Bayat (Migration)

[2019] AATA 5915

Bayat (Migration) [2019] AATA 5915 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Homayoon Bayat

CASE NUMBER:  1831220

DIBP REFERENCE(S):  BCC2018/5184573, BCC2018/5184576, BCC2018/805204

MEMBER:Kira Raif

DATE:23 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Statement made on 23 August 2019 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – incorrect answers – bogus documents – applicant previously made visa application with different name and claims – DNA results insufficient evidence – lack of evidence – credibility issues – medical issues – mental health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 103, 104, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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 Immigration to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan, born in June 1958. He was granted the Global Special Humanitarian visa on 13 March 2013. On 28 June 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss. 101 and 103 of the Act. The applicant’s wife and son were also issued with the NOICC. The applicant provided his response and his visa was cancelled on 23 October 2018. The applicant seeks review of the delegate’s decision. The visas held by the applicant’s spouse and son have also been cancelled and are the subject of separate review applications before this Tribunal.

3. The Tribunal wrote to the applicant on 22 July 2019 inviting him to appear before the Tribunal and give evidence. The applicant replied to the Tribunal on 15 August 2019 providing written notice that the applicant wanted the Tribunal to obtain oral evidence from another person. The Tribunal is mindful that s. 361 of the Act requires such notice to be provided within 7 days of being notified of the invitation to appear before the Tribunal. It is not apparent to the Tribunal why the applicant, or his representative, failed to comply with that provision. The applicant was represented by Mr Wang of WB Legal Pty Ltd.

4. The applicant and his wife appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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.

   Did the Notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied 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 ss. 101 and 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

    a.On 23 March 2010 the applicant made an application for the visa, nominated by his son. The application included his partner as a secondary applicant.

    b.The applicant provided on the application form his name and date of birth and the details of his son Ali Bayat and daughter Mursal Bayat. The applicant referred to his brother Gul Mohammad, stating he lived in Afghanistan. The applicant gave addresses where the family lived, including Mazar (from 1992 to 2009) and Kabul (from 2009).

    c.The applicant and his son Mubin Bayat (the proposer) each provided written statements outlining their claims. Essentially, they state that Mubin Bayat converted to Christianity and the applicant’s brother Gul Mohammad threatened to kill him. Their son fled Afghanistan in 2009. The applicant stated that he and his wife also converted. They were forced to attend the mosque and were subjected to mistreatment and fled their home town to Kabul when their involvement with Christianity became known. The applicant stated that his brother Gul Mohammad was involved in perpetrating the harm.

    d.The applicant gave details of his employment, stating he was a teacher between 1990 and 2004 and a shopkeeper between 2004 and 2009.

    e.In November 2012 the applicant informed the Department that his son Ali Bayat died on 17 September 2012 and his daughter Mursal Bayat had been abducted and possibly murdered.

    f.The application was accompanied by a number of documents, including the birth certificate for the proposer, Mubin Bayat, the tazkeras issued to the applicant and to his son Ali Bayat and a death certificate for Ali Bayat issued by HNK Balkhi Curative Hospital, stating that he was admitted to the hospital on 15 September 2012 and died on 17 September 2012 of respiratory arrest, due to chemical poisoning.

11. The primary decision record refers to the following information:

    a.On 11 October 2006 a Mr Mohammad Aman (born in February 1955) applied for a Global Special Humanitarian visa. The application included Mr Aman’s wife Rahila Aman (born in June 1959) and son Khalid Aman (born in April 1986).

    b.Mohammad Aman provided with that application an Afghan tazkera for Khalid Aman. The photograph on it appears to be the same photograph as that of Mubin Bayat, attached to the tazkera that was submitted with the application made in June 2009.

    c.When Mubin Bayat first arrived in Australia, he claimed not to have any documentation and not to be aware what flight he arrived on. A check of flight information indicated he probably travelled on an Etihad flight using an Australian passport in the name of Faridon Aman. The Department was advised that Mr Faridon Aman reported the loss of his passport to DFAT after the flight landed in Sydney.

    d.The proposer for Mohammad Aman’s visa application was his Australian citizen son Faridon Aman, the same person whose passport Mubin Bayat most likely used to enter Australia, which would indicate that they had known each other before travelling to Australia.

    e.The primary decision record contains the two photographs for Faridon Aman and Mubin Bayat showing a strong resemblance, with the delegate concluding that they are siblings.

    f.When Faridon Aman proposed the visa application for his father Mohammad Aman in 2006, he advised his residential address as Merrylands Road, Merrylands and subsequently informed the Department he continued to live at that address. When contacting the Department on 30 October 2013 Mubin Bayat informed the Department that he lived at the same residential address. This would indicate Mubin Bayat and Faridon Aman had been living at the same address at least between October 2013 and January 2018.

    g.On his Incoming Passenger Card (IPC) Faridon Aman listed in April 2012 his emergency contact person as Fristha Attaii. A Facebook search for that name showed an account for Fristha Attaii Aman with photographs showing her with a person who appears to be Faridon Aman with posts indicating they were a couple since 2012 and are married. There is also a photograph dated 11 October 2014 showing her photograph which appears to be with Mubin Bayat with the caption ‘my handsome brother in law’ and another caption referring to the brother in law as Khalid. This supports the view that Mubin Bayat is the brother of Faridon Aman and that his real name is Khalid Aman. There is another photograph on Facebook dated 15 February 2014 depicting the applicant, his wife, Mubin Bayat and Faridon Aman together, indicating they know each other and have a close relationship.

    h.On 11 October 2006 Faridon Aman proposed his father Mohammad Aman for the visa. Mr Mohammad Aman claimed to have a son Ali Aman (born in August 1988) and a daughter Mursal Aman. In the 2010 application for the Subclass 202 visa, the applicant claimed to have a son Ali Bayat (born in August 1993) and a daughter Mursal Bayat (born in July 1994). That is, the applicant declared to have a son and a daughter with the same first names as Mohammad Aman. Further, Mohammad Aman identified his father in the earlier application as Jan Mohammad and the same name was identified in the application made by the applicant in the 2013 application. These similarities may indicate that the applicant and Mr Mohammad Aman are the same person.

    i.The death certificate for Ali Bayat states that his father’s name is Mohammad Aman.

    j.The applicant’s spouse identified her father’s name on Form 80 as Hasan Rezayi. In Mohammad Aman’s earlier visa application, his wife Rahila Aman identified her father’s name as Hasan Rezayi.

12. In his written response to the NOICC the applicant denies having been known as Mohammad Aman and that he used another identity. With respect to the similarities in photographs of Khalid Aman and Mubin Bayat, the applicant states that photographers insist on particular poses and clothes and it is difficult to differentiate personal traits as in this case Khalid and his son came from the same area.

13. The Tribunal considers the evidence set out in the NOICC and the primary decision record to be persuasive as evidence that the applicant Homayoon Bayat and Mohammad Aman are the same person while the applicant’s evidence is inadequate and does not persuasively address the above concerns. In particular, the Tribunal places significant weight on the fact that they identified the same names of children and the same names for the applicant’s and his wife’s fathers, as well as for the applicant’s brother Gul, to be strong evidence that the applicant had previously used the identity of Mohammad Aman while his wife had previously used the identity of Rahila Aman. The Tribunal also places weight on the evidence suggesting that the proposer Mubin Bayat is related to Faridon Aman. The Tribunal places weight on their close physical resemblance which is apparent from the two tazkera photographs, their residence at the same address for a lengthy period, the Facebook photographs and comments which identify Mubin as the brother of Faridon.

14. The Tribunal does not accept the applicant’s suggestion that the similarities in the photographs are due to the fact that the photographer insisted on the same poses and clothes and because those photographed come from the same area. The Tribunal is mindful that there are similarities in the facial features of those in the photographs, rather than poses and clothes. The primary decision record indicates that the tazkera photograph for Khalid Aman and submitted with the first application by Mohammad Aman is the same as the photograph of Mubun Bayat submitted by Homayoon Bayat in the second application. The fact that the photographs were the same – rather than simply depicting the same clothes or the same pose – offers strong evidence that they depict the same person. The Tribunal also rejects the applicant’s suggestion that people coming from the same area look alike or similar.

15. The applicant also states in his response to the NOICC that his son did not meet Faridon Aman until after he arrived in Australia and did not know that documents were used to get him to Australia. He states that his son and Faridon shared a unit until 2013. The applicant indicated that he cannot comment on the Facebook information but claims that the two families are friends. The applicant states, with respect to his children sharing the same names as the children of Mr Mohammad Aman, that he also has two other daughters in Afghanistan and it is a coincidence that two of the children’s names match but their dates of birth differ. With respect to the name of his father, the applicant states that Mohammad is the most common name for men and the word ‘Jan’ is an endearing name and not part of the formal name. The Tribunal considers it highly unlikely, however, that not only the names of the applicant’s two children would coincidentally be the same as the names of Mohammad Aman’s children, but also the name of his Mohammad’s father, would also coincidentally match the name of the applicant’s father, as well as the name of the brother Gul. The Tribunal acknowledges the applicant’s evidence that people from the same region may have common names but while one coincidence may be to some extent explicable, the matching names of multiple close relatives cannot be explained by mere coincidence in the Tribunal’s view.

16. In relation to the identification of the father on Ali’s death certificate, the applicant states that it is ‘unfortunate’ as Mohammad Aman offered to organise the funeral for Ali. This does not explain why Mohammad Aman would be named as the father of Ali – rather than the person reporting the death or collecting the body.

17. With respect to the actual claims, the applicant reiterates that the family remained in Afghanistan. He notes that his representative made a note when his son told him about his sister (the applicant’s daughter) being pressured to marry a neighbour in 2010 and DFAT was alerted at the time. In the Tribunal’s view, this does not overcome the totality of other concerns, particularly if this information was given in the context of the son’s own visa application.

18. The applicant states that his Afghan passport shows that he left Afghanistan in November 2012 for the interview and then to travel to Australia.

19. As noted above, the Tribunal finds the applicant’s evidence unconvincing. The similarities in the photographic evidence cannot be explained by stating that those photographed come from the same region and the similarities in various names cannot be explained by stating that such names are common. The Tribunal considers it significant that the photograph of the applicant’s son Mubin Bayat is said to be the same as that of Khalid Aman, who was stated to be the son of Mohammad Aman. In the Tribunal’s view, that is strong evidence that Mubin Bayat is the same person as Khaled Aman and that Mohammad Aman is the same person as the applicant. The applicant does not adequately address the Facebook link (as siblings) between his son Mubin Bayat and Faridon Aman. The Tribunal does not accept the applicant’s explanation about the genuine mistake in Ali’s death certificate because the name of the person reporting was substituted with the name of the father. While the Tribunal accepts that if the death was true, the applicant would have been distressed about it, the Tribunal does not accept that since the alleged death, he would not have realised the mistake on the death certificate, given the family’s capacity to prepare and present a complex visa application. While each of the delegate’s individual concerns could potentially be explained by the applicant’s responses, the Tribunal has formed the view that the combination of such concerns offers very strong evidence of the links between the 2010 application made in present names and the 2006 application made in different names.

20. The applicant provided a written submission to the Tribunal on 15 August 2019 and stated that he wished to rely on the written submission provided by his son, Mr Mubin Bayat. Following is the summary of the evidence presented by Mr Bayat in that written submission.

21. Mr Bayat’s representative sets out Mr Bayat’s immigration history, stating that he used a people smuggler to enter Australia and was unaware of the name he used. He declared his true identity after arriving in Australia and provided in support of his application various identity documents which had been accepted by the Department. Although his tazkera was later found to be fraudulent. Mr Bayat states that after being released from VIDC, he rented several places, including a room at Memorial Ave, Merrylands and a friend introduced him to Faridon Aman and they became friends. Faridon told him he lost his passport and was questioned whether he knew the applicant and they realised that the people smuggler may have procured Faridon’s lost passport to enable the applicant’s travel to Australia. 

22. Mr Bayat outlined the claims made in his earlier application and the circumstances of his parents.

23. Mr Bayat identified the issues arising for the Tribunal’s determination as follows:

    a.whether his tazkera was a bogus document, for the purpose of s. 103 of the Act.

    b.whether his birth certificate was a bogus document, for the purpose of s. 103 of the Act.

    c.whether he gave incorrect answers in relation to his identity and whether he is in fact Khalid Aman.

    i.The appropriate weight to accord to the DNA testing report

    ii.The appropriate weight to accord to Australia’s non-refoulement obligations.

24. With respect to the tazkera, Mr Bayat submits it is a genuine document. Mr Bayat notes that there are two translations of the tazkera which contains some differences. Mr Bayat notes that while the delegate found that the document could not be verified, an independent translation of the verification response shows that the document cannot be verified, rather than it is a fraudulent document. Mr Bayat notes that the verifying authority may have misread the folio number, which affected the outcome. Mr Bayat submits that the tazkera was issued in accordance with the procedures outlined in various country reports and there is insufficient evidence to states that it is a bogus document.

25. Mr Bayat also notes that he had subsequently provided a new tazkera which was found to be genuine and he claims it was issued in accordance with the normal process. With respect to the birth certificate, Mr Bayat states that it is a genuine document. Mr Bayat notes that birth certificates are not common, particularly in regional areas. The delegate found that the birth certificate was unreliable as evidence of Mr Bayat’s identity and Mr Bayat submits that there is no evidence to support a finding that the birth certificate was fraudulently made and it is not a bogus document. As the issuance of these documents was not part of the NOICC in the present case, the Tribunal places no weight on any concerns that the delegate may have expressed with respect to that document.

1. With respect to his identity, Mr Bayat claims that he is not Khalid Aman and had never assumed the identity of such. He has no knowledge of the previous applications made in those names. Mr Bayat refers to the DNA testing. He provided a DNA test report relating to himself and Faridon Aman, stating that the two are unlikely to be related as siblings or half siblings. The report also indicates that Sohaila Bayat is excluded from being a mother of Faridon Aman and Homayoon Bayat is excluded from being a father of Faridon Aman, while they are both confirmed as parents of Mubin Bayat.  

2. With respect to the facial recognition examination, Mr Bayat submits that the findings were inconclusive and cannot be relied on. The Tribunal accepts that due to the findings being inconclusive, these reports cannot be considered probative and the Tribunal has given these no weight.

3. With respect to Facebook, Mr Bayat argues that referring to him as a brother in law was not due to the existence of a legal relationship but to imply a social and economic bonding, in accordance with the cultural traditions.

4. With respect to the death certificate of Ali Bayat, Mr Bayat states that the certificate was issued at a hospital in September 2012 and at the time, due to the dangerous situation in the country, Faridon offered to contact his father to help with the burial ceremony and the issuing authority must have assumed Mohammad Aman was Ali Bayat’s father, which was a mistake. This was confirmed in Faridon Aman’s statement made in September 2012 and the statement of Dr Crowe who assisted the family at the time and confirmed the applicant‘s distress at the death of his brother and over ..parents’ safety. Mr Bayat submits that the error in his brother’s death certificate cannot support a finding that his father is Mohammad Aman.

5. The applicant states that to prove the absence of his relationship with Faridon, they had completed the DNA test and the test results exclude any relationship between him, his wife, his son Mubin and Faridon Aman. The Tribunal does normally consider the DNA evidence to be persuasive and possibly determinative but the Tribunal must be satisfied in this case that the samples collected belonged to the relevant persons. This is particularly problematic where the applicant is seeking to exclude a relationship with another person – Faridon – rather than establish that a familial relationship between them exists. In such circumstances, any person other than Faridon giving a sample would achieve the desired outcome.

6. In the course of the hearing, the Tribunal questioned the applicant about the process relating to sample collection. The applicant told the Tribunal that the family attended their local MP to confirm the identity by the JP and they then attended the local clinic and their GP to take the samples. The document indicates that the GP sighted Faridon’s driver licence but does not specify what sample was taken, even though that answer was given in relation to each of the other three participants. The JP appears to have simply confirmed the signature but not necessarily the identity and the Tribunal is not satisfied that the local MP would be personally familiar with Faridon and able to confirm his identity. The Tribunal is mindful that the applicant’s evidence is that similarities in photographic evidence are insufficient because they are from the same background and may look similar for that reason and may have used the same clothes or similar hairstyles or the same photographer, etc. Mubin was able to use another person’s passport to travel to Australia and even though he claims he was completely unrelated to the person whose passport he used, he was able to board the plane using that passport. Yet, the applicant claims that an unknown JP and a GP would be able to accurately determine a person’s identity by comparing photographic images with the visual confirmation of the person’s identity. The Tribunal does not accept that this is so. That is, the Tribunal cannot be completely satisfied that the person who gave the sample was in fact Faridon, even if his driver licence or other form of identity was sighted.

7. The Tribunal is mindful that in determining that there are grounds for cancellation, neither the delegate nor the Tribunal rely exclusively on the image similarities. For the Tribunal, it is the combination of a variety of evidence that offers a strong basis for its findings. Similarly, the Tribunal is not satisfied that the use of a driver licence by a person claiming to be Faridon would be sufficient to confirm that he was the person providing the samples, particularly as this was not done by an independent representative of the DNA laboratory but by the local doctor and a JP with no knowledge of the parties. The Tribunal acknowledges the representative’s submission that the parties could not have done any more than obtain the DNA result and that the appropriate procedures had been followed. However, for the reasons stated above, the Tribunal does not consider these to be sufficient.

8. As the Tribunal cannot be completely satisfied that the person who gave the sample was in fact Faridon, the Tribunal does not consider that in such circumstances, the DNA results excluding the relationship between the applicant, his wife, Mubin and Faridon to be conclusive. In the particular circumstances of this case, the Tribunal does not consider the DNA results to be probative evidence that there is no relationship between Faridon and the applicant.

9. The applicant’s wife told the Tribunal that the Department has not been fair to them and if it was their son who lodged the first application, they would have come to Australia and not lost two of their children.

10. The applicant and his wife repeatedly told the Tribunal that they are truthful and do not lie, having worked as teachers for many years. This is also the evidence contained in a number of supporting statements. However, such assertions do not overcome the Tribunal’s concerns. 

11. Overall, the Tribunal has formed the view that the information contained in the NOICC and the primary decision record concerning the previous application made by Mr Mohammad Aman to be credible and more persuasive than the evidence put forward by the applicant. The Tribunal has formed the view that the combination of the various similarities cannot be explained by coincidences and, in relation to the DNA results, the Tribunal cannot be satisfied that the sample was taken from Mr Faridon Aman. The Tribunal rejects the applicant’s explanation and gives greater weight to the information set out in the primary decision record. The Tribunal finds that Mubin Bayat and Faridon Aman are siblings. Mr Aman’s previous sponsorship of his parents for the visa, and the similarities in various names between the two applications also indicate that the applicant previously used the identity of Mohammad Aman while his wife had previously used the identity of Rahila Aman. The Tribunal so finds.

12. The primary decision record indicates that the key information in the visa applications made by the applicant in 2010 and Mohammad Aman in 2006 was contradictory. Thus, in the application for the Global Special Humanitarian visa made by Mohammad Aman in October 2006, in which his wife was included as the secondary applicant under the identity of Rahila Aman, the following claims were made:

    a.The applicant and his wife left Afghanistan in December 2001 and lived in Iran since that time.

    b.The applicant and his wife have a son Faridon Aman, who is an Australian citizen.

13. The Tribunal has formed the view that Mohammad Aman and Homayoon Bayat are the same person. The Tribunal notes that if the information in the first application was correct, and the family left Afghanistan in 2001, then the various claims made in the 2010 application, as set out in the primary decision record, which refer to the incidents in Afghanistan, could not have occurred. As noted above, the 2010 application referred to events relating to the family’s involvement with Christianity which occurred in Afghanistan before 2009. In the 2006 application the applicant also claimed that his brother Gul was deceased while in the 2010 application it was Gul who is claimed to have perpetrated harm towards the family.

14. The Tribunal finds that the applicant’s answers on the application form were incorrect in the following respects

    a.The applicant’s given and family names and dates of birth.

    b.His wife’s given and family names and dates of birth.

    c.By stating ‘no’ in response to the question whether any person included in the application had previously applied for an Australian visa.

    d.By stating there are no other relatives residing in Australia and failing to mention Faridon Aman as his son.

    e.By specifying the addresses in Afghanistan between 1992 and 2009.

    f.By setting out the reasons for fleeing Afghanistan in the statements that accompanied the application.

    g.By referring to his employment in Afghanistan between 1990 and 2009.

15. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

16. The primary decision record indicates that the applicant included with his application an Afghan tazkera for his son Mubin Bayat. The Department sought verification of this document with the Ministry of the Interior in Kabul and were informed in November 2015 that this document was not registered with the relevant Afghan authorities and was made fraudulently. Mr Bayat claims the document was not correctly translated when the verification was done. The Tribunal places no weight on the provision of this document and does not draw any adverse conclusions from it.

17. The Tribunal further finds that the applicant gave, or caused to be given, bogus documents with his visa application. These include:

    a.His son Ali Bayat’s tazkera states that his father is Homayoon Bayat. His death certificate shows that his father’s name is Mohammad Aman. The Tribunal finds it is a bogus document within the meaning of s. 5(b) of the Act.

    b.The applicant’s tazkera states that his name is Homayoon and that he was born around 1958. As the Tribunal has found that his real name is Mohammad Aman, and he was born in February 1955, the tazkera is a bogus document within the meaning of s. 5(b) of the Act.

    c.The tazkera for the applicant’s spouse identifying her as Sohaila, born around 1960. As the Tribunal has found that her real name is Rahila Aman, and she was born in June 1959, the tazkera is a bogus document within the meaning of s. 5(b) of the Act.

18. The Tribunal finds that the applicant did not comply with s. 103 of the Act in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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 r.2.41 of the Regulations. Briefly, they are:

    The correct information

21. The correct information is that the applicant had previously made a visa application in a different name and offering a different set of claims. The applicant denies having previously made the application and denied that they had left Afghanistan in 2001. The Tribunal has formed the view that the information in the 2010 application for the subclass 202 visa was incorrect and prefers the information that was provided in the earlier application. In that application it was claimed that the family left Afghanistan for Iran in December 2001 and the Tribunal finds that to be the correct information.

    The content of the genuine document (if any)

22. The applicant told the Tribunal that his present name and the date of birth is the name and date of birth that he had always used and he had not been known by any other name. He denied making another visa application previously.

23. The Tribunal found that the application was accompanied by bogus documents, including the applicant’s and his wife’s tazkeras. The genuine tazkeras for the applicant and his wife would show different names and dates of births

    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

24. The applicant told the Tribunal that they attended the interview and answered the questions correctly. He said that after his son was killed and their daughter went missing, they had no real life in Afghanistan and it was only after coming to Australia that they realised what life means and they are thankful for all that Australia has given to them. They would not be alive in Afghanistan. 

25. The Tribunal is mindful that the issue of identity is relevant to any visa application. It is relevant in determining whether the applicant meets the character criteria in s. 501 and PIC 4001. Further, cl. 202.222 relevantly stated at the time the application was made that there must be compelling reasons for giving special consideration to granting to the applicant a permanent visa, having regard to the degree of discrimination to which the applicant is subject in the applicant's home country. Therefore, the applicant’s claims concerning the harm he experienced in Afghanistan were relevant to that assessment.

26. The Tribunal has formed the view that the decision to grant the visa was based, in part, on incorrect information or bogus documents.

    The circumstances in which the non-compliance occurred

27. The applicant denies that there was non-compliance. The applicant claims that they have always been honest and have taught their children to be honest. The Tribunal has formed the view that this evidence has not been truthful, that the applicant was known by another name and made another application providing different information.

    The present circumstances of the visa holder

28. In his response to the NOICC the applicant states that since arriving in Australia, it has been very painful for him due to the loss of his two children and he has been seeing a psychologist on a regular basis. The applicant enclosed a medical certificate from Dr Hamid which indicates that the applicant suffers from depression and anxiety, has poor memory, poor concentration and low self-esteem and is under the care of a psychologist. The medical report refers to other conditions which the applicant is being treated for.

29. The applicant presented a medical certificate from Dr Pishyar of Caspian Clinical Psychology Services which refers to the applicant suffering from depression and PTSD and ongoing cognitive behaviour therapy and trauma counselling. It outlines the applicant’s current psychological problems. The applicant told the Tribunal that because of the threat in Afghanistan and the loss of his two children, he has been suffering from severe depression. The Tribunal accepts the presented medical evidence.

30. The applicant told the Tribunal that since his visa was cancelled, he has not received any financial support from the government to meet his daily needs. Initially he borrowed money from others and now he relies on his son financially.

31. The applicant states that as a result of the psychological condition, he and his partner have separated and no longer live at the same address.

32. The applicant states that since arriving in Australia he has endeavoured to be a responsible resident and has not committed any criminal offences and he tries to be law abiding at all times. He wants to see his son’s business continue and be successful. He has completed a certificate in English. The Tribunal accepts that evidence.

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

33. Nothing adverse is known about the applicant’s behaviour under the Act.

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

34. The applicant told the Tribunal that he and his wife separated about two years before coming to Australia but were living under the same roof. There is no evidence that the applicant informed the Department about this change in his circumstances in writing before being immigration cleared, as required by s. 104 of the Act. The applicant said they were not formally divorced but the form makes the distinction between separation and divorce. The applicant also said that in the Afghan culture, they were considered to be married until the divorce but that contradicts their earlier evidence to the Tribunal that they lived separately under the same roof for two years before making the application. The applicant also states that they did not understand the concept of separation. The Tribunal notes, however, that under s. 100, 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. Further, s.111 of the Act states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

    The time that has elapsed since the non-compliance

35. The application for the visa was made in March 2010 and over nine years have passed since the non-compliance. The Tribunal acknowledges that a long time has passed since the non-compliance.

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

36. There are no known breaches of the law.

    Any contribution made by the holder to the community.

37. The applicant told the Tribunal that he learned English after coming to Australia but he was not in the position to work due to various health issues and he claims he cannot work due to his depression. The applicant stated that he will make a contribution if given the opportunity in the future.

38. While these factors 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 Advice Manual) PAM3 ‘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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

39. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. The applicant states that he cannot return to Afghanistan because he would be killed there. The Tribunal is mindful that if it is determined that Australia owes protection obligations to the applicant, the applicant may not be returned to Afghanistan and if he cannot be returned to any other country and is not granted any other visa, the applicant may be subject to a lengthy detention. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and the applicant may be subject to an exclusion period in the future. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there would be limited options available to the applicant in Australia. If the visa is cancelled, the applicant may lose some entitlements he may have acquired as a permanent resident of Australia.

    Whether there would be consequential cancellations under s.140

1. There are no persons whose visas would be cancelled under s. 140 of the Act.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

2. The applicant told the Tribunal that all of his children are over 18. There are no children who would be affected by the cancellation. The visas held by the applicant’s applicant spouse and son are also subject to the cancellation. If their visas are cancelled, the principles of the family unit would not be adversely affected by the cancellation.

3. The applicant claims that they would be killed if returned to Afghanistan, either by his brother or by others because of their religious principles. The applicant referred to a number of country reports concerning the situation in Afghanistan.

4. The Tribunal is mindful that the applicant has been granted a Humanitarian visa on the basis of information which the Tribunal now considers to have been incorrect. It cannot be definitively said that if the correct information was known, the applicant would have been granted the visa. Nevertheless, the Tribunal has given the applicant the benefit of the doubt and, for the purpose of this application only, the Tribunal accepts that Australia’s non-refoulement obligations may be engaged in relation to the applicant.

   Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

5. The applicant submits that there is not enough evidence to establish that he was known by another name and that the DNA test results should be given greater weight. The applicant submits that the similarities and the coincidences have been explained in various statements, including Faridon’s declaration. For the reasons stated above, the Tribunal has preferred other evidence and has not accepted the DNA test results as evidence that Faridon was not related to the applicant. The applicant also states that Faridon was not present to meet him at the airport, which shows that he is not related, but in the Tribunal’s view, there could be any number of reasons why he was not present, or available, on the day of the applicant’s arrival in Australia.

6. The Tribunal has considered the totality of evidence before it. The Tribunal has formed the view that the applicant has not complied with s. 101 and s. 103 of the Act and that there are grounds for cancelling his visa.

7. The Tribunal considers that there are strong reasons why the visa should not be cancelled. In particular, a long time has passed since the non-compliance and the applicant has been living in Australia for a lengthy period and is settled in Australia. The applicant suffers from a number of medical ailments and is receiving treatment (although he has not satisfied the Tribunal that adequate treatment would not be available to him if the visa is cancelled). The Tribunal places significant weight on the applicant’s evidence as to why he cannot return to Afghanistan and, to give the applicant the benefit of the doubt, the Tribunal is prepared to accept that Australia’s non-refoulement obligations may arise in that case. These offer a strong reason why the visa should not be cancelled.

8. However, the Tribunal also places weight on the nature of the breach and the circumstances in which it occurred. The Tribunal has formed the view that the applicant had previously made an application for a visa using a different identity. The claims made in that application were substantially different to those made in the subsequent application that resulted in the grant of the visa. The applicant’s identity and the nature of his claims were central to the assessment of his eligibility for the visa and the Tribunal has formed the view that the applicant has not been truthful in these matters. The Tribunal finds that such matters outweigh other considerations.

9. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

    Kira Raif
    Senior Member