Ahmadi (Migration)

[2023] AATA 2810

Ahmadi (Migration) [2023] AATA 2810 (4 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Hafeza Ahmadi

VISA APPLICANT:  Mr Hayatullah Haidari

REPRESENTATIVE:  Miss Stephanie Margush

CASE NUMBER:  2213888

HOME AFFAIRS REFERENCE(S):          BCC221/1571922

MEMBER:Christine Kannis

DATE: 4 July 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

Statement made on 04 July 2023 at 5:19pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – did not meet public interest criterion (PIC) 4020 – identity requirements – variations in dates of birth recorded were outside his control – visa applicant does not know his date of birth – Tribunal is satisfied as to the visa applicant’s identity – PIC 4020(2B) is met – decision under review remitted     

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 309.225, Public Interest Criterion 4020

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 on 8 August 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958  (the Act).

2. The visa applicant applied for the visa on 12 August 2021. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found he did not meet public interest criterion (PIC) 4020.

3. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review

4. The review applicant appeared before the Tribunal on 7 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The law

7. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 309 .225 for the grant of the visa. Broadly speaking this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2B) and (2BA).

8. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

9. The issue in this review is whether the visa applicant satisfies the identity requirements in PIC 4020(2A).  

   The delegate’s decision

10. The delegate assessed the visa applicant under cl 4020(2A) and the Tribunal has reviewed this requirement of PIC 4020. The delegate was not satisfied of the visa applicant’s identity due to inconsistent information regarding his name, date of birth and family composition provided to the Department. The delegate’s decision was based on the following:

    ·On 18 December 2008, the visa applicant applied for a Class XB Subclass 202 visa as a dependent on his brother’s (Asadullah Haidari) application under the name Ayatullah Haidari born on 17 October 1995. A paper tazkira stating he was 13 years old in 2008 but not indicating a date or month of birth was provided.  

    ·On 19 December 2010, the visa applicant applied for a Class AH Subclass 117 visa under the name Hayatullah Haidari born on 31 December 1995. The refusal Decision Record stated that his sister (Hawa Gohari) declared his age and year of birth in her own visa application as 13 years of age and being born in 1991.

    ·On 12 August 2021, the visa applicant applied for a Partner visa Subclasses 309/ 100 under name Hayatullah Haidari born on 9 April 1992. An e-tazkira issued on 9 May 2021 and an Afghanistan passport issued on 29 May 2021 were provided.

    ·The visa applicant has provided names and dates of birth to the Department as follows:

    oAyatullah Haidari born on 17 October 1995

    oHayatullah Haidari born on 31 December 1995

    oHayatullah born in 1991

    oHayatullah Haidari born on 9 April 1992

    ·Regarding family composition, the visa applicant has provided the following to the Department:

    In his Class XB Subclass 202 visa application, he listed the following siblings: 

    oKhodadad Haidari (date of birth not provided)

    oNajibullah Haidari (date of birth not provided)

    oAmanallah Haidari (date of birth not provided)

    oHawa Gohari born on 01 May 1974

    oAsadullah Haidari born 05 April 1992

    In his Subclass 117 visa application, he listed the following siblings:

    oAlimah born on 01 January 1983

    oKhodadad born on 01 January 1981

    oNajibullah born on 01 January 1987

    oAmanullah born on 01 January 1991

    oAssadullah born on 31 December 1992

    oHawa was his sponsor and she is also claimed as a sibling.

    In his current Partner visa application, he listed the following siblings:

    oHawa Gohari born 1 May 1974  

    oHalima Haidari born on 1 January 1978

    oKhudadad Haidari born on 1 January 1976

    oNajibullah Haidari born on 1 January 1980

    oAmanullah Haidari born on 1 January 1989

    oAsadullah Haidari born on 31 December 1992

    ·In the Class XB Subclass 202 visa application, the visa applicant’s brother’s (Asadullah) date of birth is listed as 31 December 1992 and this means there is less than a full term pregnancy between the siblings’ births.  DNA testing has proven that they are biological full brothers.

    ·The visa applicant claimed to have resided in Pakistan as an illegal resident since 2007 with no explanation as to how he was permitted to remain in Pakistan undocumented for such a long period of time. He claimed to have had his high school education in Pakistan and was working in Pakistan. This raised concerns that he had legal residency rights in Pakistan, which raised concerns regarding his identity.

    ·On 11 January 2022, the visa applicant was sent a Natural Justice letter. He provided a response consisting of a written submission from his previous registered migration agent. The written submission provided the following relevant information:

    oBirth registration in Afghanistan is not mandatory and more than 55% of births are not registered. The visa applicant’s parents did not register his birth, nor the births of his siblings.

    oWhen the visa applicant and his siblings applied for his paper tazkira, they guessed  his date of birth.  The documents provided in the Class XB Subclass 202 and the Class AH Subclass 117 visa applications were submitted by the visa applicant’s siblings.

    oThe e-tazkira and passport provided with the Partner visa application are based on the date of birth of 9 April 1992 used for the visa applicant’s whole life.

    oThe spelling of the names of the visa applicant and his siblings differs due to differences in translation to English.

    oThe age difference between the visa applicant and his brother Assadullah is due to the lack of information about their actual dates of birth.

    oRegarding the visa applicant’s long-term residence in Pakistan without legal status, he resides in Hazara Town in Quetta and almost all of the population are illegal migrants from Afghanistan. The community lives, studies and works by running their own businesses and schools in the community.

    • On 21 June 2022, the visa applicant was sent another Natural Justice letter. In response a written submission from his previous registered migration agent and A Ministry of Education (Afghanistan) 12th Grade Education Certificate, issued 6 March 2016 were provided. The written submission included the following relevant information:
    • The visa applicant’s siblings provided two tazkiras with different dates of birth and different names. At that at the time the visa applicant was a minor and his tazkiras were obtained by his sister on one occasion, and his brother on the other occasion. His sister is illiterate and could not check the document and he does not know how his brother obtained the other tazkira.
    • In Afghanistan, the date of birth written on tazkiras is a visual assessment of the issuing officer based on the facial appearance of the holder and can vary.
    • The visa applicant obtained his e-tazkira and his passport based on his current name and year of birth 1992 which is the year of his year of birth told to him by his late mother.
    • The Education Certificate, issued by the Afghanistan Ministry of Education, lists the visa applicant’s name as Hayatullah born in the year 1992 and states he completed his secondary education in 2015 in Pakistan.

    Evidence provided prior to the hearing

11. A written statement (translated and certified) dated 29 May 2023, made by the visa applicant in which he provided the following evidence:

    ·His visa application was lodged through his previous migration agent in Australia. Some information was missing from the application and some comments in the response to the Natural Justice letter were included without his instructions.

    ·The variations in the spelling of his name and some of his siblings’ names does not mean they have been known by multiple names. In Afghanistan they do not have a conventional spelling system and when Afghan names are recorded in English, they are spelled according to how they sound or how they are pronounced. This has resulted in the spelling variations. The names for him and his siblings in his Partner Visa application are not drastically different to the spelling in the Orphan Relative visa application and are just different ways of spelling the same sounds.

    ·He does not know when he was born. His date of birth was never formally recorded as is the case with many Afghans. In the response to the Natural Justice letter, his previous migration agent stated the year of birth “1992” was told to him by his siblings. In other documents the migration agent stated this year of birth was told to him by his mother. He did not provide this information to the migration agent as his siblings do not know his date of birth or even know their own dates of birth.

    ·In 2008, his family applied for a tazkira for him. He was not present at the time due to his young age. Tazkira (no. 890171) was provided in support of the Class XB Subclass 202 visa application sponsored by his sister, Hawa Gohari, and was also provided with the Orphan Relative visa application. This tazkira states his age was determined to be "13 years old in 2008". The issuing authority likely estimated him to be 13 years old based on the passport sized photograph attached to the document. Being “13 years old in 2008” is equal to an approximate year of birth of 1995. Paper tazkiras refer to a certain age in a year and months and days are not recorded.

    ·He is not sure of the reason for “17 October” recorded in the Class XB Subclass 202 visa application.  He knows that a handwritten Afghan passport was issued around the time the tazkira was issued and it is possible it recorded his date and month of birth as “17 October” as it is common for passports to record exact dates of birth and it is common for the Afghan authorities to assign a date of birth at random. He does not have a copy of the handwritten passport and is unable to confirm if this is the case. The handwritten passport and tazkira were lost some years later after they were issued. He cannot recall if the handwritten passport was provided for the Class XB Subclass 202 and /or Class AH Subclass 117 visa applications.

    ·In the Partner visa refusal, the delegate stated his date of birth was recorded as “31 December 1995” in the Class AH Subclass 117 visa application sponsored by his sister, Hawa Gohari. He believes this would have been recorded as “1995” in the application as this was his year of birth recorded on the tazkira. He does not know where “31 December” came from but understands it is common practice in Australia to be assigned either "31 December” or “1 January” if the exact date of birth is not known. This might be what happened. The delegate stated his year of birth was declared to be “1991" by his sister, in her application to come to Australia. She has told him she does not know his date of birth or their siblings’ dates of birth and she provided estimates of their ages and their years of birth were then calculated by the agent assisting her with the application.

    • In 2015, he obtained another paper tazkira (no. 17009233) (second paper tazkira) because he had lost his previous tazkira and needed one for his high school certificate to be issued from Afghanistan and he also wanted to apply for a Machine Readable/electronic passport.
    • He applied for his second paper tazkira in person in Afghanistan. It was issued on the basis of the record held for his previous tazkira. The issuing officer disagreed with the age determination on his previous tazkira and formed the opinion that he looked  “23 years old in 2015”. This was equivalent to a year of birth of “1992", then used for his second paper tazkira to obtain his high school certificate, which is why his year of birth is recorded as “1992" on that document. He also used his second paper tazkira to obtain a Machine Readable Passport (no. 00349784) issued on 3 August 2015.
    • When he obtained the Machine Readable Passport in 2015, the passport office assigned him the date and month of birth of "9 April". This is what led to his date of birth being recorded as “9 April 1992" on this document and in all later documents held by him including his current Machine Readable Passport (no. P02608039) and e-tazkira. He provided his second paper tazkira and Machine Readable Passport issued 3 August 2015 when he applied for his current Machine Readable Passport and e-tazkira.
    • He assumes his previous agent declared his date of birth as “9 April 1992” in his Partner Visa application because this is what was recorded on his e-tazkira, his current Machine Readable Passport and his Marriage Certificate.
    • When he consulted his previous migration agent for assistance in lodging his Partner visa application, he provided copies of his paper tazkiras and his 2015 Machine-Readable Passport. The review applicant gave these documents to the agent on a flash drive and discussed the issue of his dates of birth, noting that his paper tazkiras, Machine Readable Passports and e-tazkira recorded different dates of birth. Therefore, he assumed these documents had been declared in the visa application.
    • The delegate noted variations in the dates of birth recorded for his siblings. These variations are unintentional. His previous migration agent did not have access to the Class AH Subclass 117 visa application when completing forms for his Partner visa application and he was asked to provide estimates of their ages from which years of birth were then calculated. The agent assigned his siblings “1 January” as their date and month of birth due to Australian practices (with the exception of Asadullah). Asadullah could recall the date of birth recorded for him in the Class AH Subclass 117visa application which is why his date of birth in the Partner visa application is also recorded as “31 December 1992”.
    • The delegate referred to less than a full term pregnancy between the date of birth recorded for him and Asadullah. He and Asadullah do not know their actual dates of birth. DNA testing has proven they are full biological brothers.
    • He has resided in Pakistan illegally due to the risk of persecution in Afghanistan. He lives in a Hazara enclave of Quetta which is why he has been able to survive undocumented. Millions of undocumented Afghan Hazaras live inside these enclaves. Due to the large number of undocumented Hazaras, refugee schools operate inside the enclaves and there are informal jobs for undocumented Afghans. This is how he was able to complete high school and has been able to work. However he is unable to attend university in Pakistan because he is undocumented. He completed his high school education in Pakistan, but had to travel to Afghanistan to receive his high school certificate from the Afghan Ministry of Education. The high school he attended in Pakistan is registered with the Afghan Ministry of Education.
    • He was not present at the engagement party in Perth. It is culturally and religiously permissible for the prospective groom to not be physically present, especially when the couple live in different countries. The purpose of an engagement party is to signify that they will marry and that their relationship is permissible under Islam.
    • The response to the first Natural Justice letter contained incorrect statements. The year of birth of 1992 was recorded on his second paper tazkira as his age determined at the tazkira office and the date of birth recorded on his e-tazkira stems from his Machine Readable Passport issued in 2015.
    • The response to the second Natural Justice letter also  contained incorrect statements. He was not told his year of birth by his mother or by any relatives..
    • He did not intend to provide conflicting information to the Department. The variations in dates of birth recorded were outside his control. He is unsure of his exact date of birth as it was never formally recorded. The variations in spelling of his name and the names of some of his siblings are transliteration errors which are easy to make since Afghanistan does not have a uniform spelling system. It is reasonable that he has been able to live in Pakistan illegally, work and complete high school education as millions of Afghan refugees living illegally in Quetta especially in the Hazara areas.

12. In a statutory declaration dated 13 January 2023 made by the visa applicant’s sister, Ms Hawa Gohari, the following relevant evidence was provided:

    ·When she applied for her visa to come to Australia in 2004 she guessed her siblings’ ages because they are not formally recorded.

    ·She was the sponsor of the Class XB Subclass 202 and Class AH Subclass 117 visa applications.

    ·The visa applicant obtained a tazkira when they applied for the Class XB Subclass 202 visa for him. Her migration agent used the date of birth on his documents at that time. They used the tazkira for the Class AH Subclass 117 visa application too. The visa applicant had a handwritten Afghan passport at one stage which he later lost. This might explain the date of birth recorded in the Class XB Subclass 202 and/or Class AH Subclass 117 visa applications.

    ·Their dates of birth are given by the Afghan authorities. When the visa applicant was born she was living outside the home so she has little awareness of his age.

1. Undated letter from a friend of the visa applicant, Mr Zainullah Rezaie in which the following relevant information was provided:

   ·He has been friends with the visa applicant for 16 years.

   ·Dates of birth for Afghans are not always exact because a birth certificate is not always issued and it is not usual for parents to record the birth dates of their children. 

   ·When applying for an Afghan tazkira, the officer mostly does not ask the age of the applicant and the officer makes a guess as to their age.

   ·In Hazara town in Quetta, all Hazara Afghans are illegal. The people do not need to go outside the town and do not need to be documented. He resided there illegally for more than a decade and did his high school and English courses there.

   ·He has been present at many occasions, parties and ceremonies with the visa applicant in Quetta. In December 2020 he was residing there and was invited to attend the visa applicant’s marriage.

2. A submission from the applicant’s present representative which contained information not materially different from the evidence provided by the visa applicant in his written statement dated 29 May 2023 and the following additional information:

   ·The difference in the visa applicant’s year of birth as reflected in his two paper tazkiras is a result of the age determination process.  

   ·The second paper tazkira was used by the visa applicant as a source document when he obtained his Machine-Readable Passport in August 2015. As part of this process, the issuing authority verifies the genuineness of the tazkira and cannot issue a Machine-Readable Passport until that process is complete. As reported by LandInfo in its report titled Afghanistan: Tazkera, passports and other ID documents.

   ·The second paper tazkira was used as a source document to obtain the Marriage Certificate.

   ·The visa applicant has an e-tazkira which is widely accepted to be a credible identity document as a result of its computerised nature and the requirement for biometrics collection at the time of application. This document would have been verified by the issuing authority at the time the visa applicant obtained his current Machine-Readable Passport. Country information published by LandInfo notes the process for obtaining a Machine-Readable Passport and the verification process of the source documents. The visa applicant’s e-tazkira document number is referenced in his current Machine-Readable Passport.

   ·The visa applicant was required to obtain a high school certificate from the Afghan Ministry of Education in order to sit the university entrance exam and be admitted to study at a university in Afghanistan. As reported by UNHCR, students who have completed 12th grade in high schools in other countries are to have their certificates verified at Afghan Embassies or consulates prior to taking the exams. All Afghan Embassies/Consulates have the list of high school graduates in their respective country of asylum, and verify the certificates against the list. The lists of high school graduates from the countries of asylum are sent to the Afghan Ministry of Education. Each student has to reverify their certificates at the directorate of secondary education, and after confirmation from Ministry of Education, the lists of all graduates are sent to Ministry of Higher Education.

   ·The visa applicant attended Shammama Foundation, Gawhar Shad Model High School in Quetta, Pakistan. At the completion of his studies, he was required to register his high school results and obtain the Afghan Ministry of Education certificate. He then sat his entrance exams and was admitted to study at Shaheed Prof. Rabbani Education University, which is a government-run university in Afghanistan. Due to the fall of Afghanistan to the Taliban in August 2021, he was unable to complete his university studies. He has provided a certificate he received from the university during the course of his studies and a letter from the Head of Faculty of Psychology at the university confirming he withdrew from his studies.

   ·After receiving the Departmental file, the visa applicant realised his previous migration omitted his university education in the Form 80. As a result, his residence in Afghanistan at the time he was studying at university was also omitted. He also noticed errors in the address history and travel history on the Form 80. His trip to Iran in 2015 was omitted. He does not have the exact travel dates for this trip as this travel was made using his previous Machine-Readable Passport which is currently in Afghanistan and unable to be retrieved due to the security situation. He believes his trip was in August 2015 and was for a period of 3 weeks.

   ·His education record includes that from 2007 to 2015 he attended Shammama Foundation, Gawhar Shad Model High School (years 4 to 12). From 2017 to August 2021 he attended Shaheed Prof. Rabbani Education University but stopped studying in August 2021 due to the Taliban takeover.

   ·His address history includes that from 2007 to 2015 he resided in Quetta, Pakistan. From 2016 to 2020 he resided in Kabul Afghanistan. In December 2020 he returned to Quetta, Pakistan. In March 2021 he resided in Kabul Afghanistan and in August 2021 he returned to Quetta, Pakistan.

   ·The visa applicant and review applicant say that they were not given the opportunity to read the responses to the Natural Justice letters and say they did not provide instructions regarding the incorrect statements.

   ·The visa applicant does not know when he was born as his date of birth was never formally recorded. This is supported by country information which notes that many Afghans have very little awareness of their own date of birth or are unsure of exactly when they were born as a result of a number of difficulties including ongoing war and conflict, the absence of birth certificates, differences in calendars, a lack of celebration of birthdays and a highly illiterate population. His siblings do not know their dates of birth or the dates of birth of their other siblings for the same reasons.

   ·The visa applicant’s year of birth was recorded as 1995  on his first paper tazkira because it recorded an age determination of 13 years of age when the document was issued on 19 October 2008. As reported by LandInfo in its report titled Afghanistan: Tazkera, passports and other ID documents, ‘…the tazkera give[s] an estimated age on the date of issue…[it] gives an approximate age at the time when the tazkira was issued’. LandInfo further reports that ‘the age is determined by specialists within the PRD [issuing authority]’ whereby ‘determination of age is estimated on the basis of physical characteristics, eyes, facial features and wrinkles, combined with a short interview’. The visa applicant was not present when the tazkira was obtained as he was a child and the age determination was made by the authorities from a passport sized photograph for him. As a result of he was noted to be 13 years old in 2008, his year of birth according to this tazkira is 1995.

   ·The visa applicant is unable to comment on the exact reasons his date of birth was recorded as “17 October 1995” in the Class XB Subclass 202 visa application. Ms Gohari, who was the proposer of the application is also unable to comment on this. Ms Gohari engaged the assistance of a migration agent due to her illiteracy and lack of familiarity with the legal process. The visa applicant recalls having a handwritten Afghan passport and believes this was issued to him after his first paper tazkira was issued. His family lost this document and are unable to recall the details recorded on the document. It is possible that “17 October 1995” originated from that document, however neither the visa applicant nor Ms Gohari are able to confirm this.  The visa applicant is unable to comment on the exact reasons why his date of birth was recorded as “31 December 1995” in the Class AH Subclass 117 visa application. Ms Gohari is also unable to comment on this due to having engaged a migration agent to fill in the application as a result of her illiteracy and lack of familiarity with the legal process. It is possible his date and month of birth was recorded as “31 December” by the agent who filled in the form in line with Australian government practices.

   ·The visa applicant’s date of birth was recorded as 9 April 1992 in his Partner Visa application, his Marriage Certificate, his e-tazkira number, his previous Machine-Readable Passport and current Machine-Readable Passport. When he obtained his previous Machine-Readable Passport in 2015, his year of birth was recorded as 1992 as this was the year of birth on his second paper tazkira. The second paper tazkira was the source document used to obtain the passport. He advises that the issuing authority assigned him a date and month of birth at random (in this case, 9 April) as his second paper tazkira did not record an exact date of birth and an exact date of birth was required to be recorded on the passport. LandInfo reports that passports typically record an exact date of birth and it can be common practice for the authorities to give an estimate of the date of birth.  His date of birth was then recorded on all subsequent documents including his Marriage Certificate, his e-tazkira and current Machine-Readable Passport as 9 April 1992. His date of birth was recorded as 9 April 1992 in his Partner Visa application as this was commensurate with the majority of documents held by him.

   ·The delegate was concerned that the visa applicant and his siblings’ first names have been spelled variously with the Department. The variations in the names are mere transliteration errors.  Karine Megerdoomian in her report titled The Structure of Afghan Names noted that: ‘…there is no standard orthography in Afghanistan and people often write their names as they are pronounced in their respective dialects. Hence, the same name may be pronounced differently based on the geographic region within the country. … The lack of orthographic standardization, combined with a high level of illiteracy, gives rise to many discrepancies in the transcription of Afghan names into English’.

   ·The delegate noted that the visa applicant declared to have resided in Afghanistan since 2010 in his Orphan Relative visa application, however in his Form 80 submitted with his Partner visa application, he declared to have been residing in Pakistan since February 2007. The visa applicant was a minor at the time the Orphan Relative visa application was lodged on his behalf. He did not have personal involvement with the application or the information declared on his behalf. Also, as dates have very little significance in Afghan culture it is possible and likely for discrepancies when recalling the timing of certain events. The delegate also noted that the visa applicant has studied and worked in Pakistan, despite having declared that he resides there illegally. There are millions of undocumented Afghan refugees residing in Quetta, Pakistan alone. They are mostly Hazara Shia and are concentrated in the Hazara enclaves in Quetta. The sections ‘Hazaras’ and ‘Afghan Refugees’ in the DFAT Country Information Report: Pakistan acknowledge and describe the lack of reliance on documents by refugees living in Pakistan.  DFAT acknowledges that ‘Hazaras do not typically require official documentation to access non-government, Hazara community-run health and education services located within Quetta-based enclaves’.

   Post hearing evidence

3. Following the hearing, the LandInfo Country of Origin Information Centre report dated 22 May 2019 Afghanistan: Tazkera, passports and other ID documents was provided. The report says that a tazkira may give an estimated age on the date of issue and that there can be variations between districts on how they practice the giving of age. The report says that if a tazkira applicant does not have information on year of birth, the age is determined by “specialists” on the basis of physical characteristics, eyes, facial features and wrinkles, combined with a short interview.  

4. A further statutory declaration dated 16 June 2023 made by Ms Hawa Gohari was also provided in which she stated that she does not know the visa applicant’s date of birth. She said she cannot explain the reasons for providing the dates of birth 17 October 1995 and of 31 December 1995 in previous visa applications and referred to her lack of literacy skills and her reliance on others to complete the paperwork.   

   Evidence provided during the hearing

5. The Tribunal obtained a copy of documentation lodged in support of an Offshore Humanitarian Class XB Subclass 202 visa application for the visa applicant’s brother Asadullah Haidari and the visa applicant. The Tribunal put the documents/information to the visa applicant under s 359AA of the Act. The Tribunal put to the visa applicant that the Forms 842 and 681 submitted each include a handwritten response to his and his brother’s dates of birth. His brother’s date of birth is written on both documents as “5 April 1992” and his date of birth is written on both documents as “17 October 1995”. The documents stated his name is Ayatullah Haidari. In response, the visa applicant told the tribunal that the year 1995 was based on a determination made by an officer when his first paper tazkira was issued. He said “17 October” may be based on a previous handwritten passport which was lost but he cannot say this with any certainty.

6. The Tribunal put to the visa applicant that in his Class AH Subclass 117 visa application, he stated his name is Hayatullah Haidari born on 31 December 1995 and in the refusal decision record it is stated that his sister declared his age and year of birth in her own visa application as 13 years old and 1995. In response, the visa applicant told the tribunal that the year 1995 was based on a determination made by an officer when his first paper tazkira was issued. He said “31 December” may be based on a migration agent providing that information as a result of what he understands is a common practice in Australia when a date and month of birth are not known.

7. The tribunal put to the visa applicant that in his Partner Subclass 309/100 visa application, he stated his name is Hayatullah Haidari born on 9 April 1992. In response, the visa applicant told the tribunal that the year 1992 was based on a determination made by an officer when his second paper tazkira was issued.

8. The visa applicant told the tribunal that he has had no control over the various dates of birth assigned to him by officers in Afghanistan and migration agents. He said he does not know his date of birth but has used the year 1992 since it was determined by an officer when his second paper tazkira was issued in 2015. He said “9 April” was chosen at random by another officer when he obtained his first Machine Readable passport in 2015 and since that time, he has used the same date of birth for all documents.

9. In response to the Tribunal asking about the inconsistent information provided to the Department that he commenced residing in Quetta Pakistan in February 2007 and October 2007, the visa applicant said the month was not recorded and estimates were made.

10. In response to the Tribunal asking about his education, the visa applicant said he studied year 4 to year 12 in Quetta, Pakistan.

11. The review applicant told the Tribunal that she provided the previous migration agent with all the information and documents including the inconsistent information and documents provided to the Department in the past regarding the visa applicant’s name and date of birth. She said she engaged an agent because she had a lot on her plate with family issues and study. She said she expected the agent to disclose all the information provided however when the application was refused it became apparent that this had not occurred.

    Assessment

12. The Tribunal accepts the written and oral evidence that visa applicant does not know his date of birth because it was not formally recorded. The Tribunal accepts that the visa applicant’s siblings also do not know their dates of birth for the same reason. The Tribunal accepts the visa applicant’s explanations/possible explanations for the various years and days and months regarding the inconsistent information provided to the Department in relation to his date of birth and the dates of birth of his siblings in various applications. The Tribunal notes that DFAT Country Information says:

    National Identity Cards (Taskira/ Tazkira) The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras. In May 2018, President Ghani announced the official launch of the electronic taskira (the e-taskira), becoming the first person to be issued with one. The new e-taskira cards contain a watermark security feature and microchip and comply with international standards for electronic identity documents. …. It is unclear how many Afghans are in possession of e-taskiras, or what the timeline is for distribution. Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.

    Birth Certificates Authorities did not historically issue birth certificates, which remain far from common. The high number of home births makes the process of registering births challenging. Reporting of birth dates is unreliable, and reported dates are likely to be approximate.

13. The Tribunal accepts the written and oral evidence regarding the different names provided   for the visa applicant and his siblings to the Department. The Tribunal accepts that these variations result from translation differences.

14. The Tribunal accepts the written and oral evidence regarding the visa applicant’s residence and education in Quetta, Pakistan. The Tribunal accepts that the visa applicant obtained an education certificate issued by the Afghanistan Ministry of Education for the education he received in Quetta, Pakistan.

15. The Tribunal accepts the written and oral evidence regarding the reason the visa applicant  was not physically present at his engagement party on 22 December 2018 in Perth.  

16. The visa applicant’s name, date of birth and family composition are central parts of his identity. The Tribunal places weight on the evidence regarding the lack of registration of all births and the poor system of administrative record-keeping in Afghanistan. In the Tribunal’s view, the visa applicant’s explanations for the different dates of birth for him and his siblings provided to the Department are entirely possible explanations.  

17. Having considered the evidence individually and as a whole in relation to the visa  applicant’s identity and having heard the evidence at the hearing, the Tribunal accepts the parties’ evidence about the process of obtaining the identity documents. The Tribunal is satisfied, on balance, that the documents issued after the visa applicant obtained his second paper tazkira and First Machine Readable passport in 2015, record his identity to the extent it is possible. The Tribunal is satisfied as to the visa applicant’s identity. Therefore, the visa applicant meets cl.4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

2. There is no evidence before the Tribunal that the visa applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

3. Therefore PIC 4020(2B) is met.

4. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 309.225.

   DECISION

5. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

   ·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

   Christine Kannis
   Member

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)the application for the visa; or

   (b)a visa that the applicant held in the period of 12 months before the application was made.

   (2)The Minister is satisfied that during the period:

   (a)starting 3 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)The applicant satisfies the Minister as to the applicant’s identity.

   (2B)The Minister is satisfied that during the period:

   (a)starting 10 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

   …

   Migration Act 1958

   s 5      Interpretation

   (1) In this Act, unless 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.

   …