2118733 (Migration)

[2022] AATA 1256

2118733 (Migration) [2022] AATA 1256 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2118733

MEMBER:Kira Raif

DATE:7 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2022 at 8:31am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – Pakistan citizenship – bogus death certificates – Orphan Relative applications – family composition – Hazara – non-refoulement obligations – financial hardship – contribution to the community – best interests of the children – ground for cancellation not made out – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 36, 101-105, 107-109, 116, 119, 140
Migration Regulations 1994, r 2.41

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a national of Afghanistan and to be born in [year]. He was granted a protection visa in July 2011 and a Resident Return Visa (RRV) in June 2016. In January 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 5 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

   Did the notice comply with the requirements in s 107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s 107. The Tribunal is satisfied that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act.

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The applicant first travelled to Australia in March 2010 as an Irregular Maritime Arrival. He stated during the entry interview held in April 2010 that his name is [Alias A] and that he was born in Afghanistan in [year]. The applicant claimed to be of Hazara ethnicity and Shia and that it was not safe for him to return to Afghanistan. The applicant gave details of his family composition, stating that his father died and his mother and six siblings were resident in Pakistan.

10. In July 2011 the applicant made the application for a protection visa. In that application the applicant gave his name as [Alias A], born in [year] and gave details of his family composition. The applicant referred to his mother [Mother A] and siblings [Sister A], [Brother A], [Brother B], [Brother C], [Brother D] and [Brother E], stating that they were all born in Ghazni Province in Afghanistan. The applicant claimed that he was born in Ghazni, Afghanistan, that he was a citizen of Afghanistan and that he had no citizenship of any other country. The applicant stated that he used a false passport and that he could not return to Afghanistan.

11. The applicant included with his application a statement in which he explained why he could not return to Afghanistan. Essentially, the applicant stated that he was a Hazara Shia Muslim and referred to the harassment his father and his family had been subjected to by the Taliban. The applicant stated that the family left Afghanistan for Pakistan in 2003 to escape the Taliban.

12. It is noted that the applicant did not produce any identity documents in support of his visa application. He was granted the protection visa in July 2011. In April 2015 the applicant submitted a change of name form advising that he had formally changed his name from [Alias A surname] to [the applicant’s surname].

    Orphan Relative application

13. The primary decision record indicates that in April 2012 the applicant sponsored his siblings [Brother D], [Brother E], [Brother C] and [Brother B] for an Orphan Relative visa. His brother [Brother A] was stated to be missing and [Brother B’s] application was subsequently withdrawn due to his claimed death. It was stated in that application that the applicants’ parents had died, their father is said to have died in March 2007 and their mother in August 2011 and the visa applicants provided the death certificates for their parents issued by the General Consulate of Afghanistan in Quetta in 2012. That application was refused as the decision-maker was not satisfied the parents had passed away. In particular, the decision-maker did not accept the death certificates in relation to the visa applicants’ parents. The applicant sought review of that decision and submitted to the MRT a different death certificate for his mother, purportedly issued by [a named] Graveyard in October 2014. The MRT affirmed the decision under review as the Tribunal was not satisfied the visa applicants’ parents were deceased and, in particular, did not accept the evidence that their mother had passed away.

    Partner visa sponsorship

14. In September 2013 the applicant sponsored his wife [Wife A] for a Partner visa. On the sponsorship form the applicant stated that he was born in Afghanistan and was a citizen of Afghanistan. [Wife A] included with the application the couple’s marriage certificate showing the marriage was registered in Pakistan in April 2012, and other documents. [Wife A] was granted the Partner visa in September 2013.

15. The primary decision record indicates that in May 2015 an officer of the Department telephoned numbers listed on the applicant’s phone records, which were provided in support of his Partner visa sponsorship. One number was answered by a person who identified herself as [Mother A] and when asked if she knew [Alias A], she said ‘he is my son’. [Mother A] stated that he travelled to Australia using a Pakistani passport because the situation in Quetta was not good. [Mother A] stated that she spoke to the applicant weekly by phone.

16. Another number was answered by a person who identified herself as [Sister A], the applicant’s sister. [Sister A] stated that the applicant used the names [Alias A surname] and [the applicant’s surname] in Australia but his name at birth was [Alias B] and he was born in Quetta, Pakistan.

    Resident return visa

17. The applicant made the application for the RRV in June 2016. In that application the applicant stated that he was born in Afghanistan and when asked whether he had been known by any other name, the applicant stated [Alias A]. The applicant was granted that visa in June 2016.

    [Brother A]

18. The primary decision record also indicates that the applicant’s phone records included with the Partner sponsorship, identified a phone number linked to a Facebook profile of [Brother A variant]. [Brother A’s] Facebook refers to his employment at a company in [Country 1] and contains a post from [the applicant’s name] which appeared to contain an image of the applicant, [Brother A] and their brothers [Brother E] and [Brother C]. It is noted that in June 2017 a [Brother A] – who claimed to be a national of Pakistan – applied for the Global Special Humanitarian (GSH) visa and included his Pakistani passport, ID card and birth certificate. [Brother A’s] birth certificate referred to his father [named] and mother [Mother A] holding Pakistani national ID cards, which are only issued to Pakistani citizens. In that application [Brother A] referred to the same employment as noted on Facebook and identified a family composition that was largely the same as the applicant’s and identified the applicant’s spouse as his cousin.

19. In July 2017 the Department completed a Facial Image Comparison Report using the facial images of [Brother A] on his Facebook profile and on his Pakistani passport and these were found to relate to the same person. It is also noted that the applicant sent [Brother A] funds on two occasions, in 2013 and 2016. The delegate concluded that [Brother A] is the applicant’s brother, who was listed as missing on his Orphan Relative application.

    Citizenship application

20. The applicant made an application for Australian citizenship in August 2015. As part of that application the applicant completed a declaration in which he stated that he had lost all of his documents and fled Afghanistan without any documents. The applicant stated that he was unable to obtain any kind of documentation from Afghanistan relating to his date of birth or his name at birth. The applicant stated that his name was [the applicant’s name], that he was previously known as [Alias A] but adopted his father’s name following his arrival in Australia. He did not state whether he had been known by any other name.

21. The applicant attended an identity interview in August 2017 as part of his citizenship application. In that interview, the applicant claimed his name at birth was [Alias A] and his father’s name was [the same as the applicant’s surname] and he started using that name after arriving in Australia. The applicant provided a death certificate for his father. He stated that he was born in [year], as recorded in the Quran and stated that he did not celebrate birthdays. The delegate notes that the applicant’s Facebook has a photograph depicting him in front of a birthday cake with ‘Happy Birthday [applicant’s given name]’ written on it and he stated that his wife had organised a ‘fake’ birthday for him. The applicant noted that others wished him a happy birthday on a different date, so Facebook information was not reliable.

22. The Department officer noted that the applicant had provided an overseas driver licence in order to obtain the Australian driver licence in January 2013. The applicant confirmed he held a driver licence in Afghanistan but said he was not sure if it was genuine. The applicant stated that the Afghan driver licence was posted to him by his brother around 2012–13 and he was not sure of its whereabouts.

23. The applicant stated in his identity interview that he was not aware of a census conducted in Pakistan in 2005 to register refugees. He stated that neither he nor his family members had been issued with documents from Pakistan.

24. The applicant was shown the Facebook post (referred to above) which appears to depict him with his brothers and wishing him ‘happy brother day’. The applicant confirmed [Brother E], [Brother C] and [Brother D] were his brothers but stated [Brother A] was his friend. He stated that he had had no contact with [Brother A] since 2011.

25. Following the identity interview, the applicant provided a number of documents in support of his claimed identity. These included a copy of the Quran with his date of birth, confirmation of his mother’s death certificate and other documents.

    Delegate’s findings

26. The delegate concluded that the applicant is a Pakistani citizen born in Pakistan and not an Afghan citizen born in Afghanistan, as he claimed in his protection visa application. In particular, the delegate noted that:

    a.The applicant provided no documentary evidence pre-dating his arrival in Australia to support his claim that he was born in Afghanistan in [year] and was given the name of [Alias A] at birth.

    b.His sister stated that he was given the name of [Alias B] at birth. He created a Facebook profile in that name, even though he now uses the [applicant’s name].

    c.He celebrated his birthday in [a different month in] 2015, as evidenced by his friends wishing him a happy birthday. This is inconsistent with his claim that he was born in Afghanistan in [a different month in the specified year].

    d.The applicant’s sister told the Department that he was born in Quetta, Pakistan.

    e.The applicant stated that he was never issued with identity documents in Pakistan but if he was living in Pakistan as a refugee, as claimed, he could have been registered during the 2005 census and provided with documents.

    f.The applicant’s wife [Wife A] is a Pakistani citizen and country information suggests it is unusual for Afghan citizens to marry Pakistani citizens.

    g.[Brother A] appears to be the applicant’s brother and they share the same parents and siblings. [Brother A] informed the Department that he is a Pakistani citizen and had submitted his Pakistani identity documents. Under the Pakistani laws, children acquire Pakistani citizenship at birth and cannot acquire it through marriage. [Brother A] appears to have acquired the Pakistani citizenship from his parents. If the applicant’s brother and parents are Pakistani citizens, the applicant would have acquired Pakistani citizenship at birth.

27. The delegate concluded that the applicant did not comply with s 101(a) of the Act by failing to declare his name at birth and his Pakistani citizenship.

28. The delegate found that the applicant did not comply with s 101(b) of the Act by:

    a.declaring his place of birth as Afghanistan

    b.stating he was an Afghan citizen and did not hold citizenship of any other country

    c.stating he used a false passport (rather than a genuine Pakistani passport)

    d.making various claims in relation to the country of nationality being Afghanistan

    e.in the RRV application by failing to declare he had been known by another name.

    Response to NOICC

29. In his response to the NOICC the applicant reiterates that he is a national of Afghanistan and not Pakistan.

30. The applicant admits that he did provide incorrect information about his brother [Brother A], whom he had declared as missing. The applicant explains that his brother had fraudulent Pakistani documents so he was told by people smugglers not to mention him in any application. The applicant claims it is common to purchase fraudulent Pakistani identity documents and his brother and he provided a copy of correspondence purportedly sent by the National Database and Registration Authority (NADRA) to his family, stating that they are not entitled to hold the Pakistani identity cards. The applicant states that this is evidence that the Pakistani identity documents were fraudulently obtained. (The delegate notes the incorrect information was provided by the brother in relation to the Orphan Relative visa application and not by the applicant and therefore it was not non-compliance with s 101 of the Act.)

31. The applicant submits in response to the NOICC that all information (other than information about [Brother A]) is correct. In particular, the applicant submits that the information about his name and place of birth is correct, that his mother is deceased and that his family were never citizens of Pakistan. The applicant states that he had obtained the Afghan tazkera and passport from the Afghan embassy in Australia and that is evidence of his Afghan nationality. The applicant notes that the information held by the Department is circumstantial and various identities cannot be verified. With respect to the specific concerns set out in the NOICC, the applicant provided the following explanations:

    a.the applicant states that the Department officer may have spoken to his aunt [with a similar name to his mother], who refers to him as a son.

    b.The applicant provided a statement from [Sister A] who claims she believed the call was from Pakistani authorities, she was scared and did not recall what she said and she may have stated out of fear of deportation that the applicant was born in Pakistan.

    c.The applicant claims the Facebook account was created by an old housemate when he first arrived in Australia and that person opened accounts for everyone in the name of [Alias B given name] as it is a common name. The applicant submits that the Facebook account cannot be considered an official identity document and it is unreasonable to rely on it.

    d.The applicant claims he did not register in the 2005 census as it was not mandatory and most refugees did not register for fear of being deported from Pakistan.

    e.Both he and his wife are Hazara Shias and it is not uncommon in the Hazara culture for Afghan and Pakistani Hazara to marry.

32. The applicant included in his response to the NOICC a number of identity documents, including his tazkera and Afghan passport, a change of name certificate, [one child’s] birth certificate which refers to the applicant’s birth in Afghanistan, evidence of family land ownership in Afghanistan, a statement from [Sister A] and letters from NADRA to his family regarding the use of ID cards. In his submission to the Tribunal the applicant provided [Sister A’s] and his brothers’ Afghan identity documents.

33. The applicant provided a written submission and a number of documents to the Tribunal on 4 April, a day before the scheduled hearing. As his application for review was lodged some four months earlier, it is unclear to the Tribunal why the documents and submissions could not have been provided in a more timely manner and in compliance with the Tribunal’s Practice Directions. The applicant was represented by [Representative A].

34. In his statutory declaration the applicant states that he was born in Jaghori, Afghanistan and that his name at birth was [Alias A variant] ([The surname] was later changed to [his Alias A surname] as a surname as he could not use his father’s surname). After his arrival in Australia he adopted his father’s name [as a surname]. The applicant refers to the harassment his family experienced while in Afghanistan and states that in 2003 his family fled to Pakistan but still faced problems in Pakistan and he left Pakistan for Australia in March 2010. He paid money to someone to arrange for the Pakistani national ID card and Pakistani passport. The applicant states that the information he gave when sponsoring his siblings for the Orphan Relative visa, his wife for the Partner visa and in his citizenship application and the RRV application, was correct.

1. The applicant provides his explanations with respect to the delegate’s concerns as follows:

   a.The applicant acknowledges the delegate’s claim that he did not provide identity documents concerning his birth in Afghanistan when he arrived in Australia, stating that there are no birth certificates issued and whatever documents he had were lost when he left Afghanistan. The applicant states that he has since obtained the tazkera and his Afghani passport in the [applicant’s name] through the Afghan embassy in Australia and these documents would not have been issued if he was unable to prove that he was a citizen of Afghanistan. The applicant states that he was able to provide a tazkera for a relative and prove his Afghani citizenship. The applicant states that his family still has land in Jaghori and his relatives and friends live there.

   b.With respect to his date of birth, the applicant states that these are not celebrated in Afghanistan so he is not aware of his date of birth. When he arrived in Australia, he stated his date of birth as [a nominal date]. The applicant refers to the Facebook evidence of having a birthday cake in [a different month] because he states his wife wanted to give him a birthday party and since [the nominal date] is not his real date, his wife picked any date for the celebration. The applicant states that another person opened the Facebook account for him and just picked a date as his birthday.

   c.With respect to the phone call made by the Department to his sister, the applicant refers to the statement from his sister [Sister A] who claims to have been scared that the Pakistani authorities were after him. The applicant states that he never used [Alias B given name] and notes that no ID is required to open a Facebook account. The applicant notes that there is no evidence of anyone calling him [Alias B given name] on social media.

   d.With respect to the call made by his mother, the applicant states that his mother died in August 2011. His aunt [named] lives with his siblings and after his mother died, she took care of his siblings and called them sons. The applicant states that his aunt cannot remember receiving the phone calls and people in Pakistan are generally scared of phone calls because of fear of deportation.

   e.With respect to the census, the applicant states that it was voluntary and not mandatory and most refugees did not register out of fear of deportation.

   f.With respect to his marriage to his wife, the applicant states that while his wife is a Pakistani citizen, they are both of Hazara ethnicity and Shia Muslims, speak the same language and share the same culture.

   g.With respect to [Brother A], the applicant admits that he is his biological brother whom he had declared as missing in his citizenship interview. The applicant states that their father paid to get false Pakistani documents. He states that [Brother A] wanted to get education and needed a Pakistani ID and birth certificate which he obtained through bribes, which was common. The applicant admits that [Brother A] is not related (as a cousin) to his wife. The applicant states that his [Brother B] also tried to obtain false Pakistani documents but was killed while waiting for the documents. The applicant states that in 2018 his family had received a letter from the Pakistani authorities that they were not entitled to the Pakistani ID cards. The applicant states that he had never disclosed to the Department that his family used the false Pakistani documents on the advice of people smugglers.

2. In oral evidence the applicant claimed, essentially, that the information in his protection visa application was correct. The applicant confirmed that he was born in Afghanistan and was a national of Afghanistan. The applicant provided to the Tribunal a statement from three persons who claim to come from the same village as the applicant and who have confirmed his birth and connections to Jaghori, Afghanistan. The Tribunal is of the view that the statement is of very limited weight, at best, because there is no independent evidence before the Tribunal about these persons’ place of birth or past residence in the village in Afghanistan (so no independent way to verify the information they provided) and they were not available to give evidence to the Tribunal so that their evidence could not be tested.

3. The Tribunal finds some of the applicant’s explanations unconvincing. For example, the applicant claims that his mother has passed away and he provided evidence of her death in relation to the Orphan Relative application and additional evidence more recently. However, the primary decision record indicates that an officer did speak to someone who had identified herself as the applicant’s mother. It is noted that the applicant’s phone records show regular communication with that person. The applicant suggested in his earlier submission that it could have been a relative who considers herself as their mother but if that is the case, in the Tribunal’s view the applicant would be well aware who the officers spoke to, given that person had been identified by name. The Tribunal acknowledges the applicant’s explanation that his aunt also considers herself to be his mother but the Tribunal does not accept she would have done so in the context of a formal interview (as the Tribunal is satisfied that the immigration officer conducting the interview would have explained their connection to the Department and the reasons for the inquiries). In the Tribunal’s view, a much more likely explanation is that the person who answered the phone is, in fact, the applicant’s mother and that is consistent with the frequent contact made by the applicant using that phone number. Thus, the Tribunal has formed the view that the applicant’s evidence that his mother passed away, is false and the various records evidencing her death are likely to be bogus.

4. Similarly, the Tribunal does not accept the applicant’s explanation about the evidence of his sister [Sister A], who is recorded to have stated that the applicant was born in Pakistan and was a national of Pakistan and had a different name at birth. The applicant submits (and has presented a statement from [Sister A] in response to the NOICC and to the Tribunal) that she believed she was being interviewed by Pakistani officials, was afraid of deportation and provided incorrect answers. The Tribunal does not accept that explanation because, again, the Tribunal is of the view that the interviewer would have identified themselves at the commencement of the interview and it would have been clear to [Sister A] that she was speaking to Australian officials, not Pakistani officials. The Tribunal is mindful that [Sister A] had little to gain by referring to the applicant’s country of birth and nationality and birth name (the conversation was not about her own ability to remain in Pakistan but that of the applicant) while the applicant’s country of birth and nationality were central to his claims and eligibility for the visa. Thus, it would appear that the applicant would have more to gain by the provision of incorrect information than [Sister A] and the Tribunal considers her initial evidence more reliable.

5. It is also of considerable concern to the Tribunal that the applicant admits to providing incorrect information about his brother [Brother A]. The applicant concedes that he claimed his brother was missing and that information was incorrect. The applicant is also recorded to have told the Department officers that [Brother A] was a relative but not a brother. The applicant told the Tribunal that because his brother’s ID was fake, he did not want to mention his brother. That is, the applicant concedes that he had been deliberately untruthful with the Department in the past because he believed it would improve his chances of obtaining the visa. The applicant’s willingness to provide false information for a benefit suggests to the Tribunal that the applicant is not a person of credibility.

6. All these matters raise significant concerns about the applicant’s overall credibility and the veracity of the claims he made in his various dealings with the Department.

7. The Tribunal has formed the view that the applicant has not been truthful in aspects of his claims. Thus, the Tribunal finds, having regard to the applicant’s own evidence, that he had given incorrect information about his brother [Brother A] as he claimed that brother was missing in the Orphan Relative application and his subsequent dealings with the Department. The applicant concedes he provided incorrect information. However, his evidence, which is supported by the information in the primary decision record, is that the incorrect information was provided in the Orphan Relative application and his citizenship interview, not the protection visa and the RRV application. These latter applications formed the basis of the s 107 notice and there is no evidence to indicate that the applicant provided incorrect information about his brother in these two applications.

8. The Tribunal has also formed the view that the applicant gave incorrect information about his mother, when claiming she was deceased. The Tribunal does not accept the applicant’s explanations that when the immigration officers telephoned Pakistan and spoke to a [Mother A name], they spoke to his aunt or another relative rather than to his mother and that person identified the applicant as their son. In the Tribunal’s view, it is much more likely that the immigration officers spoke to the applicant’s mother and that she was not deceased as claimed. The Tribunal is mindful that in the Orphan Relative application the Tribunal (differently constituted) did not accept the evidence of the mother’s death. The Tribunal has formed the view that the applicant was not truthful about his claim that his mother is deceased but, again, that was not the basis of his protection visa claims and would not have been relevant to these claims.

9. The Tribunal has formed the view that the applicant has not been truthful in his dealings with Immigration. However, the Tribunal must consider the non-compliance as described in the notice, not the applicant’s credibility overall. The NOICC deals specifically with the applicant’s name and nationality at birth and whether he was in fact a national of Pakistan or a national of Afghanistan.

10. The delegate formed the view that the applicant was a national of Pakistan because, essentially, his brother had presented Pakistani documents, his sister [Sister A] referred to him as having been born in Pakistan and being of Pakistani nationality and because the applicant had provided some inconsistent (or incorrect) information in relation to his family composition.

11. The applicant has now provided to the Tribunal his Afghani documents including his tazkera and passport. It is of concern that the applicant was not able to provide his Afghani identity documents throughout the protection visa application process, nor during his citizenship application process and it was only in recent years that he was able to obtain these documents. The applicant explained to the Tribunal that he did not know he could get the documents from the Embassy without travelling to Afghanistan which was unsafe. The applicant explained how he had obtained the Afghan documents, stating that he gave his paternal cousin’s tazkera to the consulate and it was verified (matched with the main book) in Afghanistan and he also had to attend an interview. The applicant’s evidence suggests that the Afghan authorities identified his family composition but would not necessarily have had any knowledge whether he (or his parents) acquired the Pakistani nationality. That is, the issuance of the Afghani tazkera and passport does not necessarily establish that the applicant was not a national of Pakistan. The applicant also presented a statement from those who claimed to have lived in the same village and to be familiar with his family but for the reasons stated above, the Tribunal considers that evidence of limited value.

12. The delegate relied on the fact that the applicant’s brother presented Pakistani documents and his sister claimed the applicant was a national of Pakistan. The applicant claims, essentially, that the Pakistani identity documents were false. The applicant states that his family in Pakistan received the letter from NADRA stating that they cannot use the Pakistani documents and that also proves he is an Afghan and not a Pakistani.

13. The Tribunal has had regard to the country information concerning the acquisition of Pakistani nationality by Afghans.

    Relevant country information

14. Pakistan law provides for conferral of citizenship to persons by birth in Pakistan. Under Pakistan’s Citizenship Act 1951, section 4 provides for citizenship for all children born in Pakistan, and provides freedom from discrimination based on race, ethnicity or religion.[1] In practice, however, the government of Pakistan has not conferred citizenship on Afghan refugees or persons of Afghan descent, who were born in Pakistan,[2] despite being the subject of legal challenge in the past.[3]

    [1] 'Pakistan Citizenship Act 1951', 18 April 2000, 20190207160648; ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p. 39, 20200312102402.

    [2] ‘Country Reports on Human Rights Practices for 2019 – Pakistan’, US Department of State, 11 March 2020, p. 30, 20200312102402

    [3] For example; 'NADRA submits reply in Hafiz Hamdullah citizenship case', Pakistan Today, 23 November 2019, 20191127145641. Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources, including The National, The Express Tribune, Dawn, and Tolo News.

15. In its Country Report on Human Rights Practices for Pakistan, published 11 March 2020, the United States Department of State noted that the government of Pakistan does not accord Pakistani citizenship to the children of Afghan refugees and did not accept refugees for resettlement from other countries:[4]

    The passage of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) impacted the ability to obtain national identity documents in Pakistan after 1952 and had the effect of deeming migrants to Pakistan prior to 18 April 1951 to be Pakistani nationals.[5] Subsequently, a declaration made by the Pakistan government in 1962 that conferred tribal status upon Hazaras and other ethnic groups, generated uncertainty about the legal status of Hazaras in Pakistan and their access to citizenship at law.[6] The United States Library of Congress’ Birthright by Citizenship Around the World report observed that despite the unconditional provision for citizenship by birthright in Pakistan, the claims of children of Afghan refugees born in Pakistan are denied at both administrative and judicial levels.[7] In practice, the operation of Pakistan’s Foreigners Act 1946, has enabled the direct displacement of rights to naturalisation and citizenship by birthright, for Afghan refugees and, indirectly, it has enabled the implied exclusion of these rights to their Pakistani-born descendants.[8] Referring to a 1999 judicial decision in Peshawar,[9] a report published by the European University Institute noted that Pakistan law regards Afghan refugees, who may also be parents, to be foreigners and aliens under the Foreigners Act 1946 and that the ‘long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law.’[10] … ‘relevant officials had been issued directives to not consider any proof of immigration from the 60s or 70s as valid and report such documentation so (Computerised National Identity Cards) CNICs of these individuals be blocked.’ (sic)[11] We do not know who took the decision, but the new policy is that any Afghan family which migrated after 1951 will be considered illegal immigrants and their CNICs will be blocked after separate verification from the Special Branch and Intelligence Bureau (IB) …

    The decision was probably taken after reports emerged that several refugees who managed to get CNICs had purchased land using backdated documents … The instructions are clear cut. Any document from 1951 onward will not be accepted and all those who migrated subsequently will be considered illegal immigrants.[12]

    [4] ‘Country Reports on Human Rights Practices for 2019 – Pakistan’, US Department of State, 11 March 2020, p. 30, 20200312102402

    [5] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [6] see: ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p. 145, St Martin’s Press, New York, in: ‘Pakistan: Shias Muslims’, 20 November 2015, COISS, p. 27, CRF909496121

    [7] 'Birthright Citizenship Around the World', Law Library of Congress, 01 November 2018, pp. 30, 45, 20190306112250

    [8] 'Birthright Citizenship Around the World', Law Library of Congress, 01 November 2018, p. 45, 20190306112250

    [9] Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18

    [10] 'Report on Citizenship Law: Pakistan', European University Institute , Faryal Nazir, 01 December 2016, CIS38A80125116

    [11] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [12] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

16. According to the same report, information sourced from an Intelligence Bureau official indicated that as a result of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) anyone who moved to Pakistan after this date ‘would have to apply for nationality as per the procedures set by the government.’[13] Further information from the official indicated ‘(a)fter the introduction of this Act, no person could automatically become a Pakistani national by purchasing land or obtaining a CNIC’ due to verification of Afghan refugees.[14]

    [13] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [14] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

17. In 2017, the Pakistan government announced a programme that aimed to provide ‘Afghan Citizen’ cards to up to one million undocumented Afghans in Pakistan.[15] The programme commenced in Islamabad and Peshawar, where the largest number of undocumented Afghans, such as Hazara refugees, reside. Information published by the United Nations High Commissioner for Refugees (UNHCR) noted the cards would serve to provide legal protection from arbitrary arrest, detention or deportation under Pakistan’s Foreigner’s Act, to provide regularisation of their status until the Afghanistan government could issue passports.[16] The programme was arranged under Pakistan’s Comprehensive Policy on the Voluntary Repatriation and Management of Afghans, and included a six-month period scheduled to target undocumented Afghans in Islamabad and Peshawar.[17] According to available information, by March 2018, over 175,000 cards had been issued out of over 878,000 applications.[18] By late May 2019, approximately 850,000 cards had been issued.[19] According to information provided by a government spokesperson in May 2019, there were 850,000 Afghan Citizen Cardholders, 500,000 unregistered Afghans and 1.4 million Proof of Residence (PoR) cardholders.[20]

    [15] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp. 8-9, 20191101144018

    [16] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp. 2-2, & 8-9, 20191101144018

    [17] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp. 2-2, & 8-9, 20191101144018

    [18] ‘Documentation of Undocumented Afghans at Afghan Citizen Card (ACC) Centers’, International Organisation for Migration, March 2018, CIS7B83941489. This press release from a think tank that focuses on Afghan refugee issues claimed in March 2018 that 900,000 cards had been issued: ‘Pakistan Takes Afghan Refugees As A Humanitarian Issue, And Not A Political One; Tahir Khan At CRSS–ASC Youth Forum’, Afghan Studies Center (Pakistan), 29 March 2018, CXBB8A1DA40056

    [19] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155

    [20] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155

1. On 18 September 2018, Pakistan Prime Minister Imran Khan announced plans to grant citizenship to Afghan refugees,[21] although the Prime Minister did not specify whether citizenship would be granted to Afghans born in Pakistan or to all those who live in Pakistan.[22] According to the same report, Prime Minister Khan stated:

   We will … god willing give (passports) to those Afghans whose children were born here and grew up in Pakistan…

   When you are born in America, you get the American passport. It is the practice in every country in the world, so why not here? Why are we so cruel to these people? They are humans.[23]

   [21] ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Pakistan's Imran Khan skirts issue of Afghan refugees' citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718

   [22] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946

   [23] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946

2. In response to political backlash, the government shifted responsibility for overseeing administration of the policy to a parliamentary committee.[24] No information was located that indicated that the committee has made progress toward implementation of the plan, or that any Afghans in Pakistan have been conferred citizenship under the plan.[25]

   [24] ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘Pakistan's Imran Khan skirts issue of Afghan refugees' citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718; ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356; ‘Pakistan, Afghanistan, UNHCR sign declaration on return of refugees’, Tribal News Network (Pakistan), 19 June 2019, 20190624155044; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656.

   [25] ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656; ‘Only 1 In 3 Pakistanis Believe That The Government Of Pakistan Should Allow Afghans To Remain In Pakistan’, Gallup Pakistan, 4 March 2020, 20200330114828

   Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources, including The National, The Express Tribune, Dawn, and Tolo News.

3. According to information published by the United States Department of State on 11 March 2020, the government of Pakistan established a parliamentary committee to evaluate the possibility of extending citizenship to Pakistani-born children of refugees and stateless persons.[26] In early 2019, Pakistan media reported the government permitted Afghan refugees to open bank accounts in Pakistan.[27]

   [26] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p. 30, 20200312102402

   [27] ‘Pakistan’s Govt Allows Afghan Refugees To Open Bank Accounts’, Tolo News (Afghanistan), 26 February 2019, 20190227074310; ‘Bank accounts promise to Afghan refugees in Pakistan comes true’, Dawn (Pakistan), 5 June 2019, 20190606103550

4. PoR cards issued by NADRA to Afghans registered with the UNHCR, who arrived before February 2007, provide for freedom of movement and temporary legal status within Pakistan.[28] Many, however, did not register, with estimates varying between one and three million Afghan refugees who did not register and obtain PoR cards.[29] In 2019, the government extended the validity of the PoR cards until the end of June 2020.[30]

   [28] ‘Conditions for asylum caseloads: Afghan refugees’, Department of Foreign Affairs and Trade, 19 July 2010, CX246370; ‘World Refugee Survey 2009 – Pakistan’, US Committee for Refugees and Immigrants, 17 June 2009, CX5E56FED19048

   [29] 'Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees', Human Rights Watch, 13 February 2017, p. 30, CISEDB50AD247. See also: 'Fact Sheet UNHCR Pakistan Registration Information Project for Afghan Citizens (RIPAC)', United Nations High Commission for Refugees (UNHCR), 01 October 2009, CX235649

   [30] ‘Pakistan extends stay of Afghan refugees’, Gulf News, 28 June 2019, 20190716133522

5. National identity documentation is available through both official and unofficial means in Pakistan, and document fraud ubiquitous.[31] Documentation including national identity cards, CNICs, passports and PoR cards, are subject to counterfeiting and being obtained by fraudulent means, and significant numbers of Afghans have illegally obtained identity documents in Pakistan.[32] One report, for example, estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[33] Anthropologist and Hazara expert Alessandro Monsutti examined the existence of large and complex Hazara networks and observed the relative ease with which Hazaras may enjoy access to work, housing and identity documents.[34] Monsutti indicated connections play a significant role in the capacity of someone in Pakistan to gain identity documentation and evidence of citizenship irregularly:

   Access to Pakistani papers depends on personal connections more than on recognized formal rights. It means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some.[35]

   [31] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 20 February 2019, p. 71, 20190220093409​​; 'Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees', Human Rights Watch, 13 February 2017, pp. 28-32,CISEDB50AD247

   [32] 'NADRA is disrupting demographics in Balochistan by issuing fake ID cards', The Nation (Pakistan), 7 August 2015, CXBD6A0DE19423, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17, DFAT, 9 March 2005, CX116630, ‘Afghan refugees’ Pakistani passports, identity cards illegal: NA told’, PAK Tribune, 17 November 2005, CX142357. ‘Situation and return of Afghans in Pakistan’, DFAT, 19 April 2000, CX41729, ‘Pakistani/Afghan mixed marriages’, Country Information Report No.123/01, DFAT, 23 April 2001, CX52331, ‘Afghans holding Pakistani passports’, Country Information Report No.124/01, DFAT, 24 April 2001, CX52333, ‘Unregistered Afghans to be treated as illegal immigrants’, IRIN News, 22 November 2006, CX165588.

   [33] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

   [34] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan', Alessandro Monsutti, Routledge, 2005, pp. 101, 111, 120–121, CIS29035. In a 2014 email to the department, Monsutti elaborated on this point, noting, ‘Access to Pakistani papers depends on personal connections more than on recognized formal rights. It means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. I know many Hazaras in Quetta who came from Afghanistan in the 1970s and never got Pakistani papers. They may own a house in Quetta, have not been to Afghanistan for more than 30 years, without being formally Pakistani citizens’. ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’', Monsutti, A, 15 December 2014, CIS2F827D91802. See also 'Participatory Needs Assessment of Afghan Refugees in Balochistan 2014', United Nations High Commissioner for Refugees, October 2015, CISEC96CF14180

   [35] ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’', Monsutti, A, 15 December 2014, CIS2F827D91802

6. Monsutti also observed the government of Pakistan ‘readily granted [Hazaras] Pakistani papers to offset Pashtun influence in the region’ between 1971 and 1977.[36]

   [36] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan', Alessandro Monsutti, Routledge, 2005, p. 104, CIS29035

7. The protracted residence of Afghan refugees in Pakistan has continued to manifest issues associated with Pakistan’s citizenship restrictions.[37] Pakistan officially hosts around 1.4 million registered Afghan refugees. A Refugee Summit convened in Islamabad in February 2020 examined the longstanding challenges faced by the governments of Afghanistan and Pakistan,[38] while United Nations Secretary-General António Guterres resolved to continue promoting cooperation on a region-specific support platform to assist voluntary repatriation and sustainable reintegration of refugees in Afghanistan, stating: ‘I want to reaffirm that the preferred durable solution for refugees has always been voluntary repatriation in safety and dignity to their country of origin. This is also true for Afghan refugees.’[39]

   [37] ‘Only 1 In 3 Pakistanis Believe That The Government Of Pakistan Should Allow Afghans To Remain In Pakistan’, Gallup Pakistan, 4 March 2020, 20200330114828; 'Refugees mark 40 years at ‘mini Kabul’ in Pakistan', Agence France Presse (AFP) - France, 16 February 2020, 20200217155129; 'Afghan refugee crisis not over yet: UNHCR', Mohammad Zafar, Express Tribune (Pakistan), 16 February 2020, 20200217145504; ‘A different kind of pressure: The cumulative effects of displacement and return in Afghanistan’, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, 20200113181041 ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356

   [38] 'Arrivals from Afghanistan Exceeding Arrivals from Syria as Returns Hit Historical Low, Secretary-General Tells Pakistan Conference on Hosting Afghan Refugees', United Nations Secretary-General, 17 February 2020, 20200219104307. See also: 'Repatriation of Afghan refugees', Pakistan Observer, 3 March 2020, 20200303122159; ‘Pakistan to close border with Iran, Afghanistan over coronavirus’, New Straits Times, 14 March 2020, 20200316114441; ‘Flow Monitoring - Spontaneous Returns of Undocumented Afghans from Pakistan (24th November - 7th December 2019)’, International Organisation for Migration (IOM), 22 January 2020, 20200123160906.

   [39] For further details of the statement made by the United Nations Secretary General, please see: 'Arrivals from Afghanistan Exceeding Arrivals from Syria as Returns Hit Historical Low, Secretary-General Tells Pakistan Conference on Hosting Afghan Refugees', United Nations Secretary-General, 17 February 2020, 20200219104307.

8. The above evidence indicates that it would have been difficult, if not impossible, for the applicant to obtain the Pakistani citizenship. The Tribunal places significant weight on the fact that the applicant was able to obtain the Afghan tazkera and passport and, on his evidence, these have been issued after his family composition had been verified in Afghanistan. While that does not necessarily mean that he could not be a national of Pakistan, it does support the applicant’s claim that he was born in Afghanistan and the above country information suggests that if the applicant was born in Afghanistan, he may not have been able to acquire Pakistani citizenship.

9. There is some evidence of the applicant’s Pakistani nationality, which is set out in the delegate’s decision, primarily the brother’s Pakistani nationality papers, the sister’s evidence and the possible use of a different name and date of birth by the applicant previously. The Tribunal accepts the applicant’s evidence that identity documents can be obtained by fraudulent means in Pakistan. This is consistent with the available country information and it is at least possible, in the Tribunal’s view, that the brother’s Pakistani identity documents were bogus documents. The applicant’s evidence is that NADRA has written to his family advising that their Pakistani identity documents are not genuine and cannot be used.

10. Overall, the Tribunal has formed the view that there is insufficient probative evidence to make a positive finding that the applicant was a national of Pakistan and that he was born in Pakistan and that he used a different identity at birth. The fact that the applicant had been untruthful about some aspects of his claims (which he concedes) does not necessarily prove that his entire evidence in the protection visa application was untruthful.

11. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32]:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

12. While that case was concerned with cancellation under s 119, the Court’s comments would be equally applicable to s 109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s 109, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

13. In this case, the consequences are significant, involving the cancellation of a permanent visa in circumstances where the applicant had been granted protection in Australia. In such circumstances, there must be persuasive evidence to form the basis for the cancellation. In the Tribunal’s view, such evidence is not present. This is because it is plausible that the applicant’s brother obtained false Pakistani documents while in Pakistan and that the applicant was in fact born in Afghanistan as claimed and travelled to Pakistan as a refugee. The fact that the applicant has been issued with a tazkera and Afghani passport supports that finding. Importantly, the country information cited above indicates that Afghan refugees born outside of Pakistan cannot obtain Pakistani citizenship.

14. Having regard to all this information, the Tribunal has formed the view that there is insufficient probative evidence to make a positive finding that the applicant is a national of Pakistan and that he gave or provided incorrect answers in his application. The Tribunal is not satisfied that the ground for cancellation is made out.

15. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

16. However, if the Tribunal were wrong in its findings, and if the applicant did not comply with s 101, for the reasons set out below, the Tribunal would exercise discretion in favour of the applicant.

    Should the visa be cancelled?

17. If the Tribunal were to find that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it would be necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    The correct information

19. The delegate found that the applicant was born in Pakistan and not in Afghanistan. The applicant states that he was born in Afghanistan and not Pakistan. The applicant states that he has now been able to obtain the Afghani tazkera and passport which he did not have before. He also states that his accent and dialect show that he was born in Afghanistan and not Pakistan. The applicant invited the Tribunal to assess his accent and dialect but as the Tribunal explained to the applicant, it has no expertise to conduct that assessment and the Tribunal invited the applicant to provide an independent assessment if he wished to rely on that evidence. In the absence of an independent report, the Tribunal does not consider that the applicant’s willingness to undertake that assessment is evidence of the applicant’s country of nationality being Afghanistan.

    The content of the genuine document (if any)

20. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

21. The applicant’s claim for protection was based on his fear of harm in Afghanistan and he claimed that he fled Afghanistan to Pakistan. The applicant’s country of birth and country of nationality was central to the decision to grant him the protection visa. The Tribunal finds that if the applicant was in fact born in Pakistan, this would have been central to the assessment of his claims and the decision to grant him the protection visa would have been based on incorrect information.

    The circumstances in which the non-compliance occurred

22. If the applicant is a national of Pakistan and was born in Pakistan, the non-compliance occurred through the intentional misrepresentation of his background, country of birth and country of nationality.

    The present circumstances of the visa holder

23. In his submission to the Tribunal the applicant refers to his past study and his past and present employment. The Tribunal accepts that evidence.

24. The applicant states that he has a [child] born in [year] and [another child] born in [year] and both are Australian citizens.

25. The applicant refers to his relationship with his partner and her health issues, stating she is a [medical] patient and her condition has not improved after [related] surgery. The applicant claims that he is very concerned about his wife’s health, particularly as they have young children. The Tribunal accepts that evidence.

26. The applicant states that they bought land and have built a house which is mortgaged. He states that he cannot work after the cancellation of his visa which has caused him stress and they have lost the Centrelink benefits after the visa cancellation. The applicant provided to the Tribunal evidence of his home loan and taxation records. The Tribunal accepts that the applicant is employed and that he purchased land and built a house. The Tribunal accepts that if the visa is cancelled, the applicant may not be able to work and may be unable to repay the loan. The Tribunal accepts that the cancellation of the visa has caused financial hardship for the applicant.

27. The applicant states that he could not afford to send his child to preschool because he is no longer eligible for any refund.

28. The applicant refers to his depression and states that he has been taking medication.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

29. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

30. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

31. The application for the protection visa was made in July 2011 and over 10 years have passed since that non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

1. There are no known breaches of the law.

   Any contribution made by the holder to the community

2. In his submission to the delegate the applicant refers to his community involvement, including voluntary work as an English teacher and involvement with the Afghan community. The applicant referred to various activities and functions he had participated in and he provided to the Tribunal evidence of having received a community award, evidence of having received funding for a community event and evidence of his participation in other community events. The Tribunal accepts that evidence. The applicant also refers to his employment [in a role] who helps new arrivals and he provided a statement from his employer, as well as letters of support from the community organisation and members of the community. The applicant refers to his voluntary activities in the detention centre, his employment and payment of taxes.

3. In his declaration to the Tribunal the applicant states that he has been involved in the Afghani community in [Town 1] and is a member of the community. He states that he has been a volunteer English teacher at a [location] and he refers to his past employment and study at TAFE. He refers to his employment [in a role] with [a named agency].

4. The applicant refers to his involvement with [a community group] and states that he is a treasurer of the group. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to the community.

5. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s 140

6. There are no persons whose visas would be subject to consequential cancellation. The visa held by the applicant’s spouse is the subject of a separate cancellation.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

7. The applicant has two children born in [specified years], who are Australian citizens. The applicant told the Tribunal that his children may be able to acquire Afghan citizenship but they would not be safe in Afghanistan. He was not sure if they could acquire Pakistani citizenship due to their mother being a Pakistani national.

8. The Tribunal finds, given the children’s young age, that the children cannot live independently. If the applicant’s visa remains cancelled and if the applicant was to leave Australia as a result, the children would also have to relocate to another country, either Afghanistan or Pakistan. The country information set out below indicates that the situation in these countries may not be safe. If the cancellation of the applicant’s visa was to result in the applicant being placed in immigration detention, possibly for a long period, that would also adversely affect the interests of the children who may either be separated from their father or who would be detained with him.

9. In these circumstances, the Tribunal finds that the cancellation of the applicant’s visa would not be in the best interests of his two children.

   Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations

10. The phrase ‘non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

11. The applicant told the Tribunal that as a Hazara, he is not safe in Afghanistan or in Pakistan and could be killed. The applicant refers to the death of his brother. The applicant claims to be a national of Afghanistan while the delegate formed the view that he is a national of Pakistan. The Tribunal accepts that the applicant is a national of Afghanistan, on the basis of his Afghan passport and tazkera, although it may also be possible that he is a national of Pakistan as well. The information below refers to both countries.

12. The Tribunal has first considered the available country information in relation to the situation in Afghanistan.

13. In an article by Mirwais Wakil and Prof. Anthony Pahnke helpfully titled, ‘Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action’ the authors state neither the Taliban nor the Afghan government possess the ability to defeat the other and as such there is an impasse. As a result, interests will prevail. The authors then go on to describe the possible wealth that could be accrued to the people (and presumably the leadership) if they were to make peace. The article notes some caveats such as that the Taliban will need to integrate into the political system and human rights cannot be ignored and that the Taliban must know that they can’t ‘erase the freedoms that women have earned’. Ultimately, economic prosperity is critical as, ‘This money would help stop young men from choosing the path of war and, instead, to rebuild their country. Local Taliban leaders, therefore, would have a more difficult time recruiting people who wish to dedicate their time to jobs, families and school.’

14. NBC News referenced a US Defence Intelligence Agency report that provides some insight into the capabilities of the Taliban:

15. The report cited analysis from the Defence Intelligence Agency saying that from 1 January through 31 March 2021, the Taliban’s military strategy was to prepare for large-scale offensives against provincial centres, complex attacks against the Afghan National Defence and Security Forces’ bases, and degrading the Afghan forces’ capabilities.

16. In the first two months of 2021, the Taliban surrounded the provincial capitals of Baghlan, Helmand, Kandahar, Kunduz, and Uruzgan to prepare these offensives, and they continued assassinating government employees, security officials and journalists, the report says.

17. Citing information from the Defence Intelligence Agency, the report says al Qaeda continues to rely on the Taliban for protection, and that ties between the two groups have strengthened. At the same time, the Afghan Security Forces have conducted offensive operations against the Taliban but the Defence Intelligence Agency reported that these offensives ‘did not accomplish anything of strategic value’.

100.   The United States has indicated that it will be expediting US visa processing for Afghans who were employed by the US government in Afghanistan as they are believed to be at risk of harm arising from the absence of international forces. Zalmay Khalilzad, the US Special Envoy for Afghanistan was reported as sharing ‘the concerns of lawmakers for the safety of Afghans who worked as interpreters or in other jobs for US troops and diplomats’. He said the Biden administration was ‘working to expedite applications for US visas under a program designed for Afghans who were employed by the US government’. The Australian government closed its embassy in Afghanistan prior to the withdrawal of US troops. Both of these actions are an implicit acknowledgement that the security situation is predicted to deteriorate, particularly for those members of society who have relied upon international forces for protection.

101.   It is known that the Taliban are determined to have an Islamic Emirate. For instance, when the Pakistani version of the Taliban, which was founded in December 2007, overcame the north and west of Pakistan in 2008, they demanded that Sharia law take precedence over Pakistan’s constitution. In April 2009, US Secretary of State Hillary Clinton visited Pakistan and warned it of the consequences of acquiescing to the Pakistani Taliban; only then did Pakistan launch a war against the Pakistani Taliban in May 2009. The Pakistani Taliban either lost their lives or fled to Afghanistan.

102.   The former Pakistan ambassador to the United States and a former diplomat, Najmuddin A. Shaikh, provided his analysis in a recent article in Dawn:

Following an attack on a school where at least 60 Hazara were killed and an estimated 150 injured, he wrote, ‘While the Taliban did not carry out this attack there is no doubt that given their Deobandi and Salafi beliefs they regard the Hazara as heretics. What is even more tragic is that not just the Taliban but every ethnic or religious community in Afghanistan perceives the Hazaras in the same way’… For the Taliban, this general Afghan contempt for the Hazaras is compounded many times by the role the Hazaras played in partnership with Uzbek opponents of Gen Rashid Dostum in 1997 massacring the Taliban trapped in Mazar-i-Sharif after their abortive effort to take over the city. More than 5,000 Taliban died mostly at the hands of the forces of Hizb-i-Wahdat, the Hazara political and military party. It is unlikely but even if there is some sort of reconciliation between the Taliban and other Afghan parties, the Hazaras cannot expect to escape the revenge the Taliban, who have long memories, will take.

103.   The former ambassador then concludes by saying, ‘what looms ahead is the elimination of this ethnic group’.

104.   Time Magazine reported in May 2021 Islamic State (IS), another insurgent group, continuing attacks against those they view as apostates including exploding a bomb at a mosque which killed 12 Sufis. This attack follows a concerted and directed escalation of violence by IS against Shia in Afghanistan.

105.   There are reports that the Taliban, predominantly Sunni Pashtun, have recruited Hazara in an effort to improve their image and be a more inclusive group. Dr Yatharth Kachiar argues that, ‘In order to establish itself as a legitimate power in Kabul, the Taliban regime must offer something beyond its narrative of fighting the “foreign infidel powers” and their “puppet regime”. By presenting itself as a moderate group with support among all the major ethnicities in Afghanistan, the Taliban aim to quell the narrative that brands it as a fundamentalist, pro-Pashtun movement … Most importantly, by wooing the Shiite Hazaras in Afghanistan, the Taliban are sending an olive branch to its former ideological foe in the region, the Islamic Republic of Iran … The Taliban’s overtures toward the Shiite Hazara minority community of Afghanistan are mainly due to the group’s strategic interests in rebranding itself as a moderate and nationalist force and strengthening its relations with Iran. It is a calculated move and does not indicate any change in the ideology of the radical group or its deep-rooted hostility toward the Shiite Hazaras.’ The author then concludes by believing that ‘Unless the Taliban agree to be a part of the democratic political structure in Kabul, any overtures shown by the radical group toward the Hazara minority community will be hollow’.

106.   In another assessment of the Taliban’s claims of inclusivity Stanford Law School Professor and Executive Director of the Rule of Law Program, Mehdi J Hakimi, writes that the Taliban delegation to the Doha peace talks insisted on Hanafi jurisprudence being the basis of negotiations which would exclude Shia and other minorities. He noted that at the same talks ‘there is extremely little ethnic, religious, linguistic, cultural and professional diversity within their ranks’. Instead, he sees the rhetoric as being hollow and instead turns to the statements and actions of other insurgent groups such as Islamic State and al Qaeda to appreciate the view towards minorities such as the Hazara.

107.   Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Afghanistan, being a Shia Hazara.

108.   The Tribunal has also considered the situation for Hazaras in Pakistan. The Tribunal has had regard to the 2019 DFAT report on Pakistan, which relevantly states with respect to Hazaras living in Pakistan:

The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni.

Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack.

Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ have targeted Hazaras in Pakistan for their sectarian affiliation.

The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.

Government forces also provide security for Shi’a religious processions. Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta.

Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan.

Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’

An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta…

Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.

Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work.

Hazara children born in Pakistan are entitled to Pakistani citizenship…

While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles.

DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence.

DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination.

DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation.

Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.

While DFAT assesses Hazaras do not typically require official documentation to access non- government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health, emergency care and education services.

109.   Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Pakistan, being a Hazara.

110.   The Tribunal acknowledges that due to the mode of his arrival, the applicant may not have the option of seeking another protection visa onshore. The Tribunal acknowledges that even if the bar is lifted and the applicant is able to apply for another visa, there can be no certainty of the visa being granted.

111.   The Tribunal is of the view that if the cancellation of the visa was to lead to the applicant departing Australia, there is a real risk of the applicant being harmed due to his ethnicity and religion. However, the Tribunal is mindful that since the applicant has been found to be a refugee in the past, he therefore cannot be removed from Australia. The Tribunal is thus of the view that the cancellation of the visa will not result in Australia’s non-refoulement obligations being breached. However, the Tribunal also acknowledges that if the applicant is not able to remain in Australia, his return to Pakistan or Afghanistan may result in the applicant facing a real chance of persecution or a real risk of harm.

112.   The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee Convention or complementary protection obligations. The applicant’s claims are, essentially, that he would experience harm because of his Hazara ethnicity and his Shia religion. The Tribunal has formed the view that the nature of his claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection obligations.

113.   With respect to the principles of family unity, the Tribunal notes that the applicant’s partner and two children are in Australia (his partner’s visa has also been cancelled). The cancellation of the visa may be in breach of the principles of family unity.

Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

114.   If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia.

115.   The applicant has been found to be a refugee in the past and it has been determined that he is owed protection obligations. Despite the delegate’s findings in relation to the grounds of cancellation, the protection obligations assessment has not been overturned. That means that the applicant cannot be removed from Australia. If his visa is cancelled, and if the applicant cannot be removed from Australia, there is a real prospect of the applicant being detained indefinitely.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

116.   The applicant refers to his wife’s poor health and states that he provides support to her, so that they need to stay together in Australia. His wife presented to the Tribunal her medical records. The Tribunal acknowledges and accepts the medical evidence in relation to the applicant’s spouse. The applicant provided with his response to the NOICC several supporting statements and the Tribunal accepts that evidence. In particular, the Tribunal accepts that the applicant is well settled in Australia and has made a meaningful contribution to the community and is well regarded by others. The Tribunal also acknowledges the character references the applicant presented to the Tribunal.

117.   The applicant states that if the visa is cancelled, they have no money to meet their daily needs and children’s needs and the wife’s medication. The applicant states that this has affected him significantly and his wife complains about chest pains. The applicant states that his mother-in-law passed away and that has also affected his wife.

118.   The applicant states that as Hazaras, they could be killed in Afghanistan and in Quetta and he refers to his brother’s death. This issue has been addressed above.

119.   The applicant states that he is not dangerous and his children are Australian citizens and have done nothing wrong. As noted above, the Tribunal accepts the cancellation of the applicant’s visa would have practical repercussions for the children.

120.   The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has generally formed the view that the ground for cancellation has not been established because there is insufficient probative evidence to make a positive finding that the applicant completed the application form in a way that incorrect answers were given or provided in relation to the matters set out in the NOICC. While there is no doubt that incorrect answers had been provided in some of the applicant’s dealings with the Department – in the Tribunal’s view, in relation to the applicant’s brother and mother – these are not matters that formed the basis of the NOICC, nor are they of relevance to the decisions to grant the applicant the protection visa and the RRV. The Tribunal has formed the view that there is not enough evidence to make a positive finding that the applicant used a different identity in the past and that he was born in Pakistan and was a national of Pakistan, rather than Afghanistan. The Tribunal is thus not satisfied that there was non-compliance in the way described in the notice.

121.   However, if there was such non-compliance, the Tribunal would exercise discretion in favour of the applicant. This is because the Tribunal is of the view that the cancellation of the visa is likely to cause significant hardship to the applicant and his family. It may result in the applicant and his family having to leave Australia and travel to a country where they may face persecution, or if that cannot happen, it may result in the applicant being detained for a lengthy or even indefinite period unless he is granted another visa, of which there can be no certainty. Either option would cause hardship to the applicant and his minor children. For the same reason, the Tribunal has formed the view that the cancellation of the visa would not be in the best interests of the children because it may result in the children having to depart Australia or being detained with their father (although they are citizens, they may be detained if their parents are detained and the children are unable to live independently). The best interests of the children are a primary consideration.

122.   The Tribunal would also place weight on the fact that the applicant has been living in Australia for a lengthy period and is settled in Australia. He had a job, purchased land and built a house and has formed strong social and community ties. He has made a contribution to the community. All these factors weigh against the cancellation. The Tribunal would also place weight on the hardship to the applicant and his family (noting, in particular, the evidence about the wife’s medical condition) that the cancellation would cause.

123.   In the circumstances of this case, the Tribunal would place greater weight on the factors that weigh against the cancellation, most importantly the significant hardship to the family that would be caused by the cancellation, the possibility of indefinite detention or of return to a country where the family would be at risk and the best interests of the children. In these circumstances, the Tribunal would exercise the discretion not to cancel the applicant’s visa.

DECISION

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

Kira Raif
Senior Member