2203610 (Migration) - [2023] AATA 664

2203610 (Migration) [2023] AATA 664 (10 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Victoria Lenton
CASE NUMBER:  2203610
MEMBER:Nora Lamont
DATE:10 March 2023
PLACE OF DECISION:  Brisbane
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 10 March 2023 at 2:02pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – Pakistani citizenship – whereabouts of the applicant’s father – fraudulent Pakistani ID cards – verified Afghan citizenship – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 501
Migration Regulations 1994, r 2.41
CASES
CBR20 v Minister for Immigration & Anor [2020] FCCA 2139
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information on his application for a Subclass 866 Protection Visa in 2011. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s mother] in Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant is [an age]-year-old Hazara Shia Muslim born in [a named town in] Ghazni Province Afghanistan. He has [specified family members]. He does not know the whereabouts of his father. He married in 2018 in Pakistan and his wife remains in Pakistan. The applicant’s brother left for [Country 1] over 12 months ago and has not been heard from. [Details deleted.].
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
s 375A Certificate
Contained in the applicant’s file was a 375A certificate stating that disclosing the contents of the select information would be contrary to the public interest. The Tribunal considered that the certificate was valid and notified the applicant and the applicant’s representative of this validity.
The Tribunal discussed the certificate and told the applicant that the Tribunal’s disclosure must be sufficient and adequate to enable him to consider whether to challenge the validity of the certificate. The Tribunal also disclosed it intended to rely on this information covered by the certificate. The contents of the certificate were not disclosed to the applicant and the Tribunal told the applicant that most of what was contained in the certificate was already known to the applicant through the notice to cancel his visa.
The Tribunal gave the applicant and his representative a redacted copy of the certificate and asked them if they had further questions or wished to discuss the validity of the certificate. They indicated they did not.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 101 of the Act provides that a non-citizen must fill in or complete his or her application in such a way that:
(a)All questions are answered; and
(b)No incorrect answers are given or provided
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
NOICC particulars
The non-compliance identified and particularised in the s 107 notice was non-compliance with s101(b) in the following respects: At question 11 of Part B of the form 866 (Protection visa application) the applicant declared that his sister and mother held Afghan citizenship. The Department considers these answers to be incorrect as the Department received confirmation from the National Database and Registration Authority (NADRA) of Pakistan that indicates the sister and mother of the applicant are Pakistani citizens. The applicant’s sister and mother were issued with identity cards by the government of Pakistan. Therefore, as they are citizens of Pakistan it follows that the applicant is also a citizen of Pakistan. The Department further states that as per the Pakistani Citizenship Act 1951 a person cannot have dual citizenship with Afghanistan and given that the applicant’s fathers name is listed on the ID card of his sister this indicates that his father was a Pakistani citizen at the time of his birth.
The Department also lists information taken from a Facebook page with the name [specified] and that this person appears to be living in Quetta Pakistan. The applicant stated in his Protection visa application that his father was kidnapped and had been missing since 2009. However, the applicant has commented on the Facebook page on multiple occasions. This gave rise to the delegates concerns that the applicant is in fact a Pakistani citizen.
At question 23 of Part C on the form 866 (Protection visa application) the applicant stated he had no right to enter or reside in any country other than Afghanistan. The Department found this to be incorrect as the visa holder has the right to enter Pakistan as a citizen.
At question 22 of Part C on the form 866 (Protection visa application) the applicant indicated he did not hold any other citizenship, and this is incorrect as the Department has verified that the applicant’ sister and mother are Pakistani citizens.
In response to the NOICC the applicant’s representative provided a statutory declaration, screenshots of communications with [name], copies of Tazkiras and evidence of the employment of the applicant with [Employer 1]. The applicant also sent in his new Tazkira and accompanying documents.
Decision to cancel
On 10 March 2022 the delegate cancelled the applicant’s Subclass 155 visa. In the decision record the delegate noted all the matters that were set out in the s 107 notice and concluded that the applicant did not comply with s 101 Visa applications to be correct.
Having concluded that grounds for a cancellation existed the delegate then considered whether the visa should be cancelled. The delegate found that they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
Tribunal Hearing and review of the cancellation
Prior to the start of the Tribunal hearing the applicant provided the Tribunal with a statutory declaration.[1] Included in the declaration the applicant stated that his father was not missing, although he does not know where he is, nor does he have any contact with his father. He states that his father divorced his mother and married another woman. His mother was distraught and ashamed and did not want any of her children to have contact with him. The applicant respected those wishes.
[1] AAT Folio Statutory Declaration dated 1 February 2023.
At the hearing the applicant said when he was in the camp at Christmas Island people told him to say his father was kidnapped and this would make his case stronger. He also said that the Facebook page was done by his brother, but the photo is of his father. He said his brother missed his father and this is why he made the page. The applicant said he was emotional about the photo and the page, and this is why he commented on the page.
The real question before the Tribunal is whether or not the applicant is a citizen of Afghanistan or a citizen of Pakistan. For the reasons that follow the Tribunal is satisfied that the applicant is a citizen of Afghanistan and not a citizen of Pakistan.
The applicant’s mother told the applicant she could get Pakistani ID cards for herself and her daughter so she could get medical treatment and her daughter could attend school. The landlord of the applicant’s mother could arrange for fraudulent documents to be provided to the government in order to secure the IDs. The applicant sent his mother around $2,600 AUD, and she paid the landlord the money to secure the IDs. The applicant sent the money through a shop keeper in [WA] who does money exchanges for Hazara Afghanis in Pakistan.
In the Department’s cancellation notice they do not consider whether or not the documents used to obtain the IDs were fraudulent or not. There is an assumption that they must be real documents as there is a database held by the government of these issued IDs. However, it is entirely possible that the documents used for the application were false.
DFAT states the following on the ease of using fraudulently obtained genuine documents: [2]
5.53 Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.
Further country information indicates this fraud is widespread with the Pakistani government cancelling 200,000 Afghan refugee ID cards in 2021.
The computerised national identity cards (CNICs) fraudulently obtained by Afghan nationals have been cancelled, Interior Minister Sheikh Rashid Ahmed said on Saturday. Talking to reporters at the National Database and Registration Authority (Nadra) office at Rehmanabad, he said these cards had been issued to Afghan nationals on the basis of fake documents, including fraudulent birth certificates. [3]
[2] DFAT Country Information Report Pakistan January 2022.
[3] Pakistan scraps 200,000 illegal IDs held by Afghan refugees | Ariana News
The applicant provided the Tazkira’s for himself, his mother and sister. Included in the submissions from the applicant and his representative is a letter from the Embassy of Afghanistan in Canberra which verifies that his Tazkira is a genuine Tazkira and not fraudulent in anyway.[4] The Tribunal considers this strong evidence that the applicant is an Afghan citizen and as such he could not be a Pakistani citizen.
[4] AAT Folio -Letter from Embassy of Afghanistan Canberra dated [date].
The applicant’s mother and sister have been in Pakistan since 2010 when they fled from Afghanistan. The Tribunal considers if the applicant’s mother and sister were citizens of Pakistan, they would have made plans and had IDs issued in 2010 not wait until 2016. This is strong evidence that the applicant’s mother and sister used fraudulent documents to obtain

the IDs.
The Tribunal has considered the evidence of the father. There is nothing noted in the Facebook post to indicate the father is living in Quetta or elsewhere in Pakistan. There is no evidence that the applicant has contact with his father, or that his father has Pakistani citizenship. I note that the father’s name is used on the ID card of the daughter however, that does not prove that he is in Pakistan or that he is a Pakistani citizen.
The Tribunal spoke with the applicant’s mother in Quetta. She also provided a statutory declaration about the issuing of the ID. The applicant’s mother told the Tribunal she needed the ID as she has health problems and needs a doctor and without the ID, she has no access to treatment. She also wanted her daughter to be able to attend school.
The Tribunal is satisfied that the applicant is an Afghan Citizen based on the evidence before it. A summary of the evidence used to determine that the applicant is an Afghan citizen:
·The applicant’s Tazkira and that of his mother and sister.
·The letter from the Afghan Embassy stating that the applicant’s Tazkira is genuine.
·The fact that the applicant’s mother and sister did not apply for a Pakistani ID when they first entered Pakistan in 2010.
·There is no evidence of the father being a Pakistani citizen.
·Country information supports the use of fraudulent feeder documents: Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents.
·The applicant was working and living in Afghanistan prior to coming to Australia (Documentation provided).
·The applicant participates and is a member of the Afghan community in Australia. (Documentation provided).
The Tribunal acknowledges and has considered that the applicant has now stated that his father did not disappear as he has claimed but rather his father had left his mother and family and taken up with another woman. The Tribunal also acknowledges that the applicant has now stated that the applicant’s brother did make the Facebook page and that the photo on the page is a genuine photo of his father. However, the Tribunal has given this little weight in its decision on cancellation as it does not overall address the issues raised in the cancellation notice.
The Tribunal has concluded that the ID documents were obtained using fraudulent feeder documents and not genuine documents and that this was done so that the applicant’s sister and mother could access services they otherwise would not be able to access. Therefore, the Tribunal is not satisfied that the applicant was non-compliant.
In the absence of satisfaction that the visa should be cancelled, the visa should remain in

place.[5]
[5] CBR20 v Minister for Immigration & Anor [2020] FCCA 2139
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
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.
Nora Lamont
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.