Syed Nadir (Migration) - [2019] AATA 3894

Syed Nadir (Migration) [2019] AATA 3894 (8 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Agha Raza Syed Nadir
CASE NUMBER:  1905846
DIBP REFERENCE(S):  BCC2016/4111181
MEMBER:Kira Raif
DATE:8 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Statement made on 08 August 2019 at 7:18am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – incorrect information in visa application – known by another name – country of nationality – Pakistani citizenship – details of family composition – proceedings pending against the applicant – consideration of discretion – credibility concerns – past dealings with authorities – grant of visa based on incorrect information – assessment of identity and character – married to an Australian citizen – wife’s medical condition – emotional and physical support – four Australian citizen children – best interest of children – time elapsed since non-compliance – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant claims to be a national of Afghanistan, born in January 1985. He was granted the Class BC Partner visa on 30 January 2013. On 4 September 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 4 March 2019. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 5 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi 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 set aside.
Relevant law
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.
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?
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.
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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:
a.On 6 September 2008 the applicant applied for a Spouse visa on the basis of a sponsorship by his Australian citizen wife.
b.The applicant completed Form 47SP and gave his name as Agha Raza. The applicant did not provide a response to Question 14 as to whether he had been known by any other name.
c.The applicant gave his passport number and dates of issue and expiry. The applicant gave details of his Afghan identity card but did not answer Question 20 ‘of which countries are you a citizen’. The applicant referred to his father as Syed Nadir and stated that he was deceased. The applicant did not provide his father’s date of birth or passport details.
d.The applicant was granted the Provisional Spouse visa on 25 May 2011. In support of the Migrant Spouse visa the applicant completed and signed Form 80. In that form:
i.In response to Question 3, the applicant did not answer whether he had been known by any other name.
ii.The applicant stated, in response to Question 11, that he is not a citizen of any other country.
iii.Question 32 asked whether the applicant was aware of any proceedings pending against him or family members overseas or in Australia for an offence. The applicant did not provide an answer to that question.
iv.The applicant signed a declaration at Question 36 that all the information supplied in the form was correct.
e.The primary decision record indicates that following the grant of the visa on 30 January 2013, the Department received information about the applicant’s identity that was contrary to the information he provided in the visa application. Officers in the Australian High Commission in Islamabad received information from the Pakistan Ministry of Foreign Affairs that the applicant holds Pakistani citizenship and a valid Pakistani passport under the name of Syed Haji Raza.
f.The Pakistan Ministry of Foreign Affairs provided information that the applicant was known as Syed Haji Raza, born on 1 January 1987, his Pakistan passport number was issued in January 2014 and valid until January 2019 and he had a Pakistan ID card.
g.Officers of the Australian High Commission in Islamabad also received information from the Pakistan Ministry of Foreign Affairs that the applicant’s father, Syed Nadir Shah was issued a Pakistani passport on 9 December 2015. The Pakistan Ministry of Foreign Affairs provided records relating to Syed Nadir Shah, including his name and date of birth, Pakistan passport number, dates of issue and expiry and the number of his Pakistan national ID card.
h.On 26 May 2017 a Departmental identity officer completed an identity assessment in respect of the visa applicant and found that the applicant was Syed Haji Raza, son of Syed Nadir Shah, and that the visa applicant was a citizen of Pakistan born on 1 January 1987 and a bearer of a Pakistan ID card.
There is other information on the Departmental file which was the subject of the Tribunal’s letter to the applicant under s.359A of the Act. This information is set out below:
a.On 5 February 2014 the Department of Immigration received information from an organisation in Australia alleging that the applicant was also known as Syed Hajji Raza Nadir and that his brothers Syed Zilfiqar Shah Kazimi and Syed Yousuf Yaqubi had faced court in Quetta, Pakistan in 2011 on charges of people smuggling.
b.Since the applicant’s arrival in Australia, the Department has received evidence that his two brothers, Syed Zulfiqar Kazimi and Syed Youssef Yaqubi, and his father are Pakistani citizens. His brothers hold Pakistani passports containing Pakistani national identity numbers which corresponded to those held in the Pakistani national database. These documents record the holders as having been born in Lahore, Pakistan.
c.The applicant claimed that he and his dependent family members were all born in Shashpar, Ghazni province, Afghanistan. The Department holds a biodata page of Pakistan passport belonging to Syed Zulfiqar Kazimi, which states that he was born in Quetta.
d.When making the application, the applicant referred to his mother Aqueelia Bibi, his brothers Syed Hussain, Murtaza Syed and Syed Mustafa and his sisters Farzana Bibi, Shehanaz Bibi and Hameeda Bibi. The Department subsequently confirmed that Hameeda Bibi was the applicant’s sister in law, married to his undeclared brother Syed Zulfiqar Kazimi.
e.In his own Australia visa application made in or prior to 2010, Syed Zulfiqar Kazimi stated that:
i.His father Syed Nadir was alive and living in Pakistan and that his mother Aqueela Bibi recently returned to Pakistan to be with her husband.
ii.Bibi Hameeda was his wife and not his cousin as was previously claimed.
iii.He had two children and not four as he previously claimed. He added more children to his family composition list in order to bring his cousins to Australia.
iv.That the applicant was his brother and not cousin, as he claimed.
f.The Department investigations showed that the birth certificates for Kazimi’s children were bogus documents because they incorrectly stated their father as Syed Jahangir. Kazimi confirmed that Syed Jahangir was a deceased cousin who had never married.
g.Hameeda Bibi’s marriage certificate showing her marriage to Syed Jahangir was a bogus document because she was never married to Syed Jahangir.
h.Kazimi provided an Afghan driver licence to the Department as evidence of his identity. This was assessed by the DIBP Document examiner to be a fraudulent document.
i.The Department received two Pakistani passports for Kazimi. The two passports had different numbers: one was issued by the Embassy of Pakistan in Kuwait on 28 April 2002 in the name of Syed Zulfiqar with the ID number 544000564198-1. The second passport, with a different number, was issued on 15 January 2007 in the name of Zulfiqar Shah Syed. It has the same ID number.
j.The Department received advice from Islamabad that Syed Yousuf Yaqubi was arrested by local authorities in July 2011 for false identity claims. He was identified as a citizen of Pakistan (rather than Afghanistan as he claimed in his Australian visa application) on the basis of his ID card. Syed Zulfiqar Shah (aka Kazimi) was also identified as a citizen of Pakistan.
k.Kazimi informed the Department that he lived in Afghanistan until 2007 when he moved to Pakistan. This is not consistent with the fact that he is recorded as having a Pakistani ID number since 2002 and having acquired a Pakistani passport in 2004 and 2007.
l.In March 2011 the Department received an allegation from an identified source that Kazimi is not from Afghanistan, that he has a people smuggling business in Malaysia and that his father had a Pakistani ID card and was a citizen of Pakistan. Information indicates that Syed Nadir Shah, Sayed Hajji Raza, Syed Mustafa and Syed Murtaza had been charged with people smuggling offences.
In the Tribunal’s view, that information is relevant as it shows that the applicant and his family members had provided false or misleading information in their past dealings with the Department. Significantly, the information also indicates that the family has ready access to bogus documents (such as birth records and marriage certificate). The Tribunal is mindful that in response to the NOICC the applicant provided his father’s death certificate and statements from community members and this was also the oral evidence to the Tribunal from the applicant and others. Given the provision, and the availability, of bogus documents in the past, the Tribunal has formed the view that such documents are unreliable and should be given no weight.
In response to the NOICC, the applicant provided a statement dated 28 September 2017 in which he claims to be a citizen of Afghanistan with no right to citizenship or residence in any other country. The applicant states that he lived in Afghanistan until 2001 when he fled to Pakistan with his mother and siblings. His father stayed in Afghanistan to settle family affairs and was killed shortly after the family left. They learned about his death in December 2001 and were issued with the death certificate in December 2008. The applicant states that it was difficult to live in Pakistan as Afghan refugees and an agent told them he could obtain Pakistani forms, which could be used to get identity documents and passports. The applicant states that he obtained the false National ID card in the name of Syed Haji Reza and through the agent he also applied for the Pakistani passport. He was issued with the passport in the name of Syed Haji Reza. He renewed that passport three times while living in Pakistan with the assistance of the agent. The applicant states that he never believed he was a citizen of Pakistan as the documents were obtained through the agent and that is why in his application form he did not refer to having Pakistani citizenship. He did not use the name of Syed Haji Reza. He only used the form, ID card and passport to obtain the advantages available to Pakistanis.
The applicant states that he did not complete the applications forms himself, as he is illiterate, but employed an agent who completed the forms. The applicant states that he is not aware of any proceedings pending against him overseas or in Australia.
In his response dated 28 September 2017, provided through his migration agent, the applicant submits that no relevant information was omitted and no incorrect answers were intentionally given or provided. He claims that the answers were true to the best of his knowledge and the details of identity and citizenship were recounted accurately and truthfully. The Tribunal is mindful, however, that s.101(a) is not limited to answers which the applicant considers to be relevant. It requires the applicant to fill in or complete the application form in a way that all questions are answered. Consideration of relevance of the information does not arise.
Neither is the intention to provide incorrect answers relevant, when determining whether a ground for cancellation exists. Thus, s.98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that 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. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers.
With respect to his identity and Pakistani citizenship, the applicant states that he was not a citizen of Pakistan at the time he completed the application forms and does not have a right to reside in Pakistan. The applicant states he was born in Afghanistan, was given the name of Agha Raza and his date of birth is 21 January 1985. Due to the violence in Afghanistan, he fled to Pakistan in 2001. It was difficult to live in Quetta as an unlawful Afghan refugee, with no right to work and no money, so his family engaged the services of an agent to arrange Pakistani documentation for him. The agent procured a Pakistani National Identity card and a passport for him and the name shown on the document was a false name. The documents show Syed Haji Reza to be a citizen of Pakistan. The applicant states that he did not attend a government office to apply for these documents but simply paid money to the agent who obtained the documents for them. The applicant states that he renewed the Pakistani passport multiple times but never attended the passport office. The applicant states that fraudulent documents are prevalent in Pakistan.
The Tribunal finds the applicant’s evidence problematic. If true, the applicant claims that he had falsified information in order to fraudulently obtain identity documents, including an ID card and a passport, of a foreign country, documents to which he claims he was not entitled. The applicant’s willingness to do that, even in the difficult circumstances to which the applicant refers, indicates his willingness to be untruthful with immigration authorities in order to obtain benefits. In the Tribunal’s view, that offers a strong indication that the applicant is not a person of credibility. It is also at least possible, given these findings, that the applicant engaged in immigration fraud in Australia and that he had been deliberately untruthful in his dealings with the Australian immigration authorities in order to obtain benefits, such as an Australian visa and Australian residency.
The applicant repeatedly states in his written submission to the delegate that he did not himself attend any Pakistani office and that everything was done through an agent. It is unclear why the applicant believes that exonerates his conduct. The applicant’s evidence is that he has paid another person to falsify information and to obtain a benefit to which he knew he was not entitled. Whether the applicant did that himself or paid an agent to act on his behalf, the applicant’s actions were entirely his responsibility. The applicant appears to have no remorse for his conduct, nor the insight into the seriousness of such conduct, and that is relevant, in the Tribunal’s view, to the exercise of the discretion, which is discussed below.
The applicant submits that he did not fail to comply with s.101 of the Act when completing forms 47SP and 80. He states that at the time he completed the forms, he was known as Agha Reza and had not used the names Syed Nadir, which were created at a later point. The Tribunal does not accept that submission because his evidence is that he used a different identity in Pakistan from about 2001 and his application for the visa was made in 2008. The applicant states that while he used the name of Syed Haji Reza and a different date of birth on his Pakistani documents, these documents were supplied by the agent for the purpose of creating fake Pakistani documents and do not reflect the name he uses or was known by. It is stated that the applicant used these documents to obtain advantages available to Pakistani nationals and not as proof of his identity and he did not use that name in any other facet of his life and does not consider it as a name he goes by.
In his evidence to the Tribunal the applicant stated that life was difficult for him as an Afghan refugee in Pakistan. He was introduced to the person who arranged the documents for him. He only had to pay the money and the person entered some information into the computer and within a few days, he received the papers. The applicant said that the Pakistani documents had the name of Syed Hajji Raza, which was similar to his name, and he used these documents to get a taxi and obtain work. He also used the Pakistani papers to rent a house and he did not use them for anything else. The applicant said that he used these documents for about 10 years from 2001 until he came to Australia in 2011.

The applicant’s representative submits that the name used on the Pakistani documents is not a name the applicant considered himself to be known by. Obtaining false Pakistani documents was an administrative procedure that everyone around him was doing. The representative notes that in the Afghani culture, a child is given a single name at birth and that is considered to be their name. After coming to Australia, the applicant would have acquired a father’s and a grandfather’s name. The representative submits that the applicant would not have considered himself as having another name and was known by the single name given at birth in the community; the other names were not intrinsic to him. As an illiterate farmer, he trusted the agent who told him not to use the different name in his visa application.
The Tribunal does not accept that argument. The question on the form is ‘have you been known by any other name’. The applicant’s evidence is that he had obtained fraudulent Pakistani identity documents in a different name around 2001. By the time he completed the Partner application form, he had been using that name for about seven years. He told the Tribunal he used the name to obtain a job and housing in Pakistan. While it may be that the applicant only used that identity to obtain certain advantages in Pakistan and he had not used that name or identity for any other purpose or in the community, the applicant was known by a different name in Pakistan, whatever his purpose or intention was in acquiring that name and that identity. It is not for the applicant to determine whether the purpose of obtaining the documents or the frequency of the use of a different identity were relevant to the questions on the application form and should have been disclosed. The question on the form is unambiguous. It simply asks whether the applicant has been known by any other name. It does not make any distinction about the circumstances in which the different identity was obtained and used or the purpose of its use.
The applicant provided further evidence to the Tribunal on 8 July 2019. With respect to his name, the applicant states that he does not know how the name Syed Hajji Raza Nadir had come before the Tribunal but it may be a derivative of the name Syed Haji Raza, which was the name of the fraudulent Pakistani documentation and that is not a name he was ‘known by’ in a true sense, so he did not fail to comply with s.101(a) or (b). With respect to his Pakistani documentation, the applicant claims that he is not a citizen of Pakistan, despite holding the Pakistani passport and an Identity Card and he did not breach s.101(a)
With respect to the passport, the applicant states that he obtained fraudulent Pakistani documentation with the assistance of an agent, he does not know if the documents were genuine or fraudulent, and the applicant refers to country information which indicates that it is plausible and common for Pakistani documentation to be fraudulently obtained. The applicant submits that his Pakistani passport does not prove he is a citizen of Pakistan and it is plausible that he was able to obtain identity documents to obtain a genuine passport, which is common among illegal immigrants. The applicant presented a statement from the local community confirming that he is from Shashpar and that his father was killed in Afghanistan.
The applicant notes that his mother travelled to Pakistan several times holding an Afghani passport and Pakistani documents showing her to be an Afghan. It is unclear how the mother’s citizenship status is necessarily relevant to determining that of the applicant himself. During the hearing the applicant also provided to the Tribunal his Afghani passport showing that he was fined for overstaying in Pakistan, which, he claims, would not have happened if he was a national of Pakistan. The Tribunal is mindful that if the applicant travelled using an Afghani passport, rather than the Pakistani passport, he may have been fined for overstay.
With respect to the delegate’s comment that the applicant would have been recognised as a Pakistani national irrespective of how the passport and identity documents were obtained, the applicant states that if his file was investigated and if it was discovered that he did not obtain the identity documents, his passport would be declared bogus and the record of his citizenship would be removed. The applicant also states that holding a document declaring him to be a citizen does not in itself confer citizenship upon him and he had never engaged in any procedure to obtain Pakistani citizenship and cannot be declared a citizen by holding a passport. The applicant also states that he is recognised as an Afghani citizen and the law of Afghanistan does not allow for dual citizenship.
In relation to the people smuggling charges, the applicant states that the allegations are untrue and falsely promulgated by his relatives due to a family land dispute. The applicant denies any involvement with people smuggling and states that he has not been charged with any crimes and is not aware of his brothers being charged. The applicant refers to the testimony of the community elders regarding the land dispute and refers to general country information regarding land disputes.
The applicant states that Hameeda Bibi is his sister in law and was dependent on him. He states that he could not leave Hameeda in Pakistan. The applicant states that although he failed to mention his three siblings in his application, and declared Hameeda Bibi to be his sister, this was because he felt culturally obligated to protect her and had no contact with his other siblings at the time and he has been honest in his dealings with the Department otherwise. The applicant submits that there can be no adverse findings about his credibility. This submission is of considerable concern to the Tribunal. The applicant appears to admit that he provided incorrect answers on the application form – by failing to disclose some of his siblings and by misrepresenting his relationship with Hameeda Bibi – but claims it was justified due to his cultural considerations. As noted above, the applicant appears to believe that provision of incorrect answers is not of any concern, and should not be penalised, if he believes it serves a purpose and is of benefit to him. The fact that the applicant claims he was honest in his dealings with the Department otherwise does not detract from his lack of honesty in relation to declaring his relatives. The Tribunal finds that the applicant is not a person of credibility and that he is willing to provide untruthful information to the Department and the authorities in general in order to obtain a benefit.
Throughout his submission to the Tribunal the applicant refers to the UNHCR Guidelines and the Asylum Procedures Directive. The Tribunal is mindful that the present case relates to a cancellation of a Partner visa and not an assessment for refugee status. The Tribunal considers the above guidelines to be of limited applicability, if any.
The applicant provided a written submission to the Tribunal on 29 July 2019. The applicant states that he did not provide false information in his Partner visa application and his visa should not have been cancelled. The applicant states that he has always been a citizen of Afghanistan and not Pakistan, has no criminal background or history and he claims that false information was promulgated by relatives that he had been involved with people smuggling.
The Tribunal received oral evidence from two witnesses. Mr Hussainizada’s evidence is that he lived in Afghanistan until 1999 and knew the applicant’s family, including his father and grandfather, and met them at community functions. He left Afghanistan in 1999 and after that time he heard about the family until about 2005 when he came to Australia. He said that if the family had moved to another country and acquired citizenship in another country, he would not be aware of it. To that extent, the Tribunal considers Mr Hussainizada’s evidence unhelpful in determining whether the applicant was known by another name while living in Pakistan or whether he held a citizenship of another country.
Mr Khanazada told the Tribunal that he heard from the community the applicant’s father passed away on the journey between Afghanistan and Pakistan around 2013 or 2014. He then said that he heard about the father’s death around 2013 but he did not know when the father was killed. Mr Khanazada told the Tribunal he lived in the same village as the applicant and shared everything in the community together. He said that after the family moved to Pakistan, he would not know about their circumstances and would not know if the family acquired Pakistani citizenship. He said the applicant’s father was killed around 2001 and they held a ceremony. Mr Khanazada told the Tribunal that he helped facilitate the land dispute between the applicant’s family and another family and he stated that false allegations are common in the community due to such disputes but he is not aware of any specific allegations made in this case.
The applicant’s representative submits that there are very limited circumstances in which the family can acquire Pakistani citizenship and these do not apply in this case. Thus, if the applicant was born in Afghanistan, it is very unlikely that he would be able to gain Pakistani citizenship after the family moved to Pakistan.
The Tribunal finds that by obtaining a Pakistani Identity Card and passport in a different name, the applicant had used a different identity and was known by a different name, whether or not he used it for daily activities and whatever the purpose of obtaining these documents was. His own evidence to the Tribunal is that he used the different identity for a period of approximately seven years to obtain a taxi and to be able to work as a taxi driver and also to be able to rent a house. The applicant submits that he was not ‘known’ by that name ‘in a true sense’ and was not known by that name in the community. The Tribunal does not accept that argument. The applicant’s evidence is that he had obtained the Pakistani passport in a different name. He used that document to obtain certain benefits available to Pakistani citizens relating to employment and accommodation. In the ordinary sense of the word, the Tribunal finds that the applicant was known by that name, irrespective of his motivations for acquiring it. The Tribunal finds that the applicant had been known by another name.
Similarly, the Tribunal finds that the applicant did hold another passport in addition to the passport of Afghanistan which he mentioned in the application. The Tribunal acknowledges the applicant’s argument that the passport was fraudulently obtained and that he was never a citizen of Pakistan. However, the Tribunal is of the view that the form makes no distinction between whether the passport was validly obtained or frequently used. The applicant did hold another passport, however obtained and for whatever purpose, and he failed to refer to the Pakistani passport in response to the question on the forms.
The Tribunal finds that the applicant completed his application form in a way that not all questions on it were answered. The applicant failed to answer:
a.Question 10 on Form 47SP - ‘other names you have been known by’.
b.Question 3 of Form 80 - ‘other names you are or have been known by’.
The Tribunal finds that by not providing answers to these questions, the applicant was in breach of s.101(a) of the Act.
With respect to his father, the applicant states in his submission to the delegate that his father was killed in Afghanistan shortly after he fled to Pakistan and he was issued with a death certificate by the Afghani embassy in Quetta. The Tribunal is mindful that the applicant provided additional documentary evidence of his father’s death to the Tribunal. However, the Tribunal does not accept that evidence as probative. The applicant’s own submission to the delegate is that document fraud is prevalent in Pakistan and that he was able to obtain false identity documents and a false passport in Pakistan by paying an agent. The applicant’s evidence is that he had engaged in such fraud in order to obtain certain benefits associated with Pakistani nationality. In such circumstances, the Tribunal does not consider any documentary evidence presented by the applicant to be probative. This is, firstly, because the Tribunal finds that bogus documents are easily available to the applicant and, secondly, because the Tribunal has formed the view that the applicant is not a person of credibility and that he is willing to obtain fraudulent documents and falsify personal information in order to obtain a personal advantage. The Tribunal does not consider the death records and various statements concerning his father’s death to be of probative value and the Tribunal gives these no weight.
The applicant states that when he completed the form, he believed that his father was deceased and he continues to uphold that belief. The applicant states that he cannot explain why a passport was issued with his father’s name in 2015 but the form he completed that was given to him by an agent included the names of his father and grandfather and the agent may have used the details to generate fraudulent documentation for other illegal Afghanis. The applicant argues that it is common for agents to use people’s names and identities when obtaining fraudulent documents. The applicant states that he did not breach s.101(b) as he believed at the relevant time that his father was deceased and he did not knowingly provide false information to the Department.
The Tribunal considers it problematic, however, that not only are there Pakistani identity documents issued in the father’s name after his claimed death, but also that the applicant’s brother Kasimi stated in his own visa application made around 2010 that his father was alive. The applicant now claims that his brother was referring to an uncle and not their father but it is equally plausible, in the Tribunal’s view, that the brother had truthfully referred to the father being alive.
With respect to the pending charges, the applicant states that he did not deliberately and knowingly omit the information relevant to his character that was material to the visa. As noted above, the concepts of ‘deliberately’, ‘knowingly’ or ‘relevant’ have no role to play in determining the breach under s.101.
The applicant states that he did not personally complete the application forms as he is illiterate and relied on a migration agent who completed the forms on his behalf. The agent did not consult him to ask about each question but if he did, the applicant would have answered ‘no’ to Question 32 of Form 80. With respect to getting a waiver to obtain the police certificate from Pakistan, the applicant states that he resided in Pakistan illegally and did not believe the documents he obtained through the agent entitled him to Pakistani citizenship. The applicant refers to the reasoning in Dalla v Minister for Immigration [2016] FCA 998 and states that he cannot be prejudiced by the existence of mere charges. The Tribunal considers that reasoning misguided. The applicant is not being ‘prejudiced’ because of the charges. The question before the Tribunal – which requires a finding of fact – is whether the applicant completed his form in a way that incorrect answers were given. It is not for this Tribunal to determine the applicant’s guilt or innocence or to determine whether he meets the character test.
Information cited above indicates that the Department received information that Syed Nadir Shah, Sayed Hajji Raza, Syed Mustafa and Syed Murtaza had been charged with people smuggling offences. The applicant did not answer the question on the application form about any criminal proceedings against him or members of the family unit.
The Tribunal acknowledges that the delegate also found the applicant to be a national of Pakistan and to have provided incorrect answers in relation to his country of nationality. The Tribunal acknowledges the applicant’s evidence that he acquired false Pakistani nationality papers by paying someone. The country information provided by the applicant supports the applicant’s submission about the prevalence of document fraud in Pakistan, which results in the provision of ‘genuine’ identity documents and passports which would be recorded in the national systems. The Tribunal also acknowledges the evidence of the two witnesses who confirmed the applicant’s birth and residence in Afghanistan. In the Tribunal’s view, there is sufficient doubt about the applicant’s country of nationality. While the Tribunal has formed the view that the applicant is not a person of credibility and has not been truthful in many of his dealings with the Australian authorities and the Pakistani authorities, that is not sufficient. The Tribunal considers it possible that the applicant did obtain fraudulent identity documents in Pakistan and such documents did not represent the grant of Pakistani citizenship.
In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32]:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.
While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.
The Tribunal has formed the view that the information concerning the applicant’s country of nationality does not provide sufficient basis to form positive satisfaction that the applicant is, or was at any time, a national of Pakistan as the alternative explanation offered by the applicant is also possible. The Tribunal makes no finding in relation to claimed non-compliance concerning the applicant’s country of nationality.
The Tribunal has found that the applicant failed to comply with s.101 of the Act in relation to the information concerning the use of a different name. Essentially, the applicant failed to provide information that he was known by another name. The Tribunal finds that the applicant completed the application form in a way that not all questions were answered. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:
The correct information
The correct information is that the applicant had been known by another name.
The content of the genuine document (if any)

This is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant submits in his written response to the NOICC and his submission to the Tribunal of 29 July 2019 that his response to the various questions on the forms had little effect upon the decision to grant the visa. The applicant states that he was required to demonstrate that he was the spouse of the sponsor and his name and citizenship would not have been a primary factor that affected the decision to grant him the visa as his identity would have ‘borne little weight’ to the assessment of the relationship and had no effect on the assessment of the relationship. The same applies in relation to his father. The applicant refers to the MSI68 which states that less weight should be placed on non-compliance in circumstances where knowledge of incorrect information would not have affected the decision to grant the visa.
The Tribunal does not accept the applicant’s argument. The issue here is not whether the applicant would have been granted the visa but whether the decision to grant the visa was based, at least in part, on incorrect information. In this case, the Tribunal has formed the view that it was. This is because identity and character play a very significant role in any decision to grant the visa. This is evident from provisions such as PIC 4020(2A) which provides for a ten year exclusion period where an applicant’s identity cannot be ascertained. Section 501 also has significant repercussions for those who do not pass the character test and one’s identity is relevant to assessing one’s character. Thus, the applicant’s identity, as well as the existence of any criminal proceedings, are highly significant to any decision to grant the visa. Such a decision is not limited to consideration of a relationship between an applicant and sponsor, and the applicant could not have been granted the visa only because he was recognised to have been in a genuine spousal relationship with the sponsor, unless he met all other requirements for visa grant.
The Tribunal finds that the decision to grant a visa or immigration clear the visa holder was based, partly, on incorrect information.
The circumstances in which the non-compliance occurred
The applicant claims that he is illiterate and that he employed an agent to complete the application forms for him. The Tribunal is mindful that even if that is the case the applicant remains responsible for the content of his application and for ensuring that all the questions were answered and that all answers were correct. The applicant told the Tribunal that the person who completed the forms told him not to mention his use of a different identity because it would be detrimental to his application. The Tribunal finds that the applicant deliberately withheld the information about the use of a different identity because he thought it would be beneficial to his application.
The present circumstances of the visa holder
With respect to his present circumstances, the applicant states in his response to the NOICC and his evidence to the Tribunal that he is married to an Australian citizen, who is uneducated and illiterate. The applicant states that since his arrival in Australia in 2011 he has been living with his partner and prior to that, with his family. The applicant states that their relationship is genuine and of mutual dependence and is reflective of Afghan cultural and gender norms, with the applicant being the main breadwinner; his wife does not work. The applicant refers to his wife being dependent on him emotionally, financially, socially and physically. His wife cannot walk for long periods.
The applicant refers to his wife’s medical condition and has attached some medical reports, stating that as a result of her medical condition, illiteracy and lack of education, and in the context of a traditional relationship, his wife is reliant on him for physical and other support. The Tribunal accepts that evidence and accepts, for the purpose of this review, that the applicant is the financial provider for the family and also that he provides emotional and physical support to his wife and children. The Tribunal accepts that considerable hardship may be caused to the applicant and his family if the visa is cancelled and if the applicant were required to leave the country as a result of the cancellation.
In his submission to the Tribunal the applicant states that his wife is partially disabled and heavily dependent on him emotionally, physically, socially and domestically. The applicant refers to his four Australian citizen children and his inability to return to Afghanistan as a Hazara. The applicant referred to other Tribunal decisions in which the Tribunal exercised the discretion in favour of the applicant and requested the Tribunal to follow the same reasoning. The Tribunal acknowledges that submission but notes that Tribunal decisions have no precedential value. It is for the present Tribunal to determine the weight to be given to each consideration.
The applicant refers to the presence of his four Australian citizen children and states that due to his wife’s condition, he plays an instrumental role in caring for the children. His children are aged three, five, seven and nine years old.
The applicant states that he has not lived in Afghanistan since he was very young and has no connections or property there. The applicant referred to purchasing a house in Australia.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant admitted to the Tribunal that he did not mention all of his siblings in the application form. He said that there was a family dispute and his sister was kidnapped due to the family dispute. Even if that was the case, the Tribunal is mindful that on the application form, the question about one’s siblings does not permit the applicant to choose which siblings to mention and which to omit. The applicant said that he did not fill out the form himself but the Tribunal does not consider that to be a legitimate explanation as the applicant bears the responsibility for the information on the application form. That, is, the applicant’s personal circumstances do not justify the provision of incorrect information on the application forms.
The time that has elapsed since the non-compliance
The application for the visa was made in September 2008. Close to 11 years has passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law since the non-compliance. The Tribunal is mindful of the applicant’s evidence that he is in receipt of Centrelink Carer payments and that he has not informed Centrelink about the changes in his residence eligibility.
Any contribution made by the holder to the community.
The applicant told the Tribunal that he helped young people in Afghanistan and Pakistan and helped with meals and otherwise looked after them. In Australia he said he is not directly involved in the community.
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 Procedures 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
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. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also be subject to an exclusion period in relation to future applications made offshore. The applicant may also lose some of the entitlements he may have acquired as a permanent resident if he is no longer a holder of a permanent visa. The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant.
Whether there would be consequential cancellations under s.140
The applicant’s siblings came to Australia as dependents of the applicant and their visas have also been cancelled.
The applicant states in his submission to the delegate that he fears returning to Afghanistan where he would face a risk of serious harm as a Hazara and a Shia Muslim. The applicant states that he has no right to enter or reside in Pakistan. In his submissions to the delegate and the Tribunal, the applicant refers to the risk of harm he would experience if returned to Afghanistan and also Australia’s non-refoulement obligations in relation to Pakistan. Ultimately, it is not for this Tribunal to determine whether the applicant has a right to enter and reside in Pakistan and whether he is a national of more than one country. The Tribunal acknowledges the applicant’s claim that he fears harm in Afghanistan. For the reasons stated elsewhere in this decision, the Tribunal has formed the view that discretion should be exercised in favour of the applicant, so the Tribunal does not consider it necessary to determine whether Australia’s non-refoulement obligations would be engaged in this case.
The applicant states that he has four Australian citizen children aged between three and nine. These children were born in Australia and have resided in Australia for the entirety of their lives. The applicant refers to the ICCPR and claims that he plays an instrumental role in the children’s lives, particularly given his wife’s condition. The applicant outlines the support he provides to the children and states that permanent separation of the children from their father would not be in their best interest.
The applicant states that given his wife’s disability, it is ‘inevitable’ that the children may have to return to Afghanistan to live with their father as their mother would not be able to support them in Australia. The applicant claims that the children will be forced to live in a country where they had not lived and without access to the Australian culture or standards of health and education. The Tribunal is not prepared to accept that evidence because, while there is evidence of the wife’s disability, there is no satisfactory evidence that satisfies the Tribunal that the wife would be incapable of supporting the children in Australia. The Tribunal is also mindful that the applicant may be eligible to seek a Partner visa in the future, as he claims his relationship with his partner is genuine, so the Tribunal does not accept that any separation from his partner and children need to be permanent, as the applicant claims.
Nevertheless, the Tribunal accepts the applicant’s claims that he provides a considerable level of support and care to the children and that level may be diminished if the applicant was to leave Australia. The Tribunal accepts that in the circumstances of this case, it is in the best interests of the children to remain in the care of their father and for the applicant to remain in Australia. The Tribunal acknowledges that this is a primary consideration.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The applicant’s witness, Mr Hussainizada told the Tribunal that the applicant is a peaceful and useful member of the community and he has known the family, including the applicant’s father and grandfather, from Afghanistan. The Tribunal accepts that the applicant may be well regarded by some members of the community.
The applicant told the Tribunal that he was accused of breaking windows, his brother was beaten and there is pressure on his family because of the land dispute.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant failed to comply with s.101 of the Act because he did not disclose a different identity that he used in Pakistan. The Tribunal has found that there are grounds for cancelling his visa.
The Tribunal has also formed the view that the applicant is not a person of credibility and that he has been less than truthful in his past dealings with the authorities. He provided incorrect answers about his family composition on the application form. There is questionable evidence about his father’s claimed death and although the Tribunal does not consider there is sufficient evidence to form a basis for cancellation, the Tribunal is not entirely convinced that the applicant has been truthful in his evidence concerning his father’s death. The Tribunal notes that the applicant failed to disclose his Pakistani passport and identity documents in his visa application (whether or not he held these lawfully or obtained them fraudulently). It appears that the applicant has also been untruthful with Centrelink by failing to mention that he is no longer a permanent resident. In the Tribunal’s view, these matters show that the applicant has not been truthful with the Department and provide strong reasons in favour of the cancellation.
However, the Tribunal has also formed the view that there are strong reasons why the visa should not be cancelled. More than 10 years has passed since the non-compliance. Since that time, the applicant has established his life in Australia, he claims to be in a genuine relationship with his wife and acts as a primary caregiver to his wife, who suffers from poor health. Most importantly, the applicant is the primary caregiver to his four children, who are all under the age of 10. The Tribunal accepts that due to his wife’s condition, it is the applicant who provides care and support to the children and that his wife would find it difficult, if not impossible, to care for the children without the support of others. These children are Australian citizens and were all born in Australia, which would make it more difficult for them to settle in another country. The Tribunal has formed the view that the best interests of these children would be served by the applicant remaining in Australia and it is a primary consideration.
The Tribunal also accepts that considerable hardship would be caused to the applicant and his immediate family if the visa is cancelled, given the applicant’s involvement with supporting his family in Australia and also his status as a Hazara and a Shia.
In the circumstances of this case, the Tribunal has formed the view that such considerations outweigh those that favour the cancellation.
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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Kira Raif
Senior Member