Darwishi and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 888

Darwishi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 888 (22 February 2018)

Division:GENERAL DIVISION

File Number:           2017/0737

Re:Jawad Darwishi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:22 February 2018

Date of written reasons:        16 April 2018

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal sets aside the decision under review.  I remit the matter for reconsideration with a direction that the applicant has established his identity as required by section 24(3) of the Australian Citizenship Act 2007.

........................[Sgd]..........................

Senior Member Britten-Jones

CATCHWORDS

CITIZENSHIP – issue of identity – parentage – date of birth – Tribunal satisfied pursuant to s 24(3) of Australian Citizenship Act 2007 (Cth) - Decision set aside and substituted.

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 24(3)

SECONDARY MATERIALS

Australian Citizenship Policy

REASONS FOR DECISION

Senior Member Britten-Jones

16 April 2017

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by EPIQ Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

.........................[Sgd]...............................................

Associate

Dated: 16 April 2017

Date(s) of hearing:	22 February 2018
Advocate for the Applicant:	Ms E Rutherford
Solicitors for the Applicant:	Camatta Lempens Pty Ltd Lawyers
Advocate for the Respondent:	Ms H Stanley
Solicitors for the Respondent:	Australian Government Solicitor

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. SENIOR MEMBER:  Jawad Darwishi, the applicant, has been living in Australia since 2008.  He was born in Afghanistan and spent time in Pakistan and Iran before being granted a humanitarian visa which enabled him to come to Australia.  He says that he loves Australia and wants to become a citizen.  He applied for citizenship on 14 September 2012.  That application was refused on 16 January 2017.  The applicant has now applied to the Tribunal for a review of that decision.  The issue for the Tribunal is whether it can be satisfied of the identity of Mr Darwishi pursuant to section 24(3) of the Australian Citizenship Act 2007 (the Act).  For the reasons that follow, I am satisfied with respect to his identity.

2. I will consider the legislation.  Section 24(3) of the Act relevantly provides that “the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.”  The explanatory memorandum[1] provides that there may be cases where identity is unclear or cannot be satisfactorily ascertained, and that in these circumstances the Minister cannot approve the person becoming an Australian citizen.  The Australian Citizenship Policy, at chapter 13, states that the identity provisions prohibit the approval of a citizenship application in cases where the decision maker is not satisfied of the person's identity. 

   [1] Australian Citizenship Policy.

3. It goes on to say that 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. 

4. I take all of these matters into account in making my decision.  It is not in dispute that a person's identity will be determined by many factors, including date of birth, parentage, place and country of birth, name, siblings, schooling, marriage, children, and overall history.  It is contended by the respondent that there is uncertainty with respect to the applicant's date of birth and his parentage, such that the Tribunal cannot be satisfied of the identity of the applicant. 

5. With respect to parentage, the respondent says, and I quote from the written submissions:

   It [is] accepted that the Applicant has now, after significant work by the Department, provided evidence that Taqi is his biological father, however, there is still a significant lack of evidence regarding his biological mother.

6. At the hearing there was no issue taken that Taqi Darwishi is the applicant's biological father.  That has been established by a DNA test.  As to the biological mother, Taqi Darwishi gave evidence that he was married to a woman by the name of Keshvar.  He met her when he was taking out his cattle one day.  They married and had a child; he is the applicant.  Some six or seven months later Keshvar died.  They had lived in a mountainous area in Afghanistan called Shahristan.  There were no documents recording the marriage or the birth.  That was the evidence of Taqi Darwishi, and I accept that evidence, and I am therefore satisfied as to the parentage of the applicant. 

7. In fairness to the respondent, parentage did become an issue because Taqi did not want his son to know that his mother had died and that his second wife was not his biological mother.  Taqi remarried Roqia and it was only recently that the applicant became aware that she was not his biological mother.  That provides an explanation for some of the information provided by Taqi at later times. 

8. Despite some inconsistencies as to who the applicant's biological mother was, the evidence as it stands is sufficient for me to be satisfied that Taqi and Keshvar are the biological parents of the applicant. 

9. As for date of birth, the respondent contends:

   Although it is not a prerequisite to confirming identity that an exact date of birth be known, it is clear that the Tribunal cannot be satisfied of the year of birth of the Applicant and that any estimation is guesswork spanning over a four year period.

10. It is not in dispute that Taqi Darwishi arrived in Australia and was interviewed on 20 May 2001.  He stated that he was married about five years previously, and he estimated his son Jawad's age as being four years old.  Roqia Darwishi made an application for a humanitarian visa in 2006 with Jawad Darwishi included as a secondary applicant and he was declared as her son, and with a date of birth of 1 January 1997.  The application for the humanitarian visa was proposed by Taqi Darwishi who also declared the applicant's date of birth as 1 January 1997. 

11. After the applicant's arrival in Australia it was identified that he appeared older than the age recorded and he was bullied at school for that reason.  He decided, as a result of that bullying, to undertake a bone age X-ray, which he did on 3 June 2011, in an attempt to determine his exact age.  The X-ray result purported to indicate that the age of the applicant in 2011 was 18 years old. 

12. The applicant then applied to the Department on 14 June 2011 to amend his recorded date of birth from 1 January 1997 to 28 May 1993, and by decision in August 2011 an officer of the Department agreed to amend the records to reflect that the date of birth of the applicant was 28 May 1993.  When the applicant received the results of the bone age X-ray he interpreted them as being an exact determination of his year of birth, and he decided to take 28 May as being the day and the month. 

13. I find that the 1997 date of birth resulted from an initial estimate of Jawad's age in 2001, which was then translated as being 1 January 1997.  This same date of birth has then been carried over in the humanitarian visa application and was confirmed at an interview conducted on 7 January 2007.  The 1993 date of birth came about through the application made by the applicant, and certainly not through any motive to be deceptive, but rather through an attempt to correct something which was causing him problems at school. 

14. The difficulty establishing the applicant's birth date does not prevent the Tribunal from being satisfied as to identity.  There were no documents recording the birth of the applicant.  His father gave evidence about his birth from his first wife, and how he has been subsequently brought up by his second wife.

15. There is sufficient evidence for me to be satisfied of the applicant's identity as required by section 24(3) of the Act.  The decision under review dated 16 January 2017 is set aside.  I remit the matter for reconsideration with a direction that the applicant has established his identity as required by section 24(3) of the Australia Citizenship Act 2007. 

    END OF ORAL DECISION