Ahmadi and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 1567

Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567 (1 July 2019)

Division:GENERAL DIVISION

File Number:           2017/7351

Re:Ghulam Sakhi Ahmadi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:1 July 2019

Place:Adelaide

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Tribunal is satisfied with the Applicant’s identity within the meaning, and for the purposes of, s 24(3) of the Australian Citizenship Act 2007 (Cth).  

.........[Sgnd]...................................

Senior Member B J Illingworth

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – inconsistency in evidence – credibility – identity satisfied - decision under review set aside and remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975

Australian Citizenship Act 2007

CASES

Briginshaw v Briginshaw [1938] HCA 34

Confidential and Minister for Immigration and Citizenship [2013] AATA 144
ReAhamod and Minister for Immigration and Border Protection [2019] AATA 7
Re Beyan and Minister for Immigration and Citizenship [2015] AATA 256

Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

SECONDARY MATERIALS

Australian Citizenship Bill 2005

Australian Citizenship Policy

Attorney-General’s Department, National Identity Proofing Guidelines

REASONS FOR DECISION

Senior Member B J Illingworth

1 July 2019

INTRODUCTION

1. Mr Ghulam Sakhi Ahmadi (“the Applicant”) has applied for a review of the decision of the Minister for Immigration and Border Protection (“the Respondent”) dated 14 November 2017 which affirmed the original decision to refuse his application for Australian Citizenship by conferral on the grounds that he did not satisfy s 24(3) of the Australian Citizenship Act 2007 (“the Act”), namely that the Respondent was not satisfied of the Applicant’s identity.

2. At the hearing, the Applicant was represented by Mr Besmellah Rezaee and assisted by an interpreter. Ms Laura Butler, Australian Government Solicitor, appeared on behalf of the Respondent.

3. During the hearing, the Tribunal received the following documents:

   (a)T documents;[1]

   [1] Exhibit R1.

   (b)Supplementary T documents;[2]

   [2] Exhibit R2.

   (c)Applicant’s Statutory Declaration dated 17 May 2018;[3]

   [3] Exhibit A1.

   (d)Applicant’s father’s taskera;[4]

   [4] Exhibit A2.

   (e)Translation of the Applicant’s father’s taskera;[5]

   (f)Translation and letter of conferral of marriage certificate dated 29 Nov 2017;[6]

   (g)Applicant’s taskera and translation;[7]

   (h)Translation and copies of taskeras of Applicant’s family;[8]

   (i)Photocopy of original marriage certificate;[9]

   (j)Photocopies of the Applicant’s wife and children’s Afghanistan Passports;[10]

   (k)Translation of marriage certificate;[11]

   (l)Copy of Applicant’s father’s taskera from the Kingdom of Zahir dated 30 October;[12]

   (m)Letter from Northern Clinic;[13] and

   (n)Birth certificate of Roohullah.[14]

   [5] Exhibit A3.

   [6] Exhibit A4.

   [7] Exhibit A5.

   [8] Exhibit A6.

   [9] Exhibit A7.

   [10] Exhibit A8.

   [11] Exhibit A9.

   [12] Exhibit A10.

   [13] MFI11.

   [14] Exhibit A12.

   BACKGROUND

4. The Applicant is aged approximately 49 years, is a citizen of Afghanistan, and is a Shi’a Muslim of Hazara ethnicity. The Applicant has a limited ability to recall dates of events. Dates, including birth dates, are not important in his culture.

5. The Applicant and his family left Afghanistan in around 1982 because of the civil war. Their house was burnt down. They travelled to Iran where the Applicant remained as both a legal and illegal immigrant for over 20 years.

6. The Applicant married his wife in Iran in about 1991. His wife is also a citizen of Afghanistan and was born in or about 1975. Both the Applicant and his wife are illiterate.

7. The Applicant and his wife had eight children born between approximately 1993 and 2014; two of whom are now deceased. The Applicant and his family have lived in Afghanistan, Iran and Pakistan.

8. In Iran, the Applicant was issued with various cards which permitted him to reside there, namely a white card, a green card giving him permanent residency which was revoked when conflict with the Taliban arose, and a card giving him eight months to leave Iran.

9. The Applicant’s life in Iran was difficult. He experienced racism and did not have the same rights as Iranian citizens.

10. In about 2004, the Applicant returned to Afghanistan with his wife, children, two of his sisters, and his brother. They returned their refugee cards to the Iranian officials when they left so they could obtain exit permits. The Applicant was unclear about their return date but was shown a document headed “UNHCR Voluntary Repatriation Form” and dated 12 February 2007.[15] The Applicant cannot read or write but, when shown the document, he said he believed it was given to him at about the time of his return to Afghanistan.

    [15] Exhibit R2, Supplementary T Documents, page 231.

11. In approximately 2010, the Applicant and his family fled to Pakistan after his father was killed and his son, Fazel, was martyred when the Taliban attacked their home. He and his family were smuggled into Pakistan with the assistance of people smugglers. The Applicant said the Taliban knew him and so, if he applied for a visa, would know where he was and find him. He believed this because of what happened to his father and son. He feared for his life and that of his family. The Applicant also did not apply for a visa to legally enter Pakistan as he and his family had their luggage, which included their identification documents, stolen.

12. The Applicant then fled Pakistan and arrived in Australia on 19 March 2011 as an Irregular Maritime Arrival. The Applicant was found to be a person to whom Australia owed protection and so was granted a Protection visa taking effect on 7 September 2011.[16] The Applicant applied for the Protection visa by presenting a copy of his taskera and a copy of the UNHCR Voluntary Repatriation Form.

    [16] Ibid, pages 180 – 183.

13. Around this time, a number of other forms were completed by the Applicant, as well as two Offshore Humanitarian Visa applications completed by the Applicant’s wife, which contained some inconsistent information with respect to the Applicant’s age, his wife’s age, date of marriage, and children’s dates of birth. These inconsistencies are outlined in further detail below.

14. On 15 September 2015, the Applicant lodged an application for Australian Citizenship by conferral.[17] The Applicant recorded his date of birth to be 1 January 1976 on the application form.

    [17] Exhibit R1, T Documents, pages 61 – 72.

15. On 6 October 2017, the Department sent an email[18] to the Applicant requesting additional documentation pertaining to the Applicant’s identity to be provided within 28 days.

    [18] Ibid, pages 78 – 82.

16. The Applicant failed to respond to this email request and did not provide further supporting documentation in relation to the issue of his identity.

17. On 14 November 2017, the Applicant was notified by the Department by email that his application for Australian citizenship by conferral had been refused.[19]

    [19] Ibid, pages 89 – 93.

18. On 13 December 2017, the Applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (“the Tribunal”).[20]

    [20] Ibid, pages 1 – 7.

    ISSUE

19. The issue to be determined is whether the Tribunal can be satisfied of the Applicant’s identity pursuant to s 24(3) of the Act.

    LEGISLATIVE FRAMEWORK

20. Section 24(3) of the Act provides:

    The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

21. The Explanatory Memorandum to the Australian Citizenship Bill 2005 states:

    There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.

22. Further, Chapter 13 of the Australian Citizenship Policy under heading “Overview of the identity provisions” states that:

    The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.

    In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.

23. The Attorney-General’s Department’s National Identity Proofing Guidelines (“the Guidelines”) refers to the concept of identity as “not a fixed concept; it is highly dependent on context.”[21]

    [21] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1.

24. In Re Ahamod and Minister for Immigration and Border Protection,[22] the Tribunal examined the standard of proof contemplated in Briginshaw v Briginshaw[23]  and found the higher level of satisfaction is required in the granting of citizenship:

    A certificate of Australian Citizenship is a legal document of considerable significance.[24] Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.[25]

    [22] [2019] AATA 7.

    [23] [1938] HCA 34.

    [24] ReBeyan and Minister for Immigration and Citizenship [2015] AATA 256.

    [25] Above n 23 at [30].

25. It follows that in particular cases that are of a serious or grave nature, to act on “inexact proofs, indefinite testimony or indirect references” may not be reasonable.[26]

    [26] See Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33.

    THE DEPARTMENT’S FINDINGS AS TO THE APPLICANT’S IDENTITY

26. In the delegate’s decision to refuse the Applicant conferral of Australian citizenship, she stated:

    “All of the documents you have provided to the Department were issued to you after you arrived in Australia. The documents provide no information about the identity you might have used overseas since birth and prior to your arrival in Australia. Therefore, I give little weight to these documents in determining your identity at birth.

    On 6 October 2017 the Department requested you to provide the following information in relation to assessment of your identity. You were asked to provide certified copies of any original documents which can support your claimed identity…

    You were given 28 days to respond to the request.

    At the time of decision, you have not responded to the request nor contacted the Department to request an extension of time to provide a response. The time provided to submit the request information has now passed.”

27. The Respondent has identified inconsistencies in the Applicant’s identity, namely in relation to the following:

    (a)his date of birth;

    (b)his wife’s date of birth;

    (c)date of marriage; and

    (d)his children’s dates of birth.

28. The inconsistent information provided to the Department in each of the documents will be set out in more detail further below.

    THE EVIDENCE

    Applicant’s Date of Birth

29. The Applicant’s year of birth is reported as 1970, albeit with some variation in day and month, in the following documents:

    (a)His taskera[27] annexed to his refugee visa application;

    [27] Exhibit R1, T Documents, pages 8 -16.

    (b)His statutory declaration;[28]

    (c)His Biodata Interview;[29]

    (d)His Entry Interview;[30]

    (e)UNHCR Consent to Release Information;[31]

    (f)Protection Visa Form 866B;[32]

    (g)Applicant’s wife’s second application for Offshore Humanitarian Visa;[33]

    (h)Letter of conferral of marriage;[34]

    (i)Australian driver’s licence;[35]

    (j)Titre de Voyage;[36] and

    (k)Islamic Republic of Pakistan visa.[37]

    [28] Exhibit A1.

    [29] Exhibit R2, Supplementary T Documents, pages 49 – 55.

    [30] Ibid, page 57.

    [31] Ibid, page 79.

    [32] Ibid, at page 150.

    [33] Ibid, at page 191.

    [34] Exhibit A4.

    [35] Exhibit R1, T Documents, page 75.

    [36] Ibid, pages 73 - 74.

    [37] Ibid, page 76.

30. This is inconsistent with the Applicant’s application for Australian Citizenship which records his date of birth as 1 January 1976,[38] and his wife’s first application for an Offshore Humanitarian Visa dated 15 July 2010, proposed by her parents, which records the Applicant’s date of birth as 11 September 1973.[39]

    [38] Ibid, page 61.

    [39] Exhibit R2, Supplementary T Documents, at page 8.

31. In evidence, the Applicant confirmed his year of birth as 1970. When he was born, births were not registered in Afghanistan. The only form of identification he had was a taskera issued to him in 1976. In that document, he is recorded as being six years old at that time. This, he said, was an estimation based on his height and appearance.

32. When questioned about the inconsistencies in his date of birth recorded in the documents provided to the Department, the Applicant stated that he is illiterate and has memory issues. He said that he initially provided his age based on his taskera to the Department upon arriving in Australia, and was given a day and month of 1 January by the Department. When completing documents, the Applicant would use this date that had been given to him.

33. However, not all of the documents provided to the Department were completed by him. In relation to his age provided on his wife’s 2010 Offshore Humanitarian Visa application, which is 1973, he believes that form was completed by his wife with assistance and, although he generally accepts his wife’s version of dates as being correct because she has a better memory than him, that date was incorrect.

34. In relation to his age on the marriage confession letter, which is recorded as 21 March 1970, the Applicant said that may be a result of confusion when converting dates from the Persian calendar to the Gregorian calendar, as 1/1/1349 translates to 21/3/1970.

    Applicant’s wife’s date of birth

35. The Applicant’s wife has recorded her date of birth as 6 May 1975 in both her Applications for an Offshore Humanitarian Visa dated 15 July 2010,[40] and 4 October 2011.[41]

    [40] Ibid, at page 1.

    [41] Ibid, at page 184.

36. Conversely, the Applicant has recorded his wife’s approximate year of birth as being 1970 in his Entry Interview,[42] Form 80 to the IAAAS Interview,[43] and Application for a Protection visa.[44]

    [42] Ibid, at page 60.

    [43] Ibid, at page 102.

    [44] Ibid, at page 175.

37. In relation to this inconsistency, the Applicant accepted his wife’s version as being correct as her memory is better than his.

    Date of marriage

38. The Applicant’s wife has recorded the date of marriage as 1 October 1991 in her Applications for an Offshore Humanitarian Visa dated 15 July 2010[45] and 4 October 2011.[46]

    [45] Ibid, at page 1.

    [46] Ibid, at page 184.

39. In the Applicant’s Entry Interview on 29 March 2011, the Applicant recorded his date of marriage as being approximately 1991 or 1992,[47] and more specifically as 1 January 1991 in his Application for Protection visa.[48]

    [47] Ibid, at page 60.

    [48] Ibid, at page 161.

40. In the hearing, the Applicant said he wasn’t sure about the exact date of his marriage and had only given an estimate in his various interviews. This estimate was based on his recollection that he was married 15 to 20 days before the Persian New Year and one year after 1989, being one year after the Supreme Leader in Iran died. He said his country does not record exact dates, only years. The Applicant said that when he provided an estimate to the Department, it only caused confusion and different dates were recorded.

41. When asked to explain why his wife provided the date of 3 March 1990 to the authorities when obtaining the marriage confession letter, the Applicant said that she too is illiterate and had the same problem as him in that she had explained to the authorities when she was married and was simply given a date.

42. When asked how old he was at the date of marriage, the Applicant said he was about 16 -18 years old. The Respondent referred to the dates recorded in the marriage confession letter and suggested the Applicant’s age was 20 when he was married. The Applicant later said he does not remember how old he was, or how old his wife was at the time of their marriage.

43. In reference to the Applicant, the marriage confession letter states that his date of birth is 1/1/1349 in the Persian calendar which equates to 21/3/1970 in the Gregorian calendar. The Applicant said the conversion of the date of birth from the Persian calendar to the Gregorian calendar may explain the difference.

    Children’s Dates of Birth

44. The Applicant’s wife’s 2010 Application for Offshore Humanitarian Visa,[49] sponsored by her parents (Sarwar Heydari), and 2011 Application sponsored by the Applicant’s brother-in-law, contains full dates of birth for the Applicant’s children. The dates of birth were recorded as follows:

    (a)Farzana – 18 April 1995;

    (b)Farhad – 23 January 1997;

    (c)Feroza –12 March 2005;

    (d)Fatima –14 June 2007;

    (e)Fereshta – 21 December 2008.

    [49] Ibid, pages 1 – 26.

45. Those birth dates of the children were similarly recorded in children’s passports[50]  issued on 20 November 2017 in Afghanistan. Following his return to Pakistan, the Applicant’s wife gave birth to their youngest child, Roohullah, whose passport records his date of birth as 28 August 2014.[51] The Tribunal notes that the passport records his place of birth as Daykundi, which is a province of Afghanistan.

    [50] Exhibit A8.

    [51] Ibid.

46. In the Applicant’s Biodata Interview in March 2011,[52] the Applicant said he telephoned his wife at the time, and she gave the following approximate dates of birth for his children:

    (a)Farzana - 1993;

    (b)Farhad - 1995;

    (c)Feroza - 2002;

    (d)Fatima - 2007;

    (e)Fereshta - 2010;

    (f)Fazel - killed at 3 months old in Herat.

    [52] Exhibit R2, Supplementary T Documents, pages 49 – 55.

47. Those birth years of the children were similarly recorded in a Refugee Status Assessment Form[53] submitted by the Applicant in August 2011.

    [53] Ibid, at page 101.

48. The Applicant’s children obtained taskeras in Afghanistan issued in 5 November 2017[54] which states their years of birth as follows:

    (a)Farzana –13 years old in 2008; 22 years old in 2017 (date of birth - 1995);

    (b)Farhad – 11 years old in 2008; 20 years old in 2017 (date of birth - 1997);

    (c)Feroza –  4 years old in 2008; 13 years old early 2018 (date of birth - 2005);

    (d)Fatima – 1 year old 2008; 10 years old in 2017 (date of birth - 2007);

    (e)Fereshta – 9 years old in 2017 (date of birth - 2008);

    (f)Roohullah – 3 years old in 2017 (date of birth - 2014).

    [54] Exhibit A6.

49. When questioned about these inconsistencies, the Applicant said that he does not remember their dates of birth due to his memory issues and so, when completing his Entry Interview, phoned his wife to obtain these dates.

50. The Applicant said his three youngest children were born in a hospital and so their exact dates of birth were recorded. For the other children who were born at home, they do not have their exact dates of birth recorded anywhere. The Applicant said he only has a birth certificate[55] for his youngest child, Roohullah, however his birth was not registered as their status in Pakistan was unlawful at that time.

    [55] Exhibit A12.

1. The Applicant said he and his wife have previously tried to obtain hospital records for the other children, however the hospital required exact dates to retrieve the records and neither he or his wife could recall the dates.

2. The Applicant said he had made attempts to obtain the records again in 2016 upon his return to Pakistan by asking someone to go to the hospital and search on his behalf. The Applicant said the hospital did not keep the old files and could not find the records.

3. The Applicant said that, as taskeras only record a year of birth, the children’s dates of birth used in the Offshore Humanitarian Visa and passports were chosen by his wife.

   Authenticity of documents

   Applicant’s taskera

4. In his statutory declaration, the Applicant explained he went with his father and uncle to obtain a taskera when he was six years old. The Applicant said his father’s taskera and Military Discharge Card were used to obtain his own taskera.

5. The Respondent referred to country information of Afghanistan, which suggests it is common practice to affix photographs to taskeras with a wet seal. The Applicant explained he was too young to have his photograph affixed to the taskera.

6. The Applicant was asked how he could have had his father’s taskera in his possession when his father’s taskera was issued at a later date than when he obtained his own taskera, namely, his father’s taskera was issued on 7 December 1976 and the Applicant’s taskera was issued on 24 July 1976. The Applicant said he quoted his father’s file number and the authorities provided a copy.

7. The Applicant’s representative subsequently informed the Tribunal of a second taskera belonging to his father. This taskera was supposedly from the time of King Zahir. This was issued when the Applicant’s father was 22 years old. This document was subsequently lodged with the Tribunal and tendered.[56] The document’s volume number was also referenced in the Applicant’s taskera.

   [56] Exhibit A10.

8. The Applicant informed the Tribunal that he would be happy for any of the taskeras to be verified by the Afghan authorities and the Canberra Embassy.

   Applicant’s passport

9. In 2004, the Applicant travelled to Daykundi to apply for a passport so he could return to Iran. In his passport application, the Applicant presented his taskera. It was at this time that a photo of the Applicant was taken and affixed to his taskera, and the taskera was stamped with the year ‘1383’ in the Persian calendar, which equates to 2004 in the Gregorian calendar.

10. In the Applicant’s IAAAS Interview on 20 May 2011,[57] the Applicant submitted on his application that his passport was lost in Iran in 2005.

    [57] Exhibit R2, Supplementary T Documents, pages 80 – 86.

    Family’s taskeras

11. The Applicant said his wife and children obtained their taskeras in 2017 in Herat, Afghanistan. He was not with them when they obtained them as he was unwell in Australia. The Applicant said that he was in hospital at Elizabeth.

12. The Applicant said his family needed his taskera in order to have their identities verified. He employed a representative to make the relevant arrangements for his documents to be transferred to Herat, so his family could access them.

13. The Applicant gave evidence that his wife obtained her first taskera in Daykundi because she did not have one at the time she was applying for an Offshore Humanitarian Visa in 2010.

    Family’s Passports

14. The Applicant’s children obtained their passports from Herat, Afghanistan in 2017.

15. The Applicant said the passport issuing authority in Afghanistan would not issue a passport without evidence of a taskera. He said his children’s taskeras recorded only a year of birth, and therefore his wife was asked to pick a day and month of birth for each child. The Applicant reiterated that his wife has a better memory than him and she knew the correct dates. The inconsistency in the date of birth in Farzana’s passport may have been caused by translation error or mistake.

    Lack of documentation

    Time in Iran

16. The Applicant lived in Iran for approximately 23 years, having moved to Iran in about 1360, which translates to 1981. He and his family were in a refugee camp for a few months, and then immigrated to the mainland in 1982.[58] He said he was issued a white refugee card in 1981. He retained that card for approximately seven years.[59] He was then given a green card, which he retained for four years, and then a light green card. The Applicant said the last card provided was a temporary refugee card, and gave him eight months to leave Iran. The Applicant said he appealed this decision, however the Iranian government rejected his request to stay longer and issued a letter giving him 25 days to leave.

    [58] In the Applicant’s statutory declaration, he said he lived in Iran from 1981 to 2004. In the Applicant’s Refugee Status Assessment he stated he moved to Iran in 1982.

    [59] Exhibit A1.

17. After their expiry, he and his family gave the original cards back to the authorities. They needed to return the refugee cards in order to obtain exit permits to travel back to Afghanistan. At this time, the Applicant completed a UNHCR Repatriation Form.

18. The Applicant said he retained copies of the refugee cards, however they were either lost in the luggage or thrown away when they returned to Afghanistan.

19. When asked if he made any enquires of the Iranian government to obtain copies of these refugee cards, the Applicant said the government does not listen to Afghani refugees, and they never responded to his requests. The Applicant said he also made requests to the embassy in Canberra last year. He was told by officials at the embassy that there was no digital database and that they were unable to access their records without a file number. The Applicant said he did not have the file number.

20. The Applicant said his children attended school in Iran during that period but couldn’t complete their education when their refugee cards were made temporary. He said he did not have any proof of their studies because he did not keep those records as he thought they would be able to go to school in Afghanistan. However, it became unsafe in Afghanistan and so they moved to Pakistan. When asked if the Applicant had made any attempts to obtain those records, the Applicant said he did not remember the name of the school.

21. In his Statutory Declaration,[60] the Applicant disclosed an interest in land in Iran. The Applicant explained in evidence that he had an agreement with a landowner to farm a portion of the land. There was no written contract and he did not own the land himself.

    [60] Exhibit A1.

22. The Applicant said in Iran he mostly worked as a labourer on various farms. He was paid a wage, however was not provided any payslips. He never paid tax.

23. The Applicant said that he went back to Iran after 2004 to work on the lands and finish his work. He said he used his Afghan passport to obtain a tourist visa from Iran. It was the only legal way he could return to Iran. When asked what happened to the passport, the Applicant said it expired and he did not have time to extend it.

    Time in Pakistan

24. The Applicant said he moved to Pakistan in 2008 and that the date of 2010 provided in his Entry Interview was incorrect because he had trouble converting the Islamic calendar into the Gregorian calendar.

25. The Applicant was asked about the copy of the original marriage certificate. The Applicant explained that, originally, the marriage certificate was stolen while they were crossing the border into Pakistan. The Applicant said he had retained a photocopy of the first page of the marriage certificate whilst in Pakistan, but only obtained the complete copy when he returned home in 2013. Upon his return to Australia, he had the certificate re-copied and laminated. He said he subsequently forgot he had possession of the document, which is why he did not provide it to the Department or the Tribunal at an earlier date.

26. The Applicant’s children attended a private Afghan school in Pakistan as their status was unlawful and so they could not attend a Pakistan school.  

27. The Applicant said that he and his wife rented a room while in Pakistan. There is no rental agreement with the landlord; his wife and family just lived with the landlord and paid cash. They also would have to move house often due to safety issues. In each house they moved to, they would be living with other refugees.

28. When asked if it was possible to obtain a rental contract with a landlord, the Applicant said that he would need to get a citizen of Pakistan to be a guarantor. They would demand a fee.

29. The Applicant provided the birth certificate[61] of his youngest child Roohullah as evidence of his time in Pakistan. He said he and his wife have previously tried to obtain hospital records for the children born in Pakistan, however the hospital required exact dates to retrieve the records and neither he or his wife could recall the dates.

    [61] Exhibit A12.

30. The Applicant said he had made attempts to obtain the records again in 2016 upon his return to Pakistan, by asking someone to go to the hospital and search on his behalf. The Applicant said the hospital did not keep the old hospital files and could not find the records.

    CLOSING SUBMISSIONS

    Applicant’s closing

31. The Applicant submits that the Tribunal can be satisfied of the Applicant’s identity based upon the identity documents received and corroborative evidence of his family’s identity documents. The Applicant submits that any inconsistencies presented in his life story are due to the Applicant’s memory issues and illiteracy. The Applicant has made estimates to the best of his ability, particularly in circumstances where it is not always the case that births are registered or marriage certificates are handed out in Iran.

32. The Applicant submits that he has produced all the documents in his possession and it is impossible for him to submit any more documents from Iran or Pakistan as he no longer has them and has not been able to obtain copies of them as he is not a citizen of those countries. The Applicant submits that the copy of his marriage certificate issued in Iran and submitted to the Tribunal is sufficient proof to satisfy the Tribunal that the Applicant lived in Iran, and the copy Roohullah’s birth certificate is sufficient proof to satisfy the Tribunal that the Applicant lived in Pakistan.

33. The Applicant submits that his children’s taskeras do not refer to his taskera as he was not present at the time they were issued. Instead, they refer to their mother’s taskera. Although this is unusual, the Applicant submits that this does not mean the taskeras are not genuine. Further, the fact that the Applicant’s taskera was issued in 1976 but contained a photograph attached at a later date is because it was only applied when the Applicant required a passport.

    Respondent’s closing

34. The Respondent accepts that the Applicant is illiterate to some degree however states that this should not prevent him from remembering the dates of significant events in his life, particularly when it appeared during the hearing that the Applicant was able to recall other information, use his mobile phone to attempt to locate documents, has referred to looking at documents to obtain information, and produced a note with his children’s dates of births and described the boxes of medications that he took.

35. The Respondent submits that the validity of the Applicant’s taskera is concerning as a photo was not affixed to it at the time it was issued and does not reference his father’s taskera.

36. The Respondent submits that the Tribunal should place greater weight on the country practices at the time in issuing these documents as opposed to the Applicant’s evidence, nor should the Tribunal accept that the Applicant lost his identity cards noting that he has provided no evidence to substantiate the claim that he has exhausted all avenues of search for documentation.[62]

    [62] Confidential and Minister for Immigration and Citizenship [2013] AATA 144.

    CONSIDERATION

37. What is required in this application is for the Tribunal to be ‘satisfied’ of the Applicant’s identity. The level of satisfaction required has already been discussed and the Tribunal will proceed on that basis.

38. The Tribunal notes the Respondent’s concern that the Applicant has produced little official documentation to substantiate his identity and has provided inconsistent information in his applications. However, the Applicant has given explanation of his attempts to obtain official documents. The Tribunal accepts that he has been hindered in his ability to do so. He lived almost 23 years in Iran as an illegal immigrant. The Tribunal accepts that the Applicant and his family had no status and any official documents were returned to the Iranian authorities when they left the country. He is now unable to obtain documents from Iran.

39. The Tribunal also accepts that the Applicant arranged for his records to be delivered to Herat so that his family could obtain their taskeras which have been provided to the Tribunal. He has also produced passports of his family members.

40. The Tribunal, having considered all the evidence placed before it, is satisfied that the Applicant was a credible witness. The Tribunal finds that the Applicant was truthful and frank, and did his best to provide details as to dates, but in doing so he has relied on others or given his best estimate.

41. There are a number of inconsistencies in various dates to which the Tribunal has referred. The Tribunal accepts that dates, and in particular the dates of birth, were not regarded as important or officially recorded in Afghanistan. In those circumstances, it is reasonable to suspect some degree of inconsistency. This is further compounded when there are no birth certificates or other formal documents which record the day month and year of a person’s birth. The Applicant does not come from a sophisticated background, and has some memory difficulties and relies on his wife to provide details of dates of birth of their children and other life’s events.

42. The fact of the inconsistencies is further compounded by his wife also being illiterate and, insofar as certain documents were prepared by others, neither the Applicant nor his wife were able to read their content and therefore check their accuracy. The Tribunal accepts that a further explanation for error may be the conversion from the Persian to the Gregorian calendar. Nevertheless, the dates provided by the Applicant to the Department were merely estimates.

43. Importantly, the other information contained in the tender documents and also given in evidence is generally consistent. Details of the Applicant’s children, his wife and her extended family are not challenged. The Tribunal accepts those details are generally accurate. The Tribunal accepts that the persons named in the various documents referred to above are correct and that the children named are the children of the Applicant, as is the details of wife and that she is the mother of those children named.

44. The Tribunal also accepts the evidence of the Applicant and his family’s movements from Afghanistan to Iran and Pakistan remained consistent, and that upon his return to Pakistan to visit his family the Applicant’s wife conceived and subsequently gave birth to their youngest child who was born in Pakistan.

45. Further, it is not unreasonable that the Applicant had to give up his documents when moving from Iran to Afghanistan. The Tribunal accepts his explanation that copy documents were lost along with his luggage and the circumstances within which the Applicant and his family were required to move both their home and country of residence from time to time was difficult. The Tribunal found his evidence on these topics to be credible and reliable.

46. When the evidence of the Applicant’s life story, personal circumstances, and movements between countries and residents as a refugee together with details of the fact of his marriage and the birth and names of his children are weighed up against the inconsistent dates, and when taking into account the Applicant’s explanation for inconsistencies in those dates to which the Tribunal has referred, the Tribunal is satisfied of, and accepts, the Applicant’s identity.

    DECISION

47. Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Tribunal is satisfied with the Applicant’s identity within the meaning, and for the purposes of, s 24(3) of the Australian Citizenship Act 2007 (Cth).

98.     I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

....[Sgnd]....................................

Associate

Dated: 1 July 2019

Dates of hearing:	14 and 22 November 2018, and 22 January 2019
Advocate for the Applicant:	Mr Besmellah Rezaee, Beena Rezaee Legal and Migration
Advocate for the Respondent:	Ms Laura Butler, Australian Government Solicitor