Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 4646

Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4646 (19 November 2020)

Division:GENERAL DIVISION

File Number:          2019/2131

Re:Mustafa Ali

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:19 November 2020

Place:Sydney

The decision under review is affirmed.

.....[sgd]...................................................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – subsection 24(3) prohibition – whether the Tribunal is satisfied of the applicant’s identity – three pillars of identity – biometrics – documents – life story – applicant submitted non-genuine Taskera – where applicant has not produced documentary evidence of his identity from either Pakistan or Afghanistan – credibility of applicant’s claims – where Tribunal is not satisfied of applicant’s identity – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act

Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Dr L Bygrave, Member

19 November 2020

1. The applicant, Mr Mustafa Ali, arrived in Australia on 8 December 2011 as an unauthorised maritime arrival and, on 31 May 2012, he was granted a Protection (subclass 866) visa. Mr Ali currently holds a Resident Return (subclass 155) visa granted on 16 August 2017.

2. On 6 September 2016, Mr Ali lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. This application was refused by a delegate of the Minister for Home Affairs (the Minister)[1] on 29 March 2019 on the basis that the delegate could not be satisfied of Mr Ali’s identity and, consequently, the prohibition in subsection 24(3) of the Act applied.

   [1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 17 April 2019, Mr Ali applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the decision.

5. The application was heard by the Tribunal on 5 November 2020. Mr Ali did not have legal representation; he attended the hearing and provided oral evidence by videoconference with the assistance of an interpreter of the Hazargi language.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   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.

7. Relevant to this application, subsection 24(3) of the Act stipulates that the Minister ‘must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person’.

   Citizenship Policy

8. Policy guidance on the interpretation of the Act is provided in the Citizenship Policy. While I am not bound to strictly apply the Citizenship Policy, this document is government policy and should be considered unless there are cogent reasons not to do so.[2]

   [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

9. Chapter 13 of the Citizenship Policy sets out the following policy guidance I should consider when assessing a person’s identity:

   Overview of the identity provisions

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

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

   …

   Changes to name or other identity information

   …

   In reaching a finding of fact about the person’s identity, decision makers are expected to consider issues such as:

   ·the reason that the person provided the original personal information relating to their identity when they applied for citizenship

   ·the reason for changing their personal information

   ·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes

   ·the documentation that was provided to support the change of personal information.

   Australian Citizenship Procedural Instructions (CPIs)

10. Further policy guidance is set out in the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy.

11. ‘CPI 16: Assessing Identity under the Citizenship Act’ (CPI 16) was issued on 10 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures that apply when undertaking an assessment of a person’s identity’ for the purposes of the Act.[3]

    [3] CPI 16: Assessing Identity under the Citizenship Act, section 1.

12. CPI 16 refers to ‘three pillars of identity’ to consider when assessing a person’s identity: biometrics, documents and life story. These ‘pillars’ or ‘elements’ are made up of individual characteristics as set out below:

    Three pillars of identity       Individual characteristics

    BiometricsPersonal 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.

    DocumentsOnly 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.[4]

    [4] CPI 16 – Assessing Identity under the Citizenship Act, table 3.

13. CPI 16 states that:

    Officers [of the Department of Home Affairs] 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 and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.[5] [emphasis added]

    [5] CPI 16 – Assessing Identity under the Citizenship Act, section 4.4.

14. CPI 16 stipulates that an evidence-based approach should be used to assess a person’s identity from birth, noting:

    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 three pillars are the methodology for establishing a person’s identity…

    When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person’s life story, officers [of the Department] should consider:

    ·the significance and corresponding weight of the inconsistencies in the broader context of the persons claimed identity; and

    ·what further research, or information, is necessary in order to be satisfied.[6] [emphasis added]

    [6] CPI 16 – Assessing Identity under the Citizenship Act, section 4.12.

    EVIDENCE

15. At the Tribunal hearing, Mr Ali provided the following oral evidence about his life story:

    ·Mr Ali was born in Sorkhak, Panjab, Bamyam, Afghanistan. There is no record of Mr Ali’s birth in Afghanistan and so, based on Mr Ali’s estimate that he was 16 years old when he arrived at Christmas Island in December 2011, his date of birth was determined as 31 December 1995.[7]

    ·When Mr Ali was about three or four years old, he and his family fled Afghanistan to Quetta, Pakistan. Mr Ali attended an English language school for about one year in Quetta but left school because he was required to care for his younger siblings and earn an income to financially assist his family. He described making carpets and taking his younger brother, then aged five or six years, with him.

    ·Mr Ali’s father, Nazir, is now deceased and his mother, Habiba, continues to reside in Pakistan with Mr Ali’s surviving siblings. Mr Ali said he does not know when his parents were born.

    ·Mr Ali has two older brothers, Baqer and Mohammad, who have been missing since they travelled to Iran to work some time prior to 2010. Mr Ali also has two sisters, Sumaya is two years older and Marzia is seven years younger than him; and two brothers, Murtaza is two years younger and Mujtaba is five years younger than him. As the oldest male, Mr Ali has been financially responsible for his family since 2010.

    ·In about mid-2010, Mr Ali travelled to Iran to work illegally in a plastic factory. He left Iran involuntarily after ten or 11 months and was deported to Herat, Afghanistan. He spent one night in Herat before returning to his family in Quetta.

    ·Mr Ali then left Pakistan in October 2011 and travelled to Australia via Thailand, Malaysia and Indonesia; he arrived by boat at Christmas Island in December 2011.

    [7] See Exhibit TB, page 4 for an explanation about this process.

16. Mr Ali qualified this oral evidence to the Tribunal stating that he is ‘not good with dates’ but believes these timeframes ‘are accurate’.

17. On 6 September 2016, Mr Ali filed an ‘Application for Australian citizenship General eligibility – Form 1300t’ with the Department of Immigration and Border Protection[8] (the Department), which relevantly included his personal details, his parents’ details and identity documents from Australia.

    [8] Now named the Department of Home Affairs.

18. On 8 June 2017, the Department wrote to Mr Ali requesting further information including ‘original documents’ that support his claimed identity.[9]

    [9] Exhibit T-T4, page 29.

19. Mr Ali subsequently filed with the Department on 12 November 2018 a ‘Declaration of service – Form 1399’ and a ‘Personal particulars for assessment including character assessment – Form 80’. Mr Ali told the Tribunal these forms were completed by ‘a friend’ but he checked the information and signed both documents. These forms contained declarations that Mr Ali lived in Quetta, Pakistan from ‘01/2007’ to ‘01/2012’, attended school in Australia from 2012 to 2015, and described his employment positions in Australia from 2014 to 2018.[10] Mr Ali also provided the following handwritten statement in his Form 80:

    …I don’t have the Taskara [sic], because when I was about 4 I moved to Pakistan with my family, but my family got these documents like Taskara [sic], including my mother, two brothers and my two sisters.[11]

    [10] Exhibit T-T6, page 38.

    [11] Exhibit T-T6, page 63.

20. Mr Ali also attached a notarized mortgage agreement in the name of his brother, Murtaza; this agreement refers to Murtaza’s ‘Afghan Card No’,[12] and identity documents for his mother and siblings from the Islamic Republic of Afghanistan, Ministry of Interior Affairs, Department for Statistics and Registration.[13]

    [12] Exhibit T-T6, page 64.

    [13] Exhibit T-T6, pages 66-70.

21. On 11 October 2019, Mr Ali produced a colour copy of his Taskera at a Tribunal conference. In a document dated 16 January 2020, the Islamic Emirate of Afghanistan, National Statistics and Information Authority, Department of Census and Registration, Department of Verification of Identity Cards in Absence assessed Mr Ali’s Taskera as ‘not registered’.[14]

    [14] Exhibit TB, page 72.

22. In evidence to the Tribunal, Mr Ali said that the Department had requested he submit identity documents from Pakistan and/or Afghanistan but neither he nor his family in Pakistan had identity documents. Mr Ali said his friends told him to go to the Afghanistan embassy in Canberra, which he did. He understood that he would require a representative to forward his case for identity documents through the embassy.

23. Mr Ali said that his family in Pakistan also made inquiries about how he could access a Taskera from Australia. His mother spoke to the local shopkeeper in Quetta, who said his cousin in Kabul could produce a Taskera for Mr Ali. Mr Ali paid US$700 and provided a photograph, his personal details and a copy of his brother’s Taskera. Mr Ali said he was assured by the person in Kabul that his Taskera was ‘genuine’ and it was not until it was verified as ‘not registered’ in January 2020 that he realised this was not the case. He said he compared his Taskera to his brother’s Taskera and thought they looked the same. However, Mr Ali also accepted that the date of issue on his Taskera, ‘04/11/2014’, is clearly incorrect and he confirmed he has not completed ‘military service’ in Afghanistan despite the document stating this.[15]

    [15] Exhibit TB, page 68.

    CONSIDERATION

24. The issue for determination is solely whether I can be satisfied of Mr Ali’s identity as required by subsection 24(3) of the Act.

25. There is no dispute about Mr Ali’s name, his place and (assigned) date of birth, and the details of his parents and siblings. Rather, the Minister’s representative submits the Tribunal cannot be positively satisfied of Mr Ali’s identity because:

    ·there is inconsistency in his evidence regarding his period of employment in Iran; and

    ·he has failed to provide ‘any credible documentary evidence to substantiate his claimed identity prior to his arrival in Australia’.[16]

    [16] Respondent’s Statement of Facts, Issues and Contentions, 4 September 2020, paras 21-24.

26. I now consider each of these issues having regard to the Act, Citizenship Policy and CPI 16.

    Inconsistency regarding Mr Ali’s period of employment in Iran

27. Mr Ali told the Tribunal he left Pakistan and travelled to Iran to find work from about mid-2010 for approximately ten or 11 months. At this time, he was about 15 years old and he was financially responsible for his mother and siblings as the eldest male in the family after his father passed away and his two older brothers went missing. This evidence is reasonably consistent with the timeframes Mr Ali declared in his Form 1399 and Form 80 documents filed with the Department on 12 November 2018, in which he stated he was working in Iran from ‘01/01/2010’ to ‘02/01/2011’.[17] 

    [17] Exhibit T-T6, pages 39 and 49.

28. However, the Minister’s representative contended that this evidence is inconsistent with Mr Ali’s key migration history set out in the Department’s ‘Protection Obligations Evaluation Outcome’ dated 7 May 2012. This document recorded that ‘In 2010, the claimant [Mr Ali] travelled to Abbasabad, Tehran, Iran where he resided and worked illegally for four months’.[18] Mr Ali told the Tribunal this information was not correct and is neither the period of time he worked in Iran nor what he said when he came to Australia and sought protection.

    [18] Exhibit TB, page 4.

29. I accept that the period of ten to 11 months is different to four months. However, as observed in CPI 16, inconsistencies in information need to be considered in the broader context of the person’s claimed identity. I am satisfied the evidence provides a consistent narrative that Mr Ali, at about the age of 15 years, travelled to Iran to work in a plastics factory. The context of any inconsistencies in the evidence must account for Mr Ali’s young age, and his lack of education and literacy at the time. I also accept that Mr Ali may not have had an opportunity to read, understand or review his ‘Protection Obligations Evaluation Outcome’ dated 7 May 2012, particularly given his extremely limited English and literacy at that time.

30. On balance, I find any inconsistencies in the evidence regarding the length of time Mr Ali spent in Iran does not adversely affect my capacity to establish his identity. I make this finding having regard to Mr Ali’s consistent and credible evidence in relation to his work in Iran at the Tribunal hearing.

    Documentary evidence to substantiate Mr Ali’s claimed identity prior to arriving in Australia

31. Mr Ali has not provided any legitimate documents from Afghanistan or Pakistan that support his claimed identity prior to his arrival in Australia.

32. The only identity document Mr Ali has produced is a non-genuine Taskera in October 2019. At the Tribunal hearing, Mr Ali accepted that information contained in this Taskera, including the date of issue and his completion of military service, is clearly incorrect. Mr Ali was open and candid in his evidence to the Tribunal about the process he and his family undertook to obtain this Taskera. I note that it seems neither Mr Ali nor his family considered this process to be unusual in the context of obtaining identity documents in Pakistan and Afghanistan, even though such procedures are incongruous to equivalent processes in Australia. This was also noted in oral submissions by the Minister’s representative, who accepted there is widespread fraud of documents in Afghanistan.

33. More broadly, however, Mr Ali’s evidence about his inability to produce any identity documents from his time in Afghanistan or Pakistan was confused and unclear. Mr Ali repeatedly said that neither he nor any of his family members held identity documents from Afghanistan or Pakistan. Nonetheless, he has produced Taskeras for his mother and siblings, and a notarized mortgage agreement in his brother’s (Murtaza) name that refers to Murtaza’s ‘Afghan Card No’. The Department’s ‘Protection Obligations Evaluation Outcome’ dated 7 May 2012 also noted that Mr Ali stated ‘the only identification document he possessed was a student card from an English Language centre in Pakistan with his name (Mustafa)’ and he said ‘he would ask his family to send his student card to him’.[19] Mr Ali has never produced this document.

    [19] Exhibit TB, page 3.

34. CPI 16 refers to three pillars of identity – biometrics, documents and life story. CPI 16 further sets out that decision-makers should consider each pillar to comprehensively test and evaluate a person’s claims about their identity. In circumstances where a person is unable to provide any identity documents from their life prior to living in Australia, I would expect them to provide a clear and consistent explanation about why this is the case.

35. I do not find the evidence set out above shows Mr Ali has provided a consistent explanation about why he has not produced any legitimate identity documents from Afghanistan or Pakistan. I find that this, in turn, raises questions about the credibility of Mr Ali’s evidence in relation to identity documents from Afghanistan or Pakistan that substantiates his claimed identity prior to his arrival in Australia. Consequently, I find I cannot be satisfied of his identity.

    CONCLUSION

36. Weighing all the evidence, I am not satisfied of Mr Ali’s identity in accordance with the requirements of the Act, Citizenship Policy and CPI 16. For these reasons, I find the prohibition in subsection 24(3) of the Act applies to Mr Ali.

    DECISION

37. The decision under review is affirmed

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

........[sgd]................................................................

Associate

Dated: 19 November 2020

Date of hearing:	5 November 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr M Gao, Australian Government Solicitor