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

Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4205 (21 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2705
Re:Zameer Ali
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member M O'Loughlin
Date:21 October 2020
Place:Adelaide

The Tribunal affirms the decision under review.
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Member M O'Loughlin
Catchwords
IMMIGRATION AND CITIZENSHIP – Application for citizenship refused – Insufficient evidence regarding identity of the applicant – whether Tribunal satisfied of identity of applicant - Decision under review affirmed.
Legislation
Australian Citizenship Act 2007
Cases
Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (18 March 2013)
Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310 (8 May 2015)
REASONS FOR DECISION
Member M O'Loughlin
21 October 2020

On 13 September 2016 Mr Ali lodged an application to become an Australian citizen.
On 18 April 2019 delegate of the Minister for Home Affairs refused Mr Ali’s application.
Mr Ali has applied to this Tribunal for review of that decision.
Section 24(3) of the Australian Citizenship Act 2007 (“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.”
The delegate found that she was prohibited from approving the application because she was not satisfied of the applicant’s identity.
That decision is reviewable by this Tribunal pursuant to section 52 (1) (b) of the act.
As the matter proceeded it became clear that an important issue is the fact that the applicant has been able to provide limited documentation to demonstrate his identity.
Evidence
The applicant tendered his statement dated 14 October 2019[1] as his evidence in chief.
[1] Applicant’s statement forms part of exhibit A1
The Tribunal was also referred to transcripts of an interview with the applicant on 4 August 2012 in relation to the grant of his visa[2] and another on 6 December 2016 in relation to his application for citizenship.[3]
[2] Exhibit R3 pp 1-22.
[3] Exhibit R2 pp 208-333.
It is not controversial that he arrived in Australia on 29 April 2012 and was granted a Protection (subclass 866) visa on 27 September 2012.
The applicant’s statement says that he was born in Afghanistan on 1 January 1994 and he is a Shia Muslim Hazara.
He says that he comes from the village of Tochi in Qarabagh district, Ghazni province. He lived there until he was about 5 or 6 years old. His evidence is that his father, a farmer, was killed in a dispute over his farm.
Mr. Ali says his mother was concerned that he as the eldest male child would be targeted, so he was sent to live with his elder sister, Hanifa, and her husband in Quetta, Pakistan.
The applicant does not remember his early life in Afghanistan. His statement says that he does not believe that his family had documents that would help to establish his identity.
The applicant’s statement goes on to address various issues that the delegate raised in her decision relating to relevant documents that, in the delegate’s opinion, should have been available to the applicant.
Schooling
In relation to the absence of documents relating to his schooling, the applicant said that he attended Meritorious Public School in Quetta which was not fully funded by the government and was open to students to attend on a fee-paying basis, whether or not they had identity documents. He said that Afghan refugees were able to enrol without identity documents and attend school if they were able to pay the school fees, which is what he did.
Although they could go to school, refugees could not sit the board exams which were run by the Pakistani government, so there is no evidence of exams.
Medical evidence/death certificate
The delegate also commented about the applicant’s inability to provide documents relating to the death of his brother in law, Mir Ahmad.
The applicant’s statement says that his brother in law was killed in a terrorist attack in about April 2008 (when the applicant would have been 14 years of age). The applicant said that his brother in law died before he arrived at the hospital and so he was not treated there.
He said that therefore there would not be any documents and he had not sought any.
The applicant said that no death certificate had been provided to the family and that this was not uncommon with undocumented residents. He said he had later found a newspaper article reporting on the attack and he believes that he provided a copy of that article to the UNHCR during the entry interview process, presumably in May 2012.
He said that he does not now have a copy of that article.
The Tribunal observes that it is not clear that such an article would have assisted it in making a finding about the applicant’s identity.
The applicant makes it clear in his statement that he disagrees with the delegate’s implied conclusion that he should have been able to obtain official documentation relating to his brother in law’s death. He does not believe that hospital or police records are likely to exist.
Proof of Registration card
The applicant’s statement says that he grew up in Pakistan living among other Hazara and did not need documents to get work or perform the ordinary activities of daily life.
He says that he rarely came into contact with the police and that the usual thing was for refugees to simply pay the police a bribe if they were detained. He says that he did not know that there was such a thing as a proof of registration card.
He said that when he left Quetta he did not know what a refugee card was. When he was asked about it in his interview he had to check to find out what was being discussed.
He says in his statement that after his interview in 2012 he asked his sister, Hanifa who confirmed that she does not have documents. He also said that his mother confirmed that there was no Proof of Registration card held by the family, nor were there any papers from Afghanistan.
He said that before his identity interview in 2016 he had spoken with his mother about obtaining a UNHCR refugee card but that she had been unable to help him. His evidence is that she was told by a friend that they are no longer issued.
He said that he did not wish to press his mother further about this because she was suffering from health problems and he did not want to cause her more worry.
Other matters
In relation to the identity interview that took place in December 2016 the applicant says his mental state was poor and that he did not appreciate at the time how long and detailed the interview would be.
Hs says that at the time he had been away from his wife and infant daughter. He was feeling anxious and depressed. He said that his memories of his early life were not fresh and he found the questioning painful and confusing.
The applicant sought to clarify confusion about the identity of his wife, Sughra and whether or not she is the same person as a female of that name who the applicant called his girlfriend during the interview.
In his statement the applicant says that there had been a girl of his acquaintance named Sughra whom he may have described as a girlfriend although “childhood friend” would have been a better description.
The statement also says that the interview was conducted in a confusing manner and that case officers did not use the interpreter as much as they should have.
The statement says that he married his wife, Sughra, on 21 August 2013. He says that he had not met her before their wedding day.
The applicant said his wife and her family knew about his Afghan background and approved the marriage.
The applicant also discusses the DNA swab that he had taken that apparently indicated that his ethnicity is more than 84% Central Asian which he understands to include Afghanistan.
He does not suggest that this swab proves that he is from Afghanistan.
Oral Testimony
In cross examination it was put to the applicant that he had had ample opportunity to obtain documents for the hearing before the Tribunal. The applicant replied that he got permanent residence in 2012 and applied for citizenship in 2016 but that he had not been asked to provide further documents in relation to his identity in the intervening 4 years.
It was put to the applicant that he was told in 2012 the further documents would be very important for his applications. He said that he did not have any documents and that he would not be able to get any.
He agreed that he had returned to Pakistan in 2013 to get married, again in 2014 for 3 months, in 2015 for 3 months, in 2017 for 2 months, and in 2018 for 2 months. He agreed that 500 to 700 people attended his wedding in Pakistan in 2013.
The applicant was referred to a letter from the Department[4] that was sent to help him prepare for his citizenship interview. He agreed that at that time he understood that he should get further documents relating to his identity if he could.
[4] Exhibit R1, p86-Letter from Department of Immigration and Border Protection to the Applicant dated 17 November 2016.
He said that at one stage in Pakistan he tried to get identity documents that his father may have had that the applicant could use to get a Taskera.[5] He said that he could not get that document and therefore could not get a Taskera.
[5] An Afghan identity document.
He also said that his mother was ill at the time and he did not want to make her apply on his behalf. He said it was unusual to apply for registration for yourself. He further said that the registration offices in Pakistan were not in safe suburbs and his mother was not happy for him to go and apply for documents.
The applicant agreed that the only documents he provided from Pakistan or Afghanistan related to him were his marriage certificate and his daughter’s birth certificate.
The applicant said that in addition to not having documents in relation to his schooling, he did not have report cards as his family had not kept them.
The applicant was asked about a letter from the principal of Meritorious Public High School, Quetta.[6] This letter supports the applicant’s evidence that Afghan refugees can study in Pakistani schools up to 7^th grade without Pakistani documents. The applicant agreed that the letter does not refer to him as a former student of the school and said that his wife’s brother had connections with the school that he was able to arrange the letter for him.
[6] Exhibit A1, p185.
The letter does not help to identify the applicant although it does support his evidence that undocumented refugees can attend the school.
He said that he had asked the person to get a letter from the school confirming that he had studied there but that there were no records available because they have not been kept.
The applicant said in evidence that he did not go to the school for himself because the area is not thought of as safe and so his mother told him not to go. He said that he did not think there was any point in pressing the school further because he believed that they did not have any record of him.
The applicant said that after he finished at Meritorious Public School he went to Star English Language Academy but that there would not be any documents there because it was just an English centre. He had not made enquiries of them.
The applicant was also asked about documents relating to the death of his brother-in-law. He said that although the hospital his brother-in-law went to was one of the biggest, there were no records and there is no documentation relating to Afghan refugees.
There was some discussion about the newspaper cutting referred to in the applicant’s statement, but it was not available to the Tribunal.
The applicant gave evidence that his mother, one sister and his three brothers stayed in Afghanistan after he left and that his mother sold the land in about 2009 or 2010.
He said that there were no documents exchanged in relation to the sale of that land. His mother was paid but no documents are available.
He was asked whether his grandparents lived in Afghanistan but said that he was too small to remember them well.
He told the Tribunal that he has older sisters aged about 28 and 38 and 2 younger brothers aged about 20 and 22. He said that his sisters are both married, and one has children. He was asked whether he had been able to provide copies of his sisters’ marriage certificates. He said that he had not sought them and did not know whether his sisters had marriage certificates.
He said that he knows his nieces and nephews did not have birth certificates.
He said that he did not ask his sisters about their marriage certificates because that question would offend cultural sensitivities.
He was asked whether he understood that the Department wanted documents from his family as well as his own documents. He replied that he did not ask his family because he knew they didn’t have any.
He said that the younger of his sisters is now married and has moved out of the home. She is therefore no longer part of his family and so he does not know if she has a marriage certificate or not. He said he is not prepared to ask his sisters for copies of their marriage certificates because of cultural sensitivities.
In this regard the applicant said that in his culture a girl who marries leaves her family and becomes part of her husband’s. He said that his family doesn’t have anything to do with his married sisters anymore.
The applicant’s evidence was that the break is so complete that a girl who gets married might be told not to return to her family “except in a coffin”.
The applicant was not pressed on this but the Tribunal notes that this does not seem consistent with the applicant’s evidence that he lived with his married sister and her husband for several years from the age of about five or six years old.
The Tribunal also observes that the applicant’s evidence was that he had in fact asked one of his married sisters for documentary evidence about his identity[7], which does not appear to be consistent with his evidence about the cultural sensitivities.
[7] Exhibit A1 p182 Para 31.
He was asked if the same sensitivities apply to the birth certificates of his nieces and nephews. He said that in their case it was not a matter of sensitivities, simply that the documents do not exist. He was then asked whether the children have proof of registration cards and he said that they do not. He was asked if the children can get proof of registration cards and replied he doesn’t have any connection with the children.
The applicant also gave evidence that his father’s living brother and sister now live in Quetta, but he is not on good terms with them. He said that his wife had asked them once or twice but they said that they do not have any identity documents.
The applicant was asked about some answers that he gave in an interview on 4 August 2012 as part of the procedure for obtaining his protection visa.
The questions were about a girl he had known in his teens.[8]
[8] Exhibit R2 p9 Question 54 and following.
The applicant had said in that statement that the girl was not his wife despite sharing her name, Sughra, and being about 3 years older than the applicant, as is his wife.
Under cross-examination the applicant was not moved from his version that there are two different people and that he did not meet his wife until the day of his wedding which was an arranged marriage.
The applicant’s evidence on some ancillary matters such as the difference in age between himself and his wife was evasive and the applicant’s evidence in relation to this matter in general was unconvincing.
The applicant was also asked about his wife’s birth certificate which had not been provided, and any other documents relating to his wife’s identity.
The applicant said that he thought his daughter’s birth certificate and his marriage certificate would be sufficient to identify his wife. He explained that those documents were obtained by providing his Australian driver’s license and passport. Apparently, it was not necessary to identify the applicant’s wife for the purpose of obtaining the birth certificate or the marriage certificate.
The Tribunal observes that the applicant’s wife is acknowledged to be Pakistani and so evidence about her identity is unlikely to assist this application.
The applicant was also asked about his UNHCR card which he obtained while he was in Indonesia and was able to use to collect money from Western Union. The applicant said that he was able to obtain the UNHCR card simply by providing a newspaper article and that no further identification was necessary.
Sughra Ali
The applicant’s evidence was supported by the evidence of his wife, Sughra Ali. Her statement was accepted into evidence.[9] She gave evidence by telephone and with the assistance of an interpreter.
[9] Exhibit A1, p215.
Mrs Ali said that she reads sufficient English to have understood her statement before she signed it and she adopted it as the truth. The statement sets out that she was born in Pakistan on 20 July 1990 and that she met the applicant’s mother at the mosque that they both attended.
Mrs Ali said in her statement that she first met the applicant in person when he came to Pakistan for their wedding in August 2013. Mrs Ali said that it is not unknown for Pakistani people to marry Afghan nationals who have settled in Pakistan.
She said that her family was aware that the applicant and his family had been living in Pakistan as Hazara refugees with no documents.
Under cross-examination she agreed that she understood that her evidence was in support of her husband’s application for citizenship which would in turn increase her chances of moving to Australia with their daughter.
In her evidence she did not shrink from the fact that she wishes to come to Australia and understands that the grant of citizenship may help that.
She gave evidence that she and the applicant first met on the day of their wedding. She denied having known him from childhood.
She said that she had a birth certificate, an ID card, and passport all of which have been provided to the applicant.
It was put to her that it is unusual for Afghanis and Pakistanis to attend the same mosque, but she denied that and was not pressed on it.
On balance this witness was not moved from the important parts of her testimony but the Tribunal notes that she has strong reasons to support the application. The Tribunal does not rely on her testimony where it is not corroborated by objective evidence.
Other Evidence
The applicant provided further evidence as to identity being an affidavit from Ali Khan simply asserting that the applicant is known to the him as an Afghan National. Mr. Khan does not indicate how he knows the applicant is an Afghan national and his evidence is untested. The Tribunal accords it little weight.
There is also a letter from the Afghan United Association of South Australia asserting that the applicant is of good character. The letter does not assert that the applicant is Afghani and does not assist the Tribunal.
CONSIDERATION
The applicant has been unable to provide the Tribunal with any identity documents from his time living in Afghanistan or in Pakistan.
It is not surprising that he did not retain any documents from Afghanistan as he left there as a young child.
It was submitted on his behalf that he does not know what documentation may exist in Pakistan to assist his application and did not understand that documents that did not relate directly to his identity could help to identify him.
This Tribunal is regularly called upon to consider matters in which the establishment of identity is an issue.
In submissions both parties referred to the AAT decision in Dhayakpa v Minister for Immigration and Border Protection[10] and in particular the comments of the Honourable R Nicholson, Deputy President.
[10] [2015] AATA 310 (8 May 2015).

The Tribunal accepts that this decision, which is often cited in relation to identity issues, provides valuable guidance in this area.
The applicant directed the Tribunal’s attention to paragraph 117 which reads as follows; –
“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 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.”
The applicant’s representatives asked the Tribunal to accept that the absence of documentation does not prevent the Tribunal from being satisfied as to identity. The applicant urges on the Tribunal the following observation by the Deputy President in the next paragraph;
“…In my view in the most unusual circumstances of the applicant’s life, he has established (his identity) to the best of his ability.”
The applicant’s submission is that he is in the same situation and should not be denied conferral of citizenship because he has not been able to provide documents.
The respondent also refers the Tribunal to paragraph 117 in its own Statement of Facts, Issues and Contentions.
The respondent submits that documents should be available to the applicant and seeks to emphasise the Deputy President’s apparent acceptance of the proposition that an application should be rejected where an applicant has been advised to secure evidence of identity but failed to avail himself of opportunities to do so.
The applicant was cross examined about a range of documents that the respondent suggested should be or have been available to him.
The applicant said that he did not have any documents relating to his schooling in Pakistan.
He had provided a document that he had sourced when he was in Australia from his former school in Pakistan that supports his evidence that undocumented Afghan refugees are able to study in Pakistani schools until 7^th grade.
The document does not suggest that the applicant was one such student.
The Tribunal accepts that there may be no documentation available to the applicant in relation to his schooling.
The Tribunal accepts that the applicant may not have had a Proof of Registration card while he was living in Pakistan, even if he was an Afghan refugee.
The Tribunal accepts that the applicant may not have access to any hospital records or a death certificate relating to his brother in law’s death by shooting in 2008. The respondent sought to criticise the respondent for failure to produce a newspaper article relating to the incident, but the Tribunal is not satisfied that production of such article would have been helpful in this matter and does not criticise the applicant for not making further enquiries about it.
The Tribunal finds that the applicant’s evidence about the identity of the “girlfriend” referred to in the interviews of 2012 and December 2016 was unconvincing. That evidence was supported by the testimony of his wife but the Tribunal is reluctant to rely on the evidence of the applicant’s wife without further corroboration.
The applicant has not been able to provide any evidence of his own identity from the time he was living in Afghanistan or Pakistan. Further, he has not been able to provide any evidence of the identity of any of his family members other than evidence that has been obtained on the basis of his Australian identity documents.
Because the Australian identity documents were not obtained by provision of Afghani or Pakistani identity documents the Tribunal finds that the documents obtained on the basis of his Australian identity documents do not assist in determining whether the applicant is an Afghan national.
The Tribunal accepts the submission that absence of documentary evidence does not mean that an applicant cannot establish identity. It is understandable that people living as refugees may not have the opportunity or motivation to ensure that each stage of their life is documented.
Having said that, where documentary evidence of identity is sparse, careful attention should be paid to efforts made to obtain further evidence, and where the efforts are less than full, the application must be treated with caution.
In Confidential[11] (the AAT decision referred to in Dhayakpa), the Tribunal found at paragraph 27 of the decision that relevant documents would exist and the applicant had not exhausted his avenues of search for those documents.
[11] Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (18 March 2013).
The Tribunal is not satisfied by the applicant’s explanation for his failure to obtain copies of his sister’s marriage certificates. The Tribunal acknowledges the applicant’s evidence that he was uncomfortable about asking his sisters for this evidence, but notes that where documentary evidence is as scarce as it is in this case, its importance increases and the Tribunal expects the applicant would make a greater effort than he has.
The Tribunal notes that the applicant says at paragraph 31 of his statement that he had already asked his sister Hanifa about documents, which does not appear to be consistent with his oral evidence about being restrained from doing so by cultural considerations.
The applicant also advised that his uncle and auntie were approached by his wife for documents, but they are not on good terms and nothing was provided.
The applicant does not suggest that he was not aware of the possible importance of obtaining this type of corroborative evidence. Rather he has proffered his explanations for not having done so.
The Tribunal is not convinced by these explanations.
The Tribunal notes that the applicant has returned to Pakistan on several occasions since he moved to Australia and twice since his citizenship interview. He should have understood that it might be beneficial to him to take those opportunities to pursue what identifying documentation there may be. There is no evidence of any important effort to do so.
The Tribunal is not satisfied that the applicant has exhausted possible avenues of search for documents that may assist.
In circumstances where it seems that such documents may exist, the Tribunal expects appropriate enquiries to have been undertaken.
The Tribunal finds that in this case appropriate inquiries were not undertaken. The Tribunal is not satisfied that the applicant could not have sought a registration card on one of his visits to Pakistan.
The Tribunal is not satisfied that the applicant could not have sought copies of his sisters’ marriage certificates.
Although the Tribunal accepts that it is possible to demonstrate identity without providing documents, that would generally be in circumstances where the tribunal is satisfied that the documents either do not exist at all or cannot reasonably be obtained.
The Tribunal is not so satisfied in this matter and finds that it would be premature to be satisfied of the applicant’s identity in the circumstances.
The decision of the delegate is affirmed.

I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin.

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Administrative Assistant Legal
Dated: 21 October 2020
Date of hearing:   18 December 2019
Applicant:  Ms C Zych of Migration Solutions
Respondent’s representative:   Mr T Ellison of Australian Government Solicitor

[2020] AATA 4205

21 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction