Akbari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 206
•11 February 2022
Akbari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 206 (11 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/5714
Re:Mohammad Akbari
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:11 February 2022
Place:Brisbane
The decision under review is affirmed
............................[SGD]............................................
Member R Maguire
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Applicant’s identity satisfied under s 24 of the Australian Citizenship Act 2007 (Cth) – meaning of identity – application of Citizenship Procedural Instructions – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Ater and Minister for Home Affairs [2019] AATA 4677
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2014)
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (27 November 2020)
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member R Maguire
11 February 2022
INTRODUCTION
This is an application by Mr Mohammad Akbari for the review of a decision,[1] by a delegate of the Minister dated 31 August 2020 to refuse his application,[2] for Australian citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the ground that the delegate was prohibited by section 24(3) of the Act from approving the application for conferral of citizenship because the delegate was not satisfied as to the Applicant’s identity.
[1] Exhibit 1, T documents, T2, pages 19-22.
[2] Exhibit 1, T documents, T4, pages 129-146, Application for Australian citizenship.
The Applicant made this application for review pursuant to section 52(1)(b) of the Act on 16 September 2020.[3]
[3] Exhibit 1, T documents, T1, pages 4-6, Application for Review of Decision.
The hearing of this application took place in Brisbane on 25 November 2021. The Applicant represented himself, and the Respondent was represented by Ms I Tobin of Clayton Utz.
The Tribunal heard evidence and oral submissions from the Applicant and received submissions on behalf of the Respondent. The Tribunal also had before it documentary evidence as listed in the Exhibit Register which is Annexure 1 to these reasons.
ISSUE FOR DETERMINATION
The issue for this Tribunal to determine is whether it is satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Act.
THE LAW
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 24(3) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Importantly, the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth):
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.
In such circumstances, “identity” must be taken to have its ordinary meaning.
What is “identity”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary, ‘identity’ is defined as:
(2) The condition of being oneself or itself, and not another.
...
(6) The state or fact of being the same one.
The Oxford English Dictionary relevantly defines “identity” as follows:
2.a.The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
2.b.Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
Relevant Policy Documents
In considering this application, the Tribunal has had regard for the Australian Citizenship Policy Statement most recently issued on 27 November 2020, and the Revised Citizenship Procedural Instructions (CPI’s), in particular CPI 16 – Assessing Identity under the Citizenship Act, and CPI 29 – Identifying Information and Personal Identifiers under the Citizenship Act.
Whilst the Tribunal is not bound to strictly apply general policy guidance issued by the government, the Tribunal refers to His Honour Brennan J in the decision of Drake and Minister for Immigration and Ethnic Affairs (No.2)[4] (hereinafter referred to as “Drake”), where His Honour stated:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
(Emphasis added)
[4] [1979] AATA 179; (1979) 2 ALD 634 at 645.
With reference to the reasons of Brennan J in the decision of Drake, the Tribunal will now outline the relevant general policy guidance that has been submitted for consideration and contained in the exhibits of this decision in Annexure 1.
The Tribunal has before it, CPI 16 – Assessing Identity under the Citizenship Act [5] (CPI 16) which aligns with the Attorney-General’s Department National Identity Proofing Guidelines 2014 (the Guidelines).[6] The Guidelines describe identity as follows:[7]
[5] Exhibit 1, T documents, T3, pages 79 -92, CPI 16.
[6] Exhibit 1, T documents, T3, pages 93-128, National Identity Proofing Guidelines.
[7] Ibid, page 103.
2.1 What is identity?
2.1.1 A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
2.1.2 A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM[8] birth record that details unique information about an individual – such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP[9]Australian immigration documents or records.
[8] [Australian] Registry of Births Deaths and Marriages.
[9] Australian Government Department of Immigration and Border Protection.
The Guidelines further provides the following “Identity proofing objectives”:[10]
[10] Exhibit 1, T documents, T3, pages 103-104.
2.2 Identity proofing objectives
2.2.1 The veracity of claims about a person’s identity is established through evidence provided to meet some or all of the following five identity proofing objectives (depending on confidence in the claimed identity required):
1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another and that the right service is delivered to the right individual. This would include a check that another person has not previously claimed ownership of the identity (i.e. there is a sole claimant), for example by checking the organisation’s database for identity records with the same attributes.
2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created (i.e. the identity is that of a real person) through evidence of commencement of identity in Australia. Where greater confidence in the claimed identity is required, this objective may also include a check that this an identity has not been recorded as deceased (e.g. through the Fact of Death file).
3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community (including online where appropriate). Even where a person is able to obtain genuine identity documents in a fictitious name, it will be harder to provide evidence that the identity has been active in the community, particularly over an extended period of time and if evidence reflects the breadth of a person’s life, such as:
· Citizen: evidence that demonstrates the person’s life as a citizen and any support or services they are provided by government
· Money: evidence that demonstrates the person’s financial and working life, and
· Living: evidence that demonstrates where they live and what they consume.
4.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder. This has traditionally been done by comparing a person’s face against a photograph and although there is an increasing range of technologies that can provide alternative methods, such as comparison of a biometric captured at enrolment against a biometric previously captured by a trusted organisation.
5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used. This could be through checks against internal registers of known fraudulent identities or against ’dummy records’ recorded in the system. Where possible, this could include checks against information provided by external sources such as law enforcement agencies.
CPI 16 (at [4.4]) and the Guidelines also provide that when assessing identity, a combination of three elements are relied upon. They are referred to as the 'three pillars of identity'. The pillars are as follows:
Three pillars of Identity
Individual Characteristics
Biometrics
Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information
Life Story
A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
CPI 16 further provides that:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test a person’s claims with regard to their identity, decision-makers should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents the applicant’s biometrics held on departmental records are matched and confirmed.
The other relevant paragraphs of CPI 16 provide, inter alia:
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek to establish a person’s identity from birth using an evidence based approach. It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
The way in which officers should approach the concept of assessing a person’s identity from birth is to create an identity timeline, thus creating a complete picture of the person’s identity from birth to present. The objective is to link the applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life. The three pillars are the methodology for establishing a person’s identity, and officers must turn their mind to the individual characteristics in order to piece together a person’s identity timeline and create an ‘identity picture.’
…
While officers should make every effort to inform themselves of an applicant’s identity, the onus is on the applicant to provide information or evidence to support their identity
…
4.13 Assessing pillar one – biometrics
…
For the purposes of identity, the term biometrics refers to the recorded measurement of a person’s unique physical, identifiable attributes used for identification and authentication and to anchor an individual to a claimed identity.
Section 10 of the Act defines a personal identifier as any of the following (including any of the following in digital form):
·fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies);
·a measurement of a person’s height and weight;
·a photograph or other image of a person’s face and shoulders;
·an iris scan;
·a person’s signature;
·any other identifiers prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of s23WA of the Crimes Act 1914).
Biometrics can assist with linking a person’s biographic information (name, date of birth) to a personal identifier (signature, photograph of a person’s face).
…
If two facial images are compared, and concerns are identified, officers should rely on the expertise of forensic face examiners.
…
4.14 Assessing pillar two – documents
Documents are an important element of the process in establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).
When assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent, or otherwise, and whether they element support or refute a person’s claimed identity.
The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story for instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.
Where necessary, officers may need to research the administrative issuance process of a particular document; see below example.
·It is important to consider that the assurance standards underpinning an identity document may vary between authorities, jurisdictions, and countries. Awareness of the issuance process, and associated checks, if any, may inform the weight that is attached to a document. A document issued after a tight verification process, with consistent administrative practices, using a secure substrate with sufficient security features, will be considered more reliable when compared to a document lacking these assurance standards.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application, officers should seek to create a complete identity ‘picture’ of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person’s identity, while at the same time considering their life story, is to consider their identity timeline.
…
There may be cases where one pillar may be given more weight than others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information. This research will enable the officer to test and verify whether the applicant’s claims, relevant to aspects of their life story, are consistent with the situation in a particular country. Credible country information will support and add weight to a decision and can be cited in the decision record.
Section 24(3) is in effect a prohibition on the exercise of the power to confer citizenship unless the Tribunal can be reasonably satisfied of the Applicant’s identity: Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579 at [54]-[56].
In Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 at [117], the Tribunal observed in relation to a Tibetan refugee who was unable to produce identity documents relating to the period prior to his arrival in Australia that:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in [Confidential v Minister for Immigration and Border Protection [2013] AATA 144]is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the tribunal.
In CDNB and Minister for Immigration and Border Protection [2018] AATA 757 (hereinafter referred to as “CDNB”), a case concerning applicants who claimed to be stateless Faili (or Feyli) Kurds, and who were unable to produce identity documents relating to the period prior to their arrival in Australia, the Tribunal observed at [9]:
…production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to the personal background must be reliable.
In Ater and Minister for Home Affairs [2019] AATA 4677 at [72], the Tribunal stated in relation to an applicant originally from South Sudan who did not have any identity documents:
…there is an expectation that the Applicant demonstrate reasonable efforts to obtain those documents or other supporting evidence that may assist in satisfying a decision maker as to his identity. In the Tribunal’s view, it is not sufficient for the Applicant merely to state that such documents are not able to be produced in order to satisfy the Tribunal. Further, in the Tribunal’s view even where an applicant has demonstrated that reasonable efforts have been taken to obtain identity documents, if the applicant is unable to obtain those documents, it falls upon an applicant to provide other forms of evidence on which the Tribunal may be satisfied as to the identity of an applicant.…in the absence of documentary evidence confirming identity, persuasive evidence in other forms, for example third party statements and other material relevant to an applicant’s individual circumstances, may be required to enable a reasonable degree of satisfaction to be achieved.
The Tribunal recognised (at [61]) that limited weight can be placed on documents issued following an applicant’s arrival in Australia, as these documents are most likely issued on the basis of the applicant’s identity stated in the Australian identity documents such as a protection visa, and as such provide little indication as to the applicant’s identity prior to his or her arrival in Australia.
BACKGROUND
The background facts as stated below in an unedited copy a table which comprised Part II of the Respondent’s Statement of Facts, Issues and Contentions (SFIC).[11]
[11] Exhibit 3, Respondent's Statement of Facts, Issues and Contentions.
Date
Event
Reference
31 December 1993
The Applicant claims that he was born in Jaghori, Ghazni, Afghanistan.
T1, 6; T4, 129
2000-2011
The Applicant claims to have resided in Pakistan.
ST1, 248
18 February 2012
The Applicant arrived in Australia as an Illegal Maritime Arrival.
ST5, 334
30 August 2012
The Applicant was granted a Bridging Visa (Subclass WE-050).
ST6, 335
3 September 2012
The Applicant was granted a Protection Visa (Subclass XA-866).
T2, 19; ST1,
179-200; ST4;
ST6, 335
15 August 2014
The Applicant departed Australia for Pakistan.
T4, 142
14 November 2014
The Applicant returned to Australia.
T4, 142
10 May 2018
The Applicant lodged an Application for Australian Citizenship (Form 1300t), attaching a copy of a document the Applicant claims to be his National Identity Card from Afghanistan (Tazkira) and NAATI translation, a copy of the Applicant's titre de voyage, Queensland drivers licence and photograph of the Applicant.
T4
23 May 2018
The Department wrote to the Applicant to acknowledge receipt of his application.
T5
8 August 2019
The Department wrote to the Applicant to request further information in relation to his application, being Form 80 and documents in support of identity. The request required the Applicant to respond within 28 days.
T6
31 August 2020
A delegate of the Minister made the decision to refuse the Applicant's application for Australian citizenship by conferral on the basis that the delegate could not be satisfied as to the Applicant's identity (the Reviewable Decision).
T2
13 September 2020
The Applicant applied for review of the Reviewable Decision in the Tribunal.
T1, 4
The Summary of Contentions provided in the Respondent’s SFIC at paragraphs [17] to [43] is as follows:
17.The Respondent contends that the Tribunal cannot be satisfied of the Applicant's claimed identity when consideration is given to the Applicant's documentation and life story. In particular, the Respondent contends that:
(a)the Applicant has been unable to produce verified records relating to his identity prior to his arrival in Australia and has not provided evidence of his attempts to obtain any such documentation, beyond his own statements;
(b)there are significant inconsistencies as to how the Applicant came to be in possession of an alleged Taskera sufficient to indicate to the Tribunal, in the Respondent's submission, a high risk that the document is fraudulent;
(c)the Pakistani education documents provided by the Applicant are not genuine and accordingly, should be assessed by the Tribunal as having no probative weight;
(d)the medical certificates provided in relation to a woman the Applicant purports to be his mother do not reference the Applicant nor corroborate his claim to have lived in Quetta, Pakistan; and
(e)there are inconsistencies in the employment history given by the Applicant in relation to his time in Pakistan that have not been explained by the Applicant and cast doubt upon the reliability of his life story.
18.In circumstances where there is uncertainty surrounding the Applicant's identity documentation and where there are inconsistencies in the Applicant's claimed life story, the Respondent contends that the correct and preferable decision is for the Tribunal to affirm the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Biometric information
19.To date, the Applicant has not provided any verified biometric information, such as photographs, that pre-date his arrival in Australia in relation to this pillar of identity.
Documents relating to the Applicant's identity
20.Documents relating to the Applicant's identity, such as a passport, identity card or birth certificate are relevant in corroborating his life story and providing documentary evidence of his identity to fulfil the second pillar of identity, as set out in CPI 16 and the AGD Guidelines.
21.The Applicant has provided a copy of an uncertified Taskera he claims to have been issued to him by the Afghani government, as well as an accompanying NAATI translation of the document. However, as set out below, the Respondent contends that this document is unlikely to be genuine. The Applicant has not provided any other documentation relating to his time in Afghanistan, nor any other primary source documentation pre-dating his arrival in Australia.
22.The Applicant has also provided the following documentation in support of his application:
(a)documents relating to his education purported to have been issued in relation to the Applicant by various schools in Quetta, Pakistan;
(b)medical documents from medical practitioners in Quetta and Karachi, Pakistan, relating to a Ms Rahima/Raheema, who the Applicant claims is his mother; and
(c)a completed version of Form 80: Personal particulars for assessment including character assessment, dated 9 February 2021 (Form 80).
Taskera
23.The Applicant provided an uncertified copy of a document which he purports is a Taskera issued in his name, as well as a NAATI translation of the document, with his application for citizenship. The uncertified Taskera is dated 15 January 2011.
24.In relation to the Taskera, the Respondent makes the following contentions:
(a)there are discrepancies in relation to the information provided by the Applicant as to how the Applicant came to be in possession of a Taskera;
(b)there is a discrepancy in relation to the date of the Taskera, the date the Applicant informed Department officials he did not have a Taskera, and the date the Applicant claims to have departed Afghanistan; and
(c)the document has not been certified by government or other appropriate authorities and as such, notwithstanding the issues identified above, should not be attributed any weight by the Tribunal (particularly in light of country information indicating that fraudulent Taskeras can be easily obtained).
25.Despite having now provided a copy of an alleged Taskera document, the Applicant stated to Department officials during an interview for a protection visa on 30 June 2012 that he “never had a Taskera” and asked why, he stated that “Maybe I never needed one? That’s why they haven’t gotten a Taskera” (ST2 307-308).
26.The alleged Taskera provided by the Applicant is dated 15 January 2011. However, the date of the document pre-dates the Applicant's statement during the protection visa interview in 2012, in which he stated he never had a Taskera. In the Respondent's submission, this discrepancy in the Applicant's version of events as to whether he had or had not been issued a Taskera casts doubt on the legitimacy of the document recently provided, particularly in circumstances where it has not been verified.
27.In addition, the Applicant claims to have resided in Pakistan from 2000-2011 (ST1 184, 203, 222, 248). The Applicant claims he left Pakistan and then travelled to Thailand, Malaysia and Indonesia prior to arrival in Australia (ST1 296) (i.e., he did not return to Afghanistan after he claimed to have left in 2000). The Applicant indicated to Department officials in 2012 that he had never been back to Afghanistan, and neither had members of his family.5
28.In his statutory declaration dated 8 February 2021 provided in relation to the proceeding currently before the Tribunal, the Applicant states: "I have been asked to provide government records from Afghanistan but we left Afghanistan when I was a child so I do not have Afghani government records".
29.The Applicant has not provided an explanation for how he came to be in possession of a national identity document from Afghanistan some 11 years after last being present in the country, nor why he stated that he "never had" a Taskera at a point in time after the alleged Taskera provided was issued. The Applicant's possession of a Taskera is also in direct contrast with his recent statement that he does not have Afghani government records due to having left the country as a child. In the Respondent's submission, the Applicant's version of events is implausible and casts a high level of doubt as to the legitimacy of the document, and accordingly, the Applicant's claimed identity.
30.In addition, the Respondent submits that in any case, the document provided by the Applicant should not be attributed any weight by the Tribunal in circumstances where it has not been verified by an appropriate governmental authority. Country information in relation to Afghanistan indicates that document fraud is a major issue in Afghanistan,6 and in light of the issues identified in paragraphs 24-29 above, the Respondent submits there is a high risk that the Applicant's Taskera document has been obtained fraudulently. Specifically, in relation to Taskeras, country information produced by the UK Home Office indicates the following (Annexure A, at pp 32-33, footnotes omitted):
13.2 Tazkiras
13.2.1According to Land info:
13.2.2According to survey by Pajhwok Afghan News, cited in an article dated June 2017 ‘In Herat, some residents believe the insecure border with Iran provides an opportunity to foreigners to come to Afghanistan and make Tazkera by introducing themselves as Afghans. These foreigners after obtaining the Afghan citizenship apply for asylum in European countries.’ Other interviewees expressed the ease in which a foreign national could obtain a tazkira. Head of the population registration department in Kabul admitted fake identity cards were recovered on a daily basis and said the introduction of biometric cards (e-tazkiras) would reduce fraud.
13.2.3Commenting on the use of false personal information to obtain various documents, DFAT noted ‘This is particularly problematic in the case of taskiras, given they are the primary document used to obtain other forms of identification. The issuance of the new e-taskira should help in mitigating this risk …but there is likely to be a significant time lag between the introduction of the new taskira and its widespread implementation.'
13.2.4The Swiss State Secretariat for Migration (SEM) stated in a report of October 2018 ‘It is possible to obtain forged or unlawful Tazkiras not only in Afghanistan, but also in the countries along the migration route to Europe, if not in Europe itself. Since the Tazkira contains practically no security features, and various versions of the document in differing quality are in circulation, it is very difficult to identify forgeries.’
Medical records
31.The Applicant has indicated in the information he has provided to the Department that his mother's name was Ms Rahima Akbari and that she is deceased, and his father's name is Mohammad Hadi Akbari and he is currently residing in Quetta, Pakistan.7
32.The Applicant has provided medical documents relating to "Hazara, Raheema Muhammad Hadi" / "Ms Rahima w/o Mohammad Hadi" / "Ms Raheema w/o Hadi", being:
(a)a letter from Dr Sajjad Ali Yousafzai (Internist, Consultant Physician Civil Hospital Quetta) dated 14 October 2008;
(b)a radiology/MRI report issued by the Aga Khan University Hospital, Karachi8 dated 20 October 2008; and
(c)a certificate issued by Dr Ghulam Rasool (Consultant Psychiatrist, Bolan Medical Complex Hospital, Quetta), dated 24 May 2014.
33.The medical records relating to Ms Rahima/Raheema have been assessed by the relevant medical providers in Pakistan to be genuine records.9 However, the Respondent contends that the records do not of themselves prove the Applicant's identity, as they do not directly relate to or reference the Applicant.
34.The Applicant has not provided any documentation in support of his claim that his mother is Rahima Akbari as claimed, nor has he provided evidence from family members to corroborate his claim. Accordingly, the Respondent contends that the Tribunal should give no weight to the medical records in circumstances where the Applicant cannot prove they relate to the Applicant, and may relate to a person who is not in fact the Applicant's mother as claimed.
.
Education records35.The Applicant has provided documents which are purported to relate to his education while residing in Quetta, Pakistan, being uncertified documents from:
(a)the Champion Academy;
(b)the London Educational Academy;
(c)Pamir High School;10 and
(d)Shammama Foundation Gawhar Shad Model High School.11
36.The education documents provided by the Applicant do not relate to education providers that exist in Pakistan.12 In light of this finding, the Respondent contends that the Tribunal should consider that the documents provided by the Applicant in relation to his education are fraudulent.
37.In addition to the above, the Applicant indicated in his interview for a protection visa that he was not required to produce identity documentation to attend school in Pakistan.13 The fact that identity documents are not required to enrol or attend school in Pakistan has been confirmed by the Australian High Commission in Pakistan.14 Accordingly, even if the documents were legitimate, they could have been obtained by the Applicant without proof of his identity and therefore carry no probative weight in relation to assessing the Applicant's identity for the purposes of the Act.
Applicant's life story
38.The Respondent contends that the Applicant has provided inconsistent information in relation to his life story prior to his arrival in Australia, and has not provided an explanation for the disparities. In particular, the Applicant has provided inconsistent dates in respect of when he alleges to have worked at various businesses in Quetta, Pakistan.
Employment
39.The below table outlines the information about the Applicant's employment in Pakistan that has been provided by the Applicant to the Department:
Source
Dates provided
Form 80, dated 14
June 2012: ST1, 249
Carpet making January 2004 – January 2007
Full-time school 2007 – 2009
Repairing refrigerators, Quetta: January 2009 – December 2010
Serana Photography, Quetta: January 2011 – November 2011
Form 80, dated 9
February 2021 (see
p. 19)Carpet-making, Hazara Town, Quetta: January 2004 – January 2007
Itminan Fridge Mechanic, Hussain Abad Road, Quetta: January 200– January 2009
Serena Photography, Hussain Abad Road, Quetta: January 2009 - November 2011
40.The information provided by the Applicant in 2012 indicates that he was attending full time school from 2007 – 2009, worked repairing refrigerators in 2009 – 2010 and worked at Serana Photography from January 2011 – November 2011. However, the information provided by the Applicant in 2021 indicates that he instead worked repairing refrigerators during 2007 – 2009 and worked at Serena Photography from 2009 – 2011.
41.In the Respondent's submission, the differences in the employment history provided by the Applicant at various points in time are not plausible for somebody providing an honest and accurate record of their life story. There is a significant difference between attending school full time and working as a fridge mechanic during the same time period, as claimed by the Applicant. The Applicant has not provided an explanation for the inconsistencies.
Reason for leaving Pakistan
42.The Applicant claims that he was unsafe living in Pakistan on the basis of his Hazara and Shia ethnicity.15 The Applicant claims that he escaped from Pakistan "for my safety and life".16
43.The Respondent notes that the Applicant returned to Pakistan during August – November 2014 for the purpose of visiting family.17 The Respondent contends that the fact the Applicant returned to the country he claims to have left for his safety (only three years after leaving) casts doubt upon the credibility of this part of the Applicant's life story as well as the credibility of the rest of his life story generally, because it demonstrates there to be a risk that the Applicant has not been truthful in providing his life story to Departmental officials. The Applicant has not provided an explanation for how he was able to return to Pakistan for a four-month period despite his claims of it being unsafe.
(Footnotes Omitted)
BACKGROUND
The Applicant arrived on Christmas Island on 18 February 2012 without a valid travel document. When interviewed on 13 March 2012,[12] the Applicant described schooling from 2002 to approximately 2007 and from approximately 2008 to 2011. He did not recall the dates he had worked in manufacturing as a carpet maker, or the name and address of people with whom he worked. He said he had worked in retail trade from approximately 2009 to 2011 repairing refrigeration. He could not recall the dates when he worked in retail for photographers. He said he left Pakistan illegally and said, “I was made a passport – I don’t know whether it was fake or genuine – it didn’t have my name in it” (emphasis added).[13] He said that the name used in that passport was “Alidad” and that he had acquired it “via smuggler”[14]. When asked as to the present whereabouts of the passport used for travel en route to Australia, the Applicant replied, “in Malaysia my passport was damaged in the water so I threw it away”[15]. When asked how much had been paid for his travel to Australia, he simply responded “No”.[16] Further details as to the payment were left blank.[17]
[12] Exhibit 2, Supplementary T documents, ST1 pages 284 – 299.
[13] Ibid at page 293.
[14] Ibid at page 297.
[15] Ibid.
[16] Ibid at page 295.
[17] Ibid at page 296.
When interviewed on 20 June 2012, the Applicant told the interviewing officer that he did not have, and had never had, a Taskera.[18] When asked why he didn’t ever get issued a Taskera, he replied “I don’t know. Maybe I never needed one? That’s why they haven’t gotten a Taskera.” He also said the only passport he had ever had was “the fake passport that people smuggler made me.” (emphasis added) [19] He went on to say that he did not know his date of birth exactly, but it was in 1996 and his father had told him that he was 16 years old.[20] He was assessed by the Department’s Age Determination Unit as not being under 18 years of age and his date of birth was allocated as 31 December 1993.[21] When asked if he had any supporting information or documents to support his claim of his age, he replied “No I don’t have any”[22]. He also stated that he had five sisters, but only had one brother, Mohammad Sharif, who had been missing for a long time.[23]
[18] Ibid at page 307.
[19] Ibid at page 308.
[20] Exhibit 2, Supplementary T documents, ST2 page 308 – 309.
[21] Ibid at page 309.
[22] Ibid.
[23] Ibid at page 312.
In his application for a Protection (Class XA) visa - Form 866B and Form 866C,[24] received by the Department on 15 June 2012, the Applicant maintained his date of birth was 1 January 1996. In his statutory declaration,[25] dated 14 June 2012, the Applicant also maintained that his birthdate was 1 January 1996, and that the departmental assessment that he was over 18 years of age was “TOTALLY WRONG AND INCORRECT” and that he was only 16 years of age. The Applicant also maintained his date of birth as being 1 January 1996 in the Form 80 he completed on 14 June 2012.[26] At item 10 of this form,[27] in response to a query whether he had or had ever had other passports or travel documents, the Applicant ticked the “No” box. He also disclosed that since November 2011 he had departed Pakistan, and subsequently entered Thailand, Malaysia, and Indonesia prior to coming to Australia.[28] At item 46 of this form,[29] the Applicant disclosed that he had worked as a carpet maker, repairing refrigerators, and an assistant photographer at various times between 2004 and November 2011 prior to coming to Australia. He also spent from January 2007 to January 2009 attending full time school as a student.
[24] Ibid page 208 – 233.
[25] Ibid, page 234 – 239.
[26] Ibid, page 240 – 258.
[27] Ibid at page 242.
[28] Ibid at page 248.
[29] Ibid at page 249.
The Applicant also produced would appear to be student identification cards which variously listed his name as M. Anwar, Mr Anwar, Anwer Ali, Mod Anwar, Mohd Anwar and Mohammad Anwar.[30]
[30] Exhibit 2, Supplementary T documents, ST1 pages 269 - 272.
Application for Australian Citizenship – Form 1300t
In his application for citizenship,[31] lodged on 10 May 2018, the Applicant identified himself as Mohammad Anwar Akbari born 31 December 1993 in the district of Jaghori, in the Ghazni province, Afghanistan. At item 22 of that form, the Applicant left blank the enquiry as to whether he had or had ever had any national identity documents or numbers.[32] At item 35, of the form, the Applicant was required to provide at least certified three documents which collectively contained his photograph, signature, current address, date of birth, birth name, and gender. In support of this application, the Applicant attached a National Identity Card (Taskera) issued by the Islamic Republic of Afghanistan (with translation);[33] his Australian Titre de Voyage;[34] his Queensland driver’s licence[35] and a certified passport photograph of himself.[36]
[31] Exhibit 1, T documents, T4 page 129.
[32] Ibid at page 131.
[33] Ibid, pages 147 – 148.
[34] Ibid at page 149.
[35] Ibid.
[36] Ibid, pages 150 – 151.
On 8 August 2019, the Department requested the Applicant,[37] provide a completed Form 80 (Personal Particulars) and any identity documents not previously provided. The letter provided a list of documents the Applicant might have been able to produce in support of his application so as to enable an assessment of his identity from the time of his birth. As at the date of the decision under review, (31 August 2020) the Applicant had not provided the Department with a response.
[37] Exhibit 1, T documents, T6 pages 154-160.
Applicant’s Statutory Declaration
In a statutory declaration made on 8 February 2021 which is before the Tribunal,[38] the Applicant declared:
The information I have provided is true to the best of my knowledge and I have provided all the documents I am able to provide. I have been asked to provide government records from Afghanistan but we left Afghanistan when I was a child so I do not have any Afghani government records.
[38] Exhibit 6, Statutory Declaration of the Applicant.
EVIDENCE AT HEARING
The hearing took place with the assistance of an interpreter in the Hazaragi language.
The Applicant told the Tribunal that he had done everything he could possibly do in providing documents to establish his identity.
In her opening submissions, Ms Tobin referred to the CPI’s, and two of the pillars of identity, including the consideration of their identity documentation, and the life story. She submitted that the Applicant had not provided sufficient documentation in order to verify his identity. He had not provided any verified records relating to his identity prior to his arrival in Australia. She submitted there were significant inconsistencies in relation to how the applicant came to be in possession of an alleged Taskera (being the Afghanistan National identity document), and there was a high risk the document produced by him was fraudulent. She further submitted that the education documentation provided by the Applicant from Pakistan was not genuine. She also submitted that the Applicant had produced medical documentation from Pakistan in relation to woman whom he claimed to be his mother, however those documents did not reference the Applicant or corroborate his claim to have resided in Pakistan[39].
[39] Transcript, page 6.
Ms Tobin further submitted that there were inconsistencies in the employment history given by the Applicant in relation to the times he claimed he spent in Pakistan which cast doubt upon the credibility of his life story, and in consequence the Tribunal was prohibited by section 24 (3) of the Act from approving the Applicant’s application for citizenship.
Cross Examination of the Applicant
In cross examination, the Applicant repeated that he had been told by his father that he was 16 years of age at the time that he came to Australia but stopped short of expressly asserting that 1996 was his correct year of birth. He said the Department had refused to accept that he was 16 years old at the time and decided to put his age down as 18.
He said that his mother had passed away in around 2012, but that his father was still alive and living with his second wife in Afghanistan. He said that he did not talk to him much, only if his father needed some sort of help. When asked what kind of help he provided to his father he replied, “mainly financial support”, however he subsequently denied having his father’s contact details saying, “I deleted it when the [Taliban] took over Afghanistan this time”.[40]”
[40] Transcript, page 16 lines 39-40.
He agreed that he had held his father’s contact details earlier in the year, but when it was put to him that he hadn’t produced any evidence from his father in relation to this application he initially said he did not understand the question, before agreeing that he had not provided any evidence from his father. He said he’d never had a good relationship with his father or his second wife.
The Applicant said that his family had escaped Afghanistan in 1999 when he was a child and moved to Pakistan. He said that all he did in Pakistan was study school and study English classes, and he had to leave Pakistan because of discrimination, hate, and suicide bombers.
When asked if he had a brother, the Applicant asked that sensitive topics – things he did not like to think about – be avoided. When asked by the Tribunal what he meant by “sensitive topics”[41] he referred to the fact that he had lost his mother and had relatives still stuck in Afghanistan, and the borders were closed, and they could not get out. He referred to his brother and said, “we lost him when he was pretty young.”[42] He said that he had four sisters living in Kabul, and one in Melbourne. He said that he was still in contact with his sisters, and that the sister in Melbourne had been in Australia for around two years. He spoke to her up to two or three times a week. He agreed he had not produced any evidence from any of his sisters in relation to this matter.[43] He agreed that he could have asked them to provide a letter or statement to support what he was saying but they had their “own stuff”, and he was “just so busy at work”[44].
[41] Transcript page 14.
[42] Transcript page 14.
[43] Transcript page 15 line 19.
[44] Transcript page 15 lines 20-33.
The Applicant gave evidence that he did 11 and a half years of school in Pakistan starting “somewhere around 2003 or ’04 or ’02…”.[45] he said he “started working as a rugmaker in, probably like, 2007 or something,’06, or ’07”[46] He then went to work as a fridge mechanic, repairing fridges “probably from, like, 2008 to 2009, or something”.[47]
[45] Transcript page 17 lines 16-17.
[46] Transcript page 17 lines 24-15.
[47] Transcript page 17 lines 29-34.
The Applicant was then referred to the T documents which recorded that he worked as a carpet maker from January 2004 to January 2007, and he agreed with the years, but was uncertain about months.[48] He confirmed that he was “probably” attending school full-time from 2007 to 2009.[49] When asked if it was correct that he worked in 2009 to 2010 repairing fridges, he replied “I did a few years of, probably like three years of something, fridge mechanic, yes”.[50]
[48] Transcript page 17 line 35- page 18 line 2.
[49] Transcript page 18 lines 10-13.
[50] Transcript page 18 15-20.
The Applicant was referred to inconsistencies in documents he had provided wherein he on the one hand described full-time schooling in 2007 to 2009, and on the other, working as a fridge mechanic during that period.[51]The Applicant stated he was studying from “2002, 2003 to all the way to 2011” and he worked as a fridge mechanic “from, like, 2007 to 2010 or something”.When asked if he had tried to contact any result employers in Pakistan for proof of his employment there, the Applicant said he did not have any contact details for them.[52]
[51] Transcript page 19 line 25- p 20 line 45.
[52] Transcript page 20 lines 1-10.
The Applicant gave evidence that the unnamed person who arranged his false passport had died in a terrorist bomb blast.[53]
[53] Transcript page 21 lines 13-40.
The Applicant had departed Pakistan and entered Thailand using the fake passport. When asked if he was worried about using a fake passport he replied “I mean, I was pretty young at the time. I didn’t know whether it was the right thing to do, or the wrong thing”[54]
[54] Transcript page 22 lines 35- 43.
When questioned about his earlier statement that his false passport was destroyed by water in Malaysia, and asked if that was correct, the following exchange occurred:[55]
Applicant: Should be, because I was told by the people, and the person who was working along that road, basically, the smugglers, that “The passport is no more useful for you so you know, you should really be throwing it away.”
Ms Tobin: So did you throw it away?
Applicant: yes, we had to, because we were asked to do it.
Ms Tobin: So did you throw it away, or was it destroyed by water?
Applicant: We throw it in the ocean.
[55] Transcript page 23 lines 24 – 34.
The Applicant gave evidence that he returned to Pakistan in August 2014 to spend time with family who were still living in Quetta.[56]
[56] Transcript page 23 line 41; p 24 line 10.
The Applicant was referred to the T documents, at pages 147 and 148, a translation of a Taskera, which appeared to have been issued on 15 January 2011. When questioned about the date of this document, the Applicant said “I’m honestly not sure…”[57] he went on to say that his father got the document for him,[58] and he found it among his mother’s documents in 2014.[59]
[57] Transcript page 26 line 42.
[58] Transcript page 27 line 41-43.
[59] Transcript page 29 line 10-15.
It emerged that when his sister emigrated to Australia, she did not nominate him as a sibling in her visa application.[60]
[60] Transcript page 29 line 40 – page 30 line 18.
The Applicant was then referred to extracts of the interview that was conducted in relation to his visa application in 2012 where he denied having or ever having had a Taskera.[61] When asked to explain the fact that the Taskera was dated 2011, and he had not disclosed its existence at interview in 2012 the Applicant said that he was sure he had said that he was not sure whether he had one or not. He said at the time of interview he had recently lost his mother and was not fit mentally. The following exchange ensued:[62]
[61] Transcript page 30 lines 25 – page 31 line 10.
[62] Transcript page 31 line 31 – page 32 line 33.
Ms Tobin: Mr Akbari, how do you explain coming into ownership of this claimed taskera after you left the country?
Applicant: As I said before, the taskera might be definitely taken by my father when I was here. When I have gone back in 2014 I found it in my mum’s file.
Ms Tobin Mr Akbari, I put it to you that it’s unlikely that this document is genuine if it is dated before time that you stated you never had one. What you say to that?
Applicant: I can recall that I haven’t said that I don’t have taskera. I said that I don’t know whether I have or not, because when I was in detention, I was not in a good mental health situation on that time.
Ms Tobin: So Mr Akbari, your saying that the interviewer is recorded at page 307 is wrong, it’s not accurate? Is that what you’re saying?
Applicant: Yes.
Member: Okay thank you very much. Now, can you explain for me, please – and I’m sorry for intruding here Ms Tobin.
Ms Tobin: No problem, Member.
Member: But why would your father have obtained a Taskera for you in 2011 when you haven’t been in the country for 12 years?
Applicant: Hadn’t been in the country. You mean Afghanistan? Or …
Member: Yes, you hadn’t been in Afghanistan for 12 years, why would he have obtained that?
Applicant: I mean, I guess he would probably consider it to – for his child to have an identity. But you know, because I was too young, maybe he just didn’t think that I would needed to know.
Member: He never offered you any reason for obtaining it? He never gave you any reason?
…
Applicant: No, he’s never said anything about taskera.
The Applicant went on to say that the document had not been verified by the Afghani government because he was going to send it to the Afghani Embassy in Melbourne but couldn’t find the contact details in order to do so . He said he needed to have other documents such as his father’s or sister’s Taskera in order for them to verify it. He was sure they had Taskera’s. When asked by Ms Tobin if he could have asked them for copies of the Taskera’s, the following exchange occurred:[63]
[63] Transcript page 33 lines 11 to 45 - page 34 line 1.
Applicant: If I say honestly, I swear that because of some of the problems in the life, I don’t think too much.… I mean I know, like my oldest sister, because she hasn’t put my name into her application, so she was really worried because, you know. I don’t know why. But then, my other four sisters who are back home, they never wanted to come to Australia, so I was, like, what’s – and then they were like, “What’s the point of even I give you my Taskera if I’m not coming there.” So if I do not have the permission from my siblings, you know, then obviously I should not have give the Taskera. I know it helps my application, but I’ve always been hoping that, you know my school documents and my English classes would be enough to verify my identity.
Ms Tobin: Okay, so you’re saying you didn’t ask for their taskeras, or you did but they said no. Your older sister, because she was worried that you hadn’t been included in in her application to live here. And then, the other sisters because they didn’t know why is that right?
Applicant: My other – my older sister, she hadn’t – like I said, she hasn’t put my name in the – in her application. And the ones who are back home, they told me, that you know, if they’re not coming to Australia, then what’s the point of even giving the Taskera.
Ms Tobin: So Mr Akbari, you’ve said that she didn’t include you in her application. Do you know why that was?
Applicant: It’s like, I’m so sorry, honestly. I’ve been really stressed. I do not mean to be rude. But is that all right if I either take a break or – how can I explain it. Because I’ve had enough. I am – I’m so sorry ma’am I’m so sorry Member.
Member: No, stay there. Stay there.
Applicant: No, I honestly…
Member: I’ll give you – I’ll give you…
Applicant: I honestly do not even need my citizenship.
At this juncture the Applicant became visibly emotionally upset and expressing fears of deportation. The Tribunal explained to the Applicant that the issue of deportation was not before it and adjourned for 20 minutes to allow him to compose himself.
On resumption, the Applicant was referred to the T documents at T4 pages 147 and 148, which was the copy of the Taskera apparently issued in 2011 and asked to confirm whether the signature on page 148 was his own. He replied, “but honestly it doesn’t even look like my handwriting.”[64]
[64] Transcript page 37 lines 11 to 14.
He was then asked if he had signed this document or somebody else and he replied, “I do not know”. Moreover, he could not remember signing it.[65]
[65] Transcript page 37 line 27- 35.
The Applicant was questioned regarding documents which he had asserted related to his mother. He conceded that he had not tried to contact anybody including a family member who could verify that this woman was in fact his mother. When asked specifically if he had tried to get a statement from a family member, his answer was rambling and evasive.[66]
[66] Transcript page 38 lines 40 – p 39 line.
The Applicant conceded that he did not have any evidence that linked him to the woman named in the documents.[67]
[67] Transcript page 39 lines 30-36.
When questioned regarding his schooling in Pakistan as to whether his father had to provide any identity documents to those schools the Applicant said he did not think so.[68] When questioned regarding documents from his time at school in Pakistan, he conceded that he had not tried to contact the schools to get them to confirm the authenticity of the documents.[69] He said he had been too busy at work to try to verify the documents.[70]
[68] Transcript page 40 lines 4-20.
[69] Transcript page 40 lines 21 – p 41 line 12.
[70] Transcript page 41 lines 30 - 39.
When questioned by the Tribunal as to how a photograph of himself found its way into the Taskera provided by his father, and whether he gave that photograph to his father for inclusion in his Taskera, the Applicant did not directly answer the question saying, “He probably found it in, I think, their house.” He denied having discussed it with his father.[71]
[71] Transcript page 42 lines 5 – 43.
In her closing submissions,[72] Ms Tobin submitted that the evidence at hearing continued to cast doubt over the Applicant’s identity. The evidence heard by the Tribunal was that the Applicant was not involved in the processing of the document he claimed to be a Taskera, and which was dated a decade after his departure from Afghanistan, and that he could not recall signing it. She submitted the Applicant’s explanation as to how it came to be in his possession was unconvincing, particularly having regard to the fact that he stated in an interview one year following the date of the document that he did not have a Taskera.
[72] Transcript page 44 line 4.
Ms Tobin further submitted that the document had not been verified, and that the Applicant had provided an unconvincing reason why this was the case including, concerningly, that he had been deliberately left off his sister’s application to reside in Australia. She submitted that there was a high likelihood the document was not genuine. In addition, she submitted that the Applicant had given evidence that the education documents he claimed related to his time in Pakistan were provided to him as copies and he didn’t have originals of the documents and had not taken any steps to verify the documentation.
She submitted that the Applicant had also agreed that he had taken no steps to acquire evidence to prove that the medical documentation provided related to a woman who was actually as mother as he claimed. She further submitted that the Applicant had not acquired any evidence from any other person in Pakistan or Afghanistan who may be able to support his identity. Ms Tobin submitted that it would be expected in a case like this for the Applicant to seek to obtain such evidence to corroborate his identity, particularly as he had indicated that is in regular contact with siblings, including a sister in Melbourne.
Ms Tobin also submitted that further doubt was placed over the Applicant’s identity in circumstances where he had continued to provide a variety of dates related to his birth, travel and employment. She submitted that in those circumstances the Tribunal could not be satisfied of the Applicant’s identity and that the Tribunal therefore must not approve the Applicant becoming an Australian citizen.
CONSIDERATION THE THREE PILLARS OF IDENTITY
Pillar one – Biometrics
Section 10(1) of the Act provides for Personal Identifiers in the following terms:
10Personal identifiers
(1)For the purposes of this Act, a personal identifier is any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face and shoulders;
(d) an iris scan;
(e) a person’s signature;
(f) any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914).
The Applicant has not provided any verified biometric information such as photographs, that predated his arrival in Australia in relation to this pillar of identity.
There is no evidence to satisfy the Tribunal in respect of this pillar.
Pillar 2 – Documents
The Applicant has provided a copy of an uncertified Taskera he claims to have been issued to him by the Afghan government as well as an accompanying NAATI translation of the document. He was unable to identify his signature on the document and did not recall signing it. The Applicant has not provided any other documentation relating to his time in Afghanistan, nor any other primary source documentation predating his arrival in Australia.
Of great concern to the Tribunal is that the Applicant has previously relied upon a fake passport in order to facilitate his travel through several countries prior to entering Australia. He has provided a familiar and unsatisfactory explanation as to what became of that passport. He is clearly no stranger to producing false documents to governments. This raises a great concern as to the authenticity of all of his evidence, and in particular the alleged Taskera he has produced, which is fortified by his prior express denials,[73] of having or ever having had a Taskera, made about a year after the date which that document bears. The Applicant’s explanations as to how he came by the Taskera some 11 years after last being present in Afghanistan are vague, improbable, and unconvincing, particularly in the light of the country information which indicates the document fraud is a major issue in Afghanistan.[74]
[73] Exhibit 2. Supplementary T documents, ST2 page 307.
[74] Exhibit 3, Annexure A, page 31.
The Tribunal harbours strong concerns that the Taskera provided by the Applicant in support of this application is a fake document, and the Applicant knows this. In reaching this view, the Tribunal notes that the Applicant was unable to identify his signature on it, or recall signing it, and has taken no steps to authenticate it with Afghani authorities.
Regarding the medical records said to pertain to the Applicant’s mother, the Tribunal accepts the submission by the Respondent that the records do not of themselves prove the Applicant’s identity as they do not directly relate to or reference the Applicant. The Tribunal notes that the Applicant has taken no steps to have any of his siblings or other family members corroborate his assertion that the documents do in fact pertain to his mother. No satisfactory explanation for this failure has been given.
Annexure C to the Respondent’s SFIC, which is an email from the Australian High Commission in Islamabad dated 24 March 2021, states that the education documents presented by the Applicant are not related to Pakistan. This leads the Tribunal to the view that once again, the Applicant may well have provided further fraudulent documents in support of this application. The Tribunal notes that the names recorded in those documents are inconsistent with the name in which he has made the present application. The email from the High Commission also discloses that students in Pakistan are not required to provide any identity documents to the education providers. It is therefore reasonable to assume that even if the documents were legitimate, they could have been obtained by the Applicant without proof of his identity, and in the circumstances the Tribunal gives them no weight.
The Tribunal considers that the documents provided by the Applicant do not substantiate his claimed identity.
Pillar 3 – Life Story
The Applicant has not satisfactorily explained the inconsistent information in relation to his life story prior to his arrival in Australia. In particular, he has provided inconsistent dates in respect of which he alleges to have worked at various businesses in Pakistan. These are set out at paragraphs [39] to [40] of the Respondent’s SFIC.
Having regard for the concerns expressed earlier in these reasons as to the evidence provided by the Applicant, the inconsistencies in his account of his life prior to coming to Australia are unconvincing. In particular, although he claimed to have left Pakistan “for my safety and my life”[75] only three years later he returned for three months to visit his family.[76] This, together with the evidence discussed earlier, leads this Tribunal to find that the Applicant has little credibility, and to generally reject his evidence.
[75] Exhibit 2. Supplementary T documents, ST1 page 237.
[76] Exhibit 1, T documents, T4 page 142.
CONCLUSION
Having considered the totality of the evidence regarding the three pillars of identity the Tribunal remains unsatisfied as to the identity of the Applicant.
Accordingly, the decision under review is affirmed.
I certify that the preceding 78 (seventy eight) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
............................[SGD]............................................
Associate
Dated: 11 February 2022
Date(s) of hearing: 25 November 2021 Applicant: In person Solicitors for the Respondent: Ms Isla Tobin
Clayton Utz
ANNEXURE 1 – EXHIBIT REGISTER
Exhibit Number Description of Exhibit Date of Document Party Filing Date 1
Section 37 T Documents (pages 1 – 356) - R 20/03/20 2
Supplementary Section 38AA Documents (pages 356 – 585) - R 06/07/20 3
Respondent’s Statement of Facts, Issues and Contentions (pages 1 – 20), including:
a. Annexure A – DFAT Country
Report
24/08/20 R 24/08/20 4
Applicant’s Statement in Reply 23/09/20 A 23/09/20 5
Statutory Declaration of Mohsen Karimi 12/04/19 A 09/03/20 6
Bundle of Photographs (6 photographs) including:
a. Scan of page with text;
b. Man and boy in mountains;
c. Scan of page with text;
d. Child practicing martial arts;
e. Man and child in field; and
f. X-ray of skull
A 09/03/20 7
X-ray Report Dr Cara Odenthal 09/06/20 A 10/06/20 8
X-ray Screen Translation from Persian to English 15/07/20 A 15/07/20 9 Translated Medical Documents including:
· Medical history and physical examination sheet dated 26.5.2005
· Operation report sheet dated 26.5.2005
· Progress notes sheet dated 30.07.2005
· Progress notes sheet dated 21.08.2005
· File Summary sheet 12.11.2005
· Progress notes sheet dated 15.10.2005
· Operation report sheet dated 12.11.2005
· File summary sheet dated 13.11.2005
· Progress notes sheet dated 15.11.2005
- A 30/11/20 10 Respondent’s Further Submission 22/12/20 R 22/12/20
0
4
0