2205934 (Migration)

2205934 (Migration) [2023] AATA 1927 (20 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Stephanie Margush
CASE NUMBER:  2205934
MEMBER:Alison Murphy
DATE:20 April 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 20 April 2023 at 4:05pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – identity – name, place and date of birth, family composition, citizenship and right of residence – combined hearing with brother’s on same issues – facial comparison matched to secondary applicant in aunt’s previous humanitarian visa application – different family composition and details provided in that and other applications by applicant and other relatives – advice from people smugglers and fellow detainees to hide connections to relatives already in Australia – details in aunt’s application favoured because no other relatives in Australia at that time – cultural name formats and transliterations and unknown dates of birth – some relatives hold documents with security features – DNA testing conducted in Australia – false identity used to obtain visa, but true identity now confirmed – country information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
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 dated 21 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1AA) on the basis that he was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The matter was heard together with the related proceedings of the applicant’s brother [Mr A] (AAT proceedings 2205946). This matter was granted priority on the basis of medical evidence produced to the Tribunal and the applicant and [Mr A] each asked that the matters be heard together and their evidence be considered by the Tribunal in relation to both reviews.
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.
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
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Background
The applicant arrived in Australia by boat and without a visa [in] February 2012. He subsequently applied for a protection visa, identifying himself as [the applicant] born [Date]. He stated that he was a Hazara Shia born in Mashhad in Iran and was an Afghan citizen by birth. He gave details of his parents and siblings and identified that the family had lived as refugees in Quetta, Pakistan between 2002 and 2011. He stated that he had left Pakistan illegally using a false passport which was destroyed by the people smugglers and provided no identify documents. He was granted the protection visa on 9 July 2012 on the basis of his stated identity.
On 8 July 2021, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation of his visa under section 116 of the Act (the NOICC). That notice advised him that the delegate was considering cancelling the applicant’s resident return visa because he was not satisfied as to the applicant’s identity. The delegate noted that the visa had been granted to the applicant on the basis of his stated identity including his name, place and date of birth; family composition; when and where his family had lived; citizenship and claims as to when and why his family left Afghanistan.
The notice identified contrary identity information that caused the delegate to doubt that the applicant’s identity was as stated in his protection visa application. In summary that information was identified as:
Information as to the applicant’s name
·The applicant’s written request to the Department on 5 August 2013 to amend his date of birth from [Date] to [Date], which the applicant stated was incorrectly recorded due to a clerical error. The NOICC records that the applicant’s request was refused as the delegate was not satisfied that the applicant had provided sufficient information to support the alternative date of birth;
·The results of a Departmental Forensic Facial Image comparison, which matched the applicant’s photograph to that of [Name 1] born [Date]. [Name 1] was previously included as a secondary applicant in an application for a Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 by [Ms B]. The applicant had also declared to the Department in an interview in March 2012 that he was also known by the name ‘[Name 1 variation 1]’, which the delegate considered to be an alternative transliteration of ‘[Name 1]’. In the applicant’s wife’s visa application made on 9 November 2017, she had also stated that he was also known by the name [Name 1 variation 2];
·The NOICC set out that the above matters caused the delegate to consider that [the applicant] and [Name 1] were the same person.
Information as to the applicant’s family composition
·Under the identity of [Name 1], the applicant was included as a secondary applicant in an application for a Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 by [Ms B], who stated that she was both the applicant’s aunt (as her deceased elder sister was the applicant’s mother) and his step-mother (as she later married the person identified as the applicant’s father [Mr C]). The applicant was stated in that visa application to have four siblings: [Mr A – Alias 1], [Sibling 1], [Sibling 2] and [Sibling 3].
·In support of that visa application, [Ms B] provided an Afghan taskera containing a photograph of the applicant which stated his name is [Name 1 variation 3] and said that he was born on [Date] in [Location 1], Afghanistan;
·[Mr C], identified as the applicant’s father in that visa application, stated that he was born in [Location 2], Jaghori, Ghazni, Afghanistan and fled to Iran when he was about [age] years old, returning to Afghanistan in approximately 1993. After the Taliban took over in 1994, his wife was killed and the family fled to Pakistan;
·The delegate considered this information, which indicated that his family had left Iran in 1993 some [Number] years prior to the applicant’s birth in the protection visa application, indicates that the applicant was born in Afghanistan and not Iran.
Information about the applicant’s brother [Mr A]/[Mr A – Alias 1]
- The NOICC set out that the delegate believed that a person known to the Department as [Mr A] was the same person as that identified as the applicant’s brother [Mr A – Alias 1] named in the Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 by [Ms B]. This caused the delegate to consider that [Mr A] is the applicant’s brother. In his protection visa application, [Mr A] states he was born in Iran and the family lived in Iran between [date] and December 2001, then in Pakistan between December 2001 and January 2011. [Mr A] gave different dates of birth for his parents and sister.
Information about the applicant’s brother [Mr D] / [Mr D – Alias]
- The NOICC set out that the delegate believed that a person known to the Department as [Mr D] is the applicant’s brother, because the person identified as [Mr C] in the Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 lodged by [Ms B] gave information consistent with this. As well the delegate considered it to be consistent with the address history of the applicant and [Mr D] and information provided by [Mr A]. [Mr D] has told the Department he is also known as [Mr D – Alias] and department records indicated the applicant and [Mr D – Alias] had lived at the same address. The applicant also gave [Mr D – Alias] as his emergency contact on incoming passenger cards.
- The NOICC set out that these matters caused the delegate to consider [Mr D] / [Mr D – Alias] to be the applicant’s elder brother.
Information about the applicant’s family composition provided by his brother [Mr D] / [Mr D – Alias]
- The NOICC set out that [Mr D] / [Mr D – Alias] had declared in another visa application that he had six siblings and parents living in Afghanistan whom the delegate considered to be the applicant’s siblings and parents. [Mr D] / [Mr D – Alias] had provided Afghan passports for each of those siblings, including [Name 1 variation 2], showing his date of birth as [Date]. The NOICC set out that the information provided by [Mr D] / [Mr D – Alias] about the family’s residence history indicates the siblings were born in Herat, Afghanistan and lived there until the family moved to Pakistan in December 2001. The delegate considered this information did not support the applicant’s statements as to his date and place of birth and countries of residence.
The NOICCs conclusions about the applicant’s identity
·The NOICC noted that the applicant had an Afghan taskera containing his photograph, but that this document did not support his claimed identity in terms of his name, date of birth, place of birth and name of his father;
·The information indicated the applicant’s name is either [the applicant] or [Name 1 variation 3] / [Name 1 variation 1]/ [Name 1 variation 2] or one of the siblings listed in the 2005 visa application made by [Mr D]. There are discrepancies in the date of birth, stated to be both [Date] and [Date]. In [Mr D]’s visa application, the youngest of his siblings was stated to be born prior to 1991;
·The information indicated the applicant lived in Iran between [date] and December 1999 or from birth to 2002 or not at all. The information indicated the applicant lived in Pakistan from December 1999 or December 2001 or 2002 or until he left to travel to Australia;
·His father is named [Mr C – Alias 1], or [Mr C], or [Mr C – Alias 2], or [Mr C – Alias 3] and was born on [Date]; or [Date] or in [Year] or [Date] or [Date] or [Date]. He has variously been listed as deceased, resident in Australia or living in Pakistan and is described as both married and divorced;
·[Ms B] may be the applicant’s step-mother or his mother using a different identity;
·There are additional persons who may be his siblings or step-siblings, being [Mr D]/ [Mr D – Alias]; [Mr A]/ [Mr A – Alias 1]; [Mr A – Alias 1]; [Sibling 1]; [Sibling 2]; [Sibling 3]; [Sibling 4 – Mr C Alias 2]; [Mr F]; [Mr G]; [Name 4] and [Ms H] and some of those names may be duplicate names of a single person.
The NOICC informed the applicant that the above information indicated that there were grounds to consider cancelling his visa and invited him to comment on the information and/ or give reasons why his visa should not be cancelled.
The applicant responded to the NOICC on 22 July 2021 and later provided further information and documents, including copies of applications for Afghan taskeras for each of the applicant and his brother [Mr A]. In essence, the applicant accepted that he had been included in the Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 lodged by [Ms B]. He stated that the family composition and life story presented in that visa application was not correct. He denied lodged a request to amend his date of birth with the department as suggested by the NOICC, saying that the amendment was lodged by his brother.
The applicant submitted that the Department could be satisfied of the applicant’s correct identity, which is that presented to the Department when he first arrived in Australia and which he declared in his protection visa application. Specifically that his name is [the applicant], although he has always declared to the Department that he has also been known by the name [Name 1 variation 2], also spelled ‘[Name 1 variation 1]’ and ‘[Name 1 variation 3]’ with [a suffix]. It was stated that his correct family composition is that declared upon his arrival to Australia and his parents are [Mr C – Alias 2] and [Mother A – name 1] (both deceased).
He stated that [Mr C] is the applicant’s paternal first cousin and [Mr D] / [Mr D – Alias] is [Mr C]’s son (and the applicant’s second cousin). The applicant was born in [Location 3] Mashhad in Iran after his parents left Afghanistan prior to his birth. Prior to the applicant’s travel to Australia, they relocated to Pakistan where they also resided illegally. The applicant does not know his exact date of birth and has only ever provided estimations for himself and his family members. The applicant agreed that [Mr A] is his brother, stating that he correctly declared him in the visa application as [name deleted]. It was submitted that the applicant’s visa should not be cancelled.
The delegate considered the information provided by the applicant but went on to cancel his resident return visa on 21 April 2022. The delegate noted that the applicant had not provided any documentary evidence to support his claimed identity and it was not supported by the contrary identity information before the Department. The delegate considered the contrary identity information suggested various possible correct answers in relation to key aspects of the applicant’s identity and the delegate was unable to determine which was correct.
THE REVIEW PROCEEDING
Non-disclosure certificate
The Tribunal has before it the applicant’s Departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act.
Where a certificate is issued under s.376, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.
I am satisfied the s.376 certificate is valid on its face. The documents covered by the certificates evidence investigations undertaken by the Department in relation to the applicant and other persons related to him and various documents provided by the applicant’s family members in other visa applications. At hearing I discussed with the applicant’s representative those documents to which access had been granted and she advised that at least some of those documents had been made available to the applicant under FOI provisions and s 362A of the Act. Other details are disclosed in the NOICC and the delegate’s decision. The Tribunal is satisfied that those parts of the material that are relevant to the issues in the current review have been disclosed to the applicant and for that reason it has not exercised its discretion to further disclose those documents.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.
In this case, the inconsistent and contradictory information about the applicant’s identity and the lack of credible identity documents led the delegate to conclude that he could not be satisfied as to the applicant’s identity. Before the Tribunal, the applicant acknowledged that he had not been truthful in some of the information he has provided to the Department (including in his response to the NOICC) but maintained that the key information he provided to the Department about his identity is correct.
The Department’s Migration Policy Guidelines describe identity as follows:
68.3 What is an identity?
An ’identity’ is a subset of the client. It is the characteristics by which the client is recognised or known to be a particular person (that is, biographical information and physical information).
In most, but by no means all, cases, the visa applicant’s identity will be their real identity. The stated identity may be supported by identity information, such as personal identifiers and identity documents. The stated identity may be assessed by undertaking internal and external checks to verify and/or authenticate the identity information presented and by evaluating the credibility and/or intentions of the client.
The officer will then decide whether or not they are satisfied that the client's stated identity is their real identity.
The Guidelines go on to state that in determining a person’s identity, the totality of the available information supplied by the visa applicant and available from other sources must be considered. Being satisfied as to a stated identity means that the decision maker has concluded that it is more likely than not that the visa applicant is who they say they are.
The Guidelines make clear that in many cases, it will not be possible for a visa applicant’s stated identity to be fully established, even after comprehensive and rigorous assessment. The Guidelines also recognise that a visa applicant whose stated identity is not fully established might still receive the same outcome as they would have received if their identity had been established beyond doubt. An example given in the Guidelines is that a decision maker might decide that an applicant for a protection visa has a well-founded fear of persecution as the officer is satisfied that the applicant is a member of a group to whom Australia has a protection obligation under the Refugees Convention, despite the fact that the officer has little substantive information with which to reach a decision about the visa applicant's real identity.
The Refugee and Humanitarian Policy Guidelines provides further details on the process for assessing identity in the context of protection visa applicants:
3.10.1. Three pillars of identity
The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant’s identity is or is not as claimed, an officer should have regard to the consistency of information provided in relation to all three pillars.
While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant’s identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.
3.10.2. Biometrics, documentation and biography
The biometrics pillar includes personal identifiers such as facial image and fingerprints, data matching and other checks such as Migration 5 checks.
For guidance on the requirements for biometrics and considering that information, refer to:
section 3.5 - Requiring personal identifiers
section 3.49 - Migration 5 match information.
Officers may also request advice about biometrics and other identity-related matters, including the request for additional checks, from the Biometric Resolution Centre.
The documentation pillar includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. This is the only pillar for which there is a legislative basis due to s91W and s91WA of the Act. Sections 91W and 91WA of the Act are integrity measures because they encourage an applicant to comply and assist with authenticating their identity, nationality or citizenship. Each provision establishes grounds to prevent the grant of a PV to an applicant if certain elements of the respective tests are met. For guidelines on the use of these provisions, refer to section 3.11.5 – S91W and 91WA.
The biography pillar is the life story and travel history of the applicant. An applicant should usually be able to provide spontaneous and detailed explanations of where they lived, why and how they travelled, along with other relevant elements of their story.

It is in this context that I consider the issue of the applicant’s identity.
The applicant’s claimed identity
The applicant maintains that his birth name is [Name 1 variation 2] (also spelled [Name 1 variation 4] and shortened to [Name 1 variation 1]/ [Name 1]) but that he has been known by the name [the applicant] since arriving in Australia. He is not aware of his exact date of birth, but he believes he was approximately [Age] years old at the time he travelled to Australia in 2012. He is an Afghan national, who was born in Mashhad, Iran where his family lived as refugees. The family migrated to Pakistan during the applicant’s childhood where they lived in Quetta as refugees. His parents are [Mr C] and [Mother A, Name 2] and they lived as refugees in Pakistan until their deaths during the COVID-19 pandemic. He has 7 siblings being in age order: [Mr D] (now known as [Mr D – Alias]); [Mr C – Alias 2] (now known as [Mr C]); [Ms J], [Mr G]; [Ms K]; [Name 4] (now known as [Mr A]) and [Ms H] (the applicant’s twin). All of those siblings are now in Australia except for [Ms J] (who is married and lives in Iran); [Mr G] (who has been in [Country] for approximately ten years) and [Ms H] (who remains in Pakistan).
For the reasons that follow, I am satisfied the above details reflect the applicant’s correct identity.
Manner and order in which the applicant and his family members arrived in Australia
In order to understand why so much incorrect information has been provided to the Department over the course of multiple visa applications by the applicant and his family members, it is useful to set out the manner in which the applicant and his family members arrived in Australia.
[Mr D] is the eldest of the siblings and was the first to arrive in Australia by boat in 2001, correctly identifying himself to the Department as [Mr D]. In 2005, he lodged a partner visa application for his wife [Ms M] and their two children, including the applicant and his brothers [Mr C – Alias 2] and [Mr A] as secondary applicants, correctly identifying them by their birth names of [Name 1 variation 2]; [Name 3] and [Name 4] and specifying that they were his siblings. Also included as dependants in that visa application was the applicant’s twin sister [Ms H]; their brother [Mr G] and [Mr F]. [Mr F] was stated in that visa application to be [Mr D]’s son, but he is actually the paternal cousin of [Mr D] and the applicant. [Ms M] and her two children were granted the partner visa, but it was refused in respect of all the other secondary applicants on the basis that the delegate was not satisfied that they were dependent on [Ms M].
At hearing [Name 4]/ [Mr A] gave evidence that [Ms M] did not take up that spouse visa because she did not want to leave the secondary applicants behind. Rather she stayed in Pakistan with the secondary applicants and made a second spouse visa application some years later. Movement records for [Ms M] confirm that she was first granted a partner visa in 2006, but that she did not enter Australia on that visa. She was later granted a further partner visa in March 2012, entering Australia for the first time in June 2012.
In July 2007 [Mr D] made another attempt to bring his siblings to Australia, lodging applications for an orphan relative visa for [the applicant] and [Mr A]. Correspondence on the departmental file indicate that visa applications were made in their correct names, [Name 1 variation 2] and [Name 4], and they were refused in 2008. The family composition set out in each of those visa applications is consistent with the evidence of the applicant and his brother [Name 4]/ [Mr A], save that they also included [Mr F] as their sibling. As noted above, [Mr F] is in fact the paternal cousin of [Mr D] and not his child.
When those visa applications were unsuccessful, the applicant and his brothers [Name 3] ([Mr C]); [Name 4] ([Mr A]); [Mr G] and cousin [Mr F] attempted to travel to Australia by boat.
[Name 3] was the next to arrive 2010. On the advice of the people smugglers and other Afghans in the detention centre, he gave his own name as [Mr C] ([the given name] being the name of his father) and incorrect information about his family composition in order that his relationship with his brother [Mr D] and his inclusion in [Mr D]’s earlier visa applications not become known to the Department. This was because of a misguided belief that if the department became aware he had family members in Australia, he would be refused the visa and returned to Afghanistan and it would create for [Mr D]. While that belief is completely wrong, in the Tribunal’s experience it is widespread amongst those members of the Afghan community who arrived in Australia by boat and appears to have been propagated by people smugglers and circulated among the community in immigration detention.
Next to arrive was the applicant in February 2012. He identified himself as [the applicant] and said he was also known by the name [Name 1 variation 2] (also spelled [variation]) and this was replicated in his protection visa application. At hearing he gave evidence that he changed his name on arrival in Australia after consulting with his parents because his birth name was associated with terrorists in Pakistan. He gave incorrect information about his family composition in order to distance himself from [Mr D] and [Mr C – Alias 2] and the earlier visa applications that they had made including him.
Last to arrive was [Name 4] on [in] April 2012. He identified himself on arrival as [Mr A], also an attempt to distance himself from his brothers in Australia and the earlier visa applications. He gave incorrect information about all members of his family except for his sister [Ms K]. At hearing he gave evidence that this was because by that time everyone else was in Australia and he hoped to sponsor [Ms K] to Australia. When I pointed out that [Ms H] was not in Australia at that time, he said that [Ms H] had married their paternal cousin [Mr F] and hoped to be sponsored by him. That had not been possible to date because [Mr F] holds a SHEV which does not allow him to sponsor family members.
Their final brother, [Mr G], has embarked on the journey to Australia but has been stranded in [Country] for approximately ten years as a result of the Australian government’s changes to refugee law and policy in an attempt to combat people smuggling and stop the boats arriving in Australia.
Identity documents
The Australian courts have held that documentation is not a pre-requisite to establishing identity:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society[1].
[1]Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162.
The applicant has been unable to produce any credible Afghan identity documents, noting that the taskeras and passports produced by his brother [Mr D] in the context of his wife [Ms M]’s partner visa application appear unlikely to be genuinely issued. The applicants suspect they are not genuine because they believe they were obtained by [Mr D] paying money to someone in Quetta, Pakistan.
Taskeras are the primary identification document in Afghanistan, usually issued at the provincial level by the local provincial PRD and are not subject to a centralised system or computerised recording for registration and oversight.[2] There is a divergence in the country information as to whether a person could obtain a taskera from outside Afghanistan, including at the Afghan Consulate in Quetta, Pakistan at the time the taskera was issued in 2010. Canada’s Immigration and Refugee Board suggests there was no process by which a genuine taskera could be obtained outside of Afghanistan[3]. However the Ministry of Foreign Affairs of the Netherlands reported that it may be possible at some larger Afghan embassies with the help of two neighbours or family members locally in Afghanistan[4].
[2]UNHCR May 2005 Frequently Asked Questions: A Circular for Afghan Refugees from the United Nations High Commissioner for Refugees (UNHCR) National Identification Cards (Tazkeras) CIS9BE2467847, p.2; Immigration and Refugee Board of Canada 2011, Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features, September at
[3] Immigration and Refugee Board of Canada 2011, AFG103918.E The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad, 16 December,
[4] Ministry of Foreign Affairs of the Netherlands 2016, Algemeen Ambtsbericht Afghanistan, November, pp. 53, 54,
The fact that the taskeras were likely not issued through the correct process does not necessarily mean the information it contains about the applicant’s identity is untrue or incorrect, rather Afghan citizens displaced by the conflict in that country are known to experience particular difficulties obtaining genuinely issued taskeras. This is because access is based on recognition by family members or community elders and this poses significant challenges for displaced Afghan citizens who are outside of Afghanistan and who cannot easily locate elders to confirm their identity[5]. It is the experience of this Tribunal that many Afghan applicants obtained a taskera through the Afghan Consulate in Quetta, Pakistan around this time, notwithstanding information suggesting the Consulate in Quetta was not authorised to issue such documents.
[5] Norwegian Refugee Council 2016 Access to Tazkera and other civil documentation in Afghanistan, 8 November, CIS38A80123743
In response to the Department’s NOICCs, the applicant and his brother advised the Department they had made applications for taskeras in order to prove their identity. Consistently with their evidence at hearing, these applications were completed with incorrect information as the applicants felt they had to complete them in a way consistent with the incorrect information they had previously provided the department about their family composition. Unsurprisingly, no taskeras were issued in response to these applications as the information contained in them would not have been consistent with any records in Afghanistan.
[Mr D] did not provide evidence to the Tribunal as to the manner and circumstances in which he obtained the applicant’s taskera. Given the applicant’s belief that the documents were produced by payment, the Tribunal is not satisfied they were genuinely issued and gives them little weight in assessing the applicant’s identity.
The applicant’s name
Notwithstanding the lack of credible identity documents, the Tribunal accepts that the applicant disclosed his correct birth name to the department during his entry interview and in his visa application, being [Name 1 variation 1] (also spelled [Name 1 variation 3] and accompanied by [a suffix]). This is consistent with the information provided in [Ms M]’s partner visa application in 2005 and the orphan relative visa application in 2007 sponsored by [Mr D]. At the time those visa applications were lodged there were no other family members in Australia. The false information provided by the applicants and their family members in later visa applications arose out of a perceived need to hide their connection to their onshore family members and their inclusion in the earlier visa applications.
Country information confirms that most Afghans do not have a last name but may choose one if in contact with other cultures. Last names are selected by individuals which may result in people within the same family having different last names[6]. The Tribunal accepts that both the [given name] and [second name] names are associated with the applicant’s family in Afghanistan, even though, like most Afghans, the family lacks an official last name. I accept that in the absence of an official last name, the applicant and his brothers have adopted both of those names as their family names at various times.
[6] Megerdoomian, Karine The Structure of Afghan Names November 2009
For the above reasons, the Tribunal finds that the applicant’s birth name is [Name 1 variation 1] (also spelled [Name 1 variation 3] and accompanied by [a suffix]) and that since he has been in Australia he has adopted the name [the applicant].
The applicant’s date of birth
The Tribunal accepts that like many Afghan nationals, the applicant and his brothers do not know their exact dates of birth. Australia’s Department of Foreign Affairs and Trade (DFAT) confirms that the Afghan authorities did not historically issue birth certificates (which remain uncommon) and the reporting of birth dates in Afghanistan is unreliable and any reported dates are likely to be approximate[7].
[7] DFAT Country Information Report: Afghanistan at 5.49
The applicant and his brother [Mr A] gave evidence that the applicant is the youngest of the siblings and they believe he was approximately [Age] years old when he arrived in Australia in 2012. He was assigned a nominal date of birth of [Date] and the Tribunal accepts there to be no more accurate information available as to his date of birth.
The Tribunal notes the statement in the NOICC and the delegate’s decision to the effect that the applicant asked for a change in his recorded date of birth in 2013 appears to be an error. Rather it was the applicant’s brother [Mr A] who lodged a Form 424C with the Department.
The applicant’s family composition
The Tribunal accepts the applicant’s evidence that the applicant’s parents were [Mr C – Alias 3] and [Mother A, Name 2], both of whom were alive at the time the applicant arrived in Australia but who died during the COVID-19 period.
The Tribunal further accepts that applicant is one of eight siblings, in birth order:
·[Mr D] (also known to the Department as [Mr D – Alias] and resident in Australia)
·[Name 3] (also known to the Department as [Mr C] and resident in Australia)
·[Ms J] (currently resident in Iran)
·[Mr G] (currently resident in [Country])
·[Ms K] (recently arrived in Australia, recorded by the Department as [Ms K – spelling variation])
·[Name 4] (also known to the Department as [Mr A] and resident in Australia)
·The applicant [Name 1 variation 2] (also known to the Department as [the applicant]) and his twin sister [Ms H] (currently resident in Pakistan)
In making that assessment, the Tribunal notes that the department has gone to a great deal of effort to cross-match the information provided by the applicant and his brothers across the various visa applications, reaching a number of conclusions about the relationships between the various family members. For the most part the department’s conclusions are acknowledged by the applicants to be true and are consistent with the account they now give of their family composition and migration to Australia.
The exception is the delegate’s speculation that [Mr C] is the father of the applicant and [Mr A], on the basis of information put forward in the partner visa of [Ms B] lodged on 20 October 2010 (sponsored by her husband [Mr C]). [Mr C] is not the applicant’s father as indicated by that visa application, but the applicant’s brother [Name 3]. [Name 3] included the applicant and his brother [Mr A] in the visa application as his children rather than his brothers, because he was advised that this would increase the chances of the sponsorship being successful.
In reaching this conclusion, the Tribunal notes the results of the DNA testing conducted in Australia in June 2022 on the applicant, [Mr A] and [Mr C] indicates that they all share the same paternal lineage and that it is more likely that [Mr C] is related to the applicant and [Mr A] as full biological siblings rather than as their biological father. Based on the DNA evidence provided, the Tribunal accepts that the applicant, [Mr A] and [Mr C] are biological siblings.
Since arriving in Australia the applicant has married [named person] and they have two [children]. The applicant’s wife and children are Afghan nationals resident in Quetta, Pakistan and the applicant is seeking to sponsor them to Australia on a partner visa which is pending before the department.
The applicant’s residence history
The Tribunal accepts that the applicant was born in Mashhad, Iran, where his family were living as refugees. This is consistent with the information he has provided to the Department at all times since his arrival in Australia. It is also consistent with country information indicating that many Afghan Hazaras live in Iran as refugees, that country having opened its borders to large numbers of Afghan refugees following the 1992 war in Afghanistan where they were classified as refugees under the 1951 Refugee Convention.[8] It is likely that the applicant’s older siblings were born in Afghanistan prior to the family relocating to Iran.
[8] Shima Azizi, Seied Beniamin Hosseini and Dr. C. Basavaraju Basavaraju, 2017. “Existence gaps in effective protection of refugees in Iran – with an overview on Iran’s domestic laws and it’s international responsibilities” International Journal of Current Research Vol. 9, Issue, 01, pp.45260-45271, January, 2017
I note the passport produced for the applicant in the 2005 partner visa application sponsored by [Mr D] records his place of birth as Herat, Afghanistan. I accept that this is incorrect, noting my findings above about the genuineness of that document.
The applicant claims the family were later deported from Iran back to Afghanistan, from where they fled to Pakistan. I accept this to be correct, noting that independent sources confirm that in 1995 the Iranian government announced all Afghan refugees had to leave Iran. The first deportation program was reportedly launched in 1998-1999 and the ICG reports that more than a million Afghans were deported from Iran between 2002 and 2007 and 400,000 in 2008[9].
[9]International Crisis Group 2009, Afghanistan: What Now For Refugees?, 31 August, p.14 >
The applicant claims that his family then relocated to Pakistan, where they again lived as refugees. The Tribunal accepts this to be true, noting DFAT confirms that successive wars, chronic instability and a lack of economic opportunities have driven millions of Afghans to Pakistan since the late 1970s. As of August 2021, there were approximately 1.4 million registered Afghan refugees and at least the same number of unregistered Afghans in Pakistan, more than any other country in the world except Turkey.[10]
[10] DFAT 2022 DFAT Country Information Report” Pakistan 25 January 2022 at 3.19
The applicant was a young child when his family relocated to Pakistan and was unable to say what year that occurred, but an education document for [Name 3] ([Mr C]) on [Ms M]’s partner visa application indicates that the family were in Pakistan in 2006. At that time the applicant would have been approximately [Age] years old.
For these reasons, the Tribunal accepts the applicant’s consistent evidence that he was born in Iran in about [Year], that his family were deported from that country when he was a young child and then relocated to Quetta, Pakistan where they lived until the applicant travelled to Australia in 2012.
The applicant’s country of nationality
The applicant claims to be an Afghan national with no right to enter and reside in any other country. The delegate was not satisfied this was the case, noting that the applicant’s brother [Mr A] / [Name 4] visited members of his family in Iran on three occasions between 2015 and 2016, including his mother and sister, indicating the family may have a right to reside in Iran at least temporarily.
However the applicant’s claims that he and his brothers are Afghan nationals with no other countries of nationality is consistent with both country information about Afghan refugees resident in those countries and their travel history since arriving in Australia. The applicant and each of his brothers have regularly travelled to Pakistan and Iran since their first arrival in Australia. Travel documents produced to the Tribunal for the applicant and his relatives confirm that they have obtained visas to enter those countries, which would not be necessary if they were citizens as suspected by the delegate.

In particular the applicant holds an Australian titre de voyage containing visas to enter Iran and Pakistan. Similarly the applicant’s brother [Mr A]/ [Name 4] travelled on an Australian titre de voyage containing visas to enter Iran and Pakistan. The applicant’s sister [Ms K] holds an Afghan passport containing a visa to enter Iran. The Australian passport of [Name 3] / [Mr C] contains visas to enter and Pakistan as does the Australian passport of [Mr D] / [Mr D – Alias].
The applicant’s wife and children hold Afghan passports, e-taskeras and Afghan birth certificates. DFAT reports that e-taskeras were launched in May 2018 and contain security features not present in the old paper taskeras. [The] wife of the applicant’s brother [Mr A] / [Name 4], holds an Afghan passport and a BAFIA blue card showing her refugee status in Iran as does the applicant’s sister [Ms J] and her husband. DFAT confirms that registered refugees in Iran are issued these cards under the Amayesh system, proving a legal right of residence and entitling them to government services including health and education.[11] A paper taskera has also been produced for the applicant’s father [Mr C – Alias 3] along with his military discharge papers, although as noted above those documents contain no security features.
[11] DFAT Country Information Report: Iran 14 April 2020 at 3.166
Given the applicant and his family members have travelled for many years to Pakistan and Iran by obtaining visas to enter those countries, as well as the evidence produced of the nationality and refugee status of other family members, the Tribunal is satisfied the applicant is a national of Afghanistan and does not have a right to enter and reside in any other country.
CONCLUSIONS AS TO IDENTITY
In considering the biometrics pillar, I note the facial imaging report links the applicant to the identity of [Name 1 variation 2] and that is in fact his correct legal name (also spelled [Name 1 variation 4] and shortened to [Name 1 variation 1] / [Name 1]). The applicant also concedes that he is the brother of his siblings as identified by the department and who have sponsored him in earlier unsuccessful visa applications.
In considering the biography pillar, I note the applicant has consistently presented himself to the Department as a young Afghan male of Hazara ethnicity, born in Iran and resident for a time in Pakistan and his evidence is supported by that of his brother. The Tribunal has made detailed findings as to his residence, nationality and family composition above.
The Tribunal does not consider the discrepancy in the various dates of birth given for the applicant in those visa applications to be of particular significance. Australia’s Department of Foreign Affairs and Trade (DFAT) reports that the Afghan authorities did not historically issue birth certificates (which remain uncommon) and the reporting of birth dates in Afghanistan is unreliable, with any reported dates likely to be approximate[12]. On arrival the Department accepted he was [Age] years of age and assigned him a nominal date of birth as commonly occurred with Afghan nationals arriving without identity documents.
[12] DFAT Country Information Report: Afghanistan 27 June 2019 at 5.49
In considering the documentation pillar, the Tribunal has concluded that the taskera and passport produced for the applicant in the earlier visa application are unlikely to be genuine. However the travel documents and other identity documents produced in relation to family members, many of which contain modern security features, are consistent with his claims to be a citizen of Afghanistan and no other country.
Departmental guidelines indicate that the ground for cancellation of a visa under s 116(1AA) is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity. The Departmental guidelines stated that the ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[13] In this case the applicant assumed the name [the applicant] after arriving in Australia, also disclosing his correct birth name.
[13] Visa Cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140) - s.116(1AA) – Not satisfied as to identity
For the reasons set out above, I have found the applicant’s birth name is [Name 1 – variation 2] (also spelled [Name 1 variation 4] and shortened to [Name 1 variation 1] / [Name 1]) but that he has been known by the name [the applicant] since arriving in Australia. His exact date of birth cannot be established, but he was approximately sixteen years old at the time he travelled to Australia in 2012. He is an Afghan national, who was born in Mashhad, Iran where his family lived as refugees.
As I am satisfied as to the applicant’s identity, the ground for cancellation in s.116(1AA) does not exist and the power to cancel the applicant’s visa does not arise.
CONCLUSION
For these reasons, the Tribunal is not satisfied that the ground for cancellation in 116(1AA) exists. It follows that the 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.
Alison Murphy
Member

[2023] AATA 1927

20 April 2023

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