2202433 (Migration)

[2023] AATA 2238

2202433 (Migration) [2023] AATA 2238 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Coffey

CASE NUMBER:  2202433

MEMBER:Alison Murphy

DATE:24 May 2023

PLACE OF DECISION:  Melbourne

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 24 May 2023 at 11:47am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers given in previous protection visa application – citizenship, right to enter another country and fear of harm – national of Afghanistan and Hazara Shia Muslim – Pakistani marriage certificate and children’s birth certificates provided with partner visa application – Pakistani identification card obtained through agent, using man with same name as applicant’s father and payment of bribe – genuine document issued on basis of false or misleading statement – wife and children Pakistan citizens – consistent and credible claims and evidence and corroborating evidence from relatives – country information – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 375A

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 delegate cancelled the visa on the basis that it was considered the applicant had given incorrect information in his protection visa application. In essence, the delegate considered the applicant gave incorrect information about his country of nationality, his right to enter and reside in another country and his fears of harm in Afghanistan and Pakistan.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 19 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s nephew, [Mr A], and cousin, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

7. The applicant is a [Age]-year-old male who arrived in Australia by boat [in] August 2010 and identified himself as [the applicant], a Shia Muslim of Hazara ethnicity and a national of Afghanistan. On 9 July 2012 he was granted the protection visa. He was granted the Subclass 155 (Five Year Resident Return) visa on 13 December 2017.

8. On 11 December 2012, the applicant’s wife, [Ms C], lodged an application for a partner visa listing the applicant as the sponsor. On the basis of identity documents provided in support of that visa application (namely a Pakistani marriage certificate and birth certificates for each of the applicant’s four children), the Department formed the view that the applicant may be a Pakistani citizen. On 30 March 2016, the applicant made an application for Australian citizenship by conferral, providing a copy of an Afghan taskera. The citizenship application was refused on the basis that the delegate could not be satisfied as to the applicant’s identity. In making that decision, the delegate noted the Pakistani marriage certificate and birth certificates for the applicant’s children were confirmed to be genuine by the Pakistani authorities, indicating that the applicant was a citizen of Pakistan and not Afghanistan. As well Pakistan’s National Database and Registration Authority (NADRA) had confirmed that the applicant’s National Identity Card number as shown on these documents was genuinely issued to him.

9. On 18 October 2021, a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s 107 of the Act (the s 107 notice), advising him that the Department was considering the cancellation of his protection visa on the ground that he had given incorrect information in his visa application. 

10. The s 107 notice set out that the Department held copies of his wife’s Pakistani marriage certificate and his children’s Pakistani birth certificates, which had been confirmed by NADRA to be genuinely issued documents and showed a National Identity Card (NIC) number issued to the applicant. NADRA only provides eligible Pakistani citizens with an NIC number, and specific documentation must be provided to obtain an NIC. The notice alleged that NADRA’s verification of the NIC number issued to the applicant was conclusive evidence that he is a citizen of Pakistan and as Pakistan’s Citizenship Act 1951 does not permit dual citizenship, the applicant cannot also be a national of Afghanistan.

11. The notice alleged that the applicant gave incorrect information in the protection visa application in the following respects:

    • At Question 20 of Part C of Form 866 where the form asked, ‘Do you hold any other citizenship or are you a national of any other country’ and the applicant answered ‘No’. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan and therefore was a citizen at birth;
    • At Question 22 of Part C of Form 866 where the form asked, ‘Citizenship at birth’ and the applicant answered ‘Afghanistan’. The delegate considered this answer to be incorrect because the applicant has been a citizen of Pakistan since birth;
    • At Question 23 of Part C of Form 866 where the form asked, ‘Do you have a right to enter or reside in, whether temporarily or permanently, any country other than your country(s) of nationality or your former country(s) of habitual residence’ and the applicant answered ‘No’. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan, with the rights and freedoms to enter and reside lawfully in Pakistan on a permanent basis, and was not residing illegally in Pakistan as claimed;
    • At Question 42 of Part C of Form 866 where the form asked, ‘I am seeking protection so that I do not have to go back to’ and the applicant answered, ‘Afghanistan and Pakistan’. The delegate considered this answer to be incorrect because the applicant was under no obligation to return to Afghanistan and was in no risk of danger in Pakistan because he is a citizen of Pakistan with full rights and privileges as well as the safety and protection of the Pakistani government;
    • At Question 43 of Part C of Form 866 where the form asked, ‘Why did you leave that country’ and the applicant answered, ‘See RSA statement’, in which he said that he left Pakistan because the security situation for ethnic Hazaras had deteriorated in his last four or five years of living in Pakistan and he would be at risk in Afghanistan because of an adulterous relationship he had with a woman. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan with full rights and privileges as well as the safety and protection of the Pakistani government;
    • At Question 44 of Part C of Form 866 where the form asked, ‘Have you experienced harm in that country’ and the applicant answered, ‘See RSA statement’, in which he said that he left Pakistan because the security situation for ethnic Hazaras had deteriorated in his last four or five years of living in Pakistan. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan with full rights and privileges as well as the safety and protection of the Pakistani government;
    • At Question 45 of Part C of Form 866 where the form asked, ‘What do you fear may happen to you if you went back to that country’ and the applicant answered, ‘See RSA statement’, in which he said that he was at risk of being seriously harmed or killed by the Taliban as a Shia Muslim of Hazara ethnicity. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan with full rights and privileges as well as the safety and protection of the Pakistani government and he was not obliged to return to Afghanistan;
    • At Question 46 of Part C of Form 866 where the form asked, ‘Who do you think may harm or mistreat you if you go back’ and the applicant answered, ‘See RSA statement’, in which he said that he was at risk of being seriously harmed or killed by the Taliban as a Shia Muslim of Hazara ethnicity and because of an adulterous relationship he had with a woman. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan with full rights and privileges as well as the safety and protection of the Pakistani government, and he was not obliged to return to Afghanistan;
    • At Question 47 of Part C of Form 866 where the form asked, ‘Why do you think this will happen to you if you go back’ and the applicant answered, ‘See RSA statement’, in which he said that the security situation for ethnic Hazaras had deteriorated in his last four or five years of living in Pakistan and he would be at risk in Afghanistan because of an adulterous relationship he had with a woman. The delegate considered this answer to be incorrect because the applicant is a citizen of Pakistan with full rights and privileges as well as the safety and protection of the Pakistani government, and he was not obliged to return to Afghanistan.

12. The s 107 notice alleged that on the basis of the above, it was considered highly likely: that he is a citizen of Pakistan; that he has the right to enter and reside in that country as a lawful citizen; and that he is entitled to the safety and protection of the Pakistani government.

13. The applicant responded to the s 107 notice on 1 November 2021. In a statutory declaration that formed part of that response, the applicant maintained that the information he had provided in the protection visa application was correct. In summary, he states:

    ·Soon after arriving in Pakistan in 1991 he obtained the NIC through an agent, which was a common practice among Afghans without identity documents in Pakistan. The agent was able to find a person with the same name as the applicant’s father, [Mr D], which is a very common name in Pakistan. The agent paid this person so that the applicant could use his identity to card to obtain his own identity card.

    ·At the time he obtained the NIC, his own father had already passed away. The applicant’s grandfather’s name was [Mr E], not [Mr EE] as listed on the NIC. With [Mr D]’s permission, the applicant was able to fill in a form and provide his photograph and payment to the agent, who paid a bribe to an official who issued the card.

    ·When he arrived in Australia, he was interviewed by the Department and declared that he held a Pakistani identity card obtained through a smuggler. He had also correctly advised that his wife is a Pakistani citizen and she is entitled to hold her Pakistani identity documents. The NIC number on his wife and children’s identity documents is from the NIC he obtained in Pakistan through the agent.

14. In support of his statement the applicant provided Afghan taskeras held by his brothers [Mr F] and [Mr G] as well as photographs of his family in Afghanistan and his parents’ tombstones. He maintained that he was a citizen of Afghanistan and no other country and that the information he provided in his protection visa application was correct. In support of his evidence about his citizenship, he provided statements from relatives and community members and copies of his Australian travel document showing visas to enter Pakistan valid for 2017, 2018 and 2019. He also provided information about his life in Australia, the business he operates with his two partners and the reasons why his visa should not be cancelled.

15. On 18 February 2022 a delegate decided to cancel the applicant’s visa, finding that the applicant was a citizen of Pakistan and not Afghanistan and that he had provided incorrect information in the manner set out in the s 107 notice. In the exercise of the discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make their own assessment of those matters.

16. The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

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

19. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Non-disclosure certificate

20. The Tribunal has before it the departmental file relating to the cancellation of the applicant’s resident return visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.375A of the Act on the basis that disclosure of that material would be contrary to the public interest. Where a valid certificate is issued under s.375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the review.

21. The s.375A certificate is dated 19 May 2023 and states that release of certain documents provided to the Tribunal by the Department would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods and disclose the existence or identity of a confidential source of information.

22. The s.375A certificate appears to be valid on its face and the applicant’s representative was provided with a copy and chose to make no submissions on the validity of the certificate. The Tribunal notes however that the substance of the certificated material has already been disclosed to the applicant in the s 107 notice and the delegate’s decision, specifically that the Pakistani marriage certificate and birth certificates for the applicant’s children were confirmed to be genuine by the Pakistani authorities and that NADRA had verified the NIC number was issued to the applicant.

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

23. 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(b).

24. The delegate concluded that the applicant is a citizen of Pakistan and not Afghanistan. The s 107 notice and the delegate’s decision record that this conclusion was based on two pieces of information received from the Pakistani authorities:

    • Confirmation from NADRA on 11 May 2018 that NIC [Number] was genuinely issued to the applicant;
    • Confirmation from the Union Council Office of [location], Karachi in Pakistan on 18 July 2018 that the marriage certificate for the applicant and his wife and birth certificates of the applicant’s children provided in the partner visa application were genuinely issued.

25. The delegate has proceeded on the basis that:

    ·the marriage certificate and birth certificates held by the applicant’s family members were genuinely issued by various arms of the Pakistani authorities;

    ·those documents refer to the applicant’s NIC number, which has been confirmed by NADRA to be genuine and issued to a person matching the applicant’s details;

    ·the genuineness of the applicant’s NIC number is therefore determinative of his citizenship.

26. The applicant disputes only the third of the above points.

27. He agrees that the marriage and birth certificates held by his wife and children were genuinely issued to them by the Pakistani authorities. He claims he has always told the Department that his wife is a Pakistani national and this is consistent with the statement recorded in his protection visa application. In that visa application the applicant also states that he is unsure about his children’s citizenship, but that they may be Pakistani citizens. At hearing he confirmed that his children took Pakistani citizenship through their mother. Country information confirms that children can acquire Pakistani citizenship if either parent is a citizen of Pakistan.[1] For these reasons, the Tribunal is satisfied that the applicant’s wife and children are citizens of Pakistan and that this is consistent with the applicant’s statements in the visa application.

    [1] European University Institute Report on Citizenship Law: Pakistan December 2016 at Pakistan_Nazir_citizenship_online_version (eui.eu)

28. The applicant also agrees that he holds a Pakistani NIC issued by the Pakistani authorities and that his NIC number is correctly recorded in his marriage certificate and his children’s birth certificates. However, he maintains that he is not legally entitled to hold that Pakistani NIC (and in that sense the Pakistani NIC is false or bogus) and it is not indicative of his citizenship. He also states that he told the Department about this in his interviews and disclosed it in his protection visa application.

29. The Act recognises that a false or ‘bogus document’ includes a document that was obtained because of a false or misleading statement, as well as a document that purports to have been issued in respect of a person (but was not).[2] Therefore a document which is genuinely issued by the relevant authorities, but was issued to someone other than the holder or on the basis of a false or misleading statement, will still be fraudulent or bogus. Such a document will not bestow Pakistani citizenship on the holder.

    [2] See the definition of ‘bogus document’ in s 5(1)

30. At hearing the applicant gave evidence that he paid a lot of money for the Pakistani NIC that he obtained in or about 1991 or 1992 shortly after he arrived in Pakistan. The original NIC was just a paper card, but he was able to renew it for a CNIC later by paying another large bribe. It contains his father’s name because that is a very common name in Pakistan and the agents will arrange any details if paid to do so. His wife, a Pakistani national, is able to obtain and renew her CNIC without paying bribes to agents. Years later the people smuggler used his NIC to obtain a Pakistani passport to enable him to depart Pakistan for Australia and the applicant paid a large amount of money for this service also.

1. For the reasons that follow, I accept the applicant’s account of the circumstances in which he obtained the Pakistani NIC.

2. Firstly, the applicant’s evidence about his country of birth and nationality and the manner in which he obtained his Pakistani NIC is consistent with his past statements to the Department and his travel history since arriving in Australia. In this regard, the Tribunal notes:

   ·On arrival in Australia, he stated that he was born in [Village], Malistan district in Ghazni province in [Year]. Both the Refugee Status Assessment (RSA) officer and the Immigration Assessment Authority (IAA) reviewer accepted that he was an Afghan national. The RSA decision records that the applicant provided consistent information about his identity following his arrival at Christmas Island and that he possesses the typical physical features of the Hazara people and was fluent in Dari/Hazaragi.

   ·His evidence is in all respects consistent with the statements in his protection visa application. In particular, he disclosed the correct citizenship status of his wife and children in the visa application. He also disclosed that he held a fake Pakistani identity card in Karachi and a fake Pakistani passport which he used to depart Pakistan before it was taken by the people smuggler in [Country]. At the Tribunal hearing the applicant’s evidence about his personal history and movements was in all respects consistent with his earlier statements to the Department.

   ·Since the applicant has been in Australia, he has returned to Pakistan several times. He has provided the Department with copies of his Australian travel document showing visas to enter Pakistan valid for 2017, 2018 and 2019. If he were a citizen of that country, he would not require a visas to enter.

3. Secondly, the Tribunal heard evidence from two witnesses and family members who have personal knowledge of the applicant’s residence in Afghanistan before 1991. They are both Australian citizens who arrived in Australia in 2009 and were granted protection. The witnesses, who are both recorded by the Department as having originated from Afghanistan, are:

   ·[Mr A], who is the applicant’s nephew. [Mr A]’s (deceased) father, [Mr G], was the applicant’s brother. [Mr A] gave evidence that he remembered the applicant living in his family home when [Mr A] was a young child, before the applicant left Afghanistan for Pakistan. He gave evidence that all of his family are Afghan nationals although many have left that country because of the difficulties experienced by Hazaras. Those in Pakistan have no choice but to buy identity documents if they can afford to do so.

   ·[Mr B], who is the applicant’s cousin.  [Mr B]’s (deceased) father, Mohammad Rafiq, was the brother of the applicant’s father [Mr D]. He is only a few years younger than the applicant and gave evidence that they grew up together as their families lived on neighbouring land in in [Village], Malistan. [Mr B] gave evidence that he knew a lot of Afghan Hazaras who had bought Pakistani identity documents to live in Pakistan or travel to other countries.

4. The Tribunal considers the witnesses to be credible. Their evidence corroborates the applicant’s own evidence that he was born in Afghanistan and lived there until his mid-[Decade] before leaving for Pakistan in about 1991.

5. Thirdly, the applicant’s claim that obtaining fake Pakistani identity documents through bribery was common among Afghan Hazaras in Pakistan is consistent with country information before the Tribunal. In relation to this, the Tribunal notes:

   ·The Department of Foreign Affairs and Trade (DFAT) reports that successive wars, chronic instability and a lack of opportunities have driven millions of Afghans to Pakistan since the late 1970s and as of August 2021, Pakistan is host to approximately 1.4 million registered Afghan refugees and at least the same number of unregistered refugees.[3]

   ·The Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan entitled to hold CNICs and other Pakistani identification documents. However, more recent Hazara arrivals from Afghanistan, being citizens of Afghanistan and not Pakistan, are not legally able to obtain Pakistani NICs.[4] Rather all Afghan refugees who arrived in Pakistan after 1979 were required to register as Afghan refugees and issued with ‘refugee pass books’, which did not confer the right of citizenship.[5]

   ·As government-run services are reserved primarily for Pakistani nationals, including health and education, there is a strong incentive for Afghan nationals residing as refugees in Pakistan to obtain non-genuine Pakistani identity documents in order to access those services.[6]

   ·There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain genuine Pakistani identity documents. Document fraud in Pakistan remains common despite measures put in place to combat the fraudulent issue of documents. While newer identity documents such as Computerised and Smart National Identity Cards (CNICs and SNICs) contain security features which have reduced the incidence of document fraud, it is still possible to obtain those cards with fraudulently altered or counterfeit feeder documents.[7]

   ·As early as May 2001, a DFAT report also stated that all Afghan refugees who arrived in Pakistan after 1979 were required to register as Afghan refugees, after which all heads of families were issued with ‘refugee pass books’. These were not, however, identity documents, nor did they confer the right of citizenship on Afghan refugees.

   ·DFAT reported in 2017 that NADRA was engaged in a campaign to target fraud in relation to CNICs and had identified several thousand fraudulent records in this process, including Afghans who had been added to household registration lists without authorisation.[8] Tens of thousands of fraudulently issued CNICs were blocked by NADRA, including as many as 85,000 CNICs in Balochistan alone between 2008 and 2013.  A significant number of NADRA employees have been sacked, arrested and prosecuted for registering foreigners as Pakistani citizens.[9]

   ·In this case, the applicant was first issued an NIC in about 1991, well before the introduction of the more secure CNICs or SNICs. NICs contained no security features and fraudulent documents were easy to produce. The applicant was able to renew his NIC with a CNIC, using the original paper based NIC and paying another bribe. The fact that NADRA confirms that the applicant’s NIC is genuine means only that the document was issued by NADRA and the details recorded in NADRA’s database.

   ·DFAT reports that the detection of NIC fraud is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents in the manner described by the applicant. DFAT confirms that while Union Councils and NADRA can verify whether CNICs and passports are genuine, they may not be able to identify fraudulently obtained genuine documents.[10]

   [3] DFAT, DFAT Country Information Report: Pakistan 25 January 2022 at 3.19

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

   [5] Pakistan residence/citizenship requirements', DFAT, 10 May 2001, CX52501

   [6] DFAT, DFAT Country Information Report: Pakistan 20 February 2019 at 3.49 – 3.58

   [7] DFAT, DFAT Country Information Report: Pakistan 25 January 2022 at 5.52 – 5.55

   [8] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.10

   [9] ‘House of cards - Why NADRA’s system is far from being flawless’, Herald (Pakistan), 19 April 2017, CXC90406619198

   [10] DFAT, DFAT Country Information Report Pakistan, 20 February 2019, cited in the delegate’s decision under heading ‘Reasons’

6. Finally, country information indicates it is highly unlikely that an Afghan Hazara who arrived in Pakistan in the 1990s could obtain Pakistani citizenship through any lawful means:

   ·Pakistan’s Citizenship Act 1951 provides that an individual may obtain Pakistani citizenship by birth, descent, migration or naturalisation. For the reasons set out above, the Tribunal accepts the applicant was born in Afghanistan in [Year] and moved to Pakistan in or about 1991. It follows that he did not gain Pakistani citizenship by birth.

   ·Multiple sources over a long period of time report that while Afghan refugees living in Pakistan may technically be eligible for citizenship by naturalisation, Pakistan’s Ministry of Interior has a longstanding policy of denying the benefit of naturalisation to Afghan applicants.[11] In 2001, DFAT reported that it had been advised by Pakistan’s Ministry of Interior that no Afghan had ever been given a certificate of naturalisation, national identity card or any other Pakistani identity document before or after 1977. The same report states that Pakistan did not allow dual citizenship with Afghanistan and that an Afghan who had acquired Pakistani citizenship ‘must have done so by fraud or misrepresentation of the facts’.[12]

   ·DFAT’s most recent country information report indicates that while Prime Minister Imran Khan declared in 2018 that children of Afghans and other refugees born in Pakistan were constitutionally entitled to citizenship, in practice NADRA continues to refuse to issue identity cards to these people.[13]

   ·As recently as May 2022, the European Union Agency for Asylum (EUAA) reported that Afghan refugees in Pakistan are not able to obtain Pakistani citizenship, even if a child of an Afghan refugee is born in Pakistan. It notes that some Afghan refugees have sought to become naturalised citizens in Pakistan, but their requests have been rejected at administrative and judicial levels.[14]

   ·Pakistan’s citizenship laws do not provide citizenship for men married to Pakistani women (as in the case of the applicant).[15] Reports of Afghan men who are married to Pakistani women being deported to Afghanistan are common.[16]

   [11] Gilani, U, ‘Afghan ‘Refugees’, The International News, 27 October 2016, available at

   [12] Pakistan residence/citizenship requirements', DFAT, 10 May 2001, CX52501

   [13] DFAT, DFAT Country Information Report: Pakistan 25 January 2022

   [14] 'Pakistan - Situation of Afghan refugees', European Union Agency for Asylum (EUAA), 20 May 2022, p.33, 20220523103627

   [15] Citizenship Act 1951, Government of Pakistan, CIS38A80123108

   [16] See e.g. ‘Pakistan: Renewed Threats to Afghan Refugees’, Human Rights Watch, 1 July 2016, CX6A26A6E16077; ‘Afghan Refugee Repatriation Threatens to Tear Marriages’, Khan, A., News Lens Pakistan, 16 August 2016, CX6A26A6E16076; ‘Fractured Relations’, Dawn, 31 January 2017, CXC9040661323

7. The applicant’s consistent statements about his nationality and the Pakistani identity documents issued to him are corroborated by the witnesses. They are also corroborated by country information about the lack of lawful pathways to Pakistani citizenship for Afghan nationals and the prevalence of genuine identity documents issued to Afghan refugees not entitled to hold them. Together these matters cause the Tribunal to accept that the applicant’s Pakistani NIC and passport were genuinely issued but nonetheless bogus documents and that he is not a Pakistani citizen as alleged by the s 107 notice. As the applicant is not a Pakistani citizen and holds no current visa or other legal permission to enter that country, the Tribunal accepts he has no legal right to enter or reside in that country.

8. For these reasons, the Tribunal finds that the applicant did not give incorrect information about his citizenship in the protection visa application in the manner set out in the notice. In particular, he did not give incorrect information about his citizenship in his answers to questions 20 and 22. He did not give incorrect information about his right to enter and reside in Pakistan in his answer to question 23 and he did not give incorrect information about his fears of returning to Pakistan and Afghanistan at questions 42 to 47.

9. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   CONCLUSION

10. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

11. 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.

    Alison Murphy
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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