Darwish (Migration)

[2019] AATA 625

Darwish (Migration) [2019] AATA 625 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kazim Darwish

CASE NUMBER:  1802981

HOME AFFAIRS REFERENCE(S):           BCC2017/4658347

MEMBER:Kate Millar

DATE:26 February 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 26 February 2019 at 1:28pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – identity of the applicant – change of name – claims to be brother of primary visa holder – lack of DNA evidence – estranged from family members – identity documents – consideration of discretion – ties to Australian community – maintaining the integrity of the visa process – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to Mr Darwish’s identity and, having considered the factors set out in Department policy about cancellation of the visa, decided the visa should be cancelled.

3. The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Mr Darwish appeared before the Tribunal on 27 November 2018 to give evidence and present arguments, and was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   SECTION 375A CERTIFICATE

6. The Department file contained a certificate issued under s.375A of the Act.  This certificate was provided to Mr Darwish through his migration agent, and he was invited to provide comments on the validity of the certificate. 

7. The information covered by the certificate is information regarding a money transfer to Kazim Darwish in Pune, India.  This information is contained in the decision of the delegate and was canvassed both in written submissions to the Tribunal and at the Tribunal hearing. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that a ground specified in that provision is made out. In this case, the delegate found the ground in s.116(1AA) was made out. This states that the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

9. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. Mr Darwish was granted a Partner (Provisional) Subclass 309 visa, and then a Partner (Migrant) Subclass 100 visa in the name of Ismail Noori.  He was granted these visas on the basis that he was a member of the family unit of Feroza Noori, who was said to be his sister. 

11. Ms Noori said that their father had been killed by the Taliban.  Approximately a year later, after she had given birth to her youngest child, her mother was taken by her father and brothers, and her mother’s whereabouts was unknown.  As a result, it was claimed Ismail Noori was a member of her family unit together with two other brothers.   

12. Mr Darwish arrived in Australia on 1 August 2010, and on 18 November 2013 he changed his name to Kazim Darwish.  Mr Darwish applied for Australian citizenship on 1 August 2014, and requested an urgent conferral ceremony so he could visit his sick mother.  This raised concerns about the account given in his visa application about his mother being of unknown whereabouts.

13. Searches were conducted by the Department of Home Affairs that showed Mr Darwish had used the name Kazim Darwish on Facebook from 2009, before the date his visa was granted, that he was undertaking year 12 studies in Quetta Pakistan at the time the visa application was lodged and that he had also studied at Maharashtra Institute of Technology in Pune, India between 2009 and 2010. 

14. Mr Darwish said he changed his name to the same name he used as a social activist and poet.  He said he chose the name Kazim as he admired this poet and used to read his poetry.  He chose Darwish as a unique dignified name.  He used an incorrect spelling of this name on poems and short stories and was known as Khazim Darwish on social media and to his friends.  He said he started using this name in 2009.  He said he wrote poems for a book “A light in your hands”, published in 2014 or 2015 under the name Khazim Darwish.  More than 100 people contributed to this book, and he saw it published on Facebook.  On this issue being revisited in oral evidence he said his name “should have” appeared on this poem, but he was not sure that it had appeared, as he had only seen it on Facebook.   

15. A relatively straightforward way to provide evidence as to Mr Darwish’s identity would be for him to have DNA tests to establish his relationship with Feroza Noori or the two brothers who accompanied him to Australia.  He was asked at hearing whether he was willing to provide DNA test results.  Mr Darwish says he is willing to take a DNA test but is unable to provide DNA evidence of his relationship to his siblings Feroza, Jalil and Medhi as he is now estranged from them as well as his brother-in-law Wahid.   

16. Mr Darwish says he had a UNHCR card and this was provided to the Department, but he does not now have it and it is lost. Mr Darwish said he showed his passport to the Australian embassy.  He travelled to Australia on an Afghani passport in the name of Ismail Noori.

17. On being asked what information he could produce that would establish his identity, he said the published stories under his assumed name, and his passport to come to Australia provided his identity.  His passport was not before the Tribunal, and the Tribunal summonsed the Department file which contained a copy of his passport, and accepts he provided a passport in the name Ismail Noori. 

18. Mr Darwish said it is the choice of every individual to change their name, and he had to publish a notice the newspaper in Darwin that he intended to change his name.

19. Mr Darwish states he provided his taskira to the Department with his visa application, and this establishes his identity.  This document was not before the Tribunal, and the Tribunal summonsed the Department file that relates to his original visa application.  This file contains a taskira in the name Ismail, son of Ibrahim and grandson of Mohammed Essa.  The Tribunal accepts there is a taskira in this name. 

20. Mr Darwish said he went to high school in Pakistan at Shamamma High School in Quetta, which was a school for refugees.  This school is not registered in Pakistan and the teachers were not registered.  He said fees were paid for him to attend.  He studied English at this school in 2008 and 2009.  Mr Darwish was given the opportunity to provide information about his schooling after the hearing.   He provided documents and translations stated to be from Gawharshad Model High School for the 2008 and 2009 academic years stating Ismail Noori, son of Mudir Ibrahim, completed a range of subjects in the two academic years.  A letter from the principal states Ismail Noori, currently known as Kazim Darwish, completed high school at Gawhar Shad Model High School.  

21. After he finished high school, Mr Darwish says he travelled to India and studied for two semesters in Maharashtra at Pune University, studying a Bachelor of Business Administration.  On being asked what was required to enrol in this course, he said he could not recall much. He said he had to have a visa for India, receive an offer from the University and then had to enrol at the university.  To apply for the course he said he had to provide a transcript of his education from Pakistan.  At hearing he said he had a transcript from the unregistered Afghani school, but now has lost it. It appears he was able to obtain another copy as this was provided to the Tribunal after the hearing.   He said he enrolled in Pune University in the name of Ismail Nori.  

22. Mr Darwish said he does not have any documentation to show the name in which he enrolled, receipts for payments for the fees, or the offer of a place at the University. He thought he may have thrown any such documents away.   He said he cannot obtain an academic transcript from Pune University as he did not complete his course and did not pass the exams.  He said he did not disclose his time in India in applying for the visa to come to Australia because he did not fill in the forms and did not think it necessary.  The course fees were 60,000 or 70,000 Indian Rupee, which he paid in cash.  I did not find his explanations for being unable to produce any documentary evidence of his studies at a University in India convincing, or accept that he would be unable to provide an academic transcript unless he passed the course.  It is more likely he was known by another name during this time. 

23. In addition, the delegate notes a money transfer from Abdul Mahmoodi, his purported brother-in-law to Mr Darwish while he was in Pune in the name “Kazim Darwish”, and that identification is required to collect money through funds transfer.  The delegate concluded that Mr Darwish was known by this name and had identity documents in this name.

24. The Western Union website states that to receive money, the person needs to provide the tracking number, the sender’s name and country, the transfer amount and an accepted form of government-issued photo identification.[1] This was put to Mr Darwish at the hearing.  In response it was submitted there were hundreds of examples where money is sent to people who have no documents in India, Pakistan and Afghanistan, and it is sufficient to know the reference number to collect the money.  Mr Darwish said both in oral evidence and in his statutory declaration he gave the reference number and received the money.  I do not find his evidence that he would not have to provide identification convincing, in particular while when he was located in India and in circumstances where he said he had to have a visa, and therefore a passport, to enter India before he could enrol.

    [1] >

    Mr Darwish said the offer from the university was done through friends and he did not keep a copy of the offer.  He said when he attended the university to enrol he need to take his offer letters and identification.  He lived in Pune for eight or nine months while he attended university, but he could not recall where he lived.   

25. Mr Darwish said the passport he used to apply for the visa was lost either when it was sent to the Australia embassy in Islamabad or when it was being returned to him by the embassy.  He said Feroza’s passport was also lost.  After his passport was lost in Pakistan, he said the police later told him his passport was found and he recovered this passport, but Feroza’s passport was not recovered.  I did not find this account persuasive, in particular that an Afghan refugee living in Pakistan would be located by police to return a passport.  I do not accept that Mr Darwish lost his passport or that he travelled to India on a passport in the name of Ismail Noori.    

26. Mr Darwish said he applied for a new passport when his first passport was lost.  He used the new passport to travel to India.  Because this passport was stamped with entry to India he said he could not use it to re-enter Pakistan so he threw this passport away in Afghanistan before re-entering Pakistan illegally.  Mr Darwish said he entered Australia on the passport that was lost and then found again.

27. Mr Darwish said he did not disclose to the Department that he was also known as Kazim Darwish because he was only known by that name on social media.  It was submitted that his friends and family knew him by this name.

28. It is also submitted that as the Department accepted his identity for the purpose of his visa applications, and granted a visa on this basis, this is evidence that his taskira is genuine.  I do not accept that later information cannot act to call into question a matter previously accepted by the Department, as occurred in this case. 

29. Ultimately what would assist Mr Darwish to establish his identity is DNA testing to show he is the sibling of Feroza.  He says he is willing to undertake DNA tests but is estranged from other family members.  It is for Mr Darwish to provide this evidence and approach family members.  He declined to say why he was not in contact with Feroza or other family members as he said it was a personal matter.  In circumstances where his visa may be cancelled, his explanation that family members would refuse to assist was not convincing.  A failure to provide evidence that should be able to be obtained and which would be highly probative of his claimed relationship with his siblings weighs against Mr Darwish establishing his identity.

30. The Tribunal also did not find his explanation regarding the lack of identity documents surrounding his attendance at University in Pune convincing.  He claims not to have any documents to show the name under which he studied, and that he threw the passport away that had the visa to India because he could not return to Pakistan with a visa to India in his passport. It is difficult to accept that Mr Darwish would not be able to provide records of his study in India, and it is more likely he studied under a different name.  This is supported by a money transfer from Abdul Mahmoodi to Mr Darwish in this name when he was in Pune. 

31. Mr Darwish says he has lost his UNHCR card and did not keep any documents that relate to his study in India.  The documents from his high school are not convincing as it is not stated how the principal would know Ismail Noori was currently known as Kazim Darwish, other than being told this by Mr Darwish. 

32. While there is a taskira and passport that have been provided in the name Ismail Noori, Mr Darwish’s identity has been put in issue by being known by another name over a lengthy period of time.  He is unable to provide information that would show he studied in India in the name Ismail Noori, despite asserting this is the case, and I find it more likely that he entered India and studied in India under a different identity.  This identity and Mr Darwish’s travel to India were not previously disclosed to the Department.  Mr Darwish is unable to provide DNA evidence to support his claimed relationship with his purported siblings.  I do not accept that they would not co-operate with a DNA test if the result is that Mr Darwish’s visa could be cancelled. 

33. The Tribunal was left with the impression that attempts to establish Mr Darwish’s identity for example through DNA tests, records of his time in India, and through other identity documents, such as a UNHCR card and a previous passport that had been thrown away by Mr Darwish, were stymied by Mr Darwish.  Although after the hearing he provided some school records and a letter from a principal of a school these did not give the Tribunal great assurance that they assisted in establishing his identity.  The Tribunal itself located a taskira and passport, but is not satisfied it can rely solely on these documents, which do not have the security features of equivalent documents issued by other states, where there is information before the Tribunal that Mr Darwish has used another name. 

34. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1AA) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

35. There are no matters specified in the Act or Migration Regulations 1994 that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

36. Mr Darwish said it would be unfair if his visa is cancelled because he travelled to India.  He said he had a taskira he submitted to the embassy that shows his identity.  He said he decided not to stay in Pakistan as the outcome of the visa application was unclear, and he was seeking the opportunity to study in India.

37. Mr Darwish said he is from Siazamin in Jaghori but the family went to Kabul when he was a small child.  He said the family went to Pakistan when he was a child.  He could not provide the family composition of either of his parents.  The delegate records that in the visa application it is claimed his father was a bank manager who was killed by the Taliban in Kabul.  It is claimed that approximately a year later, after his mother gave birth to her youngest child, she was taken by her father and brothers to the family home and her whereabouts was unknown.  In his statutory declaration Mr Darwish notes he was a minor at the time, and the visa application was completed by Feroza and her sponsor. 

38. Since entering Australia, Mr Darwish says he has contributed to the community and volunteers teaching Farsi.  He has completed studies as a civil engineer and works for a local council.  He said he fears returning to Afghanistan because people are killed or displaced, particularly in Jaghori where he was born. He said the family also lived in Kabul, where people are killed.  Mr Darwish initially said this has an impact on him because his immediate family are in Kabul.  On being asked what family he had in Kabul, he said it was not immediate family but uncles, aunties and other relatives who are located in various places such as Kabul, Jaghori and Pakistan.  He said all Afghans are connected to each other through community and tribe. 

39. Mr Darwish is a founding board member of the Baba Mazari Foundation which sponsors children to attend school.  Other board members include his migration agent. He also assists in a student organisation that helps Afghani students studying in Australia.  

40. Mr Darwish applied for citizenship to facilitate him visiting his mother, who he said was ill.  At hearing, he said his mother has remarried but he has not been in touch with his mother since 2014.  He had heard she was unwell and was in Kabul, but he is not sure whether she is in Afghanistan or Pakistan. 

41. He currently works as a civil engineer for a local council and shares a house with friends. 

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

42. The purpose of the visa granted was for the head of Mr Darwish’s family unit to be in Australia as the spouse of an Australian citizen, permanent resident or an eligible New Zealand citizen.  As the Tribunal is not satisfied as to Mr Darwish’s identity, and he is unable or unwilling to provide DNA evidence to establish his relationship with other members of his family unit, the Tribunal is also not satisfied that he is a member of Feroza Noori’s household.  Therefore he is not in Australia for the purpose for which the visa was granted

43. Mr Darwish says he has a compelling need to remain in Australia due to the risk he may experience to his safety if he returns to Afghanistan.  This can be tested by an application for a protection visa.

44. Mr Darwish says he is estranged from his family members in Australia.  He is not married and does not have children.  He said he has a girlfriend in Australia, but was not willing to provide any further information on his girlfriend.

    The extent of compliance with visa conditions

1. There is nothing before the Tribunal to show Mr Darwish has not complied with the conditions of his visa. 

   The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

2. If Mr Darwish’s visa is cancelled, he said he will suffer emotionally and mentally as he suffers depression.  He said he will not able to support himself and will be in danger in Afghanistan, and that it is obvious he will be killed.  He said he has strong bonds to Australia through his employment and volunteer work. 

3. It is accepted that Mr Darwish will suffer hardship if his visa is cancelled. 

   The circumstances in which ground of cancellation arose

4. Mr Darwish said he cannot provide documents when the documents do not exist.  He claims that he was a member of Feroza’s family unit and that his parents were deceased and missing when he migrated. There is no independent evidence that he is related to Feroza, and in the absence of other information, I do not accept these were his circumstances at the time of the application.  As a result, I am not able to make further findings about the circumstances in which the ground for cancellation arose.

   Past and present behaviour of the visa holder towards the Department

5. There is nothing before me to suggest Mr Darwish has not co-operated with the Department.    

   Whether there would be consequential cancellations under s.140

6. There are no consequential cancellations that would result from Mr Darwish’s visa being cancelled. 

   Whether there are mandatory legal consequences of the visa being cancelled

7. If the visa is cancelled, there are limited visas for which Mr Darwish can apply while he is in Australia.  As Mr Darwish says he is fearful for his safety if he returns to Afghanistan, he can apply for a protection visa from within Australia.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

   If Mr Darwish’s visa is cancelled he can apply for a protection visa and have his claims assessed according to the requirement of this visa.  This means Australia’s non-refoulement obligations will not be breached by cancelling his visa.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

8. Mr Darwish said he has not had contact with his siblings in Australia for a few years.  He does not have any other family in Australia.  He said he has a girlfriend but was not willing to give her name and would prefer to be regarded as single.  He has completed a civil engineering qualification and works for a local council.

9. Mr Darwish has provided statements from the Association of Australian Tertiary Students in Afghanistan President, his friend and visual artist Mr Elyas Alavi, the managing director of Silk media, and a lecturer at the University of South Australia, attesting to his volunteer work with students and to his character.  It is not doubted that Mr Darwish has performed some volunteer work and has the support of those organisations for which he does this work. 

10. As he does not have any contact with his purported siblings in Australia he has little in the way of family ties but does have some business ties through his employment and ties with the Afghani community.  As such he has no active family ties in Australia, but does have some business and community ties.

    CONCLUSION

11. The Tribunal has found that it is not satisfied as to Mr Darwish’s identity.  This in turn calls into question his eligibility for the visa he was granted, particularly in circumstances where he says he is now estranged from his family members in Australia and cannot obtain DNA evidence to show his relationship with these family members.   

12. Cancelling a person’s visa is a matter of considerable gravity, particularly in circumstances where Mr Darwish says he will be at risk if he were to return to Afghanistan, and therefore requires careful consideration.  Mr Darwish’s claim to fear harm if he returns to Afghanistan is a claim more properly addressed through an application for a protection visa.  

13. While Mr Darwish has ties to the Australian community through his employment and volunteer work, he does not have current family ties in Australia.  The ties he has does not outweigh the consideration of maintaining the integrity of the visa process through being assured of a person’s identity. 

14. Having considered all of the circumstances, and having given careful consideration to the gravity of cancelling Mr Darwish’s visa, the Tribunal has concluded that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kate Millar
    Member