Ahmadi and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 4189

Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4189 (8 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6655
Re:Mr Esmaeil Ahmadi
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:8 November 2018
Place:Melbourne

The Tribunal:
(a) sets aside the decision under review, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); and
(b) remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant is a person of good character for the purposes of the Australian Citizenship Act 2007 (Cth).
..................[sgd]......................................................
Ms Anna Burke, Member
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether satisfied of identity of applicant – whether the applicant is not of good character – whether the application for citizenship made by the applicant should be approved – decision under review set aside and remitted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke, Member
INTRODUCTION

Esmaeil Ahmadi (applicant) is a 31-year-old citizen of Afghanistan, a Shi’a Muslim of Hazara ethnicity, who first arrived in Australia on 7 September 2010 as a dependent on his mother’s Partner (Subclass 100) visa. His father had arrived in Australia in 2002 as an Unauthorised Maritime Arrival. From records which show that Mr Ahmadi‘s father obtained his Australian citizenship on 8 June 2010, the Tribunal has inferred the father must have been found to be a person to whom Australia owed protection. Mr Ahmadi left Afghanistan as a child with his family, first travelling to Iran where they remained as illegal immigrants for many years; until they obtained visas to travel to Australia. Mr Ahmadi is married, having sponsored his wife to Australia. He has been employed full-time as a site supervisor with the one firm since 2014. He has travelled to Iran twice, in 2011 to get married and in 2013 for a holiday.
On 21 May 2015 Mr Ahmadi lodged an application for Australian citizenship by conferral. On 22 May 2015 and 14 June 2016 the Department of Immigration and Border Protection (the Department) wrote to Mr Ahmadi, requesting additional documentation to satisfy the Minister of his identity. The letters listed numerous documents Mr Ahmadi could provide including a Taskera (an Afghan identity card) or any other document you wish to provide.
On 22 March 2017 the Department wrote to Mr Ahmadi to advise him that the Afghan driver's license he had provided in support of his citizenship application was not a genuine document and gave him the opportunity to comment on this document.
On 20 June 2017 Mr Ahmadi submitted a statutory declaration to the Department explaining that he was shocked to find his Afghan driver’s license was not a genuine document. He said he believed his citizenship should be approved regardless, as he had lived in Australia for six years, always tried to live with honesty and right, he had no criminal history, he had not intended to provide a false document, and he was sorry that Afghani documents could not be trusted. He included numerous other supporting documents and character references to support his application for citizenship.
On 20 October 2017 a Delegate of the Minister refused Mr Ahmadi’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act), as he did not satisfy section 21(2)(h) concerning good character, and the Department was unable to be satisfied of Mr Ahmadi’s identity.
On 8 November 2017 Mr Ahmadi lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal stating: The decision is incorrect because the applicant’s claims including material facts and circumstances were not given proper consideration in the decision-making process.
At the hearing, Mr Ahmadi was represented by Mr Amani of Amani Lawyers and assisted by an interpreter in Dari (Afghani). Mr Jamie Grant, Solicitor of Sparke Helmore Lawyers appeared on behalf of the respondent Minister.
ISSUE FOR THE TRIBUNAL
The issues for the Tribunal are whether:
·it is satisfied of the identity of Mr Ahmadi, to fulfil the requirements of s 24(3) of the Act; and if so
·it is satisfied the Mr Ahmadi is of good character as required by s 21(2)(h) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
The term good character is not defined by the Act. However, guidance is provided by the Citizenship Policy (the Policy) issued by the Minister in 2016.
The stated role of the Policy is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth).
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated at the outset that it is not departmental policy for decision makers to be bound by a check-list. Rather, decision makers are to look at the merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character.
Reference is made to the definition of good character by Lee J in Irving v Minister of State for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431-432):
…the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Policy also refers to Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at para 8):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home... The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
To assist decision-makers, the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
[A]n applicant of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds);
·be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o   providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o   involvement in bogus marriage
o   concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o   involvement in Centrelink or Australian Tax Office fraud
o   giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not to have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
The Policy also provides guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of good character requires the consideration of an aggregate of qualities. More weight is to be given to serious offences.
The Policy further states:
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy references Deputy President Forgie in Zheng v Minister for Immigration and Citizenship [2011] AATA 304 (at para 120), to demonstrate this point:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
EVIDENCE
The evidence before the Tribunal included two sets of documents lodged by the respondent pursuant to s 37 of the AAT Act, referred to as the “T documents” and the “Supplementary T documents”, Mr Ahmadi’s witness statement and a VicRoads statement.
Identity
In the Delegate’s determination to refuse Mr Ahmadi conferral of Australian citizenship he stated:
Following a departmental request to provide further identity documents in support of your application, you submitted a Taskera and Marriage certificate but failed to submit your Afghan driver’s license. I am of the opinion that, had you not been aware that it was a bogus document, you would have submitted your Afghan driver’s license along with other identity documents. Instead, you presented your Afghan driver’s license only when specifically asked what documents you had presented to the VicRoads to obtain your Victorian driver’s license.
I am of the opinion that you provided a fraudulent document to the VicRoads in order to bypass a three year probationary licensing [sic] periods (something that you were not entitled to have). In addition, by not disclosing in the full extent of your actions to the department, you have demonstrated a willingness to mislead two government agencies.
You have failed to provide a plausible explanation surrounding the issuance and use of this bogus document when the matter was put to you fairly to comment for the purposes of this citizenship application. I do not accept your claim that you were not aware that the driver’s license was not genuine.
I am of the opinion that you were not truthful and have provided a fraudulent document to mislead Australian government agencies, gaining an exemption from three years of probationary Victorian license [sic] restrictions and further concealing your true identity from the department.
…
I acknowledge that your Taskera has been confirmed as registered by the Afghan Registration of Population Records (PRD). However, it was not issued in accordance with the method described by the registration body. This fact combined with residual concerns regarding your identity and the prevalence of fraud regarding Taskera’s generally leads me to question the reliability of this document as evidence of your identity. In addition this document was issued in 2016 and does not demonstrate the operation of your identity since birth in 1987. Consequently, I place little weight against this document in support of your identity.
….
You were not forthcoming with information other than what you or your immediate family members have disclosed to the department. I find your avoidance of questions intended to clarify information about your family members intentional, leading me to doubt the credibility of your life story and the accuracy of the information you have provided about your family.
I have taken into consideration the information available to the department at the time of this decision. I have concerns regarding your failure to provide sufficient information as requested in support of your identity and life story. Furthermore, I find your inability to recall key life events to be concerning and erodes your credibility. I give these factors significant weight in this assessment.
I am faced with a situation where I cannot be certain of your identity to the standard expected for the conferral of Australian Citizenship…
The respondent contended that the Tribunal should have real concerns that Mr Ahmadi’s Afghani identity documents are not genuine, with his Afghani driver’s license being accepted as fake. He submits they should be given no weight. The respondent submitted the Tribunal should not accept Mr Ahmadi’s Afghani identity documents as genuine and therefore would be unable to be satisfied of his identity.
Mr Ahmadi advised the Tribunal that prior to obtaining his Afghani passport in 2007 he had had no identifying documentation. He said that his passport was obtained in the hope of being able to travel to Australia to be reunited with his father. He told the Tribunal his father, who was in Australia, had approached the Afghani Embassy in Canberra. The Embassy had sent a letter to the family in Iran. The family travelled to Tehran to visit the Afghani Embassy. They were shown the letter and the entire family were all issued with Afghani passports. The family then migrated to Australia on these passports.
Mr Ahmadi’s representative produced the original passport at the hearing, which was shown to the respondent but not submitted into evidence.
Mr Ahmadi advised the Tribunal that his mother, brothers and sisters have subsequently become Australian citizens utilising their Afghani passports. Their passports were all obtained at the same time as his passport, which has been submitted for his Australian citizenship by conferral.
In the Delegate’s determination to refuse of Mr Ahmadi conferral of Australian citizenship, he stated:
You obtained an Afghan passport without following the prescribed method, raising concerns regarding the authenticity of this document. It is also noted that you have demonstrated a willingness to obtain a bogus document (Afghan driver’s license) for use in support of your identity, raising concerns regarding your credibility. The reported prevalence of fraud and ease in obtaining a genuine Afghan passport through fraudulent means leads me to place little weight on your Afghan passport as evidence of identity for the purpose of this application for Australian citizenship.
The Tribunal requested evidence of Mr Ahmadi’s family’s applications for Australian citizenship and the respondent lodged material following the hearing. The documentation indicates that Mr Ahmadi’s Afghani passport was indeed issued by the Embassy of Afghanistan in Tehran on 16 May 2007 at the same time as the passports for his family members. The passports issued are numbered consecutively, 546, 547, 548, 549, and 550. The respondent stated in his subsequent submission that there does not appear to have been anything in the applications of the family members to indicate that their passports had not been regularly obtained.
In the supplementary documentation table in respect Mr Ahmadi’s siblings applications for Australian citizenship, they were asked to provide the documents as listed below:
You are unable to supply the Afghan equivalent of a birth certificate. Please ask your embassy/consulate to write an official letter explaining why this document is unobtainable.

Mr Ahmadi’s siblings then supplied a letter from the Afghani Embassy in Canberra certifying they had been born in Afghanistan.
Mr Ahmadi advised the Tribunal that when he had been applying for his Australian citizenship, he had numerous requests asking for him to supply a Taskera so he had told his father and his father had approached the Afghan Embassy in Canberra. They then hired a lawyer to assist with gaining a Taskera from outside Afghanistan, they located two witnesses in Afghanistan who testified to Mr Ahmadi’s identity applied for and were issued the Taskera from the Afghan Embassy in Canberra.
In the Assurance Pro Forma (High Risk) Citizenship form dated 12 July 2016 the CAO identity assessment in respect of Mr Ahmadi’s family members application for Australian citizenship by conferral, states:
Applicant does not have a birth document from Afghanistan (Taskera) [sic]. This document is not in PR file or other files available. Post have previously stated that Afghani’s residing in Iran (as per this family) generally don’t have their Taskera’s [sic] which is why they would not be provided for their permanent residency applications. I have referred this to post again for this family’s case who confirmed that the Afghan embassies do not issue taskeras [sic] and only issue letters (which the applicants obtained and provided). Applicant’s identity and family composition has been consistent throughout applications.
…
Family composition has remained consistent throughout Departmental files. Applicants were included in the Temporary Protection and Regional Sponsored Migration Scheme visas of the sponsor of their Partner Visa application [father’s name] as non-migrating family members. [Father] has constantly listed his wife and children with no additions or omissions. The name ‘Mohammad’ was sometimes added in front of some of the children’s names and spelling of the names has varied at times… The dates of birth were sometimes entered as just the year without the day/month. I find that the dates of birth have been consistent despite the omission of day/month in initial visa applications. The children were always listed in correct age order and the years have been consistent…
The family composition has remained the same as per other records. No significant findings or identity concerns have been raised.
Applicant’s family have multiple files available which have been checked as part of the identity assessments. Throughout the available files, no adverse information was found regarding the applicants. They were initially mentioned in their sponsor’s [father’s name] visa application and were listed as non-migrating family members. Applicant came here on a partner visa and there is no evidence to suggest that her identity was changed or falsified. On the basis of the above information, I am satisfied with the applicant’s identity.
The respondent submitted that it was unnecessary for the Tribunal to make findings as to the genuineness of the applicant’s siblings’ passports, or the correctness or otherwise of the decision to approve their applications for citizenship. The respondent submitted that the Tribunal simply needs to decide whether it can be positively satisfied as to the identity of the applicant for the purposes of s 24(3) of the Act; and whether the applicant is of good character for the purposes of s 21(2)(h) of the Act. The respondent added, for completeness, that the fairness of the situation, with the applicant’s siblings having all been granted citizenship, is not a relevant consideration.
Mr Ahmadi advised the Tribunal that his relationship with his father had broken down because his father had not allowed him to marry the girl he loved in Iran. They no longer talk. Therefore, he had had to rely on getting information from his father second-hand, to complete all the information for his citizenship application. He simply did not know his own history as he had left Afghanistan at a young age and lived in a precarious situation in Iran for many years.
Mr Ahmadi did not call his father as a witness. The respondent said the Tribunal should draw an adverse inference from this; namely, that the father’s testimony would not support that of his son. Mr Ahmadi said he had not thought there was a need to call his father as he did not believe his passport and Taskera were in dispute. He based this on his understanding of the Departmental letter of 22 March 2017, which noted that his Afghani driver’s license provided in support of the citizen application had been found not to be a genuine document but did not make any mention of his passport or Taskera.
Good character
The representative of the Minister submitted that it was improbable that the applicant’s identity documents were innocently obtained and that he was unaware they were not genuine. The respondent further submitted that a willingness to provide false information, let alone fraudulent identity documents, to the Australian government is an indication that a person is not of good character. Further, the respondent argued that statements made by Mr Ahmadi in his various submissions were inconsistent with each other and with his testimony before the Tribunal.
Mr Ahmadi advised the Tribunal that his father had suggested that he obtain a driver’s license to prepare for his life in Australia as he would require a license for work in this country. He told the Tribunal that he had no idea about the rules in Australia and thought it would be difficult and expensive to get a license here and so determined to get a license in Tehran. He could not get an Iranian license as he was not an Iranian citizen and was illegally in the country. Through a contact he obtained the name of an individual at the Afghani Embassy in Tehran. When he arrived at the Embassy he called the individual and met him in the car park. He gave him some money and a photograph. He waited for 45 minutes in the car park and the individual came back with the license. Since the individual he was dealing with had gone into the Embassy, Mr Ahmadi said he believed the driver’s license he was provided was genuine and had no idea at the time that it was fraudulent.
Mr Ahmadi advised the Tribunal that he had not provided his Afghani license as a form of ID when applying for citizenship as he did not think that it was important. He had submitted his passport and Taskera believing that was sufficient. He had no idea his Afghani driver’s license was false; and if he had, why would he have kept it three years and given it to the Department. He had provided his Afghan driver’s license at his interview for Australian citizenship when the Delegate asked what identity documents he had used to gain his Victorian driver’s license.
Mr Ahmadi advised the Tribunal that he did not have to get a probationary licence in Victoria. He had attended VicRoads; and had undertaken his learner’s, hazards and driver’s tests; gaining a full license because he had provided his Afghani license. The VicRoads website states:
Before your previous driving experience can be recognised, we’ll need to verify your licence. This may involve your card being sent off to be checked.
You must be at least 18 years of age to get a Victorian driver licence. Whether you are issued a full or probationary licence will depend on your age and how long you have held your overseas driver licence.
·You will be issued a P1 probationary driver licence if you are under 21 years of age and have held an overseas driver licence for less than 12 months from your 18th birthday.
·You will be issued a P2 probationary driver licence if you:
oare under 21 years of age and have held your overseas driver licence for more than 12 months, or
oare 21 years of age or older and have held your overseas probationary driver licence for less than three years.
·You will be issued with a full Victorian driver licence if you are 21 years of age or older and:
ohave held your overseas probationary driver licence for at least three years, or
ohold or have held an overseas full driver licence.
…
Driver licences not recognised in Victoria
If your overseas driver licence is not listed in one of the above tables [Afghanistan is not], or your driver experience is recognised, but you are under 25 years old you WILL need to take the following tests at a VicRoads Customer Service Centre to get your Victorian driver licence:
·road law knowledge test
·hazard perception test
·drive test.
In the Delegate’s determination to refuse Mr Ahmadi conferral of Australian citizenship he stated:

Pillar 3 - Life story
Education/Employment
At citizenship interview when you were asked about your schooling, you advised that you did not go to school in Iran as you were not allowed without any legal documentation. You further advised that you learnt to read and write Farsi on [the] streets with your Iranian friends.
When asked about your employment you are adamant that, as an illegal refugee in Iran, you did not have any right to work. You either stayed indoor or played football with Iranian children on the streets.
However, when balancing your statement against evidence, I find it difficult to accept that you did not attend any school or have worked until the age of 22, prior to your arrival in Australia in 2010. Considering that you have attended Certificate 1 in English course in Australia since arrival and is currently working in an Auto recycling company as a “Site Supervisor”, it is implausible to accept that you have obtained such success without attending a school or receiving formal education.
Moreover, departmental information indicates that your father arrived in Australian in September 2002, eight years prior to your arrival in Australia. You claim that in Iran during this time none of your family members worked or studied and you had no knowledge of your family’s financial affairs.
I find your lack of knowledge regarding you and your five other immediate family member’s subsistence leads me to believe you are not a credible witness…
Mr Ahmadi advised the Tribunal that he had been a refugee in Iran and his family had survived on money sent from his father who was in Australia. During this period he had not been studying or working but he spent his days playing with the local children, often soccer. At the hearing, the respondent asked him so for between five and 13 years in Iran you claim that you stayed inside. Mr Ahmadi responded yes we were not able to do anything. The respondent put to him that it was implausible that you would spend so much time inside doing nothing. Mr Ahmadi replied that was because you have not lived in Iran.
CONSIDERATION
Contrary to the respondent’s submission that the Tribunal’s task is not informed or assisted by reference to the material in Mr Ahmadi’s siblings’ citizenship applications or the decision themselves, the Tribunal finds that Mr Ahmadi’s primary proof of identity, his Afghani passport, is identical to his siblings’ passports which have been accepted by the Department as genuine documents. Additionally, Mr Ahmadi has travelled in and out of Australia on this document on numerous occasions and has never had its veracity questioned.
The Tribunal found that the original Delegate accepted that Mr Ahmadi’s Taskera had been confirmed as registered by the Afghan Registration of Population Records, but the Delegate had given little weight to it as an identifying document as the document was not issued in accordance with the method described by the registration body. Country information provided by the respondent included a document from the Norwegian Refugee Council titled “Access to Tazkera and other civil documentation in Afghanistan” which outlined the process for obtaining a Taskera notes:
The tazkera is the primary Afghan personal identification document and is “necessary to receive a variety of government services … They are also necessary to obtain other identity documents such as passports and drivers’ licenses”... The procedure for obtaining a tazkera varies depending on, inter alia, where the application is submitted…
When a person’s identity cannot be verified in a standard manner, they can receive a tazkera only after two Afghan citizens possessing tazkera as well as the local police department attest that they are an Afghan national…
Afghan’s living abroad also must complete a complex and time-consuming procedure to obtain a tazkera. The consular sections of embassies contain information for processing passport applications …but not tazkera. This is in line with the requirement, as described above, for all Afghans to return to their family’s place of residence, or to Kabul, to apply for tazkera.
Mr. Ahmadi received a letter from the Department of Immigration and Border Protection on 14 June 2016 requesting additional information to satisfy the Minister of his identity. The letter listed a Taskera as proof of identity but did not list a driver’s license.
Mr. Ahmadi advised the Tribunal his father had found two witnesses to attest that he was an Afghani national, which would appear consistent with the country information outlining the process for obtaining a Taskera. However, there is an inconsistency as the country information clearly states that a Taskera cannot be issued outside Afghanistan.
Mr Ahmadi’s representative had submitted an information sheet from the website of the Afghan Embassy in Canberra which outlines the procedures for issuing passports for Afghani citizens residing in Australia. For verification of identity it states: If the applicant does not have a Tazkira they must provide the Tazkira details of their father, grandfather, brother, sister or uncle…
Mr Ahmadi’s siblings received a letter from the Department on 3 March 2015 stating: You are unable to supply the Afghan equivalent of a birth certificate. Please ask your embassy/consulate to write an official letter explaining why this document is unobtainable. Mr Ahmadi’s siblings all then produced a letter from the Embassy certifying they had been born in Afghanistan.
The Tribunal has placed little weight on the Taskera but accepts that it has been issued by the Afghani Registration of Population Records, and that it supports Mr Ahmadi’s identity. The Tribunal believes Mr Ahmadi’s identity would have been certified by the Afghanistan Embassy if requested.
The Tribunal is satisfied of Mr Ahmadi’s identity on the basis of his Afghani passport which was issued at the same time as his siblings’ passports. These passports were assessed when his siblings all applied and were granted Australian citizenship. During the assessment of his siblings’ passports, the Assurance Pro Forma (High Risk) Citizenship form dated 12 July 2016 from the CAO noted the referral outcome:
Post did not highlight any concerns, however stated that as they did not receive the requested files they could only work with the information that they had available. Also, in the referral they stated that no specific concerns were raised so they were unsure of the nature of concerns to look into further.
The Tribunal has placed little weight on Mr Ahmadi’s Afghani driver’s license. The Tribunal is not persuaded that Mr Ahmadi was not aware the document was a fake but accepts he had not deliberately attempted to use this document as proof of identity for conferral of Australian citizenship. The document was requested by the Department to ascertain how Mr Ahmadi had acquired his Victorian driver’s license. The Tribunal is not persuaded that Mr Ahmadi has been involved in some elaborate hoax to deceive VicRoads of his identity. Nor can the Tribunal ascertain on the evidence before it that he has gamed the system to avoid being placed on a probationary licence.
The Department has not presented any evidence before the Tribunal of concern that Mr Ahmadi is not who he claims to be; nor has it provided any evidence it has concerns about his character beyond the production of his Afghani driver’s license. As such, the Tribunal finds it hard to accept that a parallel cannot be drawn between Mr Ahmadi’s siblings’ conferral of Australian citizenship based on their Afghani passports and Mr Ahmadi’s passport, as they were issued at the same time.
Mr Ahmadi has been living in Australia for eight years, is in full-time employment, has learnt the English language, has purchased a home, wants to start a family, has no criminal record, and apart from one traffic offence has a clear driving record. The Tribunal finds that Mr Ahmadi has demonstrated enduring good moral qualities over time that are in conformity with Australian community values, as attested to by character references stating him to be honest, reliable, conscientious and of great integrity.
CONCLUSION
The Tribunal, having considered all the evidence placed before it, is satisfied of Mr Ahmadi’s identity and of his good character. As such, he should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the Delegate dated 20 October 2017, refusing Mr Ahmadi’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
s 43(1)(c)(ii) of the AAT Act that the applicant is a person of good character for the purposes of the Act.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member.

................[sgd]....................................................
Associate
Dated: 8 November 2018

Date of hearing: 2 July 2018

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Bilal Amani

Amani Lawyers

Advocate for the Respondent: Mr Jamie Grant

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	2 July 2018
Advocate for the Applicant: Solicitors for the Applicant:	Mr Bilal Amani Amani Lawyers
Advocate for the Respondent:	Mr Jamie Grant
Solicitors for the Respondent:	Sparke Helmore Lawyers