Askari (Migration)

[2019] AATA 3883

Askari (Migration) [2019] AATA 3883 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qais Sharif Askari

CASE NUMBER:  1726652

DIBP REFERENCE(S):  BCC2016/3882053

MEMBER:Bridget Cullen

DATE:5 August 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 05 August 2019 at 5:13pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – applicant’s identity – known by another name – country of nationality – entitlement to lawfully reside in Pakistan – consideration of discretion – grant of visa based on incorrect information – reason for non-compliance – other instances of non-compliance – decision under review affirmed

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

CASES
1702934 (Refugee) [2018] AATA 2085
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration v SGLB [2001] HCA 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of Subdivision C of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence Mr Ali Bakhsh, Mr Jawad Askari, Mr Mohammad Ali, and Ms Tahira Askari. The Tribunal hearing was conducted with the assistance of a NAATI Level 2 interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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. Extracts of the Act relevant to this case are attached to this decision.

8. 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?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) Visa applications to be correct.  Relevantly, s.101(b) requires that:

   A non-citizen must fill in his or her application form in such a way that:

   (b) no incorrect answers are given.

10. The Applicant has provided the Tribunal with a copy of the delegate’s decision record, dated 24 October 2017. On 27 October 2009, the Applicant lodged a Form 866 – Application for a Protection (Class XA) visa. The visa was granted on 28 October 2009. Subsequently he applied for a Subclass 155 (Five Year Resident Return) visa, which was granted on 07 November 2016.

11. On 6 November 2014, the applicant applied for Conferral of Citizenship.  The Department had developed concerns about some of the information provided by the applicant to the Department.  In particular, the Department raised concerns of bogus documents, namely Afghan identity documents (known as Taskeras) and on 29 August 2016, the applicant was interviewed by the Department, for the purposes of establishing his identity.

12. As a result of this interview, the Department considered that the applicant did not comply with s.101(b) of the Act, due to information given at the time of the visa application being incorrect. The essence of the incorrect information was that the applicant was known by another name, Khan Muhammad; that the applicant and their family they were lawful residents of Pakistan, and therefore would not have been deported back to Afghanistan, and as a result, did not require protection from Afghanistan.

13. A Notice of Intention to Consider Cancellation was sent to the applicant on 1 June 2017.

14. On 13 June 2019, the Tribunal invited the applicant to comment on or respond to certain information which, subject to the applicant’s comments or response, could be the reason, or a part of the reason, for the Tribunal’s affirming the decision under review. The applicant, in paragraphs 32 and 33 of his Statutory Declaration provided in response, agreed there was partial non-compliance occurred, however disputed that non-compliance occured, stating the following:

    “The reason I did not mention my false NIC card is that while it was a card obtained from the NADARA office, and so is a “genuine” card, the person on the card, Khan Mohammad, is not me. Also, as I have mentioned above, I was afraid that if it was considered that I was Pakistani, I would not be accepted as a refugee.

    I sincerely apologise for my decision to not tell the truth about my history and identity.”

15. On 3 July 2019, the applicant’s representative provided the Tribunal with written submissions, which address the non-compliance by the applicant. Relevantly, that submission provides as follows:

    Failure to declare his fake identity.

    Mr Askari has acknowledged that he failed to correctly answer the Question 3 i.e.  whether he has been known by any other names. Mr Askari has acknowledged and apologised for his failure to correctly answer that question.

    We also acknowledge that in failing to provide information in his application form that he had obtained a false identity in Pakistan, i.e. that of Khan Mohammad, he has not complied with Section 101 of the migration Act.   As such Regulation 109 provides that the Minister may decide to cancel a visa-holder’s visa, having regard to any prescribed circumstances.

    The original cancellation decision was made on the basis of the conclusion, drawn by the minister’s delegate, that Mr Askari was a citizen of Pakistan and that accordingly, the non-compliance occurred in relation to three elements: his name; his nationality and his protection claims.

    We submit that the evidence is very clear in respect of his nationality and his protection claims. In respect of these two matters, he has consistently stated the he is a Hazara from Afghanistan, and that his claims for protection relate to the situation in Afghanistan. These issues have ben canvassed at length above and in our earlier submissions. Those submissions are strengthened by the fact of the verification of Mr Askari’s father and grandfather’s Taskeras.

    Nevertheless, we acknowledge that the ground for cancellation of Mr Askari’s visa does exist in respect of his failure to declare that he had been known by another name in Pakistan. 

16. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. 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).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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 circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

19. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

20. The applicant, through their Registered Migration Agent, in response to the Notice of Intention to Consider Cancellation on 20 June 2017 provided reasons why the applicant’s visa should not be cancelled. The response was summarised by the Delegate as follows:

    -    The applicant submitted statutory declarations from two relatives in Australia attesting to the applicant living in Afghanistan until 1993;

    -    The applicant submitted copies of what they claimed to be genuine Taskeras for their family;

    -    They submitted that while incorrect information was provided with the visa application, the incorrect information did not result in the applicant being granted their Protection visa;

    -    They submitted that it is understandable that they would not have disclosed everything upon arrival in Australia to due fear and being uneducated; and that disclosing everything would still had led to a grant of the visa;

    -    They submit that they remain alone in Australia separated from their family;

    -    They submitted that they updated their statement and corrected errors from previous statements;

    -    Four years had passed since the incorrect information was given and there were no breaches of the law;

    -    That they were actively involved in the Shia community and volunteers at their local mosque; and

    -    That Australia continues to have protection obligations to Afghanistan, and that the Applicant can no longer return to Pakistan.

21. Following the hearing, on 7 November 2018, the applicant provided the Tribunal with the original Taskeras documents that purportedly belong to his father and grandfather. The Tribunal requested that the Department urgently check the authenticity and validity of the Taskeras documents provided.

22. On 1 February 2019, the Tribunal received a response verifying the Taskera for the applicant’s father as being a genuine document.

23. On 7 January 2019 and 8 March 2019, the Tribunal enquired about the status of its request for verification of the applicant’s grandfather’s Taskeras with the Department. On 18 March 2019, the Department advised the Tribunal that the request in relation to verification of the applicant’s grandfather’s Taskeras had been “suspended”. 

24. On 8 May 2019, the Department wrote to the Tribunal and advised that the process was still suspended, and that the Tribunal would be provided an updated status when one was available. On 13 June 2019, the Tribunal again enquired about the status of the request with the Department. The Department responded on 3 July 2019, indicating that it was still awaiting an outcome. 

25. As the Tribunal has been unable to obtain an indication that the information sought by it from the Department would be provided in any particular timeframe, the Tribunal considers that it would be unreasonable to delay decision making further in order to wait for the information. The Tribunal considers this reasonable, as ultimately, the decision of the Tribunal does not turn on the genuineness of the Taskeras documents.

    What is the correct information?

26. Central to this matter is the applicant’s identity. The applicant submits that the correct information is that he is who he now says he is, Qais Sharif Askari, a citizen of Afghanistan.

27. As evidence of this, the applicant provided the Tribunal with an Identity Verification document that he obtained by travelling to the Afghan Consulate in Canberra. This document indicates that the Afghan Consulate accepted that he is known in Afghanistan as Qais Askari.

28. This document does not address the applicant’s second identity of Khan Muhammad, a lawful resident of Pakistan.  The Tribunal considers it possible for an applicant to both a lawful citizen of Afghanistan, and to be known as a different name, and be a lawful resident of Pakistan.

29. The Taskeras document provided by the applicant in relation to his purported father, Mohammad Eshaq (although spelled differently, the Applicant has represented to the Tribunal that the Taskeras is that of his father), has been found by the Department to be a genuine document. 

30. Curiously, however, the Department has certified the Taskeras belonging to Mohammad Eshaq as having a date of birth listed as 55 years old of 1375. The Hijri Calendar, when converted to the Gregorian Calendar utilised in Australia, coverts Mohammad Eshaq’s date of birth to 1955.

31. The Applicant, in his Tribunal review application, has provided his own date of birth to be 1 January 1964.  This same date of birth for the applicant is also reflected in the delegate’s decision record.

32. The information found by the Department to be genuine – that is that the Taskeras reflects a date of birth for Muhammad Isaq Askari as being 1955 is consistent with the information provided by the applicant on his Protection Visa Application Form 866.  There, he listed his parents as follows:

    ·Father - Muhammad Isaq Askari, 54 years, born in 1955, deceased

    ·Mother - Hawagul Askari, 60 years, born in 1949.

33. The applicant applied for the visa on 27 October 2009, and it was granted the following day on 28 October 2009. If the information provided by the applicant at the time of his Protection Visa Application was correct, it would mean that, if alive, his father would now be 63-64 years old, and his mother would be 69-70 years old.

34. This would then mean, on the evidence provided by the applicant himself, that at the time of his own birth, his father was approximately 9-years old.  It is difficult for the Tribunal to, in such circumstances, place significant weight on the Taskeras as establishing that the Applicant has correctly identified himself to the Tribunal.  That is, the Tribunal accepts that the documents provided are genuine Taskeras documents, but is not able to conclude that they are the Taskeras of the applicant’s biological father and grandfather. 

35. At the hearing, the Tribunal took evidence from Mr Mehdi Askari via telephone, at the applicant’s request.  Mehdi Askari told the Tribunal that the applicant was his cousin.  He explained:

    I’m not too sure exactly what side of family he is so he is not my close cousin but he is my - I call him cousin because out of respect and also as kids I met him several times in my house in Kabul, yes so we belong to one Askari family and out of respect I call him cousin.

36. Mehdi Askari could not identify which side of his own parent’s lineage resulted in him having a relation to the applicant.  He could not provide any further information about the applicant’s lineage. The Tribunal asked Mehdi Askari to explain his relationship to the applicant.  The Tribunal said,

    “I am trying to understand how - I understand that in your culture you are saying that you are all part of one tribe.  I am trying to understand in Australian culture how we would describe your relationship to the applicant? So what I am asking is what relatives you have that you are related to by blood to the applicant?” 

37. In response, Mehdi Askari told the Tribunal,

    “As I said earlier, our family’s name is Askari.  Askari is a big family in Afghanistan.  As I said again, I’m saying again, I don’t know how to answer this question, exactly tell you how he’s related to me.  What I’m saying is his father - his father and grandfather and my grandfather and father were born in the same village which is called Baisute and then later on they moved to Kabul - migrated to Kabul and from there, family, relatives, children, everybody, went up there and what I’m saying is I saw him there.”

38. Mehdi Askari told the Tribunal that he has a brother, Mohammed Hassan, and two sisters, Tahira Askari and Ziba Askari. All of Mehdi Askari’s siblings reside in Brisbane.

39. Tahira Askari also gave evidence to the Tribunal.  She told the Tribunal that she called the applicant “uncle” and that she first met him in Pakistan.  Tahira Askari told the Tribunal that her mother told her that the applicant’s children were able to attend school in Pakistan because they paid money to get documentation, despite being Afghani.  She said that she left Afghanistan when she was six, and cannot recall whether the applicant was in Afghanistan when she left.  She met him in Karachi, in Pakistan. 

40. Tahira Askari says that she is friends with the applicant’s daughter, Nargis, and is aware that she is not studying in Pakistan.  Tahira says that this is because she does not have local Pakistani identification, and has been unable to obtain it. 

41. The Tribunal allowed the applicant’s representative to ask Tahira Askari if she could explain why the applicant’s family did not have Proof of Residency cards whilst residing in Pakistan.  Tahira Askari explained that:

    “I never know why Qais never apply for refugee card.  I can’t answer for Qais.  But all I know I asked his - recently I asked his daughter, “If you can’t study any further why don’t you go and ask for refugee card?” and she said because it’s going to take years.”

42. The Tribunal asked Tahira Askari if it was possible that the applicant’s wife and children are Pakistani. She replied that, “his children’s are not Pakistan.  His wife’s documentation is not genuine.  I know this because I’ve seen his children stop studying any further.” She said that the majority of Afghani people living in Karachi did not have a refugee card, because they did not know they could get one.

43. The Tribunal also heard evidence from Jawad Askari, who claims to be the applicant’s second cousin.  He said that his grandfather and the applicant’s grandfather were “like cousins from the father’s side”. He claims to have met the applicant in Afghanistan, and then again later in Pakistan.

44. Following the hearing, the applicant provided the Tribunal with a statutory declaration from Jawad Askari, dated 7 November 2018.  In this statutory declaration, Jawad Askari now asserts that the applicant is his first cousin.  He says that:

    I have always known Qais and I were cousins of some sort, but until I saw that Taskeras which have recently been sent from Afghanistan I hadn’t realised that we were first cousin. I had always thought that his grandfather and my grandfather were brothers. I now realise that I was mistaken.

1. The Tribunal appreciates that in some cultures, the terms cousin is used more expansively than in Western culture.  The Tribunal accepts that Jawad Askari may have been genuinely mistaken, and did not intend to mislead the Tribunal.  However, given the overall lack of clarity about the applicant’s identity and familial relations, the Tribunal is unable to place any weight on Jawad Askari’s evidence.

2. The Tribunal also heard evidence from a Mr Ali Bakhsh and a Mr Mohammad Ali.  Both Mr Bakhsh and Mr Ali claim to have known the applicant from Afghanistan, during the Najibullah time, somewhere around 1369 – 1371 in the Afghan calendar (1990 – 1993 in the Gregorian calendar). 

3. At the hearing, the applicant told the Tribunal that he was from Afghanistan, and was definitely not from Pakistan.  The applicant says that the Department’s having found that the applicant’s wife holds a genuine Pakistani computerised national identity card, confirming her Pakistani citizenship, is not correct.  The applicant claimed that it was difficult for Afghani refugees to be given proof of residency cards in Pakistan. 

4. The Tribunal accepts that the applicant has, at some juncture in the past, resided in Afghanistan.

5. On 13 June 2019, the Tribunal invited the applicant to comment on or respond to certain information which, subject to the applicant’s comments or response, could be the reason, or a part of the reason, for the Tribunal’s affirming the decision under review. The particulars of the information were:

   The Tribunal has conducted an identity check of the Taskeras provided. The Tribunal to date has received a response that one of the Taskeras is genuine; however is yet to receive a result for the second Taskera. This may lead to the Tribunal to accept that you are an Afghani national.

   The evidence before the Tribunal indicates that you are also entitled to, and have lawfully resided in Pakistan, under the identity of Khan Muhammad. The Tribunal considers that this information is potentially adverse and relevant to the decision before the Tribunal, in relation to whether the Applicant gave incorrect answers to Questions 3 and 23 in Part C of Form 866 Visa Application for the reason that the applicant did not disclose they had been known as Khan Muhammad to the Department when lodging their XA-866 Visa Application.

6. The Tribunal does not accept the evidence given by the applicant that his wife is not a Pakistani national.  The Tribunal does not accept the evidence given by the applicant that his children, all of whom he says were born in Pakistan, were prevented from attending school. 

7. The applicant is telling a complex story that does not accord with basic common sense.  As the applicant’s own evidence before the Tribunal is that all five of his children were born at home, in Pakistan, he could readily have obtained genuine birth certificates for them, to facilitate their entry into schools. 

8. The Tribunal places limited weight on the evidence of Tahiri Askari, who openly acknowledges that she cannot explain why the applicant did not apply for a refugee card in Pakistan, which would facilitate entry of his children into school. The Tribunal considers the Department’s explanation – that it was not necessary for the applicant to obtain a refugee card in Pakistan as he was not a refugee – to be more plausible. 

9. The Tribunal is unable to place any significant weight on the evidence of the applicant’s witnesses to establish anything more than an affiliation with each of them.  None of the witnesses could provide clarity about how they were related to the applicant, or provide further insight into the applicant’s circumstances in a manner that would lend credibility to the applicant’s evidence.

10. The Tribunal considers that greater weight should be placed on the Department’s investigative processes, which indicate that the applicant’s wife and children are Pakistani citizens, and further confirms the applicant’s marital relationship to a Pakistani citizen.  The Tribunal considers that it is possible for the applicant to be both Qais Askari, and to also be Khan Muhammad, and to be entitled to dual residency and/or citizenship in both Afghanistan and Pakistan. 

11. The Tribunal considers that the applicant, regardless of whether he is also Mr Qais Askari and an Afghani national, is also known as Mr Khan Muhammad and has lawfully resided in Pakistan, for a significant time in excess of 10-years.  The Tribunal finds that the applicant concealed his identity as Khan Muhammad from the Department, as this would have led the Department to identify that his wife and children were Pakistani citizens.  Had the Department been aware that he was entitled to lawfully reside in Pakistan, it is unlikely they would have accepted his protection claims against Afghanistan and granted him a visa.

12. The Tribunal has had regard to the Tribunal’s decision in 1702934 (Refugee) [2018] AATA 2085[1], as raised by the applicant’s representative.  In that matter, there was no allegation that the applicant lived under an alias, as is the case here, nor was there a finding that the applicant was entitled to lawfully reside in Pakistan.  Rather, the Tribunal Member there focussed on issues surrounding the applicant’s citizenship.

    [1] [2018] AATA 2085;mask_path=

13. This Tribunal does not consider that its role is to determine the applicant’s citizenship, but rather, is to constrain itself to whether the information provided by the applicant himself to the Department was correct, and for purposes of discretion, what the correct information is.

14. The applicant did not tell the Department that he resided in Pakistan for many years under an alias, nor did he tell the Department that his wife was a Pakistani citizen.  This Tribunal cannot determine whether the applicant, in fact, is a Pakistani citizen.  There is, however, ample information in front of the Tribunal suggesting that the applicant resided lawfully in Pakistan under a different name, for an extended period of time. 

15. Moreover, in 1702934 (Refugee) [2018] AATA 2085, the Tribunal found that there was no non-compliance by the applicant in relation to s.107 of the Act. Here, the applicant admits that there was non-compliance by him, via his registered migration agent. Accordingly, the Tribunal has found that the applicant was non-compliant, giving rise to the cancellation power.

16. For purposes of considering the discretion to cancel or not cancel the visa, the Tribunal considers that the correct information is that the applicant is known as Khan Muhammad, married to Mariam Khan Muhammad, a Pakistani citizen, with whom he has 5 Pakistani born children. 

17. The Tribunal prefers the information obtained by the Department that the applicant has lawfully resided in Pakistan, at the time of his application for a protection visa, for more than 10-years.  As the Tribunal considers this information to be central to the reason for cancellation, the Tribunal considers that the correct information – that the applicant is known as Khan Muhammad and lawfully entitled to reside in Pakistan with his Pakistani wife and children, weighs strongly in favour of cancellation.

    The circumstances in which the non-compliance occurred

18. The applicant submits that his use of a fake identity in Pakistan:

    “must be considered in the context of the situation in which that decision was made.  Mr Askari had only recently arrived in Australia.  He had left behind his entire family in an effort to find a safe and secure home for them. He had lived illegally in Pakistan for many years, after fleeing the massacre of Hazaras in Afghanistan.  He and his family had survived in Pakistan by assuming a false identity. This was not seen by them as a moral issue. Rather it was a survival tool, a strategy adopted my many, if not most of the Hazaras living in Pakistan.”

19. As explained earlier, the Tribunal prefers the Department’s information that the identity used by the applicant in Pakistan was not fake, but rather was genuine.

20. On 19 July 2019, the Tribunal invited the applicant to comment on information that could be the reason, or part of the reason, for affirming the decision under review.  The particulars of the information are:

    • The Tribunal is required to disclose that there is an s.375A Migration Act 1958 certificate on the file. The Presiding Member holds a preliminary view that the Certificate is valid, for the reason that disclosing the information that is subject to the certificate would be contrary to the public interest as it would reveal confidential departmental investigative methods used to detect breaches of the law.
    • In addition, the Tribunal considers that the personal details of others contained in the file should be kept secure, as those individuals have not consented to public disclosure of the information.
    • The Tribunal considers it appropriate to advise the applicant of the general nature of the information that is contained in the certificate. This information relates to the Identity Assessment Report that was prepared by the Department following the applicant’s application for citizenship by conferral.
    • The Member holds a preliminary view that the Certificate is valid. The Tribunal invites you to provide comment on the validity of the Certificate.

    The Tribunal considers that the information contained in the identity assessment report is relevant because it was used by the Departmental Delegate in considering that a ground for cancellation existed.

    The information contained in the identity assessment report, if relied on by the Tribunal, may form part of the reason for the Tribunal's affirming the decision of the Department.

21. On 29 July 2019, the Tribunal received a response from the applicant’s registered migration agent, dated 26 July 2019. In that response, the applicant does not dispute the validity of the s.375A Certificate. The applicant raises concerns about the content of the identity assessment. The Tribunal considers that, despite the applicant’s assertions, it is clear that the Department had concerns about the applicant’s identity, and further considers that he has been provided with a meaningful opportunity to comment on those concerns, in his response to the Department in his NOICC, and before the Tribunal. In particular, the Tribunal considers that the applicant has been placed on notice that the Department considers he has lawfully resided in Pakistan, and further that he is married to a Pakistani citizen.

22. The applicant, in the 29 July 2019 response, expresses concern that the Tribunal may be relying on an inaccurate and out-of-date report.  Specifically, the applicant refers to allegations that the Department may have had, prior to sending the applicant a NOICC, about his relationships with various people, including an Ali Asghari.  The Tribunal is unaware of these concerns, save for the applicant raising them, as the Tribunal does not have before it the audio recording of the identity interview referred to by the applicant.  Further, these concerns were not the subject of the NOICC, and are therefore not concerns to which the Tribunal would have, or could have, any regard.  For this reason, the Tribunal considers the applicant’s concerns to be misguided.

23. The Tribunal accepts that genuine refugees may lie about aspects of their claims, for a range of reasons.  The Tribunal accepts that there are numerous factors that may justify and explain a refugee’s deliberate or inadvertent failure to tell the trust.  The applicant has drawn the Tribunal’s attention to His Honour Justice Kirby’s comments in Minister for Immigration v SGLB [2001] HCA 32 at [73], on this point:

    Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.

24. The Tribunal considers that the applicant’s failure to tell the Department of his other identity is not explainable by mere inadvertence, or fear.  Rather, the circumstances in which the applicant failed to provide this information were that he surely understood that if the Department discovered he had lawfully resided in Pakistan for a very extended period of time, and was married to a Pakistani citizen, with five children all of whom were born in Pakistan, the Department may not have accepted his claim to need protection from Afghanistan.  In other words, he obtained a visa that he was likely not entitled to in the first instance as a consequence of having failed to provide the Department with this information. 

25. The Tribunal accepts that the applicant had a desire to better his own circumstances, and would have been nervous in speaking with the Department, and places some weight on this as a factor against cancellation. 

26. However, the delegate’s decision record, provided to the Tribunal by the applicant in conjunction with the review, explains that:

    The crux of the delegate’s reasoning for his positive assessment was that the visa holder was from Afghanistan where he faced persecution if he returned there, and that he was living unlawfully in Pakistan, where he was unable to enjoy the rights and benefits of lawful Pakistani citizens and residents (that is, no right to reside in any third country). I am satisfied that the decision to grant the visa was based on incorrect information as the visa holder – known as Khan Muhammad – was lawfully resident in Pakistan

    ***

    Had the delegate been made aware of the visa holder’s genuine circumstances, I consider that it is unlikely that the visa holder’s protection claims against Afghanistan would have been accepted.

27. As the circumstances in which the non-compliance occurred were material to the grant of the protection visa, and the correct information may have led the Department to find the applicant did not require protection from Afghanistan, greater weight should attach to the circumstances in which the non-compliance occurred as a factor in favour of cancelling the visa.

    The present circumstances of the visa holder

28. The applicant submits that he has now lived in the Australian community for ten years, and is a respected member of his community. He says that:

    He also has a wife and children, living illegally in Pakistan, whom he has not been able to visit for several years.  The long period of separation from his family is taking a significant toll on Mr Askari and on his relationship with his family. If his visa was cancelled and Mr Askari was returned to Afghanistan, he would be permanently separated from his family.  They are refugees living in Pakistan. His children have never lived in Afghanistan. The security situation in Afghanistan, particularly for Hazara Shia Muslims is such that they could not safely travel to Afghanistan to join their father. In regard to the security situation in Afghanistan, we refer to our earlier submission of 6 September, 2018. 

29. The applicant has worked to support himself while in Australia, and participated in the Australian community in a positive way.  The Tribunal places some weight on these matters as factors in favour of not cancelling the visa.

    Any contribution made by the holder to the community

30. The applicant volunteers at his local Mosque, particularly for special occasions, and is involved in the Shia community.  The Tribunal does not consider that there is anything particularly noteworthy about the applicant’s participation in ordinary aspects of civic and community life in Australia, but considers his efforts to be a positive community member reflect favourably on him.

31. The Tribunal does not place any weight on the applicant’s separation from his wife and children, for the reason that the Tribunal considers this to be a circumstance over which the applicant has control.  The Tribunal considers that the applicant could, if he wished, return to Pakistan and reside with his wife and children.  Further, the Tribunal does not place any weight on the applicant’s claims to need protection from Afghanistan, for the reason that the Tribunal finds he is able to return to Pakistan under his known alias, Khan Muhammad, and therefore does not require protection.

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

32. The applicant admits that he provided incorrect information, and apologises for having done so. He maintains that his known alias of Khan Muhammad is a false identity, and further that his wife and children are Afghani nationals, residing unlawfully in Pakistan.  The Tribunal prefers the information provided by the Department that the applicant lawfully resided in Pakistan, and that his wife is a Pakistani national who holds a genuine Pakistani Computerised National Identity Card.  As such, the Tribunal does not place any weight on the applicant’s subsequent behaviour as a factor in favour of not cancelling the visa.

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

33. The applicant, in his application for a Global Special Humanitarian visa lodged with the Department on 9 September 2010 (and subsequently refused), declared to the Department that he had five children in addition to his own five children (a total of 10 children).  The Department became aware, and the applicant admits, that 5 of these children were not actually his own. He also provided bogus taskeras documents to the Department for these children.

34. The applicant submits that his motivation to do this was to assist these children, whom he says were orphaned relatives.  There is not sufficient evidence before the Tribunal to enable the Tribunal to find that these children were, in fact, orphaned relatives.  The Tribunal accepts that the applicant’s personal motivation was to try and secure a better life for these children in Australia. 

35. However, on balance, the Tribunal considers that multiple instances of non-compliance by the applicant, particularly instances geared toward securing a visa outcome to which the applicant may not be entitled to, must be viewed seriously.  The Tribunal considers that the applicant has had a contumelious disregard for the need to be honest with the Department, and that regardless the applicant’s personal motivations, his lies have been deliberate and geared toward securing more favourable visa outcomes for himself and his family.  The Tribunal considers that the applicant’s non-compliance in this respect is a factor that should be weighed strongly in favour of cancellation.

    The time that has elapsed since the non-compliance

36. The Tribunal has taken the view most favourable to the applicant in considering this factor, which is that it has been six years since the applicant provided false information to the Department.  The applicant asks that the Tribunal give considerable weight to this factor, in light of the applicant having now been separated from his family for more than ten years.

37. The Tribunal weighs this factor neutrally, and does not place weight on it as a factor for, or against, cancellation.  Although it is favourable that six years has passed since the non-compliance, the Tribunal considers that the applicant’s separation from his family is a factor that is within his control, for reasons traversed earlier in this decision.  On this basis, the net impact of these considerations in relation to time elapsed is that balancing the factors results in neutral impact.

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

1. There is no evidence before the Tribunal that the applicant has breached any law since the non-compliance. The Tribunal weighs this very slightly in the applicant’s favour, as the expectation is that applicants do conduct themselves in a manner whereby they do not breach Australian law.

   Other relevant matters

2. In addition to the above prescribed factors, the Tribunal has considered other factors that may be relevant in considering the exercise of discretion. The Procedural Advice Manual 3 also requires delegates to consider other factors such as whether the visa would have been granted if the correct information was provided; Australia's international obligations in relation to non-refoulment; whether the cancellation of the visa would lead to the consequential cancellation of other visa holders under s.140 of the Act; and whether the cancellation would lead to the applicant's indefinite detention.

3. Earlier in this decision, the Tribunal has explained its view that had the applicant provided information to the Tribunal in relation to his having lawfully resided in Pakistan, and marriage to a Pakistani citizen, the Department may not have accepted his claim to need protection from Afghanistan.  On this basis, the Tribunal places limited weight on the prospect that the applicant would have been granted the visa as a factor in favour of not cancelling the visa.

4. The applicant has not provided any credible evidence that supports his assertions that his lengthy residence in Pakistan was secured through his use of fake documents.  The Department investigation concluded that the applicant was a lawful resident of Pakistan, married to a Pakistani woman holding a genuine CNIC card.  The applicant’s claims must be weighed against the Department’s findings, which are supported by objective evidence obtained through official diplomatic channels. 

5. While the applicant does not have an onus of proof, the absence of any supporting information, other than assertions made by family members whose relationship is not clearly explained, leaves the Tribunal in a position where it prefers the more objective information obtained by the Department. As the applicant has, on multiple occasions, provided incorrect, incomplete, or false information to the Department, the Tribunal is unable to place enough weight on his own evidence to countervail the information obtained by the Department.  There remains no credible evidence that the applicant could not return to Pakistan. 

6. The Tribunal notes that there are no consequential cancellations resulting from the cancellation of the applicant’s visa, and therefore gives no weight either way to consequential cancellation as a factor.

7. The Tribunal notes, in relation to Australia’s non-refoulment obligations, that before the applicant was removed to his country of origin, the Department would complete an International Treaties Obligations Assessment (ITOA). Therefore, the Tribunal considers that a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention.

8. The ITOA assessment would, amongst other matters, consider whether the applicant would be at risk of harm in his country of origin. The applicant has made blanket allegations of fear, should he return to Pakistan.  In his response to the Department NOICC, the applicant claims that Hazaras and Shia Muslims are being persecuted in both Afghanistan and Pakistan.  However, despite having had multiple opportunities to particularise these allegations before the Tribunal, either at hearing, or in response to the Tribunal’s invitations to comment, the applicant has not provided any meaningful particulars.  The Tribunal places minimal weight on his assertions, as the applicant has not provided any supporting detail, specific to his own personal circumstances. In relation to these considerations under Australia’s international obligations, the Tribunal gives minimal weight in the applicant’s favour.

9. The applicant also contends that he is unable to return to Pakistan, as he claims that he is not a Pakistani citizen.  The Tribunal places no weight on the applicant’s assertions in this respect, as for reasons traversed earlier, the Tribunal prefers the information provided by the Department that the applicant has lawfully resided in Pakistan.

10. The Tribunal acknowledges that the applicant will, following cancellation, be subject to s.46(1) of the Act, which bars him from making an application for a further visa. Further, as the applicant arrived to Australia as an irregular maritime arrival, the applicant will become an unlawful non-citizen, subject to s.46A(1) of the Act and barred from making a valid application for a further visa, including bridging visas, and may be detained.

11. Following cancellation, the applicant will become an unlawful non-citizen, and may be liable for detention under s.189 of the Act, and may be removed from Australia under s.198 of the Act.

12. However, these factors can be mitigated by voluntary departure by the applicant.  The Tribunal considers these to be standard mandatory legal consequences following visa cancellation, and therefore gives these considerations minimal weight in the applicant’s favour.

13. Overall and weighing all the considerations, the Tribunal considers that the applicant's visa should be cancelled. The applicant has conceded that the grounds for cancellation have been made out.

14. The Tribunal considers that if the applicant had provided the correct information about his Pakistani identity of Muhammad Khan, married to Maryam Khan Muhammad, he would have not been entitled to the protection visa that was granted on 28 October 2009. Had he not been entitled to the protection visa, he also would not have subsequently been entitled to the Subclass 155 Resident Return visa that is the subject of this decision.

15. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

16. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Bridget Cullen
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, 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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.