2205946 (Migration)

[2023] AATA 1929

2205946 (Migration) [2023] AATA 1929 (20 April 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Stephanie Margush

CASE NUMBER:  2205946

MEMBER:Alison Murphy

DATE OF DECISION:  20 April 2023

DATE CORRIGENDUM

SIGNED:26 April 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  

The following corrections are made to the decision:

At paragraph 64 of the Decision Record, the words ‘The applicant’s wife and children’ are to be deleted, and the words ‘The wife and children of the applicant’s brother [Name 8]/ [Mr A]’ are to be inserted.

Alison Murphy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Stephanie Margush

CASE NUMBER:  2205946

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 3:50pm

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 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

1. 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).

2. 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.

3. 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 2205934). The applicant in the current review and [Mr A] each asked that their evidence be considered by the Tribunal in relation to both the reviews.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. According to the delegate’s decision, the applicant arrived in Australia by boat and without a visa [in] April 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, Khorasan province in Iran where his parents were living without any legal status 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 1999 and 2012. He stated that he did not hold any documents evidencing his Afghan citizenship. He was granted the protection visa on 14 August 2012 on the basis of his stated identity.

9. 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.

10. 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 NOICC set out that the above matters caused the delegate to consider that [the applicant] and [Name 1] born [Date] 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 D], [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] 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, suggesting that the 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 D variation 1]

    ·The results of a Departmental Forensic Facial Image comparison matched the image of the applicant’s brother [Mr D] to that of [Mr A], 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 address histories of the applicant and [Mr A] indicate they have lived together since 2012, except for a brief period.

    ·The delegate considered this information indicated that [Mr D] and [Mr A] are the same person and that person is the applicant’s brother.

    • In his protection visa application, [Mr A] states he was born in Iran and gives details of his parents and siblings. In a later application, he gave different dates of birth for his parents.

    Information provided in citizenship application

    • In an application for Australian citizenship lodged in November 2016, he gave different dates of birth for each of his parents and sister than those he declared in the protection visa application;
    • He stated that he had lived in Iran between [date] and December 2001, then Pakistan until January 2011. This is different from the statement in his protection visa application that he lived in Iran until December 1999, when he moved to Pakistan.

    Information in the applicant’s wife’s partner visa application

    • On 3 April 2018 the applicant sponsored his wife [Wife D], who gave different dates of birth for his parents and sister than those given by the applicant in the protection visa. She also stated they were divorced.

    The applicant’s return to Iran

    • The applicant’s return to Iran in 2015, 2016 and 2017 does not support his claims the family were deported from Iran in 1999 because they did not have any legal status in that country. Rather it suggests that his mother and sister have returned to Iran and may have a right to reside there.

    Information about the applicant’s brother [Mr E] / [Name 2]

    • The NOICC set out that the delegate believed that a person known to the Department as [Mr E] 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 E] and information provided by [Mr A]. [Mr E] has told the Department he is also known as [Name 2] and department records indicated the applicant and [Name 2] had lived at the same address. The applicant also gave [Name 2] as his emergency contact on incoming passenger cards.
    • The NOICC set out that these matters caused the delegate to consider [Mr E] / [Name 2] to be the applicant’s elder brother.

    Information about the applicant’s family composition provided by his brother [Mr E] / [Name 2]

    • The NOICC set out that [Mr E] / [Name 2] 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 E] / [Name 2] had provided Afghan passports for each of those siblings. The NOICC set out that the information provided by [Mr E] / [Name 2] gave different details about the names and dates of birth of his parents and siblings and indicates that the family moved from Iran to Pakistan in 1999. 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] or one of the siblings listed in the 2005 visa application made by [Mr E]. He was either born on [Date] or [Date]. In [Mr E]’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 between 1999 and December 2001 or not at all. The information indicated the applicant lived in Pakistan from December 1999 or December 2001 until he left to travel to Australia;

    ·His father is named [Name 3], or [Mr C], or [Name 4], or [Name 5] 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;

    ·His mother is named [name deleted], or [name deleted], or [Ms F] and was has been given varying dates of birth. [Ms B] may be the applicant’s step-mother or his mother using a different identity;

    ·He does not have just one sibling, [Ms G]. There are additional persons who may be his siblings or step-siblings, being [Mr E] / [Name 2]; [the applicant name] / [Name 1]; [Name 1]; [Sibling 1]; [Sibling 2]; [Sibling 3]; [Name 4]; [Mr I]; [Mr J]; [Name 6] and [Ms K] and some of those names may be duplicate names of a single person.

    ·He has visited members of his family in Iran on three occasions between 2015 and 2016, including his mother and sister, indicating they have a right to reside in Iran at least temporarily. The delegate considered this indicates his claimed family immigration history and status in the countries they have lived in is different to that stated in the protection visa application.

11. 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.

12. 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].

13. In essence, the applicant accepted that he had been included in the Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 under the name [Name 1]. He stated his full name was [Name 7] but he is known by [Name 1]. He stated that the family composition and life story presented in that visa application was not correct and that the misinformation was given in the context of his parents’ attempts to get he and his brother [Mr A] / [Name 8] out of Pakistan as the security situation for Hazaras in Quetta worsened.

14. The applicant submitted that the Department could be satisfied of the applicant’s correct identity, which is that his name is [Name 7], not [the applicant]. He admits he did not disclose his true name on arrival to Australia because he was advised by the people smugglers that he needed to distance himself from any relatives already in Australia.

15. He stated that [Mr C] is the applicant’s paternal first cousin and [Mr E] / [Name 2] 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 [Mr A] / [Name 8] is his brother and argued that his visa should not be cancelled.

16. 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.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

18. 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 his correct name is [Name 6] (also shortened to just [one name]) and that he had provided incorrect information in the visa application about his name, family composition and life story. He further acknowledged that he had provided incorrect information in response to the NOICC when he said his name was [Name 7] and that he done so to make his response consistent with the family information provided by his brother [Mr A] (also known as [Name 8] and [Name 8 variation]/[Mr D variation 1]).

19. 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.

20. 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.

21. 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.

22. The Refugee and Humanitarian Policy Guidelines provide 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.

1. It is in this context that I consider the issue of the applicant’s identity.

   The applicant’s claimed identity

2. Before the Tribunal, the applicant stated that his birth name is [Name 6] and concedes that he gave incorrect information in the visa application when he declared that his name was [the applicant] and later in response to the NOICC when he declared that his name was [Name 7].

3. He is not aware of his exact date of birth, but he believes he was born in [Year] and that he is older than his brother in the related proceedings. He is an Afghan national of Hazara ethnicity and Shia religion, 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 [Ms F] and they lived as refugees in Pakistan until their deaths some two and a half years apart during the COVID-19 pandemic. He has seven siblings being, in age order: [Mr E] (now known as [Name 2]); [Name 4] (now known as [Mr C]); [Ms L], [Mr J]; [Ms G]; and twins [Ms K] and [Name 8] (now known as [Mr A]). All of those siblings are now in Australia except for [Ms L] (who is married and lives in Iran), [Mr J] (who has been in [Country] for approximately 10 years) and [Ms K] (who remains in Pakistan).

4. 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

5. 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.

6. [Mr E] 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 E]. In 2005, he lodged a partner visa application for his wife [Ms M] and their two children. He included the applicant and his brothers [Name 4] and [Name 8]/ [Mr A] as secondary applicants, correctly identifying them by their birth names and specifying that they were his siblings. Also included as dependants in that visa application were [Name 8]’s twin sister [Ms K], their brother [Mr J] and another relative, [Mr I]. [Mr I] was stated in that visa application to be [Mr E]’s son, but he is actually the paternal cousin of [Mr E] 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].

7. At hearing the applicant 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.

8. In July 2007 [Mr E] made another attempt to bring his siblings to Australia, lodging applications for an orphan relative visa for the applicant and [Name 8]/ [Mr A]. Correspondence on the Departmental file indicates that visa applications were made in their correct names, being [Name 8] and [Name 6], 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 8]/ [Mr A], save that they also included [Mr I] as their sibling. As noted above, [Mr I] is in fact the paternal cousin of [Mr E] and not his child.

9. When those visa applications were unsuccessful, the applicant and his brothers [Name 9] ([Mr C]), [Name 8] ([Mr A]) and [Mr J], and their cousin [Mr I], attempted to travel to Australia by boat.

10. [Name 9] arrived in Australia by boat in 2010. On the advice of the people smugglers and other Afghans in the detention centre, he gave his own name as [Mr C] ([Given name] being the name of his father) and incorrect information about his family composition so that his relationship with his brother [Mr E] and his inclusion in [Mr E]’s earlier visa applications would 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 problems for [Mr E]. While that belief is completely wrong, in the Tribunal’s experience such ideas are widespread amongst those members of the Afghan community who arrived in Australia by boat around this time and that misinformation appears to have been propagated by people smugglers and circulated among the community in immigration detention.

11. Next to arrive was [Name 8], in February 2012. He identified himself as [Mr A] and said he was also known by the name [Name 8] (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 E] and [Name 4] and the earlier visa applications that they had made including him.

12. Last to arrive was the applicant, [in] April 2012. He identified himself on arrival as [the applicant], 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 G]. At hearing he gave evidence that this was because by that time everyone else was in Australia and he hoped to sponsor [Ms G] to Australia. When I pointed out that [Ms K] was not in Australia at that time, he said that [Ms K] had married their paternal cousin [Mr I] and hoped to be sponsored by her husband. That had not been possible to date because [Mr I] holds a SHEV, which does not allow him to sponsor family members.

13. Their final brother, [Mr J], has embarked on the journey to Australia but has been stranded in [Country] for approximately 10 years as a result of the Australian government’s changes to refugee law and policy in an attempt to combat people smuggling and to stop boats arriving in Australia.

    Identity documents

14. 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.

15. The applicant has been unable to produce any credible Afghan identity documents, noting that the taskeras and passports produced by his brother [Mr E] in the context of his wife [Ms M]’s partner visa application appear unlikely to be genuinely issued. The applicant suspects they are not genuine because they believe they were obtained by [Mr E] paying money to someone in Quetta, Pakistan.

16. Taskeras are the primary identification document in Afghanistan, usually issued at the provincial level by the local provincial Population Registration Department (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 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, Frequently Asked Questions: A Circular for Afghan Refugees from the United Nations High Commissioner for Refugees (UNHCR) National Identification Cards (Tazkeras) CIS9BE2467847, May 2005, p.2; Immigration and Refugee Board of Canada, Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features, September 2011, at align="left">[3] Immigration and Refugee Board of Canada, AFG103918.E, The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad, 16 December 2011, align="left">[4] Ministry of Foreign Affairs of the Netherlands, Algemeen Ambtsbericht Afghanistan, November 2016, pp.53, 54, >

    The fact that the taskeras appear unlikely to be genuinely issued does not necessarily mean the information they contain about the identity of the bearers is 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, Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016, CIS38A80123743.

17. In response to the Department’s NOICCs, the applicant and his brother [Name 8]/ [Mr A] 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.

18. [Mr E] 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 procured 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

19. Notwithstanding the lack of credible identity documents, the Tribunal accepts that the applicant’s correct name is [Name 6]. 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 E]. 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.

20. 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 (being the names of his father and grandfather), 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 those names as their family names at various times. On arrival in Australia, the applicant elected to be known by the family name [deleted].

    [6] Megerdoomian, Karine, The Structure of Afghan Names, November 2009.

21. For the above reasons, the Tribunal finds that the applicant’s birth name is [Name 6] and that since he has been in Australia, he has been known by the name [the applicant].

    The applicant’s date of birth

22. 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, 27 June 2019 at 5.49.

23. The applicant and his brother [Name 8]/ [Mr A] gave evidence that the applicant is older than [Name 8] / [Mr A] and his twin sister [Ms K] and he believes 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 applicant believes that is an administrative error, given that other documents he received from the Department and his health records record his date of birth as [Date].

24. The Tribunal considers he may well be correct in this assumption, given the date of birth currently recorded for the applicant suggests he is younger than his brother [Name 8] / [Mr A] when in fact he is older. 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 to [Date]. The applicant’s older age relative to his brother [Name 8] / [Mr A] and his year of birth being [Year] is also consistent with the information about him in the application for a Global Special Humanitarian (subclass 202) visa lodged on 20 October 2010 by [Ms B].

25. The Tribunal accepts there to be no more accurate information available as to the applicant’s date of birth and considers the best estimate of his birth to be [Date].

    The applicant’s family composition

26. The Tribunal accepts the applicant’s evidence that the applicant’s parents were [Name 5] and [Ms F], both of whom were alive at the time the applicant arrived in Australia but who died during the COVID-19 pandemic.

27. The Tribunal further accepts that applicant is one of eight siblings who are, in birth order:

    ·[Mr E] (also known to the Department as [Name 2] and resident in Australia);

    ·[Name 9] (also known to the Department as [Mr C] and resident in Australia);

    ·[Ms L] (currently resident in Iran);

    ·[Mr J] (currently resident in [Country]);

    ·[Ms G] (recently arrived in Australia, recorded by the Department as [spelling variation]);

    ·The applicant, [Name 6] (also known to the Department as [the applicant] and resident in Australia);

    ·[Name 8] (also known to the Department as [Mr A]), and his twin sister, [Ms K] (currently resident in Pakistan).

28. 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.

29. The exception is the delegate’s speculation that [Mr C] is the father of the applicant and [Name 8]/ [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 9]. [Name 9] included the applicant and his brother, [the applicant], 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.

30. In reaching this conclusion, the Tribunal notes that DNA testing conducted in Australia in June 2022 on the applicant, [Name 8] / [Mr A] and [Mr C] indicate that they all share the same paternal lineage and that it is more likely that [Mr C] is related to the applicant and [the applicant] as their full biological sibling rather than as their biological father. Based on the DNA evidence provided, the Tribunal accepts that the applicant, [the applicant] and [Mr C] are biological siblings.

31. Since arriving in Australia, the applicant has married [Wife D] who is currently resident in Iran. The applicant is seeking to sponsor her to Australia on a partner visa, which is pending before the Department.

    The applicant’s residence history

32. The Tribunal accepts that the applicant was born in Mashhad, Iran, where his family members 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 as refugees in Iran, which opened its borders to large numbers of Afghan refugees (who were classified as such under the 1951 Refugee Convention) following the 1992 war in Afghanistan.[8]  It is likely that some of 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, “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.

33. I note the passport produced for the applicant in the 2005 partner visa application sponsored by [Mr E] records his place of birth as Herat, Afghanistan. I accept that this is incorrect, noting my findings above about the genuineness of that document.

34. The applicant claims the family was later deported from Iran back to Afghanistan, and then 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 were deported in 2008[9].

    [9] International Crisis Group, Afghanistan: What Now For Refugees?, 31 August 2009, p.14, >

    The applicant claims that he and 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 Country Information Report: Pakistan, 25 January 2022 at 3.19.

35. The applicant was a young child when his family relocated to Pakistan, and he was unable to say what year that occurred, but an education document for [Name 9] ([Mr C]) on [Ms M]’s partner visa application indicates that the family was in Pakistan in 2006. At that time, the applicant would have been approximately [Age] years old.

36. For these reasons, the Tribunal accepts the applicant’s consistent evidence that he was born in Iran in about [Year], that he and 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

1. 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 he visited members of his family in Iran, including his mother and sister, on three occasions between 2015 and 2016, indicating the family may have a right to reside in Iran at least temporarily.

2. However, the applicant’s claims that he and his brothers are Afghan nationals with no other nationality is consistent with both country information about Afghan refugees resident in Iran and Pakistan 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 on each occasion obtained visas to enter those countries, which would not be necessary if they were citizens, as suspected by the delegate.

3. In particular, the applicant holds an Australian titre de voyage containing visas to enter Iran and Pakistan. Similarly, the applicant’s brother, [Name 8] / [Mr A], travelled on an Australian titre de voyage containing visas to enter Iran and Pakistan. The applicant’s sister [Ms G] holds an Afghan passport containing a visa to enter Iran. The Australian passport of [Name 9] /[Mr C] contains visas to enter Pakistan as does the Australian passport of [Mr E] /[Name 2].

4. 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 applicant’s wife, [Wife D], holds an Afghan passport and a BAFIA blue card showing her refugee status in Iran, as do the applicant’s sister, [Ms L], 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, [Name 5], 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.

5. Given that 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

6. In considering the biometrics pillar of identity, I note the facial imaging report links the applicant to the identity of [Name 1] and that is in fact his correct shortened legal name (the longer version being [Name 6]). The applicant also concedes that, as identified by the Department, he is the brother of the siblings who have sponsored him in earlier unsuccessful visa applications.

7. 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, [Name 8] / [Mr A]. The Tribunal has made detailed findings as to his residence, nationality and family composition above.

8. 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. 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 assigned him a nominal date of birth, as commonly occurred with Afghan nationals arriving without identity documents. However there appears to have been some confusion as evidenced by the multiple dates of birth assigned to him and for the reasons given above the Tribunal has assessed that the best estimate of his birth is [Date].

   [12] DFAT Country Information Report: Afghanistan, 27 June 2019 at 5.49.

9. 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.

10. 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, without 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.

11. For the reasons set out above, I have found the applicant’s birth name is [Name 6] (also shortened to [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 [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.

12. 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

13. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

14. 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