Mohammadi (Migration)

Mohammadi (Migration) [2023] AATA 2213 (11 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mustaq Mohammadi
REPRESENTATIVE:  Ms Catherine Farrell, Clothier Anderson Immigration Lawyers
CASE NUMBER:  2103433
HOME AFFAIRS REFERENCE(S):          BCC2019/5834012
MEMBER:Michael Ison
DATE:11 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 11 January 2023 at 1:49pm
CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ground for cancellation – satisfaction as to visa holder’s identity – Facial Image Comparison – whether adopted the identity of younger brother – credible witness – qualified nature of the facial image comparison report – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 117 (Orphan Relative) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is Mr Mustaq Mohammadi, who is a 28-year-old national of Afghanistan. Mr Mohammadi is referred to as the applicant in these reasons for decision. The Tribunal summarises the applicant’s immigration history in Australia as follows from the primary decision and written submissions provided to the Tribunal.
The applicant previously applied as a secondary visa applicant in his mother’s, Ms Maryam Mohammadi’s, offshore Global Special Humanitarian (Class XB) (Subclass 202) visa applications on 22 June 2006 and 1 May 2007. Those applications were refused on 7 March 2007 and 14 May 2007 respectively.
In the delegate’s decision dated 16 March 2021 cancelling the applicant’s Orphan Relative visa, the delegate stated that on 16 December 2005 the applicant applied for a Global Special Humanitarian visa under the name Mr Hamed Mohammadi, sponsored by the applicant’s brother Mr Zabiullah Mohammadi and that application was refused on 20 December 2005.
The delegate also stated that on 10 October 2007 and 12 February 2008 the applicant applied for offshore Student (Class TU) (Subclass 572) visas under the name Mr Hamed Mohammadi. The 2007 application was withdrawn on 11 March 2008 and the 2008 application was refused on 25 April 2008.
On 23 January 2012 the applicant applied for an offshore Orphan Relative visa on the basis that the applicant is an orphan relative of his sponsor Mr Zabiullah Mohammadi, who was granted Australian citizenship on 13 September 2007.
The applicant was granted the Orphan Relative visa on 24 May 2015.
The applicant first arrived in Australia as the holder of an Orphan Relative visa on 11 June 2015.
On 9 February 2016 the applicant married Ms Marina Moradi. On 4 May 2016 Ms Moradi applied for an offshore Combined Partner (Class UF) (Subclass 309) and (Class BC) (Subclass 100) visa as the spouse of the applicant and she was granted a Subclass 309 visa on 4 October 2016.
On 16 October 2016 Ms Moradi first entered Australia as the holder of a valid Subclass 309 visa. On 30 October 2018 Ms Moradi submitted documents in support of her application for a Permanent (Class BC) (Subclass100) Partner visa as the spouse of the applicant. Ms Moradi’s Subclass 100 visa application has not been finally determined by the Department.
On 16 March 2021 the applicant’s Orphan Relative visa was cancelled by a delegate of the Minister for Home Affairs. It is the cancellation of the applicant’s Orphan Relative visa that is the subject of this review.
On 18 July 2019 the applicant applied for Australian citizenship. This application was refused on 19 March 2021 because of the cancellation of the applicant’s Orphan Relative visa.
The applicant was subsequently granted a Bridging E (Subclass 050) visa was on 26 March 2021, which the applicant continues to hold at the time of this decision. The applicant’s Bridging E visa has conditions 8506 (Notify New Address) and 8207 (No Study) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached.
The applicant and his wife Ms Moradi have a son, Master Irfan Mohammadi, who was born in October 2019 in Australia. Master Mohammadi is an Australian citizen by birth.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The delegate cancelled the visa under s 116(1AA) of the Act on the basis that delegate was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Tribunal hearing
The applicant appeared before the Tribunal on 26 October 2022 to give evidence and present arguments, in person.
The Tribunal also received oral evidence from:
·Ms Moradi, the applicant’s wife;
·Mr Zabiullah Mohammadi, the applicant’s older brother;
·Mr Reza Tawakali, the applicant’s friend; and
·Mr Sultan Darwish, the applicant’s friend.
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 the applicant’s migration lawyer, Ms Catherine Farrell of Clothier Anderson Immigration Lawyers. Ms Farrell is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing in person and made oral submission during the hearing and provided additional written submissions after the hearing. The representative’s submissions were of assistance to the Tribunal in the conduct of this review.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and confirmed the applicant could understand the interpreter. The Tribunal asked the applicant whether the applicant had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated he did not. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
Certificates issued by the delegate under section 375A of the Act
On 23 March 2022 the Tribunal wrote to the applicant to inform him:
·there are two certificates issued pursuant to s 375A of the Act dated 23 March 2021 and 20 August 2021 applying to documents on the Department file;
·the first s 375A certificate dated 23 March 2021 was revoked by a delegate of the Minister and an instrument of revocation was provided to the Tribunal. The Tribunal finds that the revocation of the s 375A certificate dated 23 March 2021 is effective;
·the second s 375A certificate dated 20 August 2021 applies to 11 documents on the Department’s file provided to the Tribunal and has not been revoked;
·the Tribunal’s preliminary view is that the s 375A certificate dated 20 August 2021 has been validly issued and is binding upon the Tribunal;
·given the Tribunal’s preliminary view of the validity of the s 375A certificate, the Tribunal cannot provide the applicant with a copy of the documents the certificate applies to;
·the Tribunal set out in its letter the material particulars of the information in the documents the 375A certificate applies to; and
·the Tribunal invited the applicant to comment on the s 375A certificate dated 20 August 2021, including its validity.
Pre-hearing submissions
On 22 April 2022 the Tribunal received an email on behalf of the applicant which attached an eight-page written submission dated 22 April 2022 from the representative providing comments on the s 375A certificate dated 20 August 2021.
On 20 October 2022 the Tribunal received a submission on behalf of the applicant which attached documents including:
·two passport sized photos of Mr Hamed Mohammadi;
·a four-page written statement from the applicant, dated 20 October 2022;
·a two-page statutory declaration by the applicant’s wife, Ms Marina Moradi, declared on 11 October 2022;
·one-page statutory declaration by the applicant’s friend, Mr Sultan Darwish, declared on 17 October 2022;
·the applicant’s Afghan passport, date of issue: 12 February 2021 and date of expiry: 12 February 2026;
·the applicant’s Afghan passport, dated of issue: 30 July 2011 and date of expiry: 29 July 2012;
·the applicant’s Taskera (number 956506);
·an untranslated copy of the applicant’s Taskera (number 13864999);
·quarterly Business Activity Statements of the applicant for the periods from 1 April 2021 to 30 June 2021, 1 July 2021 to 30 September 2021, 1 October 2021 to 31 December 2021 and 1 April 2022 to 30 June 2022;
·a purchase order for the painting of a property by the applicant in Langwarrin South VIC, issued by Smart Homes (Vic) Pty Ltd, dated 22 October 2020;
·a purchase order for the painting of a property by the applicant in Tootgarook, issued by Smart Homes (Vic) Pty Ltd, dated 22 April 2021;
·a purchase order for the painting of a property by the applicant in Tanjil South, Victoria, issued by Smart Homes (Vic) Pty Ltd, dated 25 March 2021;
·photos of the finished painting job at the Tootgarook property;
·photos of the finished painting job at the Tanjil South property;
·an unsigned and undated one-page written statement from the applicant’s brother, Mr Zabiullah Mohammadi;
·photos of the applicant and his family;
·extracted information from a Department file showing the Department accepted the applicant’s taskera provided in support of the application for the Orphan Relative visa application was checked and verified by the Department in 2015 as being a genuine document; and
·Australian Citizenship certificate of Mr Zabiullah Mohammadi, dated 13 September 2007.
On 21 October 2022 the Tribunal received a submission on behalf of the applicant which attached a 15-page written statement from the representative, dated 21 October 2022.
On 24 October 2022 the Tribunal received a submission on behalf of the applicant which attached a one-page written statement from the applicant’s brother Mr Zabiullah Mohammadi, signed and dated 22 October 2022.
On 25 October 2022 the Tribunal received a submission on behalf of the applicant which attached a one-page statutory declaration declared by the applicant’s friend, Mr Reza Tawakali, on 24 October 2022.
The Tribunal also received various other correspondence from the applicant’s representative in relation to arranging the applicant’s participation in the Tribunal hearing and other administrative matters.
Section 359A letter
On 14 November 2022 the Tribunal wrote to the applicant in accordance with the procedure set out in s 359A of the Act. The details of the Tribunal’s letter and the applicant’s response are set out below in these reasons.
Post-hearing submissions
On 28 November 2022 the Tribunal received a submission on behalf of the applicant which attached a 13-page submission from the applicant’s representative, dated 28 November 2022, responding to the Tribunal’s s 359A letter sent on 14 November 2022.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicant and the witnesses, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1AA) of the Act. 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?
s 116(1AA) – Not satisfied as to identity
Section 116(1AA) provides:
(1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.
Subsections (2) and (3) of s 116 relate to prescribed circumstances in which a visa must not be or must be, respectively, cancelled. Those subsections are not relevant for present purposes.
The Tribunal asked the applicant whether the applicant agreed that there was a ground for the cancellation of the applicant’s visa. The applicant told the Tribunal he does not agree.
The delegate of the Minister was not satisfied as to the applicant’s identity because in November 2020 the Department caused an analysis of photos provided by the applicant in 2014 to support his 2012 Orphan relative visa application and in 2019 to support his application for citizenship to be compared to a photo of the applicant’s younger brother Mr Hamed Mohammadi (born in 1988, six years earlier than the applicant) provided in support of Mr Hamed Mohammadi’s application for a Global Special Humanitarian visa in 2005.
The Forensic Facial Image Examiner reported on their analysis of these and other photos in a report dated 10 December 2020.
The report documented a seven-point comparison of the three photos and concluded that the author of the report is of the opinion that there are indications the three photos represent the same person.
The report notes there are five levels of confidence in findings made:
1.Same person (highest level of confidence);
2.Indications are they are the same person;
3.Inconclusive – quality of the images prevents an opinion being formed;
4.Indications are they are not the same person; and
5.Not the same person (lowest level of confidence).
A subsequent analysis was undertaken of the photo the applicant provided in 2014 to a different series of photocopied, black and white photos. That second analysis was reported upon in January 2021. The author of the second report found that due to the poor quality of the photocopied, black and white photos the author was unable to undertake a comparison or offer an opinion whether the person(s) depicted in those photos were the same or not the same as the person depicted in the photo the applicant provided to the Department in 2014.
Based on the findings in the 10 December 2020 the delegate formed the view that the three photos provided to the Department in 2014, 2019 and 2005 were of the same person, that the applicant had in 2005, 2006, and 2007 applied for several visas using the identity of Mr Hamed Mohammadi and then had subsequently adopted the identity of his younger brother Mr Mustaq Mohammadi in order to achieve his preferred migration outcome of being granted a Subclass 117 visa.
At the time of the applicant’s application for an Orphan Relative visa on 23 January 2012 clause 117.211 of Schedule 2 to the Regulations provided that the applicant must be an ‘orphan relative’ of an Australian relative of the applicant.
Regulation 1.14(a) at the time defined an orphan relative as an applicant who:
(i)Has not turned 18; and
(ii)Does not have a de facto spouse or partner; and
(iii)Is a relative of that other person…
Clause 117.212 of Schedule 2 to the Regulations provided that at the time of decision the applicant must continue to satisfy the criterion in clause 117.211 save that if they do not continue to satisfy the criterion only because they have since turned 18.
At the time of application for the Orphan Relative visa the applicant, Mr Mustaq Mohammadi, was 17 years and seven months of age and Mr Hamed Mohammadi was 24 years of age. Therefore, if the applicant really is Mr Hamed Mohammadi he had considerable incentive to adopt the identity of his younger brother as it was only as his younger brother that he would be eligible for the grant of an Orphan Relative visa. The Tribunal does not make such a finding.
Apparent errors in the delegate’s decision dated 16 March 2021
The delegates decision states (errors and emphasis in the original, deletions by Tribunal):
A subsequent Facial Image Comparison was undertaken by a Forensic Facial Image Examiner, comparing the visa holder’s photographs taken in 2019 for the Citizenship application, in 2014 during his health examination for the Orphan Relative visa application and in 2015 provided in his Orphan Relative visa application with photographs of Hamed MOHAMMADI (XX XXXXX X 1988) provided in a Global Special Humanitarian (subclass 202) visa application lodged on 16 December 2005. This examination concluded the persons depicted in the images are the same person.
The Forensic Facial Image Examination Report dated 10 December 2020 included an examination of five photographs, being four photographs of Mr Mustaq Mohammadi and one photo of Mr Hamed Mohammadi. The four photos of Mr Mustaq Mohammadi were taken in 2014 (one photo), in 2015 (two photos, including one from his 2015 Tazkera) and 2019 (one photo). The photograph of Mr Hamed Mohammadi was a 2005 photo provided with his Subclass 202 visa application.
The 2005 photo was only compared to the 2014 and 2019 photos. For reasons not known to the Tribunal the 2005 photo was not compared to the two 2015 photos. The delegate made an error in stating that all four photos of Mr Mustaq Mohammadi were compared in the report to the photo of Mr Hamed Mohammadi.
The delegate also made an error in stating the Forensic Facial Image Examination Report concluded the persons depicted in the five photos are the same person. When comparing the 2014 and 2019 photos of Mr Mustaq Mohammadi to the 2005 photo of Mr Hamed Mohammadi the examiner concluded that “… there are indications that they represent the same person.” This is a materially different finding to a finding that an examiner can make that the photos “represent the same person”.
The above information was included in the Tribunal’s s 359A letter to the applicant dated 14 November 2022. In addition, the Tribunal provided a document the Tribunal prepared to the applicant attached to its s 359A letter that included a colour copy of the three photos – from 2014, 2019 and 2005 – that formed the basis of the examiner’s conclusion that there are indications the photos represent the same person.
In response, the applicant’s representative submitted on 28 November 2022 (emphasis in the original):
I acknowledge at the outset the Tribunal’s concession that the delegate made errors in the primary decision, as described below… .
By way of response, I submit that the fact that the 2005 photo was compared only to the 2014 and 2019 photos, as opposed to the 2014, 2019 and two 2015 photos of Mustaq, adds further uncertainty to the conclusions reached by the delegate. The delegate overstated the forensic comparisons that were undertaken. Further, as the Tribunal points out in its letter, the finding that ‘there are indications that the person in the 2005 photo and the person in the 2014 and 2019 photos of Mustaq are the same person’ is, indeed, materially different to the finding that the photos ‘represent the same person.’ In my submission, this important difference further undermines the existence of the ground of cancellation.
…
I refer to my previous submissions of 21 October 2022, in which I argued that, applying the guidance of Tarasovski, Mian and Jasbeer Singh, the Tribunal must arrive at a decision on the basis of a high degree of satisfaction in respect of the evidence before finding grounds for cancellation of Mustaq’s Orphan Relative (subclass 117) visa exist under s 116(1AA). The conclusion that there are ‘indications’ that the three photos represent the same person is not sufficient to enliven the ground of cancellation in this matter. Taking away a person’s Australian permanent residence involves a serious and severe deprivation of a right and entitlement. Parliament should not be taken to have undermined that right lightly. A finding of non-satisfaction of identity, in my submission, cannot be reached simply on account of that finding – and that appears to be the entire basis on which this cancellation decision rests (despite the errors of the delegate in overstating his case). These two men are, by Mustaq’s account, brothers – and one photo is sixteen years old. It is so obvious it is perhaps trite, but family resemblance can be surprisingly strong and should not be discounted in this matter.
I also reiterate that for the Tribunal to reach a finding that it truly cannot be satisfied as to Mustaq’s identity, it must somehow reconcile all of the written and oral evidence before it, including from his brother Zabi, his wife Marina, and his friends, Reza Tawakali and Sultan Darwish. All of that evidence, without exception, corroborated Mustaq’s claim that he is Mustaq, and is not Hamed. The Tribunal must consider whether all of these Australian citizens would willingly swear false or untrue evidence to this Tribunal – given the seriousness of doing so under Australian law. If the Tribunal is not prepared to find that they were all telling deliberate untruths, the Tribunal may be inclined to reason that perhaps Mustaq (if he is, indeed, Hamed) misled them from the moment he arrived in Australia (or at least, everyone excluding his brother Zabi, who would have to be found to be complicit in this lie).
In my submission, such a conclusion is so remote as to be farfetched. It is not plausible that a man would never disclose his true identity to his own wife throughout their entire relationship. Nor is it plausible that both Reza and Sultan could both have been mistaken as to the identities of the two brothers, and yet given evidence entirely consistent with Mustaq’s narrative. The much more likely explanation is that Mustaq is who he says he is, and that the photographic comparison only takes us so far – that there are indications that the 2005 photograph is Mustaq, but no clarity or certainty on the matter. And certainly none which outweigh the other probative evidence before the Tribunal.

These submissions were of assistance to the Tribunal in the conduct of this review. The Tribunal accepts the implications of a cancellation decision on the applicant, his wife and son and the importance of probative evidence of sufficient weight to support such a decision to find there is a ground for cancellation.
Evidence of the witnesses
The applicant declared a four-page statutory declaration on 20 October 2022. In that declaration, the applicant declared:
11. I deny that I am Mr Hamed Mohammadi. I do not know why my brother, Hamed, or my mother would have used my photograph with Hamed’s Class XB (subclass 202) visa application lodged in 2005 or in 2007 and 2008, or indeed in a Student visa application lodged in 2008. I was young at that time and do not know why these applications were lodged. My mother died in around 2008 so I cannot ask her.
12. I remember coming back to Afghanistan with my mother’s brother, Gul Agah, after my mother died in Pakistan. My brothers and I came back from Pakistan to Afghanistan and I lived first with my uncle and then my brother Zabiullah’s father in law in Kabul. When we returned to Afghanistan, Hamed lived elsewhere briefly and then he disappeared. I have not seen him or heard from him since then. He could be anywhere and could be dead or alive.
In his oral evidence to the Tribunal about his identity, the applicant told the Tribunal he is Mustaq and not Hamed and was very young when the earlier visa applications referred to by the delegate in the primary decision were made by his brother Zabiullah for his mother and siblings and later for Hamed. The applicant told the Tribunal that being a child he was not aware what information was provided in support of those visa applications. The applicant also told the Tribunal he could remember one of the witnesses at the Tribunal hearing, Mr Darwish, visiting his family in Pakistan and giving his mother some money, even though the applicant was only 13 or so at the time.
The applicant also gave evidence about his immigration history, his life in Australia and the impact cancellation of his visa would have on him and also on his family and loved ones.
The Tribunal found the applicant gave spontaneous and credible evidence and accepts the applicant’s evidence about his immigration circumstances and also his history and circumstances in Australia. The Tribunal treated the applicant’s evidence about his identity with some caution, given the circumstances of that evidence, and has assessed the weight to be given to that evidence in the context of the oral evidence from the four witnesses received by the Tribunal, the oral and written submissions provided to the Tribunal and the documents and information about the applicant’s identity before the Tribunal. The weight the Tribunal gave the applicant’s evidence and the findings made by the Tribunal are set out below.
The applicant’s wife, Ms Moradi, gave oral evidence of the impact the cancellation of the applicant’s visa would have on her and their three-year-old son. Ms Moradi told the Tribunal she has not met Mr Hamed Mohammadi, and she has only ever known her husband as Mr Mustaq Mohammadi and is only aware of him being referred to in the community by this name.
In her statutory declaration declared on 11 October 2022 Ms Moradi explained she met the applicant through Mr Zabiullah Mohammadi’s wife, Mursal, with whom she participated in a tailoring class and was introduced to the applicant as Mustaq and has only ever known him by this name.
The Tribunal accepts Ms Moradi’s evidence and finds that evidence supports the applicant’s evidence that he is, in fact, Mr Mustaq Mohammadi and not Mr Hamed Mohammadi. The Tribunal gives Ms Moradi’s evidence considerable weight.
Mr Zabiullah Mohammadi gave evidence that the applicant is “100 per cent” Mr Mustaq Mohammadi and not Mr Hamed Mohammadi. Mr Zabiullah Mohammadi told the Tribunal that he lost contact with his brother Hamed in about 2009 or 2010, last speaking to him by telephone. Mr Zabiullah Mohammadi also told the Tribunal about his and the applicant’s businesses, how they support each other including financially and that the applicant is Mr Zabiullah Mohammadi’s only family in Australia.
In his written statement dated 22 October 2022 Mr Zabiullah Mohammadi stated that his brothers Mustaq and Hamed “have always looked similar” and the applicant has only ever been known to him as Mustaq and their brother Hamed “remains missing”.
In a statutory declaration declared on 27 February 2021 Mr Zabiullah Mohammadi set out the history of him trying to sponsor initially his mother and most siblings to Australia, but eventually after their mother died in 2008, another sibling died and the loss of contact with their brothers Hamed and Waheed, sponsoring the applicant to Australia.
In that statutory declaration Mr Zabiullah Mohammadi declared:
5) After my mother’s death in Pakistan in late 2008 my family moved back to Afghanistan.
6) Mustaq moved in with our uncle and then later when I got married he went to live with my wife and in-laws.
7) Our brother Hamed was extremely disappointed that his [earlier] visa applications [to come to Australia] had been unsuccessful and he decided to flee Afghanistan in an attempt to find safety elsewhere.
…
10) The Department has alleged that the images of Hamed and Mustaq that were provided as part of their visa applications are actually of the same person. This is completely incorrect. Mustaq and Hamed both looked very similar however the photos of Hamed are true images of Hamed at the time and the photos of Mustaq are true images of Mustaq at the time.
11) I have no doubt whatsoever that the Department’s facial recognition technology is inaccurate if it has assessed that Hamed and Mustaq are the same person based on the images I provided.
12) I attest to Mustaq having been known by the name ‘Mustaq Mohammadi’ since birth. He has only ever been known by his name… .
The Tribunal accepts that Mr Zabiullah Mohammadi is of the earnest belief that the applicant is Mr Mustaq Mohammadi. The Tribunal also accepts that Mr Zabiullah Mohammadi is in the best position to attest to the identity of the applicant but given their close emotional and also financial relationship has considerable motivation to assist the applicant to achieve his preferred migration outcome. This is not a finding by the Tribunal that Mr Zabiullah Mohammadi evidence was unreliable or lacked credibility but reflects the unfortunate reality of the Mohammadi’s circumstances with their parents both deceased, other siblings missing or deceased, there is no other sibling available, most particularly Mr Hamed Mohammadi, to enable independent verification of Mr Zabiullah Mohammadi’s evidence and the applicant’s claims about his identity. Overall the Tribunal found Mr Zabiullah Mohammadi to be a credible witness and therefore gives his evidence considerable weight.
The oral evidence of Mr Tawakali was consistent with his statutory declaration declared on 24 October 2022. That is that Mr Tawakali met the applicant about 20 years ago when the applicant was not yet a teenager in Pakistan before Mr Tawakali came to Australia in 2001 and then met the applicant again when visiting Afghanistan in 2008. Mr Tawakali’s evidence is he also recognised the applicant when the applicant arrived in Australia in 2015.
Mr Tawakali told the Tribunal that he knew and is friends with Mr Zabiullah Mohammadi but had not ever met Mr Hamed Mohammadi. Mr Tawakali also gave evidence that the applicant is a good person and dedicated family man whose visa should not have been cancelled. The Tribunal accepts Mr Tawakali’s evidence and gives that evidence moderate weight based on the time between and short duration of Mr Tawakali’s meetings with the applicant prior to 2001 and in 2008.
Mr Darwish gave evidence of coming to Australia in 2001 from Afghanistan and becoming friends with Mr Zabiullah Mohammadi who he met in Woomera Detention Centre shortly after arriving in Australia.
Mr Darwish’s evidence is that in 2007 he returned to Pakistan to visit family and took money from Mr Zabiullah Mohammadi for his mother who he met in Haji Camp in Peshawar. Mr Darwish recalls meeting both the applicant and Mr Hamed Mohammadi during that 2007 visit, recalling that the applicant was just a child at the time and Mr Hamed Mohammadi was older than the applicant and a young adult at the time.
Mr Darwish told the Tribunal he also met and recognised the applicant many years later when the applicant came to Melbourne, Australia. Mr Darwish’s evidence is the applicant is Mr Mustaq Mohammadi and not Mr Hamed Mohammadi.
The Tribunal accepts Mr Darwish’s evidence and gives that evidence moderate weight based on the time between and short duration of Mr Darwish’s meeting the applicant and Mr Hamed Mohammadi in 2007 and then meeting the applicant again sometime after 2015.
Findings from the evidence
The Tribunal considered the applicant’s evidence in the context of the evidence of the four witnesses before the Tribunal, the oral and written submissions provided to the Tribunal, the supporting documentation about the applicant’s and other family members identity and the qualified nature of the facial image comparison report. In the context of all the evidence and information before it, the Tribunal gives the applicant’s evidence about his identity significant weight. This is greater weight than the Tribunal may have given the applicant’s evidence in the absence of the oral evidence of the witnesses, particularly the applicant’s wife Ms Moradi and the applicant’s older brother, Zabiullah.
Considering all of the evidence before the Tribunal, particularly but not exclusively the qualified nature of the facial image comparison report, the Tribunal finds that the applicant is Mr Mustaq Mohammadi and is not Mr Hamed Mohammadi. This means that the Tribunal is satisfied as to the identity of the applicant.
Conclusion
For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.
Michael Ison
Senior Member

[2023] AATA 2213

11 January 2023

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Immigration

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