this would be an appropriate time to revisit the applicant’s earlier submissions that if the Tribunal affirms the delegate’s decision to cancel the applicant’s visa, he potentially faces indefinite detention; and if removed from Australia and returned to Afghanistan he faces a real prospect of a risk of harm.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations, including the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations is not confined to the protection obligations to which section 36(2) of the Act refers.[11] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[11]Ibrahim v Minister for Home Affairs [2019] FCAFC 89, [103].
The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. The applicant claims that the risk of harm is associated with his ethnicity as a Hazara and his religion being Shi’a Muslim, however the Tribunal is satisfied (and so finds) that there is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application, and there is no suggestion that he is prevented from validly applying for a protection visa by section 48A of the Act, or from being granted one because of any character issues or any other criteria.[12]
[12]BCR16 vMinister for Immigration and Border Protection (2017) 248 FCR 456.
CONSIDERATION OF DISCRETION
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
·the purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia.
The applicant submitted that he fled Afghanistan because his life was at risk there due to his religious and ethnic identity, and the Department had assessed him as a genuine refugee. Since arriving in Australia, he has worked hard and supported himself and his family in Quetta Pakistan, and he has paid his fair share of taxes and has never been in trouble with the law. In response to that submission, the Tribunal accepts that the Department had undertaken an assessment and was satisfied on the information he provided at that time that he was a refugee. However, the Tribunal does not accept the submission that he fled Afghanistan because of his ethnicity and religion. The Tribunal in adopting that position considers that the evidence refutes his claim. When his mother was interviewed by the Department in 2008, she disclosed that the applicant’s family, including his parents, had moved from Afghanistan to Pakistan so that medical treatment could be obtained for the applicant’s late father.
In respect to his claims that any cancellation of his visa provides that he is potentially liable to be deported to Afghanistan where his life as a Shi’a Muslim and a Hazara is at grave danger. This is particularly the case given that the whole country is now in the hands of the Taliban who have historically persecuted Hazaras and Shi’a Muslims in Afghanistan.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship).
The applicant argues that the Tribunal should place significant weight on this factor against the cancellation of his visa. He said that the immediate effect of the applicant’s visa being cancelled is that he would become an unlawful non-citizen and liable to be detained and potentially deported to Afghanistan, and his life is at serious risk of harm in Afghanistan. This would initially cause significant deterioration in his mental and physical health, and well-being. If his visa remains cancelled he will detained in an immigration detention centre and he will experience significant financial hardship, and through him, his wife and other family members in Pakistan will also be impacted.
By way of an example, the applicant outlined that his wife has applied for Partner (subclass 100) visa, and that application is pending and will be refused if his visa remains cancelled. This would mean that he would be separated from his wife for the foreseeable future because he would not be able to sponsor his wife unless he holds a permanent visa. He also claimed that his life will be in limbo, and he will not be able to visit his family in Pakistan.
He argued that he cannot return to Afghanistan due to risk of harm. He added he is married to a Pakistani national and his family have been residing in Pakistan without legal or social protection as Afghan refugees he does not have any legal right to reside in any other country.
Earlier in these Reasons the Tribunal discussed that upon cancellation of his visa, his has available to him avenues in respect to a protection visa. Turning to his comments about his family in Pakistan, in particular his wife, it appears that a flow on effect from the recent developments and the decision of the Peshawar High Court in December 2023 are favourable to the applicant.
When carefully considering all of the evidence in regard to any hardship that may be caused to the applicant, the Tribunal is satisfied (and so finds) that the evidence carries a certain, but not determinative, level of weight towards a favourable finding for the cancellation of the visa.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant accepts that when he arrived in Australia in December 2010, he did not declare the previous refugee and humanitarian applications lodged in 2007 and 2009, and nor did he declare his true family composition. It is noted that additionally, he provided false and misleading information about his name and the circumstances as to why his family left Afghanistan and moved to Pakistan.
His explanation for not declaring the previous visa application was that at the time of those applications in 2007 and 2009, he was a minor and the applications were prepared and lodged by or behalf of his elder brother in Australia without input from the applicant. He was listed as a dependant in those applications which were ultimately refused.
He argues that when he arrived in Australia in 2010, he was given incorrect advice by people around him not to disclose the previous visa application refusals and not to declare his brother in Australia as these would be detrimental to his claims for protection and that he would be potentially sent back to Afghanistan. He claims that his life was and continues to be at serious risk of harm in Afghanistan.
He further argues that being a lay person with no education background and being naïve as to potential consequences of providing incorrect information to the Department, made the poor judgement to cede to the advice of other refugees and asylum seekers when he provided incorrect information to the Department and failed to declare his brother in Australia, his true family composition, and previous applications. He acknowledged and accepted that he continued to repeat what he called ‘mistakes’ in his subsequent dealings with the Department out of fear of being sent back to Afghanistan.
Earlier in these Reasons the Tribunal identified that at all times when he was engaging with the Department immediately following his arrival in Australia in 2010 he was represented and advised by a suitably qualified Australian legal practitioner, and assisted by a qualified and accredited interpreter. Although the Tribunal can accept that he may be described as lay person, this does not emolliate the fact that he was legally represented and would have been appropriately advised as to the law involving migration matters involving the Department.
The Tribunal particularly notes that in his submissions and arguments about this point, he makes no reference to the misleading information he initially provided to the Department, and continued to provide for quite some time that his father was killed by the Taliban in Afghanistan. When very careful consideration is given to those points just identified, the Tribunal is satisfied that they carry a very strong weight in favour of cancellation of his visa.
The applicant submitted that in relation to the 2017 Tazkira which was found ‘invalid’ by ACCRA after the Department sought to verify it, it was found to be ‘invalid’ due to the following reasons:
According the rule and regulations Registration Directorate, ID cards that are issuing (sic) in the year 2017 beyond the national identity verification (NIVC) without having documents of this center (NIVC) are not valid by reason of: such identity card (sic) is issued in the absence of person and has no validity.
He argued that from this reasoning it appears that the Tazkira was not found non-genuine or fake but rather due to the mode of its acquisition being that the applicant was not present in Afghanistan at the time of the issue of Tazkira because he cannot travel to Afghanistan due to risk of harm.
He also said that he applied in person through the Afghan Embassy in Canberra for Tazkira [Reference 1] which was issued along with verification of identity form. Both of these documents were provided to the Department, but the Department failed to verify the documents with ACCRA as they did with the 2017 Tazkira. Instead it was sent to the Department’s internal FDE team for forensic assessment to determine its authenticity which found the documents to be ‘inconclusive’. He said that no report of the FDE assessment has been released to the applicant or what process and verification measures were taken by the Department or FDE to make the conclusion that the documents were ‘inconclusive’. He suggested that the Tribunal note that his parents’ Tazkiras have been independently verified by ACCRA as genuine.
As already identified in these Reasons, in response tom the Department’s request on 6 June 2017 to provide Tazkiras for himself and his parents. He evidence was that he contacted his mother who was still in Pakistan and she told him that the Tazkiras for his parents had been destroyed or looted along with other items by the Taliban when the Taliban attacked their village. Because his mother lives in Pakistan, and for her own safety, she could not return to Afghanistan and he did not have any other family members living in Afghanistan to obtain a Tazkira for him, and for those reasons he could not provide the Tazkiras. It should be identified at this point that this all took place about seven years after he had arrived in Australia, and yet still he was maintaining that his father had been killed by the Taliban and that is why he and his family fled Afghanistan to Pakistan.
The Tribunal has already identified in these reasons that his immigration records held by the Department reveal that shortly after telling the Department that he could not get the Tazkira for him and his parents because the reasons explained above, he flew to Pakistan, departing Australia on [date] August 2017 and returning approximately three months later on [date] November 2017. When arriving back in Australia he was stopped and search at the airport and the Tazkiras were found in his possession.
An overall careful assessment of the evidence relevant to the points discussed above satisfies the Tribunal that the evidence carries a certain level of weight towards a favourable finding for the cancellation of the visa.
In respect to considerations that a visa should not be cancelled in circumstances where the ground for cancellation arose beyond the applicant’s control, the Tribunal is of the view that from the very beginning of his arrival in Australia through to the Department’s discovery in respect to his identity, he went to significant lengths to protect his real identity and to mislead the Department about a range of factors including previous applications, the identification of a family member already in Australia and the true circumstances surrounding his father’s death. Therefore, the Tribunal does not consider that the circumstances of the cancellation of his visa were beyond his control and this factor weighs heavily in favour of his visa being cancelled.
·past and present behaviour of the visa holder towards the Department
In respect to his present conduct or behaviour, the Tribunal is mindful that he has lived an unremarkable life in Australia. He is otherwise of a good character and the psychological reports and the evidence of [Dr P] is favourable to the applicant.
The applicant accepts that he has provided incorrect information and failed to declare previous visa applications as well as his subsequent dealings with the Department. He asked the Tribunal to accept that he is extremely remorseful for what he called was his ‘poor judgement’ and he was ashamed of his conduct.
The Tribunal had the opportunity to personally examine an analyse the applicant’s demeanour during the personal appearances he made throughout the review hearing process. It is accepted by the Tribunal that after the cancellation of his visa and the realisation of his situation became apparent to him, he was genuinely remorseful for what the Tribunal considers was misleading and deceptive conduct towards the Department. However, in the Tribunal’s view that remorse was a self-serving in that he was remorseful for the likelihood or the consequences he would experience because of his actions. Noting that his conduct was not isolated, but rather it occurred on more than one occasion as already demonstrated within these Reasons, the Tribunal is not convinced that his remorse reaches beyond an impact on himself.
When assessing what weight his past and present behaviour should be attributed to the consideration of cancelling his visa, the Tribunal is mindful that his past conduct was not isolated and as such it carries a significant level of weight in favour of this Tribunal affirming the decision under review.
·whether there would be consequential cancellations under section 140 of the Act
The Tribunal is satisfied that there are no consequential cancellations to be considered under the provisions of section 140 of the Act.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
The applicant argued that if his visa remains cancelled, he will be an unlawful non-citizen and he faces the prospect of an extended period in detention. He said that because he was an unauthorised maritime arrival, due to the operation of section 46(A) of the Act is unable to apply for a further visa unless the Minister lifts the bar. Even if the Minister were to lift the bar, due to the operation of section 48 of the Act a non-citizen who has a visa refused or cancelled may only apply for a particular visa.
He went on to argue that when these legislative pathways are considered, it is clear that he does not have a foreseeable pathway to an alternative visa, and without a visa, he will be an unlawful non-citizen and will be detained in immigration detention until removed. Because of the current situation in Afghanistan, he cannot be removed and the only alternative option left would be prolonged detention. He also drew the Tribunal’s attention to the partner visa involving his wife and the prolonged period that they have been separated.
The Tribunal has already discussed this issue in these Reasons and found that cancellation of the applicant’s visa would not lead to his removal in breach of non-refoulement obligations. Attention was drawn in the Reasons to the Full Federal Court’s determination in COT15 v MIBP (No 1) (2015) 236 FCR 148 that cancellation of a visa is legally distinct from removal. As identified by the Tribunal, he claims that the risk of harm is associated with his ethnicity as a Hazara and his religion being Shi’a Muslim, however the Tribunal is satisfied that there is nothing in his circumstances which prevents those claims of harm being canvassed in a protection visa application, and there is no suggestion that he is prevented from validly applying for a protection visa by section 48A of the Act, or from being granted one because of any character issues or any other criteria.[13]
·Any other matters
[13]BCR16 vMinister for Immigration and Border Protection (2017) 248 FCR 456.
The applicant says that he has been working hard in Australia since he arrived in 2010 and for the past 13 years he has lived and worked in Australia. Although he has only provided the Tribunal with recent employment history, the Tribunal accepts that he contributes in a meaningful way and has maintained employment within the community.
The Tribunal also accepts that apart from the conduct he displayed towards the Department, he has otherwise been of good character and to the Tribunal’s knowledge, he has not been charged with or convicted of any offence in Australia. Nor is there any evidence available to the Tribunal to suggest that he is a threat to the safety and security of Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in section 116(1AA) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. A visa may also be cancelled under section 116(1AB) of the Act if incorrect information was given by or on behalf of the visa holder to one of the following: an officer; authorised system; the Minister; or any other person, Tribunal or body performing a function or purpose under the Act, or an administrative process in relation to the Act. The incorrect information must have been taken into account in, or in connection with, the making of either a decision that enabled the visa holder to make a valid visa application or a decision to grant that person a visa, whether that valid visa application or grant related to the current visa or a previous visa that was held. The giving of the incorrect information must not be covered by Subdivision C of the Act.[14] The ground applies whenever the incorrect information was given.
[14]Migration Act 1958 (Cth), ss 97 – 115.
The Tribunal has very carefully considered all of the circumstances, evidence and features of this matter and is satisfied that the evidence support a finding in very strong weight in favour of cancellation of the applicant’s visa.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Wayne Pennell
Senior Member
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