2207771 (Migration)

[2023] AATA 1693

2207771 (Migration) [2023] AATA 1693 (27 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rana Afzali

CASE NUMBER:  2207771

MEMBER:Katherine Harvey

DATE:27 April 2023

PLACE OF DECISION:  Adelaide

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 27 April 2023 at 5:04pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers given in previous protection visa application – country of birth, citizenship, family composition and protection claims – brother and nephew hold Pakistani documents, showing applicant’s father a Pakistani citizen – nephew included as applicant’s son in humanitarian visa application – brother’s and nephew’s documents obtained by fraudulent means – country information – widespread document fraud – copy of father’s Afghani identity document provided to tribunal – no positive satisfaction that birthplace, citizenship and protection claims incorrect – discretion to cancel visa – incorrect information deliberately given – protection visa not granted on basis of incorrect information – length of residence, work and integration into community – non-refoulement – Hazara Shia – protection finding not quashed or set aside – possibility of prolonged or indefinite detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 197C(3)(a), (c), 197D(2)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant had given or provided incorrect answers in his Protection (subclass 866) visa application form lodged on 29 January 2010. 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 8 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Hazaragi and English languages.

4. The applicant was represented in relation to the review and the representative attended the hearing.

5. 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

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

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

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

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in relation to his family composition, country of birth, citizenship and protection claims.

10. By way of background, the delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that [in] October 2009, the applicant arrived in Australia as an unauthorised maritime arrival.

11. On 29 January 2010, the applicant lodged an application for a Protection (subclass 866) visa and provided the following information (answers in italics).

    Part B

    Q9. Are there any members of the same family unit who are NOT in Australia at the time of application?

Family name	Given name	Date of birth	Country of birth	Citizen-ship	Marital status	Relation- ship to applicant	Country of residence
[A]	[B]	[Date]	Afghanistan	Afghani	Married	Wife	Pakistan
[A]	[C]	[Date]	Afghanistan	Afghani	Never Married	Son	Pakistan
[A]	[D]	[Date]	Afghanistan	Afghani	Never Married	Son	Pakistan
[A]	[E]	[Date]	Afghanistan	Afghani	Never Married	Daughter	Pakistan
[A]	[F]	[Date]	Afghanistan	Afghani	Never Married	Son	Pakistan

Q11. Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?

Family name	Given name	Date of birth	Country of birth	Citizen-ship	Marital status	Relation- ship to applicant	Country of residence
[A]	[G]	Unknown	Afghanistan	Afghani	Father	Deceased
[A]	[H]	[Date]	Afghanistan	Afghani	Married	Brother	Pakistan
Un-known	[I]	[Date]	Afghanistan	Afghani	Married	Sister	Afghanistan
[A]	[J]	[Date]	Afghanistan	Afghani	Single	Brother	Pakistan
[A]	[K]	[Date]	Afghanistan	Afghani	Single	Sister	Pakistan
[A]	[L]	?	Afghanistan	Afghani	Mother	Deceased
[A]	[M]	[Date]	Afghanistan	Afghani	Single	Brother	Pakistan

Part C

Q8. Place of birth
Town/City [Location], Jaghori, Ghazni
Country Afghanistan

Q19. Your citizenship at birth Afghani

Q20. Your current citizenship (if different to at birth) N/A

Q21. Do you hold any other citizenship or are you a national of any other country? No

Q22. Do you have the right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence? No

Q30. Have you ever had, or used, any other passport or travel document? Yes

Type of document False passport
Document number Unknown
Country of document Unknown
Name on passport Unknown
Where is it now? Taken by smuggler

Q41. I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries) Afghanistan

Q42. Why did you leave that country? Refer to RSA Request

Q43. What do you fear may happen to you if you go back to that country? Refer to RSA Request

Q44. Who do you think may harm/mistreat you if you go back? Refer to RSA Request

Q45. Why do you think this will happen to you if you go back? Refer to RSA Request

Q46. Do you think the authorities of that country can and will protect you if you go back? If not, why not? Refer to RSA Request

In his statutory declaration ‘Statement’ dated 12 December 2009 included with his Refugee Status Assessment (RSA) request dated 12 December 2009, the applicant stated the following (italicised):

The country/countries to which I fear returning to and why I left

1.   I am about [Age] years old, married and a Hazara Shia. I was born in [Location], Jaghori, Ghazni in Afghanistan about [Year]. I and my family never had a last name. For the purpose of identification, I agree to assume “[Given name]” as my given name and “[Surname]” as my family name. I also do not know my exact date of birth, so for this purpose, I agree to use [Date] as my birth date.

2.   I was born to a farming family of seven children, I have three other brothers and two sisters although one of my sisters passed away when she was young.

3.   When I was about [Age] years old, I married [Ms B] with whom I have four children, three sons and a daughter. Just like my father, I supported my own family farming in Afghanistan.

4.   I am seeking protection in Australian because as Hazara Shia, I and my family experienced persecutions and harassment by the Talibans and by Balluch in Afghanistan and in Pakistan.

5.   Life was very difficult and dangerous in our village. The Talibans have been harassing Hazaras and have driven most of us from our lands. If they capture a Hazara, they would either kill you or force to fight with then.

6.   About eight years ago, my father stopped farming and moved to Pakistan to work in a [Workplace]. He was planning to take the rest of the family to Pakistan but my mother passed away before he could do that. On the way back to our village, my father disappeared. We now believe that he was killed by the Talibans; they have killed and are still killing Hazara people.

7.   After my father's disappearance and due to the dangers facing Hazaras like me, I crossed to Awhaz, Iran. I wanted to take my family with me but I could not do so because I have children so I left my family with my uncle. In Iran, I worked as [an Occupation] for about a year. Afghanis in Iran also face so many difficulties. We could not move around, we face discriminations and most hard of all is that being illegal, we do not have any protection.

8.   After about a year in Iran, I was deported back to Afghanistan but I could not go back to my village. The route to from Herat to my village is dangerous; the whole country is dangerous. I was afraid that I would get killed like my father. I thought that it would be safer if I go to Quetta knowing that my home village is more dangerous than ever. Just like my father, I also want to relocate my own family to Quetta.

9.   I was reunited with my wife and children in Quetta, thanks to the help of my cousin who got them out of Afghanistan. Most of my other siblings except my married sister have all since moved to Quetta.

10.We stayed in Quetta for 3 years, which during this time had also become a dangerous place for Hazara people. There are more Talibans, who have moved from Afghanistas and there are also the Baloch people who also harass and mistreat Hazara Shia.

11.I and my family tried to stay as much as possible within the Hazara village, I thought that there may be safety in number. I only found work [doing a Job task] in a [Workplace] owned by a Hazara through the help of my brother.

What I fear may happen to me if I return to my home country and who I fear may harm me.

12.As mentioned, the situation in Quetta is getting worse day by day. In one occasion, I saw three young Hazara men who was just shot and killed as they ride on their car.

13.I fear that I would continue to suffer harassment and persecution as Hazara Shia if I return to either Afghanistan or Pakistan. I do not know of anything that the governments of these countries could do to protect me.

14.In Quetta, I met an agent who said that I could seek protection in Australia so I travel to Karachi, from there I flew to [Country 1], then to [Country 2] and then took a boat to Australia.

I make this solemn declaration conscientiously believing the statements contained in this declaration to be true in every particular.

Declared at Christmas Island, on 12th of December 2009.

1. The delegate’s decision record indicates that, based on the information provided in the application and having met all other relevant criteria, the applicant was granted a Protection visa on 3 February 2010.

   Events subsequent to the visa grant

2. The delegate’s decision record indicates that on 19 May 2010, the applicant’s wife [Ms B] applied for a Global Special Humanitarian (subclass 202) visa. The applicant was the proposer for this application. [Ms B] provided details of the dependant applicants (the applicant’s and her children) as follows:

   [Mr C] ([Date], male)

   
   

   [Mr D] ([Date], male)

   
   

   [Ms E] ([Date], female)

   
   

   [Mr F] ([Date], male).

3. This application was refused by the Department of Home Affairs (the Department) on 23 September 2013.

4. On 30 June 2013, [Ms B] applied for a Partner (subclass 309) visa for which the applicant was the sponsor. She provided the details of the dependant applicants (children) as follows:

   [Mr D] ([Date], male)

   
   

   [Ms E] ([Date], female)

   
   

   [Mr F] ([Date], male).

5. In support of the application, the applicant submitted a relationship statement in which he described the disappearance of [Mr C] as follows:

   Out of our marriage we have 4 children who we both loved very dearly, but unfortunately luck was not on our side and our oldest son [Mr C] went missing in 2012, after he left Quetta Pakistan to go somewhere. This was devastating news for me and my wife, but we stayed by each other and supported each other in times of grieve [sic].

6. This application remains under the Department’s consideration.

7. On 21 February 2014, the applicant lodged an application for Australian citizenship, which remains under consideration by the Department. In support of his application, the applicant provided a Form 80 – Personal particulars assessment including character assessment dated 8 December 2016 in which he provided that he resided at [Address], Victoria from November 2010 until April 2015.

8. The applicant applied for a Resident Return visa, which was granted on 27 August 2015.

9. On 18 April 2018, the photograph for [Mr C] ([Date]) that was provided in the offshore visa application dated 19 May 2010 was matched to [Mr CC] ([Date]), who had arrived in Australia [in] July 2013.

10. On 6 August 2013, [Mr CC] declared that he was born in Pakistan and is a Pakistani citizen and that he had a contact in Australia being his distant cousin [Mr N].

11. In his application for a Safe Haven Enterprise (subclass 790) visa dated 20 March 2017, [Mr CC] declared that he was born in Pakistan; is a Pakistani citizen; is the son of [Mr H] ([Date]) who was born in Quetta, Pakistan and is a Pakistani citizen; and that all of his family members were born in Quetta, Pakistan and are Pakistani citizens. [Mr CC] provided his birth certificate that provides the Computerised National Identity Card (CNIC) numbers for his father [Mr H] and his grandfather [Mr O].

12. On 8 May 2018, the applicant attended an interview with an officer of the Department in association with his application for Australian citizenship. During the interview, he declared that:

    ·   [Mr CC] was his brother’s son and that he had included him as his son in the initial application to sponsor his wife and children on Global Special Humanitarian visas.

    ·   He is [Mr N]’s half-brother, having the same father and different mothers.

13. On 27 August 2018, [Mr N] provided a Form 1023 Notification of incorrect answer(s) in relation to incorrect answers provided in his Protection visa application. He provided details for half-brothers as follows:

    ·[The applicant], born in Afghanistan; [Date]; Afghan citizen living in Australia

    ·[Mr H], born in Afghanistan; [Age range] years old; Pakistani citizen living in Pakistan.

    Notice of intention to consider cancelling visa (NOICC) and response

14. On 28 February 2020, the Department sent the applicant a NOICC to which he responded on 25 March and 6 April 2020. In his responses to the NOICC, the applicant conceded that there had been non-compliance with s 101 of the Act. He conceded that he had provided the Department with the incorrect details in his answer to Form B Question 9 about his family composition. However, he did not accept that his answers to Questions 19, 20, 21, 41, 42, 43, 44, 45 and 46 were incorrect. He continued to claim that he was born in [Location], Afghanistan, was a citizen of Afghanistan and that as a Hazara Shi’a he feared returning to Afghanistan.

15. The delegate concluded that the ground for cancellation arises and was satisfied that the visa should be cancelled.

16. On 19 May 2022, the applicant was notified of the cancellation.

    The Tribunal’s review

17. On 27 May 2022, the applicant applied for a review of the delegate’s decision and provided a copy of the delegate’s decision with his application for review. The applicant also provided:

    ·The Islamic Republic of Afghanistan passport biodata pages for his wife [Ms B], and his children [Mr D] ([Date]), [Ms E] ([Date]) and [Mr F] ([Date])

    ·Translations of the taskiras of [Ms B], [Mr D], [Ms E] and [Mr F]

    ·The applicant’s response to the NOICC dated 25 March 2020

    ·The applicant’s original and translated taskira dated 9 October 2016

    ·A letter of support from [Mr P], President, [Organisation] dated 24 March 2020

    ·A list of terrorist attacks in Afghanistan from the start of 2018 until present, and

    ·Various country information reports and articles for Afghanistan and Pakistan from Foreign Policy, Professor William Maley of ANU, Dawn, Digital Rights Foundation and the News on Sunday.

18. On 2 March 2023, the applicant provided the Tribunal with a pre-hearing submission that included:

    ·A letter from his representative dated 3 March 2023 addressing factors that outweigh cancellation and advising that they continue to rely on previous submissions and supporting evidence provided to the delegate

    ·The applicant’s response to the NOICC dated 25 March 2020

    ·The applicant’s original and translated taskira dated 9 October 2016

    ·The applicant’s father’s original taskira and a translation of the biodata page

    ·   A Statutory Declaration from [Mr Q], who claimed to know the applicant from [Location]

    ·   A copy of [Mr Q]’s Australian passport biodata page

    ·   A copy and translation of a show cause notice from the Pakistan National Database and Registration Authority (NADRA) to the applicant

    ·   Various country information reports and articles for Afghanistan and Pakistan from Amnesty International, the UNHCR, the BBC, Bolaq Analysts Network, the United States Holocaust Memorial Museum, the Guardian, the Program on Extremism at George Washington University, Forbes, Siasat, hazara.net, The Times of India, Human Rights Watch, the United Kingdom Home Office, Sunday, The News, and

    ·   A decision from the Tribunal (differently constituted).

19. After the hearing, on 8 March 2023, the applicant provided:

    ·A copy and translation of a show cause notice from NADRA to the applicant’s half-brother [Mr N] dated 23 June 2022, and

    ·A copy and translation of a show cause notice from NADRA to the applicant’s late father [Mr OO] dated 23 June 2022.

20. On 24 March 2023, the applicant was invited to comment on or respond to information that NADRA has a service that allows a person to check notices served under Article 18 of the NADRA Ordinance 2000 and a search of the three NIC numbers in the letters to [Mr OO], [the applicant] and [Mr N] returns the result ‘no data found against the provided CNIC’ for each number. The applicant was advised that this information is relevant to the review because it suggests that the NADRA notices are not authentic and it appears that NADRA has not issued notices under Article 18 of NADRA Ordinance 2000 and that NADRA has not found the Pakistani citizenship of [Mr OO], [the applicant] and [Mr N] to be suspicious. He was advised that, if we rely on this information in making our decision, we may find that you are a national of Pakistan and that the information that you provided in your Protection visa application, that is, that you are a citizen of Afghanistan, may be incorrect as outlined in the Notice of intention to consider cancelling visa that the Department sent you on 28 February 2020.

1. On 26 April 2023, the applicant provided:

   ·A post-hearing submission dated 24 April 2023 from the applicant’s representative addressing the authenticity of the show cause notice under article 18 of the NADRA Ordinance 2000 and the steps that the applicant’s family took after receiving the notice. The submission also readdressed that the applicant is a citizen of Afghanistan and that there is a real chance or real risk he will be persecuted or suffer significant harm in Afghanistan as a Hazara Shi’a. It also addressed the validity of the NADRA website, treatment of Afghans in Pakistan and dual citizenship.

   ·An affidavit dated 20 April 2023 from [Ms I], the applicant’s sister, claiming that she and her family had received a notice under offence 17 NADRA Ordinance 2000 and was ordered to bring all her documents to the NADRA Verification Office in Islamabad. She claimed that she obeyed the order and attended the committee in Islamabad and, after this committee, ‘NADRA do not process my case. That this notice is original and correct’.

   ·A copy and translation of the applicant’s taskira, and

   ·Copies of his wife and three children’s taskira and the biodata pages from their passports.

   FINDINGS AND REASONS

   Part B Question 9

2. The applicant does not dispute that he provided incorrect information in relation to his family composition. In his response to the NOICC dated 25 March 2020, the applicant confirmed the information given in his identity interview of 8 May 2018 that [Mr CC] is the son of his brother [Mr H] and not the applicant’s son, as claimed in his response to Part B Question 9. At the hearing, the applicant accepted that the information he provided about [Mr C] was incorrect.

3. On the evidence, the Tribunal finds that the applicant provided incorrect information in relation to his family composition.

4. For this reason, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

   Part C Questions 8, 19, 20, 21 and 22

5. The applicant claimed that he was born in [Location], Jaghori, Ghazni, Afghanistan and that he was a citizen of Afghanistan at birth and currently. He claimed that he did not have any other citizenship and he did not have the right to enter and reside in any country other than the country of his nationality or habitual residence.

6. As detailed in the decision record, the delegate was satisfied that the applicant was born in Pakistan and a Pakistani citizen, including because, as detailed in his nephew [Mr CC]’s birth certificate, the applicant’s father held a CNIC, which indicated that he was formally recognised by the Pakistani government as a Pakistani citizen. Based on the evidence, the delegate believed that the applicant acquired Pakistani citizenship at birth, by virtue of his father’s Pakistani citizenship, as per the Pakistan Citizenship Act 1951, and that at the time of his application for a Protection visa, the applicant was a Pakistani citizen.

7. In his response to the NOICC dated 25 March 2020, the applicant confirmed that his brother [Mr H] and nephew [Mr CC] hold Pakistani documents. However, he claimed that they were not obtained through his father [Mr O] but through fraudulent means. He claims that his brother [Mr H], father of [Mr C], had purchased a vacant position on the Child Registration Certificate (B Form) of a Pakistani man called [Mr O]. He said that [Mr H] then adopted the identifying details of [Mr O]’s son so that he could use the B Form to obtain his own Pakistani documents. The applicant claimed that [Mr CC] would have obtained his Pakistani documents by reference to [Mr H]’s Pakistani documents.

8. As detailed in the decision record, the delegate considered this claim and noted that the applicant had not provided a copy of the B Form to support his claim and the delegate was unable to discount the possibility that the applicant created the explanation to match country information or known practices. The delegate acknowledged that there was no documentary evidence of the applicant’s Pakistani citizenship status before the Department but considered that this was because the applicant had not voluntarily provided these documents to the Department. The delegate also acknowledged the applicant’s claims and evidence of the prevalence of fraudulently obtained genuine Pakistani documents and CNICs.

9. To support his claim that he is a citizen of Afghanistan, the applicant provided a copy of his father’s taskira, a translation of his father’s taskira’s biodata page, a copy and translation of his taskira, translations of taskiras for his wife and children and the biodata pages of the Islamic Republic of Afghanistan passports of his wife and children.

10. Country information reports that document fraud is widespread in Pakistan and that genuine CNICs can be obtained with fraudulent or counterfeit feeder documents:

    Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.

    Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.[1]

    [1] DFAT Country Information Report Pakistan, 25 January 2022, 47.

11. Under Article 18(1) of The National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance), NADRA has the power to cancel, impound or confiscate CNIC cards.

    18. Power to cancel, impound or confiscate cards.

    1)A card issued under this Ordinance shall be the property of the Federal Government and may, by an order in writing under the seal of the Authority or an officer authorised by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order:

    Provided that no order shall be made unless such person has been given notice in writing calling upon him to show cause why the order should not be made.

    2)An order under sub­section (1) canceling, impounding or confiscating a card may be made only if there is reason to believe that

    a)  the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible;

    b)  more than one cards have been obtained by the same person on the same eligibility criteria;

    c)   the particulars shown on the card have been obliterated or tampered with; or

    d)  the card is forged.

    Any person in respect of whose card an order under sub­section (1) has been made may, within thirty days of the order, appeal to the Federal Government against the order and the decision of the Federal Government in appeal shall be final:---
    

    [2] The National Database and Registration Authority Ordinance, 2000 (VIII of 2000) (nasirlawsite.com).

    Provided that no order on such appeal shall be passed unless the appellant has been given an opportunity of being heard.[2]

12. The available country information suggests that NADRA is exercising this power; NADRA revealed in October 2016 that it had blocked an average of 225 CNICs each day since September 2013, with more than 150,000 identities remaining suspended as of March 2020.[3] ‘NADRA database is organised as a network of family trees, with a man as the designated head of each registered household’[4] and it has been reported that when one card is suspended, those linked to family members are also suspended.[5] However, the Tribunal was unable to locate any information about whether NADRA would issue show cause letters to people who had died.

    [3] Alizeh Kohari, ‘Pakistan’s biometric ID scheme is stripping citizenship from thousands of people’, CODA, 2 November 2021, Ibid.

    [5] Ibid.

In his pre- and post-hearing submissions, the applicant presented evidence that he, his late father and his half-brother [Mr N] had received show cause letters from NADRA. The applicant provided copies and translations of three letters from NADRA dated 23 June 2022 addressed to the applicant, his late father and his half-brother [Mr N] that respectively cited each man’s purported CNIC number. The letters advised that it had come to NADRA’s notice, based on the investigation conducted by the country’s security agencies, that their citizenship had been found to be suspicious and they were not eligible to have the national identity card that they had obtained. The letters further advised that NADRA was mandated to digitally confiscate or cancel their national identity card under Article 18(1) of the NADRA Ordinance and they had 15 days to present with all their documents at the NADRA Verification Board, otherwise a unilateral decision will be made against them.

The CNIC number on the show cause letter to [Mr OO], the applicant’s late father is [Number], which is the same CNIC number as that on [Mr CC]’s birth certificate for [Mr CC]’s grandfather [Mr O]. The NADRA website has a section headed ‘notice served under section 18’ that allows a search on a CNIC number. When a search was conducted on the CNIC number [Number], the search result was ‘no data found against the provided CNIC’. The same result was achieved for the CNIC numbers in the applicant’s and his half-brother’s show cause letters.

The Tribunal was unable to locate other examples of NADRA show cause letters. In the post-hearing submission dated 24 April 2023, the representative claimed that another client had receive the same notice from NADRA about holding a CNIC that was obtained fraudulently, and he had spent two years in jail due to that notice when he returned to Pakistan. The representative advised that a search on the other client’s CNIC Number also returned the result ‘no data found against the provided CNIC’. The representative advised that they believed the website was either not updated, reliable or credible.

The available country information indicating that the NADRA database is organised in a network of family trees, with a man as the designated head of each registered household, and that when one card is suspended, the cards of linked family members are also suspended, supports the applicant’s claim that his late father’s, his and his brother’s interlinked cards were suspended at the same time.

The applicant provided an affidavit from his half-sister [Ms I], daughter of [Mr OOO] and wife of [Mr R], who claimed that she and her family received a notice under offence 17 [sic] dated 23 June 2022. No copy of the notice was provided. The Tribunal notes that [Ms I] claimed that she received a notice with the same date as the applicant and his male family members. The Tribunal also notes that, as the NADRA database is organised with a male as the designated head of each registered household, [Ms I]’s CNIC would belong to the family tree of her husband, not that of her half-brother the applicant, if it recorded her as married.

In view of the applicant’s evidence and the country information, the Tribunal cannot be positively satisfied that the applicant provided incorrect information in relation to his birthplace, citizenship at birth and current citizenship in his Protection visa application. Given this, the Tribunal is not satisfied that the applicant provided incorrect information in relation to his birthplace, citizenship at birth and current citizenship.

Part C Questions 30, 41 42, 43, 44, 45 and 46

In the decision record, the delegate found that the answers to Questions 30, 41 42, 43, 44, 45 and 46 were incorrect because the delegate was satisfied that the applicant was a Pakistani citizen at the time of his Protection visa application and that he was born in Pakistan rather than Afghanistan, therefore his claimed adverse profile in Afghanistan did not exist. 

Having found that it is not positively satisfied that the applicant provided incorrect information in relation to his birthplace, citizenship at birth and current citizenship, the Tribunal cannot be positively satisfied that the applicant provided incorrect answers to Part C Questions 30, 41 42, 43, 44, 45 and 46.

The Tribunal finds that there was no non-compliance as set out in the notice in relation to Part C.

Should the visa be cancelled?

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

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

·     the correct information

·     the content of the genuine document (if any)

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

·     the circumstances in which the non-compliance occurred

·     the present circumstances of the visa holder

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

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

·     the time that has elapsed since the non-compliance

·     any breaches of the law since the non-compliance and the seriousness of those breaches

·     any contribution made by the holder to the community.

The correct information

The correct information is that [Mr CC] is the applicant’s nephew, not his son [Mr C].

As this information is not central to the identity of the applicant and does not form the basis of his claims for protection, the Tribunal gives this aspect moderate weight in favour of cancellation.

The content of the genuine document (if any)

The s 107 notice does not indicate that any bogus documents have been provided with the application.  

The Tribunal gives this aspect neutral weight.

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

As detailed in the decision record, the applicant claimed to be an Afghan citizen living in Pakistan and fearing persecution in Afghanistan. He claimed to fear harassment and persecution as a Hazara Shi’a in Afghanistan and Pakistan. He claimed that Hazara Shi’a were mistreated and the situation in Quetta was getting worse day by day. 

At the hearing, the applicant maintained his claim that it is extremely dangerous for all Hazara in Afghanistan and that Hazara in Afghanistan will be killed.

The Tribunal is not satisfied that the decision to grant the applicant the protection visa was based, wholly or partly, on the incorrect information provided in the protection visa application about the applicant’s family composition.

The Tribunal gives this aspect significant weight against cancelling the visa.

The circumstances in which the non-compliance occurred

The non-compliance occurred when the applicant provided incorrect information about his family composition. He claimed in his response to the NOICC and at the hearing that he was trying to protect his family by claiming that his nephew [Mr CC] was his son [Mr C]. He claimed that, due to the insecurity in Pakistan, his brother [Mr H] had asked him to include [Mr CC] in his family composition in the hope that, one day, he would be able to sponsor [Mr CC] to come to Australia and save him from harm. The applicant apologised for providing the incorrect information.

The Tribunal accepts that the applicant now feels remorse for his claim but it considers that the provision of incorrect information in the applicant’s protection visa application was deliberate and calculated.

The Tribunal gives this aspect moderate weight in favour of cancellation.

The present circumstances of the visa holder

The applicant resides in [City] with house mates. Until five months ago, he says that he was working as [an Occupation 1]. He says that he is now working as a contractor [doing Job task 1] in Melbourne and commuting from [City] each week. He is continuing to [do Job task 2] on weekends when the work is available. He sends between $1500 and $2000 to Pakistan each month to support his wife and children, none of whom work. The applicant provided a copy of his 2022 Notice of Assessment from the Australian Taxation Office.

The applicant said he prays at home and attends the mosque if there is a celebration or memorial gathering, usually on a Sunday. He said that if the community announces that someone needs help, he will try to participate by donating $100 or $50. He claimed that he has not been as active in the last four to five months as he has been working in Melbourne.

The Tribunal accepts that the applicant has been in Australia for over 13 years, that he is working and that he has integrated into his local community.

The Tribunal gives this aspect modest weight against cancellation.

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

The applicant responded to the NOICC within the prescribed timeframe and he has been fully engaged with the cancellation process.

The Tribunal gives this aspect modest weight against cancellation.

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

The applicant provided incorrect information about his family composition in support of his wife’s application for a Partner visa in 2013.

The Tribunal notes that the applicant did not correct the record and confirm that [Mr CC] was his nephew until 8 May 2018, when he attended an interview associated with his application for Australian citizenship. The Tribunal considers the provision of incorrect information was deliberate and calculated.

The Tribunal gives this aspect moderate weight in favour of cancellation.

The time that has elapsed since the non-compliance

The non-compliance occurred in January 2010 when the applicant lodged the application for a Protection visa. The applicant provided the same incorrect information in support of his wife’s Partner visa in 2013.

The Tribunal considers the time that has elapsed to be a significant period and gives this aspect modest weight against cancellation.

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

The Tribunal is not aware of any breach of the law by the applicant.

The Tribunal gives this aspect modest weight against cancellation.

Any contribution made by the holder to the community

The applicant contributes to the Australian community through his contracting work and as a taxpayer.

The Tribunal gives this aspect modest weight against cancellation.

Other factors

While the factors in reg 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Instructions ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Whether there would be consequential cancellations under s 140

No person in Australia holds or held a visa because they are a member of the family unit of the applicant, thus there were no consequential cancellations under s 140 that occurred when the applicant’s Resident Return visa was cancelled.

1. The Tribunal gives this aspect neutral weight.

   Best interest of the children whose interests would be affected by the cancellation

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

3. The obligation to consider the best interests of the child applies to those children who are under 18 years of age and the obligations apply only to children who are within Australia’s territory or jurisdiction. The applicant has three children who reside in Pakistan, one of whom is under 18 years of age, and no children who are within Australia’s territory or jurisdiction.

4. As there are no children within Australia’s territory or jurisdiction, the Tribunal gives this aspect neutral weight.

   Family unity obligations

5. Departmental policy provides that family unity principles must be taken into account when cancellation or revocation of a cancellation is being considered, however, this applies only to family members within Australia's territory or jurisdiction.

6. The applicant’s wife and children reside in Pakistan. He has a half-brother and a nephew who reside in Australia. At the hearing, the applicant said that he talks to his half-brother over the telephone as they live in different states. He also said that he has not seen his nephew in three years and he has not been successful in contacting him.

7. Noting the evidence from the applicant, the Tribunal gives this aspect modest weight towards cancellation.

   Whether cancellation would lead to the person’s removal in breach of Australia’s non- refoulement obligations and mandatory legal consequences

8. The Department’s Procedural Instructions advise that special considerations apply for the cancellation of a Protection visa or any other visa held because the visa holder has been assessed as engaging Australia’s protection obligations. The non-refoulement obligation under the Refugees Convention may also be relevant in non-protection visa cases, if the person's life or freedom would be threatened because of a Refugees Convention reason if they are removed from Australia. 

9. The delegate’s decision record indicates that, based on the information provided in the application and having met all other relevant criteria, the applicant was granted a Protection visa on 3 February 2010. In his application, the applicant claimed to fear persecution and harassment in Afghanistan and Pakistan because he is a Hazara Shi’a.

10. The Tribunal accepts that the applicant was granted a Protection visa after being assessed as engaging Australia’s protection obligations, which is a protection finding for the purpose of s 197C(3)(a) of the Act. As a protection finding has been made with respect to the applicant, the applicant cannot be removed from Australia to his home country unless one of the circumstances in s 197C(3)(c) applies, namely the decision in which the protection finding was made has been quashed or set aside, the Minister is satisfied no protection finding would be made in relation to the applicant, or the applicant has asked the Minister in writing to be removed.

11. Unless and until the Minister makes a determination under s 197D(2) or the applicant asks in writing to be removed from Australia, the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on a new assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s Resident Return visa would not, of itself, lead to his removal in breach of Australia’s international obligations on non-refoulement.

12. However, while a decision to cancel a visa is not in itself a decision to remove a person from Australia, and therefore is not a breach of non-refoulement obligations, the Tribunal needs to consider the possibility that a person might be unable to be removed from Australia and therefore may be subject to indefinite detention.

13. If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act, unless he applies for and is granted another visa. As an unauthorised maritime arrival, the applicant is prevented from lodging any visa application under s 46A, unless the Minister exercises his or her power to intervene. The Minister’s power under s 46A and s 48B may only be exercised by the Minister personally and is not compellable or reviewable.

14. If the applicant’s visa remains cancelled and he exhausts any rights to judicial review and he is not granted a further visa, s 196 provides that he must be kept in immigration detention until he is removed from Australia under s 198 or s 199. As the applicant is subject to a protection finding and he cannot currently be removed from Australia, the cancellation of his visa would make him liable for prolonged and indefinite detention unless he decided to voluntarily return to Afghanistan, which may still constitute a breach of Australia’s non-refoulement obligations.

15. The Tribunal gives this aspect significant weight against cancellation.

    Any other relevant matters

16. There are no other relevant matters.  

    Conclusion

17. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.

100.   The Tribunal has considered the factors that weigh in favour of cancelling the visa, most significantly the correct information, the circumstances in which non-compliance occurred, the other instances of non-compliance and family unity. However, in balancing all of the relevant factors, the Tribunal considers that the matters to which it is required to have regard weigh overall against cancelling the applicant’s visa. In particular, the Tribunal gives weight to the applicant’s protection visa not being granted wholly or partly on incorrect information, the present circumstances of the applicant, the time that has elapsed since non-compliance and that cancelling his visa would make him liable for prolonged and indefinite detention.  

101.   Accordingly, having regard to all the relevant circumstances, the Tribunal concludes that the visa should not be cancelled.

DECISION

102.   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.

Katherine Harvey
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

101Visa applications to be correct

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

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

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

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

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

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

(A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

(f)      requiring the holder:

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

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

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

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

(b)     otherwise—14 days.

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

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

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

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

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

108Decision about non‑compliance

The Minister is to:

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

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

109Cancellation of visa if information incorrect

(1)The Minister, after:

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

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

(c)      having regard to any prescribed circumstances;

may cancel the visa.

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