Amiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 763
•8 April 2020
Amiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 763 (8 April 2020)
Division:GENERAL DIVISION
File Number: 2018/5646
Re:Mohammad Ali Amiri
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:8 April 2020
Place:Melbourne
The Tribunal affirms the decision under review.
...........................[sgd]..........................................
Dr Stewart Fenwick, Senior Member
Catchwords
CITIZENSHIP – application for citizenship by conferral – identity – whether Applicant’s identity can be positively established – inconsistencies in names provided historically – consideration of explanations – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Dhayakpa & Minister for Immigration and Border Protection [2015] AATA 310
Secondary Materials
Citizenship Policy (effective 1 June 2016)
National Identity Proofing Guidelines (2016)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
8 April 2020
BACKGROUND
Mr Amiri applied to the Tribunal on 2 October 2018 for review of a decision by a delegate of the Minister dated 12 September 2018 refusing his application for citizenship by conferral.
Mr Amiri is a citizen of Afghanistan who arrived in Australia on 2 June 2012. On arrival he identified himself as Jawad Amiri, born on a particular date in 1955; this was his deceased brother’s name. Mr Amiri subsequently advised authorities that his name was Mohammad Ali Amiri, born on a particular date in 1965. Mr Amiri was granted a permanent protection visa on 15 January 2013. He applied for citizenship by conferral on 14 February 2017.
The Department sought further information from Mr Amiri on several occasions during 2017 and 2018 in relation to his application. In response a range of material was provided by Mr Amiri, and/or on his behalf, including: a ‘Form 80 – Personal particulars for assessment including character assessment’, identity documents for Mr Amiri and his family; a statutory declaration made by Mr Amiri; and, a translation of a lease agreement over a property in Iran.
The question of Mr Amiri’s identity is not confined to his initial use of his brother’s name. In addition, he has in the past been known by a different family name, as have members of his family, being Delawar. This name is particularly associated with the time he and his family spent in Iran. Indeed, his wife and three sons continue to reside in that country. He currently lives with his daughter, who continues to use the family name Delawar.
Mr Amiri is also said to suffer a mental health condition which may have affected his ability to communicate and may still affect his memory. Therefore his health, including at the time of his arrival in Australia, requires consideration as well as the authenticity of a range of official documents, including Mr Amiri’s taskera, or Afghan identity document.[1]
[1] The alternate spellings ‘tazkera’ and ‘tazkira’ also appear in this decision, depending upon the source.
At the hearing, Mr Amiri was represented by a lawyer and migration agent. Material relied upon by the Applicant was exhibited as follows: a bundle of documents, principally being copies of identity documents for Mr Amiri and family members (Exhibit A1); a statutory declaration by the Applicant (Exhibit A2); a marriage document (Exhibit A3); Iranian lease documents (Exhibits A4 and A5); a bundle comprising copies of family passports (Exhibit A6); and, a report of Dr Fariba Kavianpour dated August 2019 (Exhibit A7). The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as ‘T Documents’.
At the hearing evidence was given by Mr Amiri, his daughter Ms Shakira Delawar, Ms Layla Ekhlasi, a sister-in-law to the Applicant, Mr Reza Ekhlasi, a son-in-law to the Applicant, Mr Abdul Ahmad Rezaie, a friend of Mr Amiri’s, and Dr Fariba Kavianpour, the Applicant’s treating psychologist.
Written closing submissions were lodged by the parties following the hearing.
LEGISLATION
Under s 24(1) of the Australian Citizenship Act 2007 (‘the Act’), the Minister must approve or refuse citizenship applications in writing. Under s 24(3), the Minister: ‘must not approve [a] person becoming an Australian citizen unless the Minister is satisfied of the identity of the person’.
The Respondent’s Statement of Facts, Issues and Contentions (SFIC) refers to a document titled ‘Citizenship Policy’, extracts of which were provided in the T documents (T19, pp 204-225). I accept that this is a document of the executive, intended to guide decision makers in the exercise of powers under the Act. Relevantly in Chapter 13, the policy document states as follows:
Overview of the identity provisions
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister of 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.
The policy document also references (as does the Respondent’s SFIC) a further document, the Attorney-General’s Department National Identity Proofing Guidelines (2016) (‘the Guidelines’).[2] Chapter 1 of the Guidelines states they are designed for use by government agencies which use identity documents, or where identity-related risks arise in the performance of functions or delivery of services (at [1.3.1]).
[2] Unlike the Citizenship Policy, this document is publicly available at >
The Guidelines are referenced in the Citizenship Policy in relation to the ‘concept of identity’, and state: ‘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’ (at [2.1.1]). They go on (at [2.2]) to state that identity is established through providing evidence to meet some or all of five ‘identity proofing objectives’, depending upon the required degree of confidence in identity:
1. Confirm uniqueness of the identity in the intended context;
2. Confirm the claimed identity is legitimate;
3. Confirm the operation of the identity in the community over time;
4. Confirm the linkages between the identity and the person claiming the identity;
5. Confirm the identity is not known to be used fraudulently.
EVIDENCE
I summarise in the table below a list of identity and other documents, arranged in date order. This is not the entire list of documentation lodged with the Tribunal, or referred to by parties, but demonstrates the time range, nature and origin of key documents and the family names adopted by the relevant party at various times, some of which were referred to at the hearing. For reference, Mr Amiri’s family consists of the following (without surnames):
(a)the Applicant’s wife, Rahala;
(b)a daughter, Shakira; and
(c)three sons: Mustafa, Muhammad Amir, and Farhad.
Date
Document
Origin
Name
Valid to 08/2006
Residence permit (T16/A1)
Iran
Mohammad Delawar
Valid to 03/2009
Work permit (T16/A1)
Iran
Mohammad Delawar
06/2007
Lease Contract (T16/A1)
Iran
Mohammad Ali Delawar
09/2011
UNHCR Registration Card (T9)[3]
Indonesia
Mohammad Ali
06/2012
Biodata form (T13)
Australia
Jawad Amiri
06/2012
IMR Entry Interview (T12)
Australia
Mohammad Ali Amiri
01/2013
Afghan passport (A6)
Iran
Mostafa Delawar
03/2013
Afghan identity document (A1)
Afghanistan
Mustafa
03/2013
Afghan identity document (A1)
Afghanistan
Farhad
03/2013
Afghan identity document (A1)
Afghanistan
Mohammad Amir
03/2013
Afghan identity document (T4)
Afghanistan
Mohammad Ali Amiri
07/2013
Afghan identity document (A1)
Afghanistan
Rahala
09/2013
Afghan passport (A6)
Iran
Mustafa Amiri
09/2013
Afghan passport (A6)
Iran
Mohammad Amir Amiri
09/2013
Afghan passport (A6)
Iran
Farhad Amiri
09/2013
Afghan passport (A6)
Iran
Rahala Amiri
02/2014
Afghan passport (A6)
Iran
Farhad Delawar
04/2016
Australian passport (T4)
Australia
Mohammad Ali Amiri
12/2016
Afghan passport (A6)
Iran
Mohammad Amir Delawar
02/2017
Application for Citizenship (T3)
Australia
Mohammad Ali Amiri
09/2017
Form 80 – Personal particulars (T7)
Australia
Mohammad Ali Amiri
03/2018
Afghan passport (T10)
Afghanistan
Mustafa Amiri
03/2018
Afghan passport (T10/A6)
Afghanistan
Farhad Amiri
03/2018
Afghan passport (T10/A6)
Afghanistan
Rahala Amiri
03/2018
Afghan passport (T10/A6)
Afghanistan
Mohammad Amir Amiri
03/2018
Afghan identity document (A1)
Afghanistan
Shakira “Delawar”
09/2018
Lease contract (A4)
Iran
Rahala Amiri
Undated
Marriage certificate (A3)
Iran
Mohammad Ali Amiri
[3] Date derived from Refusal Decision (T2).
Applicant’s evidence
Mr Amiri stated in evidence in chief that he came to be in Australia ‘because of the Taliban’. He had been a school caretaker and farmer in his spare time. The Taliban threatened the school. He stated that he experiences depression and forgetfulness, has had a broken leg, and is unable to lie on his back. Mr Amiri acknowledged he had a mental and physical examination by the UNHCR when in Indonesia.
Mr Amiri stated that he escaped the Taliban and spent two weeks in the mountains. He returned to his house which was hit by artillery and he got stuck under a wall. He regained consciousness and later was told that a kidney had been removed on account of his injuries.
Mr Amiri stated he spent a ‘couple of days’ on Christmas Island and had been seen at some point by a psychologist every other day. He was unable to recall anything about his interview on Christmas Island but stated that he did provide information in an interview.
Asked about his travel to Iran, Mr Amiri stated that, on the first occasion, ‘they wrote my name, gave me a piece of paper and a file number’. He confirmed the name was Delawar. Mr Amiri stated this was the name he was known by as a boy playing football in Afghanistan with friends and that it means ‘brave’.
In cross-examination it was put to Mr Amiri that in his statutory declaration (Exhibit A2) it does not state that he gave to the Iranian authorities the name Mohammad Ali Amiri. He responded that when he was being registered ‘in a camp’ in Isfahan that he gave the name Mohammad Ali but friends in the line behind him called out ‘Delawar’, so the authorities recorded that instead.
Mr Amiri stated his date of birth was a certain date in 1965. He stated that his mother always told him it was ‘year 44’. Mr Amiri stated that a translator in Indonesia changed his date of birth. In cross-examination Mr Amiri affirmed his birth year as 1344 [Islamic calendar] and did not remember what date of birth he had provided the UNHCR.
Mr Amiri could not recall who applied for his first taskera. Asked about his second taskera, Mr Amiri stated that he couldn’t go back to get it, so he asked his sons to organise it. His sons were living in Iran at the time.
Mr Amiri confirmed that his brother’s name was Jawad Amiri. He stated that they became separated. When in Indonesia he heard that his brother had also travelled there but found out that his brother drowned when his boat sank. Asked if he gave this name to authorities he stated ‘if I’ve said it I don’t remember; I’ve always said Jawad Amiri is my brother’. In cross-examination Mr Amiri was asked why a change of name was recorded on Christmas Island, and he repeated that he had not given the name Jawad Amiri.
In cross-examination Mr Amiri was asked whether he had provided the name Jawad as an alias, with reference to his entry interview on 21 June 2012 (T12, p 93-115), and he replied ‘it is written there’. Mr Amiri answered several times to different questions about the name Jawad that ‘every time’ he gave the name Mohammad Ali.
Having had two to three years in a religious school, Mr Amiri stated that the only language he can read and write in is Dari, and he likes to speak English. He stated he has no literacy in any other language. When asked about completing his citizenship application Mr Amiri recalled someone filling it out, but when shown the document (T7) was unable to confirm its contents because it is in English.
In cross-examination, Mr Amiri asserted he was unable to remember the form being filled out. He agreed that responses recorded would be based on what he said ‘but my memory was really bad at that time’. When asked why he failed to declare an alias, Mr Amiri replied that he was proud of his name.
Mr Amiri stated that when he worked at the school in Afghanistan he was known by the family name ‘Amiri’. He stated that 40-50 years ago family names were not important, but they became so after the revolution. Mr Amiri stated he is very proud to be known by his ancestor’s name Amiri.
He stated that he does not like to be called by the name Delawar. Mr Amiri stated that his daughter Shakira used the name Delawar because she was interested in using it but his sons dislike the name. He stated that he was unable to say whether his daughter’s name appeared in any documents, but verbally he had mentioned her. In cross-examination, Mr Amiri stated she was not listed in the application because ‘she is responsible for herself’.
When asked how the Iranian authorities identified him, Mr Amiri stated that he told them he was Mohammad Ali Amiri but ‘they said’ Delawar: ‘people would call me that’. Mr Amiri was unable to confirm what family names had been used in family passports or where different passports had been issued. He was unable to recall obtaining his marriage certificate.
Other witnesses
Ms Shakira Delawar gave evidence that when registering as a refugee in Iran she was in a line with her family. Her father was called for registration in the following way: ‘Mr Delawar, you can go now’. She stated she was with her father in Iran when he obtained his marriage certificate. Ms Delawar stated that she chooses to use the family name Delawar as she likes its meaning of ‘brave’. In her opinion, her name was not listed with other family in documents because she was not living with him when his citizenship application was made. Ms Delawar told him not to include her name, as she is separate from the family. Ms Delawar stated that she lives with her father and that he wakes at night screaming and calls his son Mustafa’s name. She said he is not well.
In cross-examination, Ms Delawar was asked why her taskera and its translated version bore different photographs. She responded that the document was translated in Afghanistan and she was not aware of the need to provide a photo. Ms Delawar was asked about the issuing of her father’s marriage certificate in Iran, and she responded that she could not remember much about the process but that he had his travel documents with him and she was not at the Embassy at the time.
Ms Layla Ekhlasi gave evidence that she had known Mr Amiri for 25-30 years as he was a ‘son-in-law to a village near her village’. She has not seen Mr Amiri for a long time and was not aware of his health situation. Ms Ekhlasi stated when asked that she saw Mr Amiri prior to his daughter’s marriage to her son.
Ms Ekhlasi confirmed in cross-examination to that she knew Mr Amiri from the 1980’s, as stated in her Statutory Declaration (Exhibit A1). I sought clarification of the time her son had married Mr Amiri’s daughter and Ms Ekhlasi stated this was in around 2010-2012. She stated that she did not arrange the marriage, her son did. Ms Ekhlasi restated that she knew Mr Amiri before this time, but she could not recall exactly when she had met him.
Mr Reza Ekhlasi stated that he is married to Mr Amiri’s daughter and first met him in 2008 when he travelled to Iran. At that time, Mr Amiri’s health was better and he associated more with people. He confirmed that Mr Amiri lives with him and stated that Mr Amiri has problems with his memory and has depression.
Mr Rezaie gave evidence that he knew Mr Amiri from spending three months together in the same room in Indonesia. He understood Mr Amiri had a problem and was seeing a doctor but did not mention it to him. Mr Rezaie knew him by the name Mohammad Ali Amiri. In cross-examination, Mr Rezaie stated that he did not recall the first time he met Mr Amiri, however he stated that Mr Amiri’s wife is from Mr Rezaie’s village and identified himself as someone’s son-in-law when they met.
Dr Fariba Kavianpour, clinical psychologist, stated that she had been treating Mr Amiri since 2013. Dr Kavianpour confirmed the contents of reports dated February 2018 (Exhibit A1), and August 2019 (Exhibit A7).
Dr Kavianpour stated in evidence that she considered Mr Amiri could have made mistakes about his name and date of birth given the context of his trauma and memory loss. Dr Kavianpour stated that Mr Amiri has PTSD and major depression and has been on medication throughout the time she has been treating him. While the symptoms have subsided, his long term and short term memory are very bad. Mr Amiri has to check information with family members due to his memory problems, and he gives inconsistent information. An example of this is the fact that he previously reported to Dr Kavianpour that his brother drowned on the same boat trip that Mr Amiri took, when in fact this occurred at another time.
Dr Kavianpour stated that Mr Amiri’s mental state is worse following the citizenship decision, since he will not be able to sponsor his family. She understood that he adopted the name Delawar after his escape from the Taliban. I informed Dr Kavianpour that Mr Amiri stated in evidence that he was given the name as a child, and she responded that she could not explain this, and that Mr Amiri experienced confusion.
In cross-examination Dr Kavianpour was asked to state how she could be certain of Mr Amiri’s condition on arrival in 2012. Dr Kavianpour replied that she ‘can guess’ that it was probably much worse at that time, following his time in Indonesia, based on her professional experience. Dr Kavianpour stated that a major stress factor for Mr Amiri is that his wife and other children are living as refugees elsewhere.
When asked whether Mr Amiri’s condition was such that he might fail to remember his name, Dr Kavianpour replied ‘not now’. She stated that the use of a name is a choice but that Mr Amiri was also not aware of the significance within this legal system. In re-examination, Dr Kavianpour stated that his misidentification on arrival was not a memory problem but a result of not eating and that people in refugee camps can be ‘misadvised’.
CONSIDERATIONS
There is a single issue before me, which is whether I can be satisfied of Mr Amiri’s identity. The decision of the Tribunal in Dhayakpa & Minister for Immigration and Border Protection [2015] AATA 310 states, correctly, that the legislation does not require identity to be established by the production of documentation, but that identity, rather, needs to be established to the satisfaction of the Tribunal (at [117]).
The following contentions were made on the Applicant’s behalf:
(a)Ms Shakira Delawar’s taskera was issued based on her father’s taskera;
(b)the procedure for issuing taskeras to Afghans living abroad is described in a document titled ‘Access to Tazkera and other civil documentation in Afghanistan’[4] and, in summary, this requires Afghans to return to their place of origin, noting that consular sections in embassies are able to process passport applications only;
(c)further, the Afghan Embassy in Australia advises those seeking an ‘absentee tazkira’ that an application may be submitted via the embassy but that any taskera will be issued ultimately by the Afghanistan Central Civil Registration Authority to a nominated relative in Afghanistan;[5]
(d)the Applicant’s family name Amiri was not used in his original 1965 registration ‘because cultural norms in Afghanistan did not require a citizen’s surname/family name to be recorded on their Tazkiras’;
(e)the family name Amiri was added to the Applicant’s second tazkira based on his Australian travel document;
(f)it is not unusual to find clerical errors in legal documents in Afghanistan and these do not affect the veracity of the documents;
(g)based on the evidence of Dr Kavianpour, Mr Amiri was suffering PTSD on arrival in Australia and the information he initially provided was the product of poor mental health and he has no other motive for doing so;
(h)the evidence of Ms Ekhlasi, Mr Rezai and Mr Rahimi demonstrates the Applicant’s identity as Mohammad Ali Amiri; and
(i)the passports of Mr Amiri’s wife and sons were changed to the family name Amiri and the documentary history ‘confirms [his] identity from his life story’s perspective and proves he uses different names in the circumstances, beyond his control and due to lack of his understanding of significance of names and so has his wife and children [sic]’.
[4] This report states that it was written and researched by Samuel Hall, a consultancy, and the Norwegian Refugee Council, and in addition to studying issues with a range of documents for different Afghan communities, it makes policy recommendations about access to official documents.
[5] See Absentee Tazkira at type="1">
On behalf of the Respondent it was submitted that inconsistencies in the Applicant’s life story mean that it is not possible to be satisfied as to his identity. The inconsistencies are particularly relevant, it is contended, because Mr Amiri’s re-issued taskera is unreliable as it was issued while he was in Australia, without him being present. It is also submitted that little weight should be placed on this document due to the prevalence of document fraud in Afghanistan, as highlighted in the Department of Foreign Affairs and Trade (DFAT) Country Information Report Afghanistan.[6] Nonetheless, the Respondent has conceded that this document has been verified by the Afghan authorities (T2, p13), a point also reinforced in its closing submission.
[6] The current version of this report, dated 27 June 2019, is found at >
It is further contended that the taskera is the first document, other than Australian identity documents, bearing the name Mohammad Ali Amiri, but appears to have been issued in circumstances not consistent with the relevant procedures, and the family name Amiri is not part of his original identity registration record. Documents pre-dating the taskera also disclose several other names and dates of birth inconsistent with this identity.
It is also contended that the documents of family members provided by Mr Amiri do not assist:
(a)documents said to be issued based on Mr Amiri’s taskera are of the same limited reliability;
(b)taskeras for Mr Amiri’s sons were issued in 2013 while his own document was said to be lost and the procedure for their issue has not been stated;
(c)Ms Shakira Delawar’s taskera is said to be issued on the basis of her father’s, however her document states the reference of Mr Amiri’s taskera as volume 32, page 22, registration number 109, whereas Mr Amiri’s taskera cites volume 32, page 23, registration number 109, and taskeras for his sons refer to volume 32, page 22, registration number 108;
(d)passports were issued to sons of Mr Amiri in 2013 with the name Amiri, and later in 2016 with the name Delawar;
(e)little weight should be placed on other Iranian documents and the UNHCR Registration Card due to inconsistencies in names and dates of birth; and
(f)statutory declarations provided by persons who met Mr Amiri in Australia do not assist in establishing his identity prior to this time.
In relation to Mr Amiri’s life story, it is submitted that Dr Kavianpour confirmed that the Applicant’s condition would not cause him to forget his name on arrival. Further, her reports are based on self-reported information from Mr Amiri and should be given limited weight. With respect to Mr Amiri’s own evidence, it was inconsistent as to the use or adoption of the name Delawar.
Finally, it was submitted that Mr Amiri was unable to explain adequately why he has chosen on a number of occasions not to disclose the history of use of the family name Delawar when providing information to the Department.
Some of these submissions require further elaboration. The name on Mr Amiri’s UN identity card is Mohammad Ali, with no family name, and it carries a certain date of birth in 1962 (T9, p 69). In his statutory declaration (Exhibit A2) and in his evidence Mr Amiri states that the date was mistranslated by an interpreter. Mr Amiri’s Iranian residence and work permits (T16, pp 145-146) bear the name Mohammad Delawar, and the date of birth on his work permit is a certain date in 1961.
The supporting statutory declarations referred to above (from persons not otherwise witnesses) are:
(a)Annemarie Lochery, dated 6 October 2018 (Exhibit A1), which states that she has known Mr Amiri for five years;
(b)Bakhtawar Ahmadi, dated 14 October 2018 (Exhibit A1), which states that he has known Mr Amiri since 2012 (but does not state the location or circumstances); and
(c)Abdul Latief Hashimi, dated 14 October 2018 (Exhibit A1), which states that he has known Mr Amiri since 2012 (but does not state the location or circumstances).
These declarations read primarily as character references and do not address identity issues as such.
A further statement from Rahmat Ali Hussaini of Tehran (undated) (Exhibit A1) states that he has known Mr Amiri for many years as they were acquaintances in Afghanistan and that the Applicant used the name Delawar while in Iran.
Statutory declarations from Layla Ekhlasi, dated 20 November 2018 (Exhibit A1) and Reza Ekhlasi, dated 14 October 2018 (Exhibit A1) are broadly consistent with their evidence at the hearing.
Additional medical information forms parts of Exhibit A1. A GP Mental Health Care Plan, dated 24 April 2013, lists his presenting issues as severe depression, anxiety and PTSD. It states that Mr Amiri received specialist mental health care ‘when he was in Camp’. In relation to personal history the document states:
Problem started after Taliban war over the last 8 years. He was in prison. They hurt him & threaten him. He had to leave the country after escaping from the Taliban prison. Sent his family to Iran. Immigrated to Australia.
A referral to Dr Kavianpour, dated 29 April 2013, requests psychotherapy. A Centrelink Medical Certificate completed by Dr Zahra Tabrizi, dated 18 March 2014, diagnoses: major depression with date of onset 1 June 2012; musculoskeletal sequels [which I read as ‘sequelae’] ‘after Taliban attack’ with date of onset 1 November 2004; and, ‘R Kidney removed after trauma’ with date of onset 15 July 2004. A report of Dr Marita Carman, general practitioner, dated 19 September 2017, records past history as including tibial shaft fracture with open reduction/fixation seven years ago with the condition appearing to have been first recorded 7 March 2013. A report of Capital Radiology dated 5 March 2013 observes ‘leg fracture 7 years ago’.
In his statutory declaration, dated 15 February 2019 (Exhibit A2), Mr Amiri provides details about aspects of his history not addressed in evidence at the hearing. Mr Amiri states his places of residence as follows (at [21]):
(a)1965-1997, Afghanistan, under the name Amiri;
(b)1997-2002, Esfahan, Iran, under the name Delawar;
(c)2002-2004, Afghanistan, under the name Amiri;
(d)2004-2005, a few months in Quetta, Pakistan, with no family name provided;
(e)2005-2010, Esfahan, Iran, under the name Delawar; and
(f)2010-2012, Indonesia, with no family name stated.
No explanation is provided in this declaration about the reason why he used the name Delawar while in Iran. A further statutory declaration by Mr Amiri, dated 30 July 2018 (T16, pp134-140), includes explanations for use of the name Delawar, and provision of his brother’s name on arrival in Australia, which are consistent with his evidence at the hearing. It also addresses a range of possible inconsistencies in birth dates for various family members in different documents.
Findings
The translation of Mr Amiri’s reissued taskera does not itself clarify its provenance, for example, there appears to be no reference to place of issue. Having said that, the translation states ‘Price: 10 Afghani’ which might be read as indicating that it was issued in Afghanistan. I have Mr Amiri’s evidence that he asked his sons, then living in Iran, to arrange for the issuing of the taskera, but I appear to have no other written or oral evidence substantiating the circumstances under which the document was procured.
I accept that Mr Amiri’s re-issued taskera has been verified by the Afghan authorities, although I have not been provided with material evidencing the circumstances of this verification. Notwithstanding what I take to be its later verification, the Respondent has submitted that the document should not be relied upon. There appears to be good grounds on which to exercise caution. The evidence is clearly that the document was not issued to the Applicant in person, which may be contrary to the procedural requirements as outlined in the submissions on behalf of the Applicant. Without further evidence about the circumstances in which it was issued, and in the face of its verification, this issue is difficult to resolve.
This is particularly relevant because Mr Amiri’s original official registration does not state a family name at all. Thus there is no official Afghan documentation of any kind before me demonstrating that Mr Amiri bore that family name, or any family name, prior to the re-issuing of his taskera. The earliest official documents I have are Iranian work and residence permits indicating the Applicant was known as Mohammad Delawar prior to the reissue of his taskera. I accept that Shakira Delawar’s taskera may have been issued on the basis of her father’s original registration information, but her taskera bears the name Delawar, and cites her father’s name only as ‘Mohammad Ali’. It does not support a finding that Mr Amiri’s taskera is a reliable form of identity.
The evidence demonstrates that there are instances of inaccurate cross-referencing among the taskera of family members, as the page and registration number cited on taskeras for the children differ from the original reference. These errors appear to be minor, but this situation only adds confusion to an already complex picture. As seen from the table above, Mr Amiri’s wife and children have had Afghan identity documents bearing no family name, as well as passports issued in the same year under the name Amiri. Two of the children have had passports later issued with the family name Delawar, followed some years later with passports issued in the name Amiri. I am uncertain as to when, in what circumstances, and on what evidence, the marriage certificate issued in the name Mohammad Ali Amiri was produced.
There are conflicting stories as to the significance and origin of the name Delawar. I accept that this name has somehow come to be in use for Mr Amiri and his family, at least until the most recent Afghan documentation issued to family members. I accept, on the basis of documents said to be translations of Iranian middle school completion certificates for Mr Amiri’s sons (T16, pp 147-149), that the sons, at least, are known in Iran presently by the family name Amiri (since the certificates reference exam results of June 2018). I do not consider that the continuing use of the name by his daughter is necessarily determinative, or that it weighs in particular against the Applicant.
Much has been made of Mr Amiri’s initial use of his late brother’s name on arrival in 2012. In one sense this counts slightly in favour of Mr Amiri’s asserted identity. This is only in the very limited sense that it demonstrates use of the family name Amiri. Beyond this, I consider that the use of an entirely different first name and birth date is a major aberration which makes the task of determining his identity very difficult, in and of itself. Mr Amiri corrected this relatively quickly, however consistency in the use of Amiri by the Applicant after 2012, while in Australia, does not cure the uncertainty. It is the cause of the uncertainty.
It has been submitted that a medical condition can explain the aberration. I accept that it is quite likely that Mr Amiri may have been in an unfit state of some sort on arrival. I accept that he received mental health treatment after arrival. However, I am not satisfied that his state on arrival necessarily resolves the issue. This is because Mr Amiri was able to make the correction, and went on to engage in a quite detailed and relatively lengthy arrival interview within a few weeks of arrival.
I accept that Mr Amiri has received reasonably extensive mental health treatment since arrival. From my reading of the evidence his condition has improved although his presentation at the hearing demonstrated at the very least that he may have memory problems, and I also accept he is a man of limited literacy. However, I also consider the evidence to show that Mr Amiri has had assistance in the completion of official documents. In completing documents he has been given the opportunity to clarify aspects of his personal history and appears not to have done so. Thus, declarations were not made about the use of the name Delawar, and a conscious choice was made not to refer to his daughter, who continues to bear this name, albeit Mr Amiri considers her as separate from his family now.
There is a relevant issue of life story or broader context that is revealed by the documentation. There is a consistent record of family heritage which was further reinforced by Mr Amiri’s evidence at the hearing. Despite embracing the name Delawar at times, Mr Amiri stated that he was proud of his family heritage. This is found in numerous documents which declare that Mr Amiri is the son of Salman Ali, grandson of Amir Mohammad. Their grandfather’s name is also cited in the children’s taskeras.
It has been submitted that I should accept personal attestation that the Applicant was known by the family name Amiri in Afghanistan. There is only one clear source of this which is the evidence of Ms Ekhlasi, who is the mother-in-law of Mr Amiri’s daughter. Her statutory declaration deals principally with the circumstances of her son’s marriage to Mr Amiri’s daughter. However it also states, as reiterated in her evidence, that she at least knew of Mr Amiri in Afhganistan some decades ago. This evidence weighs somewhat in favour of Mr Amiri’s stated identity.
Mr Ekhlasi said in evidence that he met the Applicant in Afghanistan approximately 12 years ago but his evidence was not explicit as to the use of the family name. Mr Rezaie appeared to state in evidence that he knew the Applicant in Indonesia as Amiri, or that he knew the family.
Summary
I am unable to place significant weight on Mr Amiri’s taskera. The official verification of this document by authorities is outweighed by the range and number of contradictory official documents. While I accept that the large amount of additional documentary evidence has been provided in good faith, it tends to only reinforce the need for a clear explanation for the variations in family name. I am not satisfied that there is such an explanation available on the material before me.
Equally, I am unable to place significant weight upon the evidence or other testimony advanced based on personal relationships with Mr Amiri. The direct knowledge of Mr Amiri in Afghanistan is limited to one clear statement from a witness with a family connection with the Applicant. I do not consider the evidence of Mr Ekhlasi and Mr Rezaie to be sufficiently persuasive to speak clearly in relation to this issue. In the context of the evidence overall, I do not consider this personal testimony to be sufficiently robust to outweigh the countervailing material.
I accept that the policy guidance referred to above indicates that it may be acceptable to pursue a notion of identity that is somewhat fluid and contextual. I also accept the evidence and submissions on behalf of Mr Amiri regarding the rather limited attachment in Afghan tradition to family names as such. Nonetheless, what does not emerge very clearly from the evidence is a coherent narrative about the choices that have in fact been made from time to time regarding the adoption and deployment of two different family names.
I do not consider this to be the result of Mr Amiri’s prior medical issues, or present medical state or general mental acuity. This matter does not appear, either, to involve an attempt to conceal an identity and no such submission was put. It is, rather, the profusion of material pointing to contradictory identities that prevents a positive finding in relation to Mr Amiri’s professed identity now.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
....................[sgd]...........................................
Associate
Dated: 8 April 2020
Date of hearing: 9 December 2019 Advocates for the Applicant: Ms N. Nahida & Mr M. Ali Raza
Ozimmi SolutionsSolicitors for the Respondent: Mr S. Hunter
Sparke Helmore
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