Dawar and Minister for Immigration and Citizenship

[2008] AATA 918

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 918

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4982

General Administrative DIVISION		)
Re		Ahtisham DAWAR

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date14 October 2008

PlaceBrisbane (heard in Perth)

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

CITIZENSHIP – Eligibility for Australian citizenship – Citizenship by descent – Whether applicant is the child of an Australian citizen – Insufficient evidence to establish parental relationship between applicant and Australian citizen – Decision affirmed

Australian Citizenship Act 2007 (Cth), s 16  

REASONS FOR DECISION

14 October 2008 Senior Member Bernard J McCabe         

1.      The applicant in these proceedings is an infant, Ahtisham Dawar. He is the son of Mr Ghufranullah Dawar. Mr Dawar is an Australian citizen who resides in this country. His son resides in Afghanistan with the boy’s mother, Ms Kalsoom Dawar, who is Mr Dawar’s wife. Mr Dawar wants his son to come to Australia. An application was made to register the boy as an Australian citizen by descent pursuant to s 16 of the Australian Citizenship Act 2007 (“the Act”). The application was refused. The respondent, the Minister for Immigration and Citizenship, disputes Mr Dawar’s claim that Ahtisham is Mr Dawar’s son.

2.      The matter has come before the Tribunal for review. It will be necessary for me to consider the statute and the evidence and determine whether I accept Mr Dawar’s claims about his son’s paternity.

3.      I am not satisfied Ahtisham is Mr Dawar’s son. I do not discount the possibility that evidence establishing a paternal relationship will become available, but that evidence was not before me. The decision under review must therefore be affirmed. I explain my reasons below.

The legislative framework

4.      Section 16 of the Act provides that a person may make an application for citizenship. Section 16(2) sets out the criteria applicable to applicants born outside of Australia on or after 26 January 1949. The criteria include a character test, but that is not an issue here. The principal requirement with which we are concerned is the requirement that the applicant have a “parent” who is a citizen at the time of the applicant’s birth who has spent at least two years in Australia before the application was made. The question in this case is whether Mr Dawar is the “parent” of the applicant. If he is, the application for citizenship would be accepted.

5.      I note the Minister has issued Instructions for the guidance of officers making decisions. The Instructions require the decision-maker to carefully scrutinise applications for citizenship in certain circumstances – including, for example, where the travel movement records indicate the father was in this country at about the time the child was conceived.

The facts

6.      Mr Dawar was born in Afghanistan. He became an Australian citizen on 22 October 2002. He claims to be married to Ms Dawar. Ms Dawar is not an Australian citizen and has never visited this country. She resides in Afghanistan.

7.      Mr Dawar provided a birth certificate recording the birth of Ahtisham Dawar on 11 April 2007 at Malali Zesionton Hospital in Khost, Afghanistan. The date of birth immediately rang alarm bells: movement records held by the respondent show that Mr Dawar had not left this country – and had therefore not been with Ms Dawar – since January 2006, some 15 months before the child was born.

8.      The respondent initially had difficulty verifying the existence of the hospital. Mr Dawar subsequently provided a webpage from a charity that referred to the “Malalai Maternity Hospital” in Kabul. I am prepared to accept that the hospital exists, although it has not been possible to verify that the birth certificate was in fact issued by the hospital. I will accept the certificate is genuine in the absence of evidence to the contrary.

9.      When challenged about the implausibility of a 15 month gestation period, Mr Dawar became evasive. He wrote an aggressive but unhelpful letter to the respondent on 2 October 2007 that did not offer an explanation for the discrepancy (although I note in fairness to Mr Dawar that English is not his native tongue, and that his combative writing style might be a reflection of his frustration with a process which he does not fully understand).

10.     An explanation was finally offered in the course of these proceedings. Mr Dawar says his wife underwent IVF treatment. He produced a letter from Dr Nasrin Jalil of the “Advanced Fertility Centre of Kabul Afghanistan”. The letter explains the details of the procedure that had been carried out on Mr Dawar’s young wife. The letter concluded by pointing out that the phone service had been cut off. Dr Jalil invited anyone who wanted to discuss the contents of the letter to drop by the clinic in Kabul.

11.     The respondent questioned the authenticity of the letter. Mr Gerrard, who represented the Minister, pointed out the letter from Dr Jalil was written in English. Even the letterhead was in English. That is surprising, although not inexplicable. Mr Gerrard also questioned whether it was likely that a clinic offering such expensive and sophisticated treatment would be available in a country that has serious difficulties providing basic medical services. He went on to argue it was particularly unlikely that a young woman who had co-habited with her husband for a short period would seek out IVF treatment.

12.     Given these questions, I asked Mr Gerrard to make further enquiries to determine whether the clinic existed and offered the services Mr Dawar claimed were available. In particular, I asked Mr Gerrard to determine if it was possible for an Australian official to take up Dr Jalil’s offer to visit the clinic and verify the contents of the letter.

13.     Mr Gerrard arranged for further enquiries to be made. As it happened, Australian officials were unable to visit the address of the clinic. But Mr Gerrard was able to provide a series of emails between various Australian officials in Pakistan and elsewhere recording the fruits of their investigations. The emails confirmed that mobile phones were widely used in Kabul, which was inconsistent with the assertion in the letter from the clinic suggesting telephone contact was impossible. They also confirmed there was no IVF clinic in Kabul. There was a note from an officer from the Department of Foreign Affairs and Trade who reported:

I received solid confirmation from … a doctor in 400 Bed Military Hospital in Kabul … that there are no facilities for in-vitro fertilisation in Afghanistan. It is totally non-existent; not even the German or French Hospitals or any other hospital that has foreign support have this facility. [The doctor] confirmed that the clinic in Puli charkhi does not have this facility… For this medical issue, patients usually travel to India.

14.     While ideally that information would be supplied in affidavit form, I have no reason to doubt the information was provided in good faith.

15.     Given the questions that have been raised about the evidence provided by Mr Dawar, and in light of the apparently credible evidence provided by the respondent that is directly at odds with Mr Dawar’s testimony, I am not persuaded that Ahtisham Dawar is Mr Dawar’s son. 

Conclusion

16.     I am not satisfied that Mr Dawar is the parent of the applicant. In those circumstances, the application for Australian Citizenship must fail because I do not accept the applicant can satisfy the criteria in s 16 of the Act. It may be that additional, more reliable information will come to light that corroborates Mr Dawar’s claim. If that occurs, Ahtisham Dawar will presumably be successful in a fresh application for citizenship. But the decision under review in these proceedings must be affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:................................[Sgd]..............................................
  Michael Buckingham, Associate

Dates of Hearing  9 May 2008
  28 August 2008
Date of Decision  14 October 2008
Applicant was self-represented
Solicitor for the respondent      Australian Government Solicitor