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

[2021] AATA 3092

Delawar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3092 (1 September 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2018/7637
GENERAL DIVISION	)

Re: Shakira Delawar

Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Respondent

DIRECTION

TRIBUNAL:  Dr Damien Cremean, Senior Member

DATE OF CORRIGENDUM: 3 September 2021

PLACE:                    Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.The sentence in paragraph 6 and Dates of Hearing of the reasons of this decision is deleted.

2.The following sentence is substituted in its place:

a.    The hearing took place on 7 and 8 November 2019 and resumed on 10 February 2020.

3.The first sentence in paragraph 11 of the reasons of this decision is deleted.

4.The following sentence is substituted in its place:

a.    At the conclusion of the directions hearing on 8 June 2021, a Direction was issued for the parties to provide written closing submissions if minded.

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Senior Member

Division:GENERAL DIVISION

File Number:          2018/7637

Re:Shakira Delawar

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:1 September 2021

Place:Melbourne

The Tribunal sets aside the decision under review. The Tribunal substitutes a decision that no ground exists under s 22(1) by s 24(3) of the Australian Citizenship Act 2007 (Cth) or otherwise for denying the Applicant citizenship under that Act.

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Dr Damien Cremean, Senior Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship refused –requirement of identity allegedly not satisfied – alleged lies by Applicant—use of other name –identity established- – decision under review set aside.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

SECONDARY MATERIALS

Department of Home Affairs – Australian Citizenship [Policy Statement] - Citizenship Policy Instructions, Reissued 27 November 2020 (as revised)

National Identity Proofing Guidelines, Department of Home Affairs (2016)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

1 September 2021

BACKGROUND

1. A decision made on behalf of the Respondent, dated 7 December 2018, refused the application of Ms “Shakira Delawar” (“Applicant”) to become an Australian citizen. The refusal was on the ground that she failed to meet all the requirements set out in s 21(2) of the Australian Citizenship Act 2007 (Cth) (“Act”) in that under s 24(3) of that Act the Respondent could not be satisfied about the Applicant’s identity.

2. The Applicant has applied to the Tribunal to have such decision set aside.

   LEGISLATION

3. Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters as regards that person.

4. Then by s 24(3) of the Act it is specified that the Minister must not approve a person becoming an Australian citizen: “unless …satisfied of the identity of the person”.

5. The issue is whether the Respondent’s decision to refuse the Applicant’s application, on the ground that all the requirements in s 21(2) of the Act have not been met, is correct. Whether the Respondent not being satisfied under s 24(3) of the Act, is the correct or preferable decision in light of the evidence presented to the Tribunal at the hearing.

   HEARING

6. The hearing took place on 7 and 8 November 2019 and resumed on 8 June 2021.  

7. There was a significant break in the hearing brought about by a need to adjourn its further hearing pending resolution of what was to happen in a related matter.

8. The Applicant was represented on each occasion by Ms Lauri Stewart of Stewart Administrative & Migration Lawyers and the Respondent by Ms Katie Amanatidis and (later) Mr David Brown of the Australian Government Solicitor.

9. At the hearing in person sworn evidence was given by the Applicant (through an interpreter) and then by  Mr Mohammed Ali Amira (also through an interpreter) who was called by the Respondent. Each witness was cross-examined.

10. T Documents and other documents were received into evidence.

11. At the conclusion of the hearing on 8 June 2021, a Direction was issued for the parties to provide written closing submissions if minded.  They were informed that the Tribunal would consider their submissions and reach a decision in due course.

12. For the reasons below, the Tribunal has decided to set aside the decision under review.

    EVIDENCE

    Applicant

13. The Applicant gave detailed affirmed evidence and confirmed the contents of her witness statement dated 3 May 2019.

14. She identified the May 2019 statement and said: “Yes, that’s mine” when asked whether it was her statement and whether it was true. Strictly she did not say the statement was true, but no point was made of this and I make no point of it as being simply an oversight brought about often enough by the use of interpreters. In any event everyone proceeded as if the statement did truly represent her evidence although liable to be disputed. Further, in cross -examination the Applicant said that everything in her statement was “true and correct”.

15. I have read and considered the contents of that statement which is quite lengthy and very detailed.

16. Key points arising from the statement include the Applicant stating:

    (a)It is true that “when I first came to Australia, I said I was someone else”;

    (b)The name “Delawar” means “the brave one”;

    (c)“My dad was a very well-known wrestler before I was born” and his name is Mohammad Ali Amiri;

    (d)“When I was about eight years old ,my father was kidnapped by the Taliban”;

    (e)When “I landed in Melbourne…I said my name was Shaila Amini, and that my birthdate was 1993”. This is what “Shakib, the travel agent, had suggested that I do”;

    (f)She did this “because I believed that if I was granted a Protection visa ,I would be able to sponsor my family”. She gave that birthdate and not the 1990 birthdate “because it would make me be under 18 years old when I arrived and I was told I could sponsor my mother and siblings if I was under 18”;

    (g)The person who assisted filling out citizenship forms for her “did not know that I used a previous name”;

    (h)When she applied for her Subclass 461 visa “the information I gave about my identity, my address and my family composition was true”. However, “[e]ven when I said that my name was Shaila Amini, Immigration did not believe me”;

    (i)It was not possible to get a Taskera from the authorities in Afghanistan when “she was a child”;

    (j)“I know that I have not always been honest about my identity”. In the past “I did not really appreciate the need for every detail to be 100% accurate”;

    (k)Her father did not give her much information about his arrest by the Taliban because he wanted to avoid causing her stress. However, she first heard from him when she was in Iran; and

    (l)She had not meant in her statement that her father was a “real wrestler” and in fact he was not a wrestler but he looked to her “like a wrestler” and her references in her statement to him being a wrestler occurred as a result of a misunderstanding between her and her lawyer.

17. In her oral evidence, the Applicant said that her name is “Shakira Delawar” and that she was born in 1990. The Applicant stated that was her “real” name but she agreed that when she arrived in Australia on 9 October 2010, the name she gave was “Shaila Amini” and she did this so as to be able to sponsor her family. Immigration officials however insisted her real name was “Shakira Delawar” and that it was under that name that she was given her protection visa on 26 August 2011.

18. The Applicant explained that she did not read the forms she signed; she just signed them.

19. In Afghanistan the Applicant said: “no one gets a certificate when they’re born but she could prove her identity based on her taskera”.

20. Cross-examination of the Applicant was lengthy and detailed. It is important for all Counsel to avoid lengthy rambling questions especially when going via interpreter.

21. One reason why that is –as in this very case—the answer of a witness to a long and rambling question may be to some unascertained or unintended part of the question. The cross-examiner may think the intended question is being answered but the witness is answering some other part or parts of it. This means there may be instances where on some important point or points a witness’s answer has only reduced value or no value at all. I found that to be so in this case when some long and rambling questions were asked of the Applicant. 

22. It is no less important to ask questions which do not result in overall argumentative statements of position  being put to a witness in the course of what is intended to be a single focused question being asked. Positions must be put, of course, but care must be taken to ensure that a complex proposition is not put in the belief that a witness will give an answer which is useful when that is not possible because the question has many or too many component aspects to it or parts of it. That also is what occurred in cross-examination in this case.

23. Points elicited in cross-examination include:

    (a)The Applicant identifying her name as “Shakira Delawar” born in 1990—on an Afghani passport;

    (b)The Applicant identifying a New Zealand marriage certificate dating her marriage under that name to Mohammed Reza Aglassi as of 2008;

    (c)In the application for a visa the Applicant made in 2009 in an interview she gave the name “Shaila Amini” with a birth date of 1993 and said she was single and she gave the same information in a second interview on 12 October 2010;

    (d)The Applicant also nominated an individual as her brother when in reality he was her cousin;

    (e)The Applicant signed the application form without reading it beforehand;

    (f)In a Statutory Declaration made on 15 October 2010, the Applicant said she believed her father had been killed by the Taliban; and

    (g)Her intention was not to deceive authorities: she was focused on sponsoring her family. 

24. In re-examination, the Applicant identified a document in the name of “Shakira Delawar”  from authorities allowing her to go into community detention from the centre in Darwin and an identity card issued in that name by the Respondent’s Department dated 13 April 2011.

    Applicant’s father

25. Mr Mohammed Ali Amiri gave sworn evidence that he was born in 1965 in Afghanistan. He said he is unable to work and is currently on a disability support pension.

26. The witness said his family name is “Amiri”.

27. The witness said he arrived in Australia some time in 2012 by boat. He said he came “from the atrocity of the Taliban”.

28. He said he had been working as a guard at a school when he, along with two or three others, were captured by the Taliban. The main purpose of the Taliban was to destroy the school.

29. The witness said he was kept imprisoned by the Taliban after this for six months and while with the Taliban suffered “severe torture and punishment”.

30. The witness said he managed to escape. After some time, perhaps two weeks in the mountains in Iran, he said he went back to his house, but it was hit by a mortar shell and he was seriously injured. He was unconscious when he had been brought in to the Ghazni hospital.

31. After leaving hospital, sometime later the witness said he went to Pakistan, but he was “totally confused and lost at that time”.

32. Mr Amiri said he still suffers from forgetfulness “like dementia” and “I am also suffering from depression and mental problems”. He said: “I cry, and I cry  and cry”.

33. When asked in cross-examination what his daughter’s name was he said “Shakira” but that her adopted name was “Delawar” although her family name was “Amiri”. He said “Delawar” means a “brave person”.

34. When asked also in cross-examination to point out his daughter he pointed to the Applicant present in the hearing room.

35. The witness identified a signature on an application for refugee status as his with the initials “MO”.

36. When he was a young man Mr Amiri said he would wrestle with other young ones.

    CONTENTIONS

37. The Applicant contends that the decision under review should be set aside and a decision substituted –namely, a decision not to refuse her application for conferral of citizenship.

38. It is submitted that identity under s 24(3) of the Act is the only issue of concern and that I should find that the true “identity” of the Applicant is “Shakira Delawar” with a date of birth in 1990 despite her having used another name on occasions, particularly upon arrival in Australia.

39. Reference is made to a number of decisions in support including Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117] and to relevant National Identity Proofing Guidelines.

40. Reference also is made to various documents submitted on behalf of the Applicant as further proving her claimed of identity.

41. The Respondent on the other hand contends that the decision under review should be affirmed on the ground that I cannot be satisfied as to the Applicant’s identity having regard to all the materials now before the Tribunal.

42. Reference is made to Australian Citizenship Policy chapter 13.

43. Reference is also made to a number of factors pointing to inconsistencies in the Applicant’s version of events including oscillating between two identities “Shakira Delawar” and “Shaila Amini”; and changes in the account of events given by the Applicant including as to family composition and as to whether she is single or married and if married as to the date of her marriage.

44. Reference also is made to her evidence that she could not obtain a Taskera as a newborn. It is said this is inconsistent with country information. 

    CONSIDERATION

45. I have no doubt that there have been various occasions in the past where the Applicant has engaged in lying for whatever reason.

46. A clear instance is where she claimed her cousin was her brother. This it seems was an attempt by her to ensure as many of her  “family” as possible might be able to get to Australia out of her endeavours.

47. I consider another instance of her lying is the description of her father as a wrestler. The fact is he was not a wrestler, although as he said he was strong in his youth and would engage in wrestling with others.

48. I do not accept at all that the inclusion of the reference to him as a wrestler in her witness statement came about by the mistake of her lawyer. But why she would fabricate this particular matter is unclear to me.

49. I agree with the Respondent also that there are manifest inconsistencies in areas of the Applicant’s evidence. A clear instance is the dates of her New Zealand marriage.

50. I cannot see anywhere, however, where it was distinctly put to the Applicant that she is lying when she says her real name is “Shakira Delawar” having a date of birth in 1990.

51. I would agree however that it was at least put by implication, perhaps in the course of an unduly long question in cross-examination. In the end though it does not matter to my analysis even if that was not in fact put distinctly.

52. On the particular point of her name “Shakira Delawar” I do not regard the Applicant as lying.  Independently of whether that was distinctly put to her or not, I am satisfied therefore she told me the truth on that particular point.

53. I am simply not prepared to find she is lying on that particular point merely because she has lied on other matters. Someone may lie about some matters and yet be telling the truth about something else. That in essence in my view is this case.

54. Nor am I prepared to find that the Applicant  is lying on that particular point merely because there are inconsistencies in areas of her evidence. Someone may speak inconsistently about matters and yet be entirely consistent on one particular point. I regard the Applicant as consistent on that particular point that she is in truth  “Shakira Delawar”.

55. It is unnecessary to make any finding about the Taskera and whether one was available to the Applicant as a newborn or not. Country information is not conclusive in the face of actual evidence and country information simply cannot be asserted from the Bar Table so to speak.

56. I regard the Applicant’s claim to that identity as being her “real” identity as one supported by Mr Amiri who I find is her father. In the witness box and on oath he identified his daughter in the hearing room and said that was her name. There was moreover a strong physical resemblance between the two, but I hasten to add I have no expertise in facial recognition techniques.

57. It is unnecessary to make a finding as to how the name “Shaila Amini” (or “Amiri”) came about but it seems that in the Afghani culture there is a family name and a name able to be adopted. If the Respondent had explored this further, the matter could have been resolved more readily, and earlier on.

58. It was not put to Mr Amiri that he himself was lying about this particular point of his daughter’s true identity. Nor could that be put to him unless the Respondent was to impeach her own witness. It would serve no purpose for the Applicant to put to him that he is lying on this point.

59. I accept that Mr Amiri suffers forgetfulness and has a number of other ailments caused by his treatment by the Taliban but on this particular point, I am satisfied having observed him closely, he knew what he was saying and had a good memory of who his daughter was and was telling me the truth.

60. Mr Amiri was of course called by the Respondent. I assume out of a duty to bring forward to the Tribunal all relevant evidence. But he was the Respondent’s witness and his evidence curiously did not support the Respondent’s position.

61. Unless it was to observe such a duty, and it is commendable if so, I cannot see why the Respondent called Mr Amiri to give any evidence. Indeed, going even further back, knowing what he would be saying, the Respondent should have resolved this matter long ago and well before it came on for hearing.

62. The absurdity which then followed was cross-examination by the Applicant’s Counsel. This served no obvious purpose as I have said. The reality is that Mr Amiri’s evidence supported the Applicant’s position.

63. However, even if I was not to accept the evidence of Mr Amiri and was to find he had been lying to me I would still find in favour of the Applicant.

64. Independently of his evidence I accept the evidence of the Applicant on the particular point of her true or real identity.

65. In any event I find it hard to accept that the Respondent herself is acting consistently in denying that “Shakira Delawar” is the Applicant’s true identity when there is documentation from delegates of the Respondent formally addressing the Applicant by that name.

66. Indeed, even the letter conveying the reviewable decision of the Respondent and the decision itself is addressed to “Shakira Delawar” with a date of birth in 1990. In such circumstances I consider it difficult for the Respondent to maintain a position whereby the decision under review should be affirmed.

67. For the reasons I have given I am satisfied that the Applicant’s true identity is as named in the letter conveying the decision to her “Shakira Delawar” with a date of birth in 1990.

68. It follows I am satisfied there is no ground under s 22(1) of the Act by virtue of s 24(3) for refusing citizenship to the Applicant.

69. From this in turn it follows that the decision under review must be set aside, no other ground under s 22(1) of the Act having been relied upon and a decision substituted that no ground exists for refusing the Applicant citizenship under the Act.

    DECISION

1. The Tribunal sets aside the decision under review. The Tribunal substitutes a decision that no ground exists under s 22(1) by s 24(3) of the Act or otherwise for denying the Applicant citizenship under that Act.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member

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

Associate

Dated: 1 September 2021

Dates of hearing:

7 and 8 November 2019

 8 June 2021

Advocate for the Applicant:

Ms Lauri Stewart

Solicitors for the Applicant: 

Stewart Administrative & Migration Lawyers

Advocates for the Respondent:

Ms Katie Amanatidis

Mr David Brown

Solicitors for the Respondent:

Australian Government Solicitor