Darwishi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1592

Darwishi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1592 (9 June 2023)

Division:GENERAL DIVISION

File Number(s):      2021/3908

Re:Ali Darwishi

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:9 June 2023

Place:Adelaide

The Tribunal affirms the decision under review.

...................[sgnd].....................................................

Senior Member Dr N A Manetta

CATCHWORDS

CITIZENSHIP – whether Tribunal satisfied of applicant’s identity – meaning of ‘satisfied” and ‘identity’ – applicant and witnesses giving unreliable evidence – ostensibly genuine ‘taskera’ accepted by applicant to be inaccurate in at least one respect – decision under review affirmed

LEGISLATION

Citizenship Act 2007 (Cth)

CASES

Minister of Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430

Plaintiff M64/2015 v The Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175

REASONS FOR DECISION

Senior Member Dr N A Manetta

9 June 2023

1. This is an application by Mr Ali Darwishi seeking a review of a decision of the respondent’s delegate, who declined to grant him citizenship on 8 June 2021.  Mr Darwishi’s citizenship application was refused because the delegate was not satisfied of Mr Darwishi’s identity.  Accordingly, the delegate decided that the criterion in section 24(3) of the Citizenship Act 2007 (Cth) (‘the Act’) was not met.   Section 24(3) provides:

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

2. Mr Darwishi has brought an application to the Tribunal seeking to have the delegate’s decision set aside.  The only issue before me concerned identity. I was not asked to decide any other matter.

   TRIBUNAL’S TASK

3. Hearing the matter afresh on the evidence adduced before me, I must decide whether I am satisfied of Mr Darwishi’s identity.  I note that in pursuing its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[1] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.  

   [1] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].

4. At the hearing, Mr Safari represented the applicant; Mr Cummings, the respondent. I acknowledge their assistance.

   STATEMENT OF CONCLUSION

5. I have decided that I am not satisfied of Mr Darwishi’s identity for the purposes of section 24(3) of the Act.  I have decided, therefore, to affirm the decision under review.   I now set out my reasons for this conclusion. 

   RELEVANT LEGAL PRINCIPLES

6. Before I turn to the evidence and my findings, I record my approach to certain legal aspects of this matter.  In KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175 (‘KXDZ’), I set out three legal conclusions.

7. The first was that the respondent’s Australian Citizenship Policy Statement and the revised Citizenship Procedural Instructions did not bind me as a matter of law. I explained in KXDZ why I rejected the respondent’s submission that I was obliged to apply these documents (in the absence of any discernible error in them).  The respondent’s submission in KXDZ was based on what was said to be the effect of Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (‘Drake’), and was supported in the respondent’s view by certain dicta in the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173.

8. In KXDZ, I drew a distinction between a broad discretionary power conferred on a Minister where policy played a large part, on the one hand, and, on the other hand, the application of a definite statutory standard or test. I have reviewed the matter and I maintain this position. In KXDZ, I set out in some detail my reasons for concluding that the exercise of broad discretionary power represents a distinguishable category. Clearly enough, in deciding whether I am satisfied of Mr Darwishi’s identity, which is the question I must consider under section 24(3) of the Act, I do not exercise any broad discretionary function.  I shall not reiterate my discussion in KXDZ: it is sufficient to refer to it.[2]

   [2] See KXDZ, [22]ff.

9. The second legal conclusion I drew in KXDZ concerned the test of being ‘satisfied’ of a person’s identity under section 24(3) of the Act.[3]  My conclusion in KXDZ reflected certain observations made by the High Court in Minister of Immigration and Border Protection v Makasa  [2021] HCA 1; (2021) 270 CLR 430 (‘Makasa’).  I believe the view I expressed in KXDZ in this regard is correct.  Being ‘satisfied’ requires me to have ‘an actual persuasion of the occurrence or existence of the thing in issue’.[4]  In this case, I am required to have an actual persuasion of Mr Darwishi’s identity. 

   [3] See KXDZ, [32]ff.

   [4] See Makasa, [38], quoted in KXDZ [33].

10. Thirdly, I decided in KXDZ that the decision-maker, and the Tribunal on review, must be satisfied of a citizenship applicant’s identity; otherwise, the application for citizenship must be refused.[5] This followed, in my opinion, from a plain construction of section 24(3), and I remain of that view. I accept that the Tribunal is administrative in nature rather than judicial, and that Mr Darwishi does not bear any formal evidential burden requiring him to ‘prove’ his identity; but after I have weighed ‘the totality of the facts’,[6] I shall find that I am ‘satisfied’ of Mr Darwishi’s identity or I shall find that I am not so ‘satisfied’.  This conclusion will dictate the result of Mr Darwishi’s application before the Tribunal.  At the risk of labouring a point, If I am left with a doubt about Mr Darwishi’s identity to a degree where I do not have an ‘actual persuasion’ of his identity, I must find the requirement in section 24(3) not met, and I must affirm the decision under review.

    [5] See KXDZ, [36].

    [6] See Makasa, [38] quoted in KXDZ [33].

    BACKGROUND FACTUAL ISSUES

11. Mr Darwishi submitted that he was born in 1992 in Tagablour[7] in Afghanistan.  The calendar used in Afghanistan is not the Gregorian calendar used elsewhere, and a date of convenience of 21 March was assigned as his birthdate.  I accept that submission.  He said his mother was a woman named ‘Zahra’ and his father a man named ‘Musa’.  Mr Darwishi further submitted that the concept of a surname as used in Australia is strictly unknown in Afghanistan and that ‘Darwishi’ reflects an ancestral name that was adopted in his family.  That, too, I accept.[8]    

    [7] In the evidence before me, there were various spellings of this and other proper nouns, including first names and surnames.  Tagablour is a village in Shahrestran District in what is now known as Daikundi Province.

    [8] This submission is consistent with an article I have consulted, but which is available only in French: J-P Alraux, “Comment faire sans patronyme?”, Plein Droit, no 85, juin 2010.

12. Mr Darwishi’s case may be further summarised as follows.  Both his mother and father are known persons, and were a married couple.  Mr Darwishi maintained before me that his father, Musa, was the son of a man called ‘Yusuf’.  He maintained that Yusuf had a half-brother called ‘Mohammad Ali’.  Mohammad Ali had a son, Taqi, who gave evidence before me (and to whom I shall refer in these reasons as ‘Mr Taqi Darwishi’ to avoid confusion with the applicant).      

13. Mr Darwishi’s case, therefore, was that his father, Musa, and Mr Taqi Darwishi had a fraternal relationship, but they were half-brothers only.  Mr Musa Darwishi and Mr Taqi Darwishi had the same mother, but their fathers were, as I have said, different (‘Yusuf’ in Mr Musa Darwishi’s case and ‘Mohammad Ali’ in Mr Taqi Darwishi’s case).  This was the effect of Mr Taqi Darwishi’s oral evidence to me as well.  It follows on Mr Darwishi’s case that he is Mr Taqi Darwishi’s half-nephew.

14. Mr Darwishi also maintained before me that he has no memory of his father or mother. He submitted that, so far as he knows, his father died in 1992, when he was a baby, and that his mother died in 1995, when he was approximately three years old. It was further submitted that from 1995 onwards, Mr Darwishi became a member of Mr Taqi Darwishi’s family.  Mr Darwishi gave evidence that until the events I am about to describe, he thought he was, in fact, Mr Taqi Darwishi’s biological son and did not realise he was only a nephew. 

15. Mr Taqi Darwishi left for Australia in about 2001.  He was eventually assessed to have met the legal criteria for refugee status.  He then sponsored his family, who were living in Iran, to come to Australia. Mr Darwishi said that he found out that he was not Mr Taqi Darwishi’s biological son when his application to come to Australia with the family was rejected (since he was not an immediate family member, but merely a nephew).  This occurred in about 2007.

16. Subsequently, Mr Darwishi did emigrate to Australia.  He was sponsored by Mr Taqi Darwishi to enter Australia on an orphan’s relative visa in 2010.  He was nominated as Mr Taqi Darwishi’s nephew.   Mr Darwishi gave evidence that when he arrived in Australia in 2010, he was still a single man.  His evidence, however, was that he had had an intimate relationship in Iran ‒ but one that was judged illicit by the strict tenets of Islam ‒ with a girl named Kobra Foladi.    He said that upon his arrival in Australia he discovered, in the course of conversations with her over the phone, that she was pregnant.  Motivated by a strong desire to save Ms Foladi from harm for having fallen pregnant from an illicit relationship, and to protect the baby she was carrying as well, Mr Taqi Darwishi and Mr Darwishi arranged, from Australia, for a formal letter or document to be issued by an imam (or mullah) in Iran.   This document recorded the fact that the couple had contracted to be married and were, therefore, formally betrothed to one another.  I was told that the letter referred to 2010 as the year of the couple’s betrothal; but Mr Darwishi maintained strongly that the couple were not married at that point. They only formally married when he returned to Iran in 2012 and a marriage ceremony took place.  

17. I should also interpolate at this point that Ms Foladi gave birth to a child in due course, but, unfortunately, he died a few years later. Ms Foladi eventually joined her husband in Australia and is still married to him. 

18. Mr Darwishi also gave evidence that when their relationship began in Iran, he did not know that Ms Foladi was related to him.  That connection was only discovered by him in the course of telephone discussions between Mr Taqi Darwishi (in Australia) and Ms Foladi’s mother (in Iran) after Mr Darwishi told him about the pregnancy.  Mr Taqi Darwishi rang Ms Foladi’s mother to apologise for Mr Darwishi’s behaviour and to discuss matters concerning Ms Foladi’s pregnancy.  During the course of these discussions, Mr Taqi Darwishi discovered that Ms Foladi’s mother was, in fact, his sister (or half-sister)[9].  Given what Mr Darwishi has submitted about his biological relationship with Mr Taqi Darwishi, he and Ms Foladi were related (or at least part of the same wider family).[10]    Mr Taqi Darwishi confirmed this version of events in his oral evidence.  Ms Foladi gave evidence before me as well and her evidence was broadly consistent with this version of events.        

    [9] In a statutory declaration (Ex R5, 249) Ms Foladi’s mother is identified as Mr Taqi Darwishi’s sister, but Mr Taqi Darwishi’s oral evidence was that she was his half-sister only.

    [10] Ms Foladi’s mother being at least the half-sister of Mr Darwishi’s half-uncle, Mr Taqi Darwishi.

    REASONS

19. I indicated in KXDZ that a person’s identity arises at birth.  As a matter of fact, a person is born of a particular mother in a particular place and at a particular time with a particular gender.  A person will also have a biological father, of course.  The latter’s identity will often be known, but clearly not always.    My task is to decide whether Mr Darwishi, who is male, was born in 1992 in Tagablour in Afghanistan of a particular mother, named Zahra, and a particular father, named Musa, the latter of whom is said to be Mr Taqi Darwishi’s half-brother and to be the son of a man named Yusuf.

    Place of birth

20. The place of birth, Tagablour, was not actively contested before me, and I may leave it to one side.   

    Year of birth

21. There was conflicting evidence before me about Mr Darwishi’s year of birth. I was asked by Mr Darwishi to accept that his year of birth was accurately recorded in his ‘taskera’ (an official identity certificate issued by, or on behalf of, the Afghani Ministry of Interior Affairs).  The year given in the taskera is 1992.[11] 

    [11] See Ex R1, 111.

22. At the same time, however, Mr Darwishi asked me to find that the reference in the same document to his grandfather’s name (i.e., his father’s father’s name) was inaccurate.  This submission is somewhat problematic.  A formal document issued by a government authority or on its behalf can sometimes have a mistake in it, of course; but an error can give rise to concerns.  No explanation was given at the hearing as to how the error in the recording of the grandfather’s name, given as ‘Mohammad Ali’, came about. I note that there is a reference in the bottom right-hand corner of the document to an entry appertaining to ‘Mohammad Ali’ in other official records, so tracing the paternal line appears to be a feature in the production of taskeras.  Given Mr Darwishi’s submission that the reference to ‘Mohammad Ali’ is inaccurate, I query the reliability of the taskera so far as his year of birth is concerned.

23. The respondent directed my attention to a certificate issued by the Embassy of Afghanistan in Tehran, and this document refers to Mr Darwishi’s birth year as 1983.[12] This document is dated 16 July, 2007, which implies Mr Darwishi was approximately 24 at the time, if the reference to a birth year of 1983 is accurate.

    [12] See Ex R1, 167.

24. Mr Darwishi maintained that this document was in error.  In favour of that submission it may be noted that the English translation of the document records that Mr Darwishi ‘does not have any guardian’, which is an odd statement to make in relation to a person who is approximately 24 years of age; that is, it seems odd that a certificate would refer to the present absence of a guardian in respect of an adult male who is sui juris.  On the other hand, it would make sense if Mr Darwishi were only 15 at the time (i.e., born in 1992 as he asserts).  Moreover, the certificate records that it is based on another document[13], and this  other document expressly gives Mr Darwishi’s age as 14 in 2006, implying a birth year of 1992.    

    [13] See Ex R1, 166.

25. There are further records to consider.  An application for Mr Darwishi’s entry into Australia refers to Mr Darwishi’s birth year as 1982.[14] By letter dated 4 June 2007, Ms Hunt, the registered migration agent who assisted in the preparation of the application, noted that the reference to 1982 was an error on her part and that the correct birth year was, in fact, 1992.  Ms Hunt notes expressly that there must have been a misunderstanding when she took Mr Taqi Darwishi’s instructions in this regard.[15]   That is a plausible explanation. 

    [14] See Ex R5, 77.

    [15] Ex R5, 108.

26. Importantly, there is also a record from within departmental files.  In the report recording the interview with Mr Taqi Darwishi’s wife and children conducted in Tehran, Iran, for a class XB Refugee and Humanitarian visa, the interviewer confirms that Mr Darwishi (referred to as ‘the nephew’) is 14, not 24, years old. There is a subsequent reference in the report to Mr Darwishi’s date of birth having been ‘confirmed’, and that he was 14 years of age.  This interview report is dated 1 July 2007.[16] The interviewer was alive to a possible discrepancy in age and recorded his or her conclusion that Mr Darwishi was 14, not 24, in 2007.  In my opinion, this is an important record as it shows a responsible Australian Government authority had confirmed that Mr Darwishi was 14 years of age as of 2007.

    [16] Ex R5, 116.

27. On balance, I find that the applicant was born in 1992 as he asserts and not 1982 or 1983.

    Parentage

28. I must also find on Mr Darwishi’s case that he was born into a family where his mother was a woman named ‘Zahra’ and his father a man named ‘Musa’ (being a man who was the son of ‘Yusuf’ and who was also the half-brother of Mr Taqi Darwishi).  It is here that I have decided ‘on the totality of the evidence’ that I have no ‘actual persuasion’ of the facts, to return to the language used in Makasa.

29. In this regard, I doubt the reliability of both the applicant and Mr Taqi Darwishi in respect of parts of their testimony, and I doubt also the confirmatory testimony of Ms Foladi.  I now explain why. 

30. The first problematic aspect of their testimony concerns the year of Mr Darwishi’s marriage to Ms Foladi.  I find that it is far more likely that Mr Darwishi married Ms Foladi in 2010, and the evidence given that this was not the case and that they were only married in 2012 was not reliable.  Mr Darwishi maintained before me in his evidence that he did not know when he came to Australia that the girlfriend he had left behind, Ms Foladi, was pregnant.  It was only after arriving in Australia that he found out that she was pregnant; and, in order to safeguard her security and that of the baby she was carrying, he and his uncle (Mr Taqi Darwishi) arranged for a letter or document to be issued by an imam recording the fact that Mr Darwishi and his girlfriend were formally betrothed to one another in 2010.  I should add that Ms Foladi largely confirmed Mr Darwishi’s version of events in her evidence.     

31. As I have said, Mr Darwishi maintained that he only married Ms Foladi in 2012 on returning to Iran from Australia.  As I understand the evidence, the letter written by the imam informed the terms recorded in the marriage certificate that was subsequently issued by the Afghan Embassy in Tehran, Iran.  The letter is no longer in Mr Darwishi’s possession; in any event, it was not produced to me.  The marriage certificate was before me[17] and it refers, alongside a phrase ‘Date of Marriage contract’, to a year, ‘1389’, which equates to a Gregorian-calendar year of 2010.[18]  The certificate goes on[19] to record that the ‘Embassy of Afghanistan in Tehran verifies the authenticity of the marriage contract concluded between’ Mr Darwishi and Ms Foladi. The certificate does not refer to a marriage, or marriage contract, in 2012.   

    [17] Ex R1, 113.

    [18] Only the year is given.  The year was translated for me by the interpreter at the hearing, and it was accepted that the year given is 1389, the equivalent of 2010.

    [19] Ex R1, 116.

32. I do not accept Mr Darwishi’s version of events, nor do I accept Ms Foladi’s confirmatory testimony.  I was not persuaded that merely being betrothed (and not married) would be sufficient to avoid retribution for having had a sexual relationship outside marriage under the strict tenets of Islam. It was put to me that Ms Foladi’s life and even the baby’s life were in danger because of the illicit sexual relationship.  I accept that evidence. 

1. I am not persuaded, however, that a formal betrothal allows a couple to engage licitly in sexual intercourse according to the tenets of Islam.  No expert evidence was led in support of that submission, which appears to me to be quite counter-intuitive.[20]  I accept that illicit sexual relations in Iran are perilous, and yet it was submitted that a woman who was merely betrothed, and not married, would not be subject to danger if she had sexual relations leading to a pregnancy.  I think it is far more likely that only a solemnised marriage permits sexual intercourse according to the tenets of Islam.  It may be that a betrothal allows a couple to mix socially to some degree, but I was not persuaded that it allows them to have sexual relations.  Accordingly, I do not see how the imam’s letter would have relieved Ms Foladi of the opprobrium surrounding her sexual relationship and pregnancy if it had referred only to a betrothal falling short of marriage.

   [20] The respondent referred me (Ex R4, [50]) to the 2020 DFAT Country Information Report for Iran recording very severe consequences for unmarried persons engaging in sexual relations.

2. The marriage certificate records, as I have said, that the date of the marriage contract was ‘1389’, the equivalent of the Gregorian-calendar year 2010.  There is no reference in that certificate to a further date of 2012 being relevant, namely, as a date of actual marriage as opposed to the date of a prior marriage contract or betrothal.  I was not persuaded that I should proceed on the basis that there was a mistake in, or omission from, this certificate; nor was I persuaded that Mr Darwishi had convinced the authorities wrongly to backdate the year of his marriage to protect his spouse and the legitimacy of his child.   

3. To the contrary, it is far more likely in my view that Mr Darwishi and Ms Foladi did in fact marry in 2010.  The circumstances of that marriage are not clear to me on the evidence.  They may have had to marry as a consequence of an unplanned pregnancy. But in my opinion they did marry in 2010 – at exactly what point in that year I am not sure – and did not merely become betrothed to one another because that would not have avoided the opprobrium of having engaged in an extra-marital sexual relationship that had led to a pregnancy.  Moreover, this conclusion is more consistent with the terms of the marriage certificate. 

4. I should say that I accept that following the conclusion of a formal marriage contract, or nikah, a period of time might elapse in some cases until consummation of the marriage.   A couple may be forced to live apart for some time, for example.  I accept that in one sense, a couple may only be considered ‘married’, at least in a cultural sense, once they have had sexual intercourse for the first time.  But, accepting that as a possibility, I note that this couple was clearly not in that position. On Mr Darwishi’s case, the couple had already had sexual relations, and Ms Foladi had fallen pregnant.  The reference in the certificate to the marriage contract having taken place in 2010 was, in my opinion, far more likely than not to be accurate and was intended to refer to a marriage that had taken place, and not merely to a betrothal.

5. On the evidence before me, therefore, I am satisfied that it is far more likely that Mr Darwishi married Ms Foladi in 2010.  I must say that after hearing all their evidence I concluded that Mr Darwishi’s and Ms Foladi’s contrary evidence in this regard was unreliable. They may well have feared, of course, that if it were decided that if Mr Darwishi was married when he first entered Australia, the legitimacy of his entry as an unmarried single orphan minor might be impugned.  That was the respondent’s position before me.[21]  That submission may have some force; but, in any event, it is critical in my opinion that the version of events put forward by Mr Darwishi was not plausible in my view. 

   [21] Ex R4 [54].

6. In addition, despite his evidence to the contrary, I find it very unlikely that Mr Darwishi would not have known that Ms Foladi was related to Mr Taqi Darwishi when they began a relationship, and on his case, therefore, related to him.   I do not accept Mr Taqi Darwishi’s evidence that he only found out that Ms Foladi’s mother was his sister (half-sister in fact) when her discussed the matter of Ms Foladi’s pregnancy with Ms Foladi’s mother over the phone from Australia.  That was his initial oral evidence to me.  I note that in his 2012 statutory declaration as a supporting witness in relation to Ms Foladi’s entry to Australia,  Mr Taqi Darwishi declared that he had known Ms Foladi at that stage for 16 years and that she was his sister’s daughter.[22]  When pressed in cross-examination, Mr Taqi Darwishi seemed to say that there may have been an error in the statutory declaration, but he also indicated that he could not remember how long he had known Ms Foladi.  I found his oral evidence in this regard unreliable.    

   [22] Ex R5, 249.

7. I believe I should proceed on the basis that the statutory declaration is accurate, and, accordingly, Ms Foladi had been known to Mr Taqi Darwishi for many years as his sister’s daughter.  If that is correct, it also follows in my view that it is likely that Mr Darwishi would have known who Ms Foladi was (in terms of a family connection with Mr Taqi Darwishi) when he began a relationship with her.    

8. All in all, I found the oral evidence unreliable in respect of the circumstances of Mr Darwishi’s marriage to Ms Foladi and in respect of Mr Darwishi’s and Mr Taqi Darwishi’s apparent lack of knowledge of who Ms Foladi was. 

9. I have also concluded that the evidence concerning Mr Darwishi’s mother, said to be a woman named ‘Zahra’, was unreliable.  In this regard, Mr Darwishi maintained before me that his mother died when he was some three years of age (i.e., in about 1995).  Importantly, he said he had no memory of her whatsoever.  Mr Taqi Darwishi declared on 1 February 2008 that Ms Zahra Darwishi died in 1995.[23]  That was his initial evidence before me as well. 

   [23] Ex R5, 147.

10. Nevertheless, there is a statutory declaration on file by Mr Taqi Darwishi dated 4 June 2007 that refers to her death approximately four years before that date, which places the death sometime in 2003, when Mr Darwishi was about 11 years of age.[24]  Ms Hunt’s letter of 4 June 2007, which I have already mentioned, refers to Mr Darwishi having been resident in Mr Taqi Darwishi’s household “since 2003, when he and his mother (now deceased), the principal applicant and her children left Afghanistan together and went to Pakistan”.  This implies that Mr Darwishi’s mother did not die in 1995 or thereabouts.  Enclosed with the letter is the statutory declaration of June 4, 2007, to which I have already referred.  There is also a letter on file from Ms Hunt dated 31 July 2006 expressly referring to the year of Mr Darwishi’s mother’s death as 2003.[25]   The evidence suggest clearly, in my opinion, that the death occurred sometime in 2003.

    [24] Ex R5, 111.

    [25] Ex R5, 72.

11. Of course, if Mr Darwishi’s mother died in 2003, it must follow that Mr Darwishi’s evidence and that of Mr Taqi Darwishi was unreliable in this regard.  It would also mean that Mr Darwishi must have some recollection of his mother (since he would have been about 11 when she died) and, presumably, would have known as he was growing up that Mr Taqi Darwishi was not his biological father.  Indeed, if Ms Hunt’s letter is accurate, Mr Darwishi did not grow up in Mr Taqi Darwishi’s household from the age of three onwards, but only from 2003 onwards.  If I am to find that Mr Darwishi’s mother died in 1995, I must find that Mr Taqi Darwishi has, for an unknown reason, given the wrong information to the Department in a statutory declaration and in his formal communications (through his migration agent, Ms Hunt).  I find that an unlikely scenario.  Further, I do not accept a mistake was made in the giving of instructions to Ms Hunt or in her recording them.  I believe I should proceed on the basis that Mr Darwishi’s mother died in 2003.[26]

    [26] I note further that one document presented by Mr Darwishi (Ex A1, document 2) also refers to his mother’s death in 2005.

12. When exactly Mr Darwishi married Ms Foladi, and whether they knew they were related when they first began a relationship, and when Mr Darwishi’s mother died are not factors that bear directly on the question of Mr Darwishi’s identity.  As Mr Darwishi’s, Mr Taqi Darwishi’s, and Ms Foladi’s evidence on one or more of these matters was unreliable, however, I have to decide whether I can safely rely on their evidence in respect of the matters that do directly bear on Mr Darwishi’s identity. 

13. It does not, of course, automatically follow that because a person has not been reliable in one aspect of his or her evidence, other evidence given by that person must be treated as unreliable. I have already indicated, for example, why there was, according to the respondent, a strong motivation for Mr Darwishi to disavow the year of his marriage (i.e., to protect the legitimacy of his application to enter Australia as a single man).  Having weighed the evidence, however, I have decided that in the circumstances of this case, the lack of reliability in Mr Darwishi’s and Mr Taqi Darwishi’s evidence is such that it would not be safe to rely on their evidence in critical respects (at least in the absence of reliable corroboration).  I believe the same is true of Ms Foladi’s evidence.          

14. This leads me to weigh the evidence concerning Mr Darwishi’s claimed parentage. As I have mentioned, Mr Darwishi relied on a taskera, or Afghani identification document.[27]  This was presented to me as a genuine document.  The document records that Mr Darwishi is the son of a ‘Musa Darwishy’, who is himself the son of ‘Mohammad Ali’.  As I have said, Mr Darwishi maintained that Mr Taqi Darwishi is the half-brother of Mr Musa Darwishi and that the two half-brothers shared a common mother but not a common father. This made Mr Darwishi Mr Taqi Darwishi’s half-nephew. 

    [27] Ex R1, 111.

15. Mr Taqi Darwishi gave oral evidence that his own father was ‘Mohammad Ali’.  If this is correct and if the taskera is fully accurate, this would mean that there was a full blood relationship between Mr Taqi Darwishi and Mr Musa Darwishi, which was denied.  If I accept Mr Darwishi’s evidence and Mr Taqi Darwishi’s evidence, it must follow that the taskera is in error.  That, indeed, was Mr Darwishi’s submission to me, as I have earlier said. 

16. On that supposition, however, I question why the taskera contains an error of this type.  One explanation is that there must have been an administrative error of some type.  That is a possibility, but I am reluctant to find that there was any such error in the absence of clear evidence.  On Mr Darwishi’s case, there was, indeed, a man named ‘Mohammad Ali’, and Mr Taqi Darwishi gave evidence that he, Taqi, was Mohammad Ali’s son.  The taskera records that Mr Mohammed Ali Darwishi has his own registration folio; namely, Volume 9, Page #82, Reg #447.  So, if there has been an administrative error, the error has resulted in the insertion of the name of a real person who is in fact the father of Mr Darwishi’s half-uncle.  

17. It was submitted by Mr Darwishi that errors in taskeras are routine,[28] a submission, I note, that tends to impugn the overall reliability of even genuine taskeras.  All in all, I would regard the scenario of honest administrative error as at best an unproven and merely speculative supposition[29]: at least, I have found that I have no ‘actual persuasion’ of it. Another obvious explanation for the apparent inaccuracy of the taskera is that it was produced on the basis of inaccurate information furnished to the relevant authorities at the time so as to procure the taskera in these terms.  If that is the case, then, in my opinion, I should not rely on the taskera at all because inaccurate information has been deliberately furnished to the authorities.  I bear in mind that it is undoubtedly the case that many taskeras are not genuine.[30]  Yet another scenario is that the taskera is, in fact, fully accurate in its terms, but I am not persuaded that this is the case in light of Mr Darwishi’s clear submission to me to the contrary.   All in all, I am not persuaded that the taskera is a document on which I can safely rely.  Further, in my opinion, there are no other documents emanating from Afghanistan (including Afghan authorities in Iran) that are reliable and corroborative of Mr Darwishi’s asserted parentage.  

    [28] Ex A3, [87].

    [29] Cf the applicant’s submission at Ex A3, [87][a]-[b].

    [30] Ex R3, 23. 

18. At this point, it is convenient to refer to certain DNA test results.[31] The tests were undertaken as a result of a suggestion I made when the matter was first before me that I would be aided by DNA testing if it was being put, as indeed it was being put at that stage, that Mr Taqi Darwishi was Mr Darwishi’s full uncle.  I understand that it was only at that point that it came to the attention of Mr Darwishi’s solicitors, and Mr Darwishi himself, that the relationship was a ‘half-blood’ one only.  That is the way the case then progressed.  

    [31] Ex R5, 283-290.

19. Two hypotheses were cited and tested by the DNA laboratory; first, that Mr Taqi Darwishi and Mr Musa Darwishi were full biological brothers and the second that they were half-brothers.[32]  Both scenarios yielded test results that were said to be ‘inconclusive’. The ‘inconclusive’ finding fell between ‘unlikely’ and ‘limited/fair’ in a sliding scale of confidence in the hypothesis under consideration.  I can only take the results at face value, and they neither support nor contradict Mr Darwishi’s submissions; that is, they are consistent with Mr Darwishi’s submissions being true and equally consistent with the submissions being false.  This is made clear in the laboratory report itself.[33]  In my view, the test results should be left to one side as having no persuasive weight one way or the other.

    [32] I note that the test results refer to both scenarios being tested.  There seems to be an error, however, at Exhibit R5, 284 [5a] where the relationship between Taqi Darwishi and Ali Darwishi is referred to as ‘half uncle nephew’.  It should presumably read ‘full uncle nephew’ given the scenario that was being tested; i.e., that Yusuf and Mohammad Ali were full biological brothers.  But in any event, whatever is meant, the result as given by the laboratory in this regard is said to be ‘inconclusive’. 

    [33] Exhibit R5, 284.

20. It follows, therefore, that if I am to be satisfied of Mr Darwishi’s identity, I must accept his evidence and that of Mr Taqi Darwishi as to Mr Darwishi’s parentage in circumstances where I must also find that the taskera, which has been presented to me as a genuine document, is inaccurate in one important respect.[34]  I must accept that the error in the taskera came about in an unexplained way, but that it is otherwise a reliable document.  I must also accept that although Mr Darwishi and Mr Taqi Darwishi gave unreliable evidence in the ways I have earlier described, their evidence in respect of Mr Darwishi’s parentage should be accepted. 

    [34] There are further references to Mr Musa Darwishi’s father being ‘Mohammad Ali’ in documents appearing at Ex R1, 166 and 169.  They do not corroborate Mr Darwishi’s and Mr Taqi Darwishi’s evidence to me.

21. I acknowledge that Mr Darwishi’s parentage, as advanced by him, is logically possible.  The legal question for me in this application, however, is whether I am ‘satisfied’ this scenario is accurate; i.e., whether I have an ‘actual persuasion’ of the scenario, to return to the language used in Makasa.

    FINAL CONCLUSION

22. In deciding this matter, I do not need to decide which of a number of scenarios concerning Mr Darwishi’s parentage is the most likely one.  That is the wrong question.  As I have said, section 24(3) of the Act requires me to ask whether I am satisfied of Mr Darwishi’s identity. Mr Darwishi has, unfortunately, did not present the Tribunal with reliable evidence as to his marriage, as to his knowledge of a family connection with Ms Foladi when they first began a relationship, and of the year of death of his mother.  He has called a witness, Mr Taqi Darwishi, whose evidence (taken in conjunction with his statutory declaration and the communications of his migration agent, Ms Hunt) I have also found to lack reliability.    I have not found Ms Foladi’s evidence persuasive either.  Moreover, the taskera, although put forward as a genuine document, is said by Mr Darwishi to contain a non-trivial error on his own case. 

23. Returning to the language used in Makasa, I have come to the conclusion that, after weighing ‘the totality of the evidence’, I do not have an ‘actual persuasion’ that Mr Darwishi is the son of a man called Musa Darwishi, who was the son of a man called Yusuf, with Musa also being the half-brother of Mr Taqi Darwishi.  I also have no ‘actual persuasion’ of Mr Darwishi’s mother’s true name or identity given the unreliable oral evidence given to me concerning her year of death.  All in all, on the totality of the evidence before me, I am not satisfied of Mr Darwishi’s parentage as he has asserted it to be and am not otherwise satisfied of his real parentage on the evidence before me.  I am not, therefore, satisfied of his identity for the purposes of section 24(3) of the Act. 

    FORMAL DECISION

24. Having reached this conclusion, I shall affirm the decision under review.

    …[sgnd]……………………………………..

    Associate

    Dated: 9 June 2023

Date of hearing:	23, 24, 27 & 30 June 2022 & 28 July 2022
Advocate for the Applicant:	Mr I Safari Beena Rezaee Legal & Migration
Advocate for the Respondent:	Mr S Cummings Sparke Helmore