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

[2020] AATA 1155

Bayat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1155 (6 May 2020)

Division:GENERAL DIVISION

File Number:          2019/0533

Re:Mr Mohammad Bayat

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO Member

Date:6 May 2020

Place:Melbourne

The Tribunal sets aside the decision of the Delegate dated 8 January 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, that it is satisfied of the Applicant’s identity.

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

Ms Anna Burke, AO Member

Catchwords

CITIZENSHIP – refusal of approval for Australian citizenship by conferral – Applicant Afghani national – whether satisfied of identity of applicant – inconsistent information in various visa applications regarding identity, family composition, residence history, occupation – identity documents include Afghan passport and Taskera – Taskera not assessed for genuineness – consideration of DFAT Country Information Report – whether the application for citizenship should be approved – life story remained consistent – Tribunal satisfied of identity – decision under review set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Migration Act 1958 (Cth)

Cases
Re Fenn v Minister for Immigration and Ethnic Affairs [2000] AATA 931

Secondary Materials
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

Department of Foreign Affairs and Trade, Country Information Report: Afghanistan

REASONS FOR DECISION

Ms Anna Burke AO Member

6 May 2020

INTRODUCTION

1. Mr Bayat is a 54 year old Afghani national who arrived in Australia on a Spouse (provisional) (subclass 309) visa sponsored by his then wife Ms Adela Shamshir, an Australia citizen. On 29 August 2012, Mr Bayat was granted a permanent Spouse (subclass 100) visa. Mr Bayat has two children who are Australian citizens, a son born in 2012 and a daughter born in 2014. Mr Bayat separated from his wife around 2015. Since arriving in Australia Mr Bayat has been involved in running numerous businesses including a local Supermarket and timber recycle facility.

2. On 22 September 2014, Mr Bayat lodged an application for Australian citizenship by conferral. In February 2015, Mr Bayat sat and passed his Australian citizenship test.       On 12 January 2018, a Delegate from the Department of Immigration and Border Protection (the Department) (as the Department then was) wrote to Mr Bayat, requesting documentation be provided to satisfy the Minister of his identity.

3. On 22 January 2018, Mr Bayat is recorded as having attended the Melbourne citizenship reception desk to provide additional identity information as requested including his Afghanistan Diving Licence and Passport.

4. On 22 October 2018, the Department sent a letter inviting Mr Bayat to comment on adverse information regarding his application for citizenship by conferral. The Delegate stated:

   Departmental records indicate that throughout your engagement with the Department over a period of 14 years, you have made inconsistent declarations regarding your identity, family composition, residence history, occupation and previous visa applications.

   On 23 July 2004 and on 10 August 2005 respectively, you made two applications for a Prospective Marriage (subclass 300) visa using the names Mohammed Wali ZAWAR ALI and Mohammed Zawar Ali WALI (born 30/12/1965) which is inconsistent with your claimed identity since arriving in Australia.

   You have failed to disclose these previous attempts to migrate to Australia.

   There are significant discrepancies in the family composition you declared throughout your dealings with the Department.

   In your first application for a Prospective Marriage visa you declared that your parents were alive and living Afghanistan. You also declared that you had two brothers, both living in Pakistan. This contradicts information you provided to the Department in your spouse Visa application, in which you declared that your parents were both deceased and that you had no siblings.

   …

   In your Prospective Marriage visa applications you claimed that you resided in the UAE, since 1996. This contradicts information you provided in your Spouse visa application, your Australian citizenship application and when you attended the Melbourne Citizenship office on 22 January 2018, where you declared to have resided in the UAE since 2008.

   …..

   This directly contradicts your statement made on 22 January 2018 at the Melbourne Citizenship office whereby you submitted that you resided in Afghanistan until 2008 and never travelled to any other country prior to this time or had a passport issued prior to 2008.

   Given these concerns I cannot, at this point in time, reach a reasonable level of satisfaction with respect to your claim identity.

   The discrepancies and false information you have provided during your dealings with the Department also calls into question your character, and I may find that you do not satisfy the good character requirement.

5. On 8 January 2019, a delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act), as the Department was prohibited from approving the application as the Delegate was unable to be satisfied of the Applicant’s identity. The delegate stated:

   I have real concerns regarding the general credibility of your claims and I place considerable weight on your failure to declare that you had previously been refused two visas to come to Australia, and on the evidence which suggests that you have not been truthful with the Department. Further, you have provided false and misleading information in regards to your family composition (names, date of birth and status of family members), identity, places of residence, immigration and employment history.

   I have formed the view that these inconsistencies and false declarations disclose purposeful deception as to the most critical elements of your life story (notably the conflicting declarations regarding your family composition and places of residence).

   …

   After weighing up all the information available to me I cannot be satisfied of your identity to the level expected for the purposes of conferral of Australian citizenship.

6. On 1 February 2019, the Applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal stating: “The decision is incorrect because the applicant’s material facts and circumstances were not given proper consideration to ascertain the applicant’s identity.”

7. At the hearing, Mr Bayat was self-represented and assisted by an interpreter in Pushto.  Mr Adam Ray, solicitor of Clayton Utz Lawyers, appeared on behalf of the Respondent. At the conclusion of the hearing, Mr Bayat was requested to submit his Taskera, with a translated copy for consideration by the Department. The Respondent did not advise if the document was considered to be genuine but consented to proceed to the conclusion of the matter, which has been conducted on the papers.

   ISSUE FOR THE TRIBUNAL

8. The issue is whether the Tribunal is satisfied of Mr Bayat’s identity to fulfil the requirements of s 24(3) of the Act.

   LEGISLATIVE AND POLICY BACKGROUND

9. Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:

   General eligibility

   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)       is aged 18 or over at the time the person made the application; and

   (b)       is a permanent resident:

   (i)        at the time the person made the application; and

   (ii)       at the time of the Minister’s decision on the application; and

   (c)       satisfies the general residence requirement (see section 22) or the    special residence requirement (see section 22A or 22B), or satisfies   the defence service requirement (see section 23), at the time the   person made the application; and

   (d)       understands the nature of an application under subsection (1); and

   (e)       possesses a basic knowledge of the English language; and

   (f)        has an adequate knowledge of Australia and of the responsibilities    and privileges of Australian citizenship; and

   (g)       is likely to reside, or to continue to reside, in Australia or to maintain    a close and continuing association with Australia if the application   were to be approved; and

   (h)       is of good character at the time of the Minister’s decision on the    application.

10. Section 24 of the Act provides, in part:

    Minister's decision

    (1)     If a person makes an application under section 21, the Minister must, by    writing, approve or refuse to approve the person becoming an Australian    citizen.

    …

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

    ....

    (3)       The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
    
    

11. Section 25 of the Act provides, in part:

    Minister may cancel approval

    (1)  The Minister may, by writing, cancel an approval given to a person under section 24 if:

    (a)       the person has not become an Australian citizen under section 28;   and

    (b)       either of the following 2 situations apply.

    Eligibility criteria not met

    (2)  The first situation applies if:

    (a)       the person is covered by subsection 21(2), (3) or (4); and

    (b)       the Minister is satisfied that, at the time the Minister proposes to                   cancel the approval, the person is:

    (i)        not a permanent resident; or

    (ii)       not likely to reside, or to continue to reside, in Australia or to               maintain a close and continuing association with Australia;   or

    (iii)       not of good character.

12. The stated role of the Australian Citizenship Policy (the Policy) is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth).

    EVIDENCE

13. The evidence before the Tribunal included two sets of documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), referred to as the “T documents” and the “Supplementary T documents”. The Applicant lodged a witness statement and additional identity documents including a Tazerka (Afghani identity document).

14. The Department of Foreign Affairs and Trade Country Information Report for Afghanistan    (the DFAT Afghan Report) provides the best judgement and assessment of the country at the time, based on credible sources of information. It provided an overview of Afghan documentation as follows:

    The National Statistics and Information Authority (NSIA) is the authority responsible for issuing taskiras…

    The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras.

    Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.

    The MOI’s Passport Directorate in Kabul is responsible for the issuance of passports, which are machine-readable. Requirements for adult passport applicants are a valid taskira and a number of passport photographs. The applicant’s fingerprints are digitally recorded and entered into a database. Provincial passport offices located throughout the country print and issue passports. Passports contain information on the bearer’s first name, surname (or father’s name), occupation, photograph, date and place of birth, date of issue, and expiry date. They do not contain information about the bearer’s religion or ethnicity. Passports have a five-year validity period. Diplomatic missions can issue passports to Afghans based abroad.

15. A document examination case report undertaken by the Department dated 5 February 2018 in respect of Mr Bayat’s Afghani Drivers Licence and Passport found:

    Document 1: Afghanistan Driving Licence – No 89502

    It is my opinion that the quality of the security limits the availability to determine whether this is a legitimately manufactured and issued document. The result is inconclusive.

    Document 2: Afghanistan Passport – No OR350218

    It is my opinion that this is a legitimately manufactured document, issued in an appropriate manner with no fraudulent alteration.

16. A Facial imaging comparison report was completed by the Department on   20 August 2018. The report compared Mr Bayat’s image with two other images and found in respect of both questioned images: The facial images have been compared and I am of the opinion that there are indications that they represent the same person.

17. The delegate’s refusal letter of 8 January 2019 outlines the findings of the facial imaging matching undertaken by the Department. The letter states:

    Facial image match

    The facial image you provided as part of your Spouse Visa application has been matched by a facial comparison expert to the facial images provided with two Prospective Marriage (subclass 300) visa applications lodged on 23 July 2004 and 10 August 2005. Your image has matched with two separate identities, that of Mohammed Wali ZAWAR ALI (born 30 December 1965) and Mohammed Wali BAYAT (born 8 August 1965).

    Prospective Marriage (subclass 300) visa application dated 23 July 2004

    On 23 July 2004 you made an application for a Prospective Marriage visa sponsored by your fiancé, Betka GORJIJESKI (born 21 October 1975). Your facial image, and the following biographical details were used in this application: Mohammed Wali ZAWAR ALI (born 30 December 1965) an Afghani citizen born in Logar, Afghanistan.

    You listed the following family members with this application:

    ·Father:            Pordel SAMSHIR, no date of birth – living in Afghanistan

    ·Mother:           Marian SAMSHIR, no date of birth – living in Afghanistan

    ·Brothers:         Histahan SAMSHIR, no date birth – living in Pakistan

    Mohamad SAMSHIR, no date of birth – living in Pakistan

    I note, however then in Form 80 – Personal particulars for character assessment, provided with your application, your parents’ biodata and status differ significantly from the biodata you declared on your Vvsa application. Namely:

    ·Father:            Zawar Ali WALI, no date of birth – deceased

    ·Mother:           Fatema WALI, no date of birth – deceased

    The application indicated that in 1996 you left Afghanistan and that you had been residing (and working as a Civil Engineer) in Abu Dhabi in the United Arab Emirates (UAE) since that time. You submitted an Afghan passport (number OR1942909) issued on 23 March 2003 at the Afghan Embassy in Abu Dhabi in the name of Mohammed WALI (born 1 January 1965).

    On 17 October 2004 this application was refused.

    Prospective Marriage (subclass 300) visa application

    On 10 August 2005 you made a second application for a Prospective Marriage visa, sponsored by Betka GORJIJESKI. Your facial image and the following biographical details were used in this application: Mohammed Zawar ALI WALI (born 30 December 1965).

    Your place of birth, nationality and country of residence were consistent with the information you declared in your previous Prospective Marriage visa application. You listed the following family members with this application:

    ·Father:            Zawar Ali WALI, no date of birth – no place of residence    stated

    ·Mother:           Saheba SOLOTA, no date of birth – no place of residence    stated

    ·Siblings:          Nil

    You provided a letter 11 June 2005 from the Afghan Embassy in Abu Dhabi, UAE, stating “This is to certify that Mr Mohammed Wali s/o Zorwali holder of Afghan national passport no:OR 1942909, was born in logar province of Afghanistan on 30/12/1965. This letter was given to him on his demand, without undertaking any responsibility by the embassy.” (sic)

    On 20 June 2006 this application was refused

    Spousal (Provisional) (subclass 309) visa application

    On 17 September 2010 you arrived on Spouse visa sponsored by your spouse, Adela SHAMSHIR (born 5 May 1973). You were grant this visa on   6 September 2010 on the basis of the following identity: Mohammed Wali BAYAT, born 8 August 1965.

    In your application form, signed by you on 16 October 2009, you indicated you are an Afghan citizen, born in Raisan, Khoshi district, Logar Province, Afghanistan. You further declared that you resided in Afghanistan until March 2008 when you relocated to the UAE.

    You listed the following family members with this application.

    ·Father:            Zawar Ali BAYAT, no date of birth – deceased

    ·Mother:           Sultan Zari BAYAT, no date of birth – deceased

    ·Siblings:          Nil

    You provided a birth certificate issued on 19 March 2009 by the Afghan Consulate General in Dubai, UAE. The document states: “This is to certify that Mohammad Wali Bayat S/Zavaar Ali Bayat Citizen of Afghanistan was born in Logar on 08/08/1965. This certificate has been issued upon his demand’s without undertaking any responsibility by this Consulate General. The certificate validates only in the UAE” (sic).

    You also submitted an Afghan passport number (OR350218), issued on                 7 January 2008 in Logar, Afghanistan in the name of M. Wali BAYAT (born 8 August 1965).

18. Mr Bayat provided a witness statement dated 30 May 2019 in which he asserts:

    1.        My name is Mohammed Wali Bayat and my date of birth is 8 August 1965   born in Logar Province, Afghanistan.

    …

    6.        In relation to the previous prospective marriage visa applications that were   not declared I say that the person who was assisting me in United Arab   Emirates did not let me know that I had to declare previous applications.

    7.        In relation to the reference to Mohammad Wali Zawar Ali in the prospective           marriage visa application made on 23 July 2004, I say that Mohammad   Wali Zawar Ali meant Mohammad Wali son of Zawar Ali. My father’s name                  is Zawar Ali. Pordel was not my father, he was my grandfather (father’s   father). My mother’s name is Sultan Zari. I have no brothers and sisters.   Bayat is like our family name. There are 3 or 4 million Bayat’s in   Afghanistan.

    8.        In relation to the reference to Mohammad Zawar Ali Wali in the prospective           marriage visa application made on 10 August 2005, I say that my name   order including my father’s name may have been mixed up by the person   assisting me.

    9.        In relation to different dates of birth, I say that this is due to the fact that                 Afghan nationals usually do not record an official date of births. The year of   birth is the same throughout the applications.

    10.      In relation to the date I left Afghanistan and came to the United Arab    Emirates I say that the first time I left Afghanistan and came to the UAE   was in 1996 and I then moved back to Afghanistan and came back to the   UAE in 2008.

    11.      In relation to the interview on 22 January 2018, I try to answer the    questions. There may have been a misunderstanding. I am an uneducated   person and I do not speak English very well. I need an interpreter.

    12.      In relation to the discrepancy in relation to my occupation I say that I am a             carpenter. I did a bit of part time second hand car dealing in UAE. In the   UAE I worked for a business as the manager or supervisor.

    13.      In relation to the discrepancies and errors in past applications, I say that   the persons who was assisting me in the United Arab Emirates did not   complete the forms properly. The persons were not professional or official   persons.

    14.      In Afghanistan the documentation is not developed. Information was    recorded based on information provided and in handwriting. Only recently,   Afghanistan has introduced machine-readable computerised passports.

    CONSIDERATION

    Identity

1. On 30 May 2019, Mr Bayat’s then legal representative filed a Statement of Facts and Contentions with the Tribunal in which they contended:

   15.      …that the tribunal should be satisfied of his [Mr Bayat’s) identity on the   basis of his Afghani identity documents including Taskera, Afghan   passport, Afghan driver’s licence, Afghan birth certificate and his evidence                that will be given to the Tribunal.

   3.        The Taskera is a national identity document for Afghan Nationals and                    conclusive proof of identity to someone that holds a Taskera. The applicant   has given an explanation regarding the discrepancies and errors in past   visa applications. Given the applicant is an uneducated man who speaks   little English and the applicant’s good character in Australia, the applicant’s              identity should be accepted and he should not be denied the ability to apply                  for Australian citizenship.

2. The Respondent contended that the delegate’s decision to refuse Mr Bayat’s citizenship conferral should be affirmed as the Tribunal cannot be satisfied as to the Applicant’s identity, and as such the Minister is prohibited under the Act from accepting an application for  citizenship where he cannot be satisfied as to the applicant’s identity.

3. The Respondent based this contention on the basis that Mr Bayat’s application for citizenship lodged on 22 September 2014 in the name of Mohammed Wali Bayat contained biographical details including his name, place of birth, date of birth, passport number, the names of his parents and if they were alive, and if he had siblings. The Respondent noted that Mr Bayat made several declarations as to the existence of certain facts in his application. In the course of considering that application, the Respondent came across information that the Applicant had previously made in applications to the Department, and those applications also contained biographical details about the Applicant. The biographical details in the earlier applications were different from those in the application for citizenship.  They were different in a number of respects, including his name, the names of his parents and whether or not he had brothers.  The Respondent contented that Mr Bayat has not provided a cogent explanation of these differences for the Tribunal to be satisfied of his identity.

4. In addition to Mr Bayat’s witness statement, he also provided the following evidence during the hearing in respect of these inconsistencies in his former visa applications:

   (a)His name:

   MR RAY:  Mr Bayat, could I start by asking your name.

   INTERPRETER:  Mohammed Wali.

   MR RAY:  The name Mohammed Wali Bayat what does the Bayat mean in that name?

   INTERPRETER:  Bayat, there are about two million Bayats live in Afghanistan.  This is an ethnic group like Hazaras, like, you know, the other Tajik and all that.

   MR RAY:  This ethnic group Bayat do they come from a particular place in Afghanistan?

   INTERPRETER:  They are all over Afghanistan, they’re in Kabul, in Herat, Mazar.  They are spread all over various provinces of Afghanistan.  There are about, you know, in each province a thousand household, you know, here 1200 household there, you know.

   (b)His Taskera:

   MR RAY:  So you said that you obtained this Tazkira in Afghanistan when Karzai was president, is that right?

   INTERPRETER:  Yes.  Before that, there was no government there.

   MR RAY:  Where did you get the Tazkira?

   INTERPRETER:  In Kabul.

   MR RAY:  Were you living in Afghanistan at that time?

   INTERPRETER:  Yes, I was living in Kabul.

   INTERPRETER:  This was very important.  This was first time that the government was re-established, you know, everybody want to get this, you know, for if they want to make a passport, this is an essential part of that.  If you don’t have a Tazkira, you cannot apply for a licence, you cannot buy land, a land title, nothing.

   WITNESS:  Mohammed Waleed, my name.  Zawar Wali, father name.  Pordell, they have my father’s father name.

   (c)His siblings:

   MR RAY:  And do you have any brothers or sisters?

   INTERPRETER:  I don’t have brothers and sisters, but I have good friends like brothers.  I am a single person from my parent.  I don’t have blood related brother or sister.  We don’t have a blood – these are just, you know, like if you call somebody a brother, you just (indistinct).  They are not blood related to you, not biologically.

   MR RAY:  Can you give any explanation for how that information ended up on your application if you didn’t provide this information?

   INTERPRETER:  Yes, but you - when you, when someone submit an application of course you provide an address for that.  They asked me for basic information, your name, your address, your phone number.  And then they will (indistinct) in the application will be filled out, and you can get the application.  It’s not like you, you having a meeting with them, you know, to sit there.  They just grab your information until you - yes, they have like a (indistinct), you know, they tell you, you know, they did some information from you in last, they have a typing machine and they say just come tomorrow.  (Indistinct).  You can’t argue with them.  He says, we know what you’re doing.

   (d)His previous visa applications:

   MR RAY:  …In 2003, did you meet a woman on the internet?

   INTERPRETER:  Not on the internet, at Abu Dhabi on the beach.

   MR RAY:  What was that woman’s name?

   INTERPRETER:  I think Betty.  But then she disappeared.  She said we put in the form, but then she disappeared.  Then I also didn’t like, chase up.  I applied.  Because I didn’t speak English.  Yes, because we were on sign language, and then she also got kind of sick of it and she just left.

   MR RAY:  How long was it between the time that you met her and the time that she left?

   INTERPRETER:  Five, 10 days, it wasn’t that long.  But we – I got to know her, Betty.  She filled out the form.  They were also on a visit to Dubai, so he was not on a visit, she was on a visit to Dubai, and it’s very hot, you know, in the summer everybody goes to the beach.

   MR RAY:  Do you remember the name of the beach?

   INTERPRETER:  Abu Dhabi Corniche.  Corniche.

   MR RAY:  Do you remember when in 2003 you met her?

   INTERPRETER:  I can’t even remember, I can’t even confirm whether it was 2004 or 03, I don’t know.  Yes, well just like a short – knowing together, then after I didn’t chase it up.

   MR RAY:  Did you stay in touch with her?

   INTERPRETER:  No, we couldn’t understand each other.

   MR RAY:  So how was it that you came to make an application for migration to Australia in which she was your sponsor? 

   INTERPRETER:  She filled out the form.

   MR RAY:  Did she do that in the 10 days that you knew her in Abu Dhabi?

   INTERPRETER:  I had a car, you know, I took it different places and then she (indistinct).  Like we just had a laugh and all that, and she just was kind of interested in me.  There was another friend who spoke – who spoke good English, and he was just interpreting for me.  It was not any special thing, we were just – I knew it not going to happen, but she said no.

   MR RAY:  And so going now back to the first time you lived in Dubai, when you met Betty, I’ll ask you a question about that time.  Do you understand?  So you made an application for migration to Australia by a partner.  Do you remember making that application?

   INTERPRETER:  We stayed a few nights in a hotel, you know.  It’s - that’s why - but then after, because we could not communicate.  The communication, you know, she got kind of a lost interest in - and also lost all those paperwork.

   MR RAY:  Did you make the application - did you fill out the application form - at the Embassy?

   INTERPRETER:  Yes, we - I never heard of that, but we applied, you know, we paid the fee of that application fee.  I don’t know how much money it was but, I paid the visa fee.  Because I couldn’t speak English, I don’t know if she also, you know, changed her mind, or whatever.

   MR RAY:  Yes.  Just answer the question I ask you.  Don’t worry about the reason I might be asking it.  Did you give that person details about you to include in the application?

   INTERPRETER:  Yes, you just give them the document, like this, the Tazkira, the passport, everything and they fill it out.  They read the document.  You just hand over the document and from that document they fill out.

   MR RAY:  Do you remember giving your Tazkira to the person who filled this out?

   INTERPRETER:  I don’t know whether I gave my Tazkira, but passport I know I gave my passport.

   MR RAY:  And was Betty with you when you gave your documents to this person?

   INTERPRETER:  I think she was.  I can’t remember.  I forgot.

   MR RAY:  Well do you remember paying this person to fill out these forms?

   INTERPRETER:  But then it’s quite obvious.  They do with people, people don’t work for you for nothing.

   (e)Where he had resided:

   MR RAY:  So you worked in Dubai for Nassir Abdullah General Maintenance for eight or 10 years.   Is that right?

   INTERPRETER:  Yes.

   …

   MR RAY:  But you got married in Kabul?

   INTERPRETER:  Yes, they married in Kabul.

   MR RAY:  So how did you come to apply to come to Australia in Dubai?

   INTERPRETER:  Because Australia doesn’t have embassy in Afghanistan.

   MR RAY:  So did you travel to Dubai for the purpose of applying to come to Australia?

   INTERPRETER:  Yes, that’s for the purpose.  I went on a visit, then I have a visa.

   MR RAY:  So you got another visa for the UAE and you went to Dubai to apply for your visa to come to Australia.  Is that right?

   INTERPRETER:  Yes, he said he went there on a visit visa and stayed there for two years for the process of this Australian visa.  But then he got sick and that’s when at the end of this two years he went to India for treatment.  When I went to India, then the embassy transferred all my document to India.  From Dubai to India.

   MR RAY:  And the two years that you spent in Dubai, did you live with your wife during those two years?

   INTERPRETER:  No, my wife was in Australia.

   MR RAY:  So you got married in Kabul, then you went to Dubai, and then you went to India.  Is that right?

   INTERPRETER:  Yes.

   MR RAY:  And during the time you were in Dubai, your wife was in Australia.         Is that right?

   INTERPRETER:  Yes.

   MR RAY:  But then when you went to India, your wife came from Australia to India.  Is that right?

   INTERPRETER:  Yes, because I was sick at that time and she was - she wanted to visit me, you know, anxious, she was very, she was worried, you know.  At Delhi, she was also interviewed.  On the same day she was also interviewed at the Australian Embassy in Delhi.

   (f)His occupation:

   MR RAY:  So how did it come to be written on your passport that you were a civil engineer and director of a company if what the embassy knew about you was that you were only allowed to work as a driver?

   INTERPRETER:  I give an example.  You are a police officer.

   WITNESS:  Police officer.

   INTERPRETER:  One day you make a company for import and export.  But then your document will be still written that you are a police officer, regardless what you are doing now, but this is not forbidden, you know?  You still write, you know, what you - what you did before or what your current occupation is.  This was my occupation in Afghanistan.  It was, it will be and it was at the time.

   MR RAY:  I thought your occupation in Afghanistan was as a carpenter?

   WITNESS:  I’m carpenter, a specialist of the wood.  I’m engineer of the wood.  Understand?

   (g)His marriage:

   INTERPRETER:  He came from Australia on a visit.  We knew each other from childhood.  Someone told me that - the last time, we just went there to say hello to her, and she also came along with the daughter.  At that time I was also going on a visit to Dubai so I - I visited her a couple of times and then her daughter suggested that you - ‘My - my mother, she’s separated from her husband.  You - you know, you marry her’, so that at the beginning I said, ‘No, this is difficult, you know’, but later on it just worked out.  So that was destiny.

   MR RAY:  And so you married shortly after you met.  Is that right?

   INTERPRETER:  And she told me that her ex was a drug user and, you know, abusing and violent and so, because I was also of good character, I never use violence, and so she was very interested.

   MR RAY:  Did you marry her shortly after you met her?

   INTERPRETER:  Yes, about maybe three, four, five weeks, because we already knew each other.

5. Mr Bayat contended at the hearing, as he had when he attend the Melbourne Citizenship counter in January 2018, that his memory has been significantly affected by the stress he has been experiencing since his separation from his wife and this is compounding his ability to clarify his situation; stating:

   INTERPRETER:  ….My memory is not, you know, very good now, and I’m very stressed.  When I came here my wife wants to separated from me, so everything gone wrong.  When you separate from your wife, you know, life is different.  You know, you can’t even - you have access to seeing your children, but it’s not like when they live with you, you know, it’s different.  I have this choking feel, like somebody’s choking me.  I am very stressed, you know, and very anxious.  Sometime I park my car and I’m looking for my car, you know, where I parked it.  I have not committed any crime.  In my life I have not had even, you know, haven’t assaulted a person, you know, like I didn’t even had a fight with a person.  He says I am under oath, you know, and I can swear again that I have no - you know, ill intention or anything in these - in these matters.  This is - I am illiterate person, but this form was filled by another person, and before they just - in my previous passport they just copied whatever was in my Tazkira, Tazkira is the national ID card of Afghanistan, and they just copied from that into that passport. 

6. Mr Bayat contented that he is illiterate, does not speak English and did not understand the numerous forms he was completing or the questions he was being asked, advising the Tribunal:

   MR RAY:  And the application that you filled out after you got married did you fill that out yourself or did somebody help you?

   INTERPRETER:  None of these documents I have filled, none of them.  All of them is with another person who that’s his job, you know, filling out the applications.  We have no alternative, you know, I’m illiterate, we need to get these forms filled out.  You know, somebody you have to ask for someone to help.

   MR RAY:  Did you ask the person to read it to you?

   INTERPRETER:  No, no, but they say we know what we are doing, you know.  We just we already done our job, just go away.

   MR RAY:  So you have no understanding at all of any of the information in any of the documents you’ve provided to the Department of Immigration, is that right?

   INTERPRETER:  It’s not only me there is thousands of them, you know, like this, they just – you take it to somebody, he fills out this one, you give them the information and then from that information they fill out and you have no say in that, you just sign it.  They just tell you, you know, they point out like sign here and there and there.

   MR RAY:  So you have no understanding of the information contained in those documents?

   INTERPRETER:  Because that’s their duty we trust them, you know, we give them the information it’s based on trust.  You know, you just give this information to them.  That’s their job, you know, that’s what you do.  People apply to going to China, India, Dubai wherever, you know.

   MR RAY:  I want you to listen to the question I’m asking and then just answer this question.  Do you understand any of the information contained in the applications you have submitted to the Department of Immigration?

   INTERPRETER:  No, I don’t know.  I only provided my personal details to them, like my name, my father name, my address, my phone number.

7. The Respondent contended that whether the Applicant has deliberately misled the Department was not the issue before the Tribunal.  The Respondent argued the issue is whether the Tribunal can be satisfied as to the Applicant’s identity.  The Respondent’s contention was that irrespective of whether the Applicant deliberately misled the Department, the inconsistent details he has provided on his applications and his failure to declare certain matters such as previous visa applications which have been refused, creates significant doubt as to the Applicant’s identity. Therefore, the Respondent submitted that his application for citizenship should be refused.

8. The Respondent further contended that all of the instances relied upon by Mr Bayat in his oral evidence and witness statement creates doubt as to the authenticity of the Applicant's evidence and the cumulative effect of his evidence is that the Tribunal can have no confidence as to the Applicant's identity.

9. The Tribunal found that Mr Bayat has provided consistent information in respect of his spouse visa application granted on 29 August 2012, his application for citizenship lodged in 2014, his declaration of service lodged in 2015 and his Form 80 lodged in 2015.        The Tribunal found Mr Bayat has consistently declared to be Mohammed Wali Bayat born on 8 August 1965 in Logar Province, Afghanistan to Zavar Ali and Sultan Zari who are both deceased, and he had no siblings. In these applications he has stated he resided in Kabul from 2005 to 2008 working as a carpenter, from 2008 to 2010 as a car dealer in the United Arab Emirates (UAE), was in India in 2008, and from 2011 has resided in Australia operating various businesses.

10. The Tribunal finds that this information was corroborated by his Afghan passport, which the Department declared to be genuine, and his Taskera. The information in Mr Bayat’s Taskera is consistent with the information provided in his citizenship application and had been provided to the Department by his then lawyer prior to the Tribunal hearing, without the Department making any findings on its genuineness. The Tribunal accepts Mr Bayat’s Taskera is a genuine document on the basis of the DFAT Afghan Report which states that a valid Taskera is a requirement for the issuance of an adult passport. All this information points to Mr Bayat’s being whom he claims to be.

11. The Tribunal finds Mr Bayat had provided inconsistent information in respect of his residency as his witness statement to the Tribunal is inconsistent with his other declared applications. In his various applications he never indicated that he lived in the UAE prior to 2008. Additionally, Mr Bayat’s translated Taskera issued in 2002 states he is married and has four family members. Again this information is inconsistent with Mr Bayat’s life story.

12. Additionally, the complex and convoluted story he has provided for his two refused visas places doubt on Mr Bayat’s veracity as a witness. Mr Bayat stated in his first spouse visa application that he met Ms Gorjijesk, whom he refered to as Betty, via the internet. He advised the Tribunal that the internet was not a thing back then and furthermore could still not use it. He then told the Tribunal that he had met Betty on a beach and they later met in a café. Mr Bayat claimed he had met Betty in person around 2003 or 2004, but               Ms Gorjijesk’s travel records indicate that she was not out of Australia at this time. Again, there were large and glaring inconsistences in Mr Bayat’s recount of these applications which the Tribunal concludes reflected on his character, but not his identity.

13. Mr Bayat also provided advice to the Tribunal in respect of his marriage celebrations in Afghanistan that was inconsistent with that provided during his record of interview for his successful spouse visa application. These inconsistencies may be a matter of translation, but again point to the Tribunal’s finding Mr Bayat not be a credible witness.

14. The Tribunal utilised the three pillars methodology for assessing Mr Bayat’s identity in order to establish the veracity of his identity and to determine if it could reach the required level of satisfaction under the Act. The three pillars methodology being (1) documents (including biodata); (2) personal identifiers/biometrics and (3) life story, which can include amongst other things: any documented evidence of a person’s social footprint, family composition, ethnicity, nationality, place of residence, education, employment, marital status, travel history, social connections and financial history  The Tribunal considers that Mr Bayat’s primary identification documentation from his place of birth indicates that he was Mohammad Wali Bayat. However, there are numerous inconsistences in Mr Bayat’s life story which have not been adequately explained for the Tribunal to be satisfied of his character.

1. The Tribunal places no weight on My Bayat’s reported meeting at the Citizenship counter in Melbourne as this was an undocumented meeting with no interpreter present.            The Tribunal also places no weight on the email record of the interaction.

2. Additionally, the Tribunal finds that the inconsistences in Mr Bayat’s two failed spousal applications could be easily attributed to the fact that these were made by some third party utilising scant biographical information to reach a satisfactory visa outcome for       Mr Bayat. Whilst the Tribunal places little weight on these documents, the Tribunal finds they do contribute to a pattern of inconsistency in Mr Bayat’s life story.

3. The Tribunal is satisfied that Mr Bayat provided a genuine passport in his spouse visa application and a genuine Taskera to the Tribunal. However, the Tribunal finds that his account of his life story is inconsistent and leads to the conclusion that he has not provided a genuine account of his history prior to arriving in Australia. This has led the Tribunal to conclude that Mr Bayat was not of good character. However, this consideration was not before the Tribunal as the delegate of the Department had not considered this criterion and was precluded from considering Mr Bayat’s application further as he could not be satisfied of his identity.

4. The Tribunal is satisfied of Mr Bayat’s identity and as such he can seek to have his citizenship application by conferral considered by the delegate. This determination does not find Mr Bayat fulfils all the criteria necessary for citizenship to be conferred.

   CONCLUSION

5. The Tribunal, having considered all the evidence placed before it, is satisfied of               Mr Bayat’s identity. However, the Tribunal makes no finding on Mr Bayat’s character as the delegate did not assess this when Mr Bayat’s citizenship by conferral was refused.

   DECISION

6. The Tribunal sets aside the decision of the delegate dated 8 January 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act, that it is satisfied of the Applicant’s identity.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

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

Associate

Dated: 6 May 2020

Date of hearing:	7 October 2019
Submission of  additional materials:	7 April 2020
Applicant:	In person
Advocate for the Respondent:	Mr Adam Ray
Solicitors for the Respondent:	Clayton Utz Lawyers