The delegate's decision
10 In the decision refusing to grant the visa, the delegate made a number of findings adverse to the appellant. He rejected the appellant's claim to be from Afghanistan and found that he was in fact a Pakistani national. Among the reasons given for so finding were the following.
11 First, the Department of Home Affairs (the department) had received information that the appellant's family were Pakistani nationals issued with Pakistan national identity cards and that the family's original residence was the village of Bilyamin in Lower Kurram, Kurram Agency, Pakistan.
12 Secondly, the delegate found that the appellant attended school and commenced higher education in Pakistan. The delegate relied on photographs from social media of the appellant with school friends in school uniform (worn in Pakistan but not in Afghanistan) and did not accept the appellant's account of having borrowed a uniform to attend a function at his Pakistani friend's school. The delegate also did not accept that the record provided by the appellant of his school results purportedly obtained in Afghanistan was a valid record, both because it was said to be for 2011 (which was inconsistent with the appellant's claim that he completed school in 2009 and had been operating his mobile phone store since 2010) and also because the document purporting to be a school record from 2011 contained a photograph that was the same photograph as used on the other identity documents that he provided. In that regard, the delegate reasoned as follows:
The applicant claims that he lived in Mana kalle (village), Bak district, Khost province from birth until 2010. The applicant claims he attended a village school in Tarakai (aka Tarakay, Tarakai, Taraki), Bak district, Khost province until 2009. As evidence of his attendance at Tarakai High School, the applicant provided a document he claims are his results from year 7. I note the translation of the document indicates that it is for the school year 2011, despite the applicant claiming that he completed school in 2009 and opened a mobile phone business in Khost City in 2010. I note that photograph of the applicant on the document is the same photo that appears on numerous 'Afghan' documents provided by the applicant, supporting the assessment that they were manufactured contemporaneously, contrary to varying and wide ranging issue dates. However, most compelling are images of the applicant attending school in Pakistan. Images on the applicant's social media account … show the applicant wearing a school uniform, including in the playground and in a class photo. Students in Afghanistan wear traditional attire to school, not school uniforms or western attire such as shirts and ties. Other persons in these school photos were identified in the applicant's social media friends list [the delegate then named two friends]. Both of their social media accounts state that they attended school in Pakistan, with [the second friend] naming his school as Bilyamin Government High School in Kurram Agency. This information is consistent with information previously cited regarding the applicant's family being registered Pakistani citizens from Bilyamin, Lower Kurram.
As this information was not provided by the applicant and may form the reason or part of the reason for refusing his application for a protection visa, it constitutes relevant information under section 57 of the Migration Act 1958. It was therefore put to him in a series of procedural fairness letters. The applicant provided the following response regarding his appearance in these school photos:
I fled to Pakistan in 2013. Prior to fleeing for my life, l lived in my birth country Afghanistan. I did not go to school in Pakistan. Using information about other individuals on social media to conclude that I attended school in Pakistan does not prove in any way that I attended such schools. I wish to also stress that information on social media is not always correct. Individuals will provide incorrect information on these platforms for privacy purposes or to better themselves.
I did however attend a school function of my friend … when I was in Pakistan arranging my departure abroad. [My friend] gave me the uniform to wear so that I could attend and feel welcomed within the school community at the function. Attending this function has been misinterpreted as me attending school in Pakistan. It is not uncommon for people to attend school functions in the uniform or colours of that school and not be in full-time study attendance. As I have stated previously I was born and raised up in Mana Village, Bak District, Khost Province, Afghanistan. I studied locally, up to Year 7 and then had a mobile and music store in Khost City, due to which my life became in danger and I fled from Afghanistan in about March 2013.
The applicant is claiming that despite fleeing Khost via Kabul to Pakistan, enroute to Australia, he travelled to Kurram Agency, adjacent to Khost, to attend his Pakistani friend's school function, borrowed a school uniform so as to feel welcome, and posed for photographs as a member of the class, and with a friend in the school playground during recess. This claim is far-fetched, as is his claim that it is common for people in Pakistan to attend school functions of schools they did not attend, wearing school uniforms of the schools. This also raises the question as to how he came to be close friends with … a resident and citizen of Pakistan, when he has allegedly lived in Khost his entire life. I am therefore not satisfied the applicant attended the school as a guest but was, in fact, enrolled as a student.
Based on the information outlined above, the applicant's flawed response, and the anomalies in the Tarakai school transcript[']s appearance and date, I am satisfied the applicant did not attend school in Khost, Afghanistan. I am satisfied the applicant has made false statements regarding his education and provided a bogus document (being his Afghan school report), to support his fraudulent claim. Based on the photos described above, I am satisfied the applicant attended school in Pakistan. I am satisfied the applicant has demonstrated a willingness to make false statements and provide false documentation to the department to support his application for a protection visa.
13 Thirdly, the delegate also relied on information from the Institute of Management Sciences, Peshawar, in Pakistan, showing that the appellant had been enrolled there in the 2012 academic year in a Bachelor of Business Administration. In that regard, the delegate reasoned as follows:
The applicant claims that he opened a mobile phone business in Khost City in 2010, and operated it until March 2013. However, images on the applicant's social media account … show the applicant wearing an official looking lanyard …
More compelling, however, is information on the Institute of Management Sciences (IMS) Peshawar website regarding former and current students. Several of these documents name [the applicant], of Kurram Agency as a student and scholarship recipient. Another document lists [his] results for the 2012 academic year.
The Department contacted the IMS Peshawar registrar's office on 25 January 2018 asking for information in relation to the enrolment and attendance of [the applicant], from Kurram Agency, at the institution. In response, the IMS provided [the applicant's results for the degree of Bachelor of Business Administration] …
The results indicate that [the applicant] was enrolled in six subjects in semester one 2012 … and successfully completed five subjects. The results indicate that [he] was enrolled in six subjects in semester two; however he 'dropped out' of the courses and received a grade of F for each subject.
As this information was not provided by the applicant and may form the reason or part of the reason for refusing his application for a protection visa, it constitutes relevant information under section 57 of the Migration Act 1958. In a procedural letter dated 8 December 2017 it was put to the applicant that information before the Department indicates that he attended IMS on scholarship in 2012.
In response, the applicant stated the following:
When my life became in danger in about August of 2012, I began my search for a way out of the trouble. An agent who resided in Khost city, promised me that he could facilitate a smooth way out of the whole problem. The agent asked me for two of my photos, along with full description. I did not know and had no knowledge of the 'smooth' way that the agent was pursuing to get me out of the trouble. He only indicated to me that if I had a college admission or higher qualifications, it would make it much easier to obtain a third country's visa, however, the agent did not fully disclose his plans to me. In the meantime, when I received the threatening call from the Taliban and I felt seriously in danger, I stopped pursuing the matter with the local agent in relation to a way out, but fled to Peshawar to save my life.
When I received the second letter of IMMI S57, Natural Justice stating that I had applied for and consequently attended an interview at the Institute of Management Sciences, I assume that it would have been in fact the agent that would have arranged my application, and admission at the said Institute. I am adamant that I never applied, sat at an interview, got admission and granted a scholarship at the Institute of Management Sciences. I have supplied two photographs to the agent, and he would have arranged the entire above process.
The applicant's response is not consistent with his original statement of claims in his application for a protection visa. In his application he states that he received a warning letter from the Taliban in August 2012 however:
I thought that the letter was probably sent to me by someone to mock around [sic] or to annoy me, and hence, I continued my work in the shop of selling and loading the music, movies, and songs ... However, in about March 2013 I received a phone call where the caller threatening me [sic]. The caller was saying that I did not act upon the warning letter to stop selling of music and movies ... After receiving the call from the Taliban, I was really scared and called my maternal uncle for advice.
Therefore, according to his original statement of claims, the applicant didn't take the warning letter seriously in August 2012 and only began making arrangements to depart Afghanistan in March 2013. This contradicts his statement in his response to the procedural fairness letter. The applicant's claim that an agent contrived his enrolment at the IMS in Peshawar, without his knowledge, in 2012, before his alleged problems with the Taliban and commencement of arrangements in March 2013 is therefore implausible.
As I am satisfied the applicant attended school in Lower Kurram, and IMS in Peshawar in Semester 1, 2012, I cannot be satisfied that the applicant operated a mobile phone business in Khost City between 2010 and March 2013.
14 Fourthly, when asked for information about his family members, the appellant provided actual dates of birth for each of his siblings and parents (consistent with how they would be recorded in Pakistan), while for himself, he listed his birthday as 31 December of his birth year (consistent with the fact that Afghanistan does not record precise birth data). In that regard, the delegate reasoned as follows:
The applicant has provided precise dates of birth for all of his extended family, however has only provided 31 December 1991 as his own. The precise dates of birth of his family members is not consistent with persons born in Afghanistan. They are, however, consistent with persons born in Pakistan, where accurate records of births are recorded. The fact that, unlike the precise dates of birth given for his family members, the applicant has provided the traditional Afghanistan estimate dates for himself, raises concerns that the applicant has provided inaccurate information regarding his own date of birth.
…
I note that the applicant has provided precise dates regarding the birthdates of his parents and siblings, however he has simply listed his birthdate as 31 December 1991. I therefore have concerns that this is not the applicant's correct date of birth. In the absence of genuine documentary evidence of his date of birth, I find the applicant to be born on 31 December 1991 for the purposes of this decision record only. I am not satisfied the applicant is a citizen of Afghanistan, therefore I am not satisfied the applicant is a dual national. I find the applicant to be a citizen of Pakistan only.
15 Fifthly, the delegate found, relying on material including social media posts, that the appellant's father worked for the Pakistan government as part of the "Kurram Levy Force". The delegate's reasons record that this information was put to the appellant "in a series of natural justice letters", and that in response, the appellant revised what he had said about his family returning to Khost, Afghanistan in 1988 after the Soviet withdrawal, and stated that his father had remained in Kurram, Pakistan where he worked as a camp supervisor. The appellant claimed that his father worked both in Kurram and managed a farm/livestock export business in Khost, and relied on an unlawfully obtained Pakistani identity card so he could move between the two countries. The delegate rejected this evidence as a contrivance, as follows:
While I am satisfied that [Pakistan's National Database and Registration Authority] has issued many national identity cards to Afghan refugees in Pakistan, and are indeed cracking down on these persons, I am not satisfied the applicant has provided a truthful account as to how his father acquired a Pakistan national identity card. I am satisfied that the applicant's inconsistency regarding his father's and brother's movements and places of residency in response to adverse information indicates that he has changed his narrative in response to strong evidence that his family are Pakistani nationals and members of the Bangash tribe from Lower Kurram. I am satisfied that the applicant's father is or was in the Kurram Levy Force, also known as the Levies. I am satisfied the claim that his father operated a farm, a livestock export business, and worked as a camp supervisor at Zamo camp simultaneously, is contrived.
16 Sixthly, the delegate found that the Afghan passport that the appellant had provided was "fraudulently obtained, and that the taskera [or identity document], driver's licence, Taliban warning letter, police document and [Tarakai] academic transcript provided by the applicant to the department are counterfeit". The delegate referred to anomalies in the documents and reasoned as follows:
This assessment is reinforced by anomalies in the documents, including: dates that are inconsistent with claimed school attendance; documents that bear no resemblance to genuine specimens; the use of the same photograph on all primary and secondary documents (with the exception of the 2017 passport); production features on the primary and secondary documents not consistent with genuine specimens; and the exclusive use of the western Gregorian calendar on a document purportedly produced by the anti-western Taliban.
17 The delegate found, as to bogus documents, in summary as follows:
The applicant provided a bogus Afghan passport, taskera, driver's licence, secondary documents, including school documents. The passport meets the definition of a bogus document in subsection 5(1)(c) of the Migration Act; "was obtained because of a false or misleading statement, whether or not made knowingly". The other documents meet the definition of a bogus document in subsection 5(1)(b) of the Migration Act; "is counterfeit or has been altered by a person who does not have authority to do so".
18 Relevantly, the delegate noted that the department sent a s 57 letter to the appellant dated 31 January 2018, which put to him that a delegate of the Minister reasonably suspected his Afghan passport to be a bogus document on the basis of meeting paragraph 5(1)(c) of the definition of bogus document (see [5] above). The appellant responded several weeks later, and the delegate's reasons regarding that response were as follows:
In a response dated 15 February 2018, the applicant maintained that Afghan authorities verified his Afghan documents before issuing him with an Afghan passport. He claims that the Afghan Embassy … is a reputable agency, inferring that it should be trusted. The applicant claims that the Afghan Embassy issued his passport having conducted appropriate checks. The applicant states: "As I have explained in my Statutory Declaration dated 24 November 2017, I had to provide my original Taskera along with its original verification and English copy before a passport was issued to me".
The applicant stated in a statutory declaration to the Department in August 2016 that he was unable to provide his original taskera to the Department as part of his application for a protection visa because he provided his original taskera to Jetset Travel in Dandenong in order to obtain a passport; however they lost it, thus preventing him from submitting the original to the department or the Afghan Embassy in Canberra. The applicant states in the same statutory declaration that he has also lost his documents relating to his application for an Afghan passport in Kabul in 2013, and was therefore unable to provide this evidence to the Afghan Embassy in Canberra.
This statutory declaration clearly claims that Jetset Travel lost his original taskera sometime before August 2016. Therefore, he could not have provided his original taskera to the Afghan Embassy in order to have a passport issued in May 2017. I am therefore satisfied the applicant made a false statement in his response dated 15 February 2018.
19 As is apparent from the extracts from the delegate's reasons, the appellant had been informed by the delegate of doubts as to the credibility of his claims and the authenticity of his documents, including his taskera, in three s 57 letters. The appellant responded to all three letters, as set out in the extracts of the reasons above. Having considered the appellant's responses, the delegate sent a further letter to the appellant dated 7 September 2018, inviting him to provide a reasonable explanation for providing bogus documents as evidence of his identity, nationality or citizenship.
20 The appellant responded on 1 October 2018 and provided, among other things, a statutory declaration attaching further documents, including what he claimed to be a photograph taken by one of his relatives in Afghanistan of the details of his original taskera as recorded in the District Office of Bak.
21 As to that declaration, the delegate found as follows:
The applicant states in his statutory declaration dated 28 September 2018 that the Afghan Embassy in Canberra checked the registration of his taskera with authorities in Afghanistan before issuing him a passport. However, as noted previously, in his application for a protection visa he stated that he provided his taskera to Jetset Travel, Dandenong for the purpose of making a passport application to the Afghan Embassy; however Jetset Travel lost his taskera. If this is the case, I cannot be satisfied that the Embassy received his taskera in order to conduct checks.
The applicant claims:
One of my relatives in Afghanistan was able to take a photo of the Register book where details of my original Taskera were recorded in the District Office of Bak[.] A copy of that photo is enclosed for your reference. For privacy reasons the details of other people have been covered.
The applicant does not name the relative; however I note that the applicant has informed the Department that his family reside in Peshawar, Pakistan, allegedly fleeing to that city in approximately 2014. This raises the question as to which relative went to the Bak district headquarters in Khost, was allowed access to the district's records, and was permitted to photograph the relevant district taskera register page, which includes personal information pertaining to a number of people in Bak district.
I am not satisfied that a relative of the applicant travelled to Bak from Peshawar for the purpose of photographing a government document; was granted access to such government records; and was permitted to photograph a page that contains the personal details of numerous persons from the district. I assess this suggestion to be far-fetched.
In addition, I note that the 'register page' in the photograph is stark white and seemingly in pristine condition, despite allegedly being some six years old at the time the photograph was taken by the unnamed relative. The page shows no signs of yellowing or other discolouration expected in a six year old document. The edge of the page is in similarly pristine condition, which is not consistent in a six year old page that has been subject to regular handling. I note that each entry is made with the same pen, in the same hand, strongly supporting the assessment that each entry was made contemporaneously. These features support the assessment that the document is counterfeit and his explanation as to how it was acquired is contrived.
For these reasons, no weight can be placed on the document as evidence of the applicant's taskera being legitimately registered in the Bak district headquarters taskera register.
22 The delegate concluded that he was not satisfied that the appellant had provided a reasonable explanation for the provision of bogus documents, and had accordingly not satisfied s 91WA(2). As a consequence, s 91WA(1) prevented the appellant from being granted a protection visa.
23 After summarising the above findings about the appellant's claims to be an Afghan national, the delegate found him to be a Pakistan national, a Sunni Muslim and a Pashtun from the Bangash tribe. The delegate then went on to assess whether the appellant faced a real chance of persecution based on his accepted profile.
24 The delegate found that country information did not support findings that a Sunni Muslim Pashtun "with no other profile" was at risk of persecution in Lower Kurram, Peshawar or by the Taliban, that Sunni Muslims were persecuted by state or non-state actors, or that failed asylum seekers returning to Pakistan would be imputed with political opinions or persecuted by authorities. The delegate also found that country information did not support a claim that persons returning to Pakistan from western countries would be imputed with pro-western or anti-Taliban views.
25 Accordingly, the delegate was not satisfied that the appellant was a refugee as defined in s 5H(1) or that he met the criterion in s 36(2)(a). For similar reasons, the delegate found that the appellant did not have a real risk of significant harm if he were to return to Pakistan, including because he had "significant family support" and would reside with his family in Peshawar if he returned, and thus did not meet the complementary protection criterion in s 36(2)(aa).
26 As I say, the delegate also found that the appellant was an EFTRA by operation of s 5(1)(a)(vi) because he had, without reasonable explanation, provided a bogus document in support of his application. After noting that the appellant had provided a copy of his taskera, an Afghan driver's licence, the Taliban warning letter, police document, and school results, the delegate reasoned as follows:
For reasons outlined in the protection visa refusal decision record, I am satisfied the applicant is a Pakistan national, a member of the Bangash tribe from Lower Kurram, and a long-term resident of Lower Kurram. I am satisfied the applicant has never lived in Afghanistan, nor is he lawfully entitled to Afghan citizenship. The applicant provided a statutory declaration to the department as part of his application for a Safe Haven Enterprise Visa that he lost his original taskera in 2016, and that he also lost his documentary evidence regarding his claimed application for an Afghan passport in Kabul in 2013. I am therefore satisfied that the 2017 Afghan passport was fraudulently obtained by the applicant from the Embassy of Afghanistan in Canberra. I am satisfied the passport meets the definition of a bogus document as defined in section 5(1) of the Migration Act 1958, for the reasons set out previously.