Faiz Mohammad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2053
•1 July 2020
Faiz Mohammad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2053 (1 July 2020)
Division:GENERAL DIVISION
File Number(s): 2017/6717
Re:Basit Faiz Mohammad
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT
DECISION
Tribunal:Member O’Loughlin
Date:1 July 2020
Place:Adelaide
The decision under review is set aside and the matter is remitted to the respondent with a direction that the applicant has demonstrated his identity for the purposes of S.24(3) of the Australian Citizenship Act 2007.
.........[sgnd].............................................
M O’Loughlin
(MEMBER)
Catchwords
IMMIGRATION AND CITIZENSHIP – application for citizenship by conferral – application for citizenship refused – whether Tribunal satisfied as to identity – inconsistency in evidence – credibility - decision under review remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Ahamod v Minister for Immigration and Border Protection [2019] AATA 7
Briginshaw v Briginshaw (1938) 60 CLR 336, [263].Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117]
REASONS FOR DECISION
Member O’Loughlin
1 July 2020
This is an application for review of the decision by the Minister for Immigration and Border Protection to refuse an application by Mr Basit Faiz Mohammad (“the applicant”) for Australian citizenship by conferral.
The applicant applied for Australian citizenship on 28 July 2016.[1] The delegate of the Minister was not satisfied of the applicant’s identity and therefore, under section 24(3) of the Australian Citizenship Act (“the Act”), could not approve the application. The delegate decided to refuse the application for citizenship on or about 25 October 2017.
[1] T5 pp 51-77.
The applicant has sought review of that decision by this Tribunal.
APPLICANT’S EVIDENCE
The applicant gave evidence that he understands that he was born on 29 May 1994 in Behsud, Afghanistan.[2]
[2] T1 p5; T2 p7, T5 pp52-53.
He was told by his mother that his family left Afghanistan when he was 4 or 5 years old. He understands that they left because they were Hazari and liable to persecution in Afghanistan by the Taliban.[3]
[3] Statement of Zeinab Faiz Mohammad.
The applicant said that the family went to Iran where they lived as refugees and illegal immigrants.
A few months after they moved to Iran, his father returned to Afghanistan and was killed by a mine. The applicant was left in Iran with his mother and sister.
His evidence was that during the time in Iran they were illegal immigrants with no status. He said that he did not go to school and generally they stayed at home otherwise they ran the risk of being caught and bullied by locals.
He believes that there were many other Afghan people in the same position.
He said that he lived with his mother and his sister in Iran for about 6 years but in about 2005 or 2006 his mother decided to remarry and her new husband did not want the children living with him.
The applicant said that he and his sister were sent to live with their Grandmother in Pakistan. Their auntie also lived there with them.
He said that in Pakistan the family were undocumented refugees. His evidence was that identity cards were available in Pakistan but they were dangerous to get because to do so one had to leave the safe zone. He also said that within the community it was easy to recognise Afghan people and he did not need an ID card to work. He did odd jobs doing whatever he could find.
He said that there was occasional attention from authorities but because he was so young, they were not too harsh on him. He avoided going to any Government offices where he might be asked for an identity card and if he was asked in the street, he could bribe his way out of trouble quite easily.
He said that his grandmother would earn a little by doing household work and his auntie worked as a tailor. He was able to make a small amount and they also got some money from another auntie in Australia.
He gave evidence that, because they had to rent accommodation, they moved several times and he believes that they had 4 or 5 addresses in Pakistan.
Although he did not go to school in Pakistan, he did a few months of informal English classes that were given by a man who used to do that for the refugees.
He gave evidence that he left Pakistan in 2011. He would have been about 17 years old. He left from Karachi and went to Thailand then Malaysia.
He said that the whole journey took about 5 or 6 months and that he spent some time in detention on Christmas Island before he got a visa in April of 2012 and came to Australia.
The applicant told the Tribunal that he got further schooling while he was on Christmas Island.
Once he got his visa he started work at a restaurant and found steady work.
He said that he left Pakistan because life was so hard. He said that he was restricted in following his religion and getting an education. He also said that other refugees were leaving and that it did not make sense to stay at risk to his life.
He gave evidence that the Taliban were killing Hazaras like himself and that they had been doing that for years. He said that it was because the Hazaras are Shia and the Taliban made a religious order, a fatwah, to kill them.
The applicant said that when he left Afghanistan, he was only a child and he did not have any identity documents. He said that he did not think a child would understand such things, by which the Tribunal understands him to be saying that he was too young to be involved in making decisions about these types of matters.
The applicant’s identity documents
When asked what identity documents he has had, the applicant said only his Taskera and a passport.
The June 2018 Taskera
He identified the Taskera as exhibit A1. That document gives a date of issue of 12 June 2018.
He said that he did not have it when he left Afghanistan but that after a letter from the Respondent and a conversation with a friend, he was prompted to contact the Afghan embassy in Australia.
He said that he provided a copy of his grandfather’s Taskera and some pictures of himself. A friend followed it up with the Afghan embassy in Canberra. He said that he did not previously realise that he could get a Taskera from the Afghan embassy in Canberra.
He did not have his father’s Taskera and, because his father is dead, he was able to use his grandfather’s.
His evidence was that one of his distant family members emailed his grandfather’s Taskera to him.
The applicant gave evidence that he sent in an application form together with the Taskera from his grandfather and some photographs of himself and the Taskera was issued.
There is no evidence about the contents of the application form.
There was no suggestion that the applicant was interviewed by a representative of the embassy or that he was obliged to provide a copy of his passport or any other documents that identified him.
Afghan Passport
The applicant said that he no longer had his Afghan passport but that he had one when his Auntie was trying to sponsor him and his sister to Australia. The Tribunal observes that that appears to have been in about 2010.[4] He confirmed that page 281 of the Supplementary T documents[5] shows a copy of part of that passport.
[4] Statutory Declaration Zahra Faiz Mohammad 15 July 2010, Exhibit R2 Supplementary T Documents p 272.
[5] Exhibit A1.
The partial copy of the passport bears a date of issue of 18 March 2010 when the applicant would have been nearly 16 years old.
He thinks that he went with his grandmother and his sister to the Afghan consulate in Quetta to get the passport but was not sure.
He said that he did not need supporting documents to get the passport although he did not know whether his grandmother provided his grandfather’s Taskera to get that passport. His evidence was that the passport was lost years ago.
Regarding his time in Iran he said that they were so young that they did not apply for documents. That was left in the hands of their elders and was not their concern.
He said that his father was killed within a few months of them getting to Iran. His mother supported him and his sister by doing washing and cleaning. His sister was a year younger than him.
He said that his mother remarried in 2005 and that her new husband made it clear that he did not want the children, so they moved to Pakistan in 2006.
He said that his mother’s new husband was named Hussain and that he and his sister called him “uncle” as was the tradition.
He said that he and his sister lived with his mother and her husband for a few months but that it was not good, and he thinks that is why his mother decided that he and his sister should move away.
He said that his mother’s new husband argued with them all the time and also bullied him and his sister. He said that they were hit, and that abusive language was used.
He went to live with his grandmother in Pakistan when he was 11 or 12 years old. He recalled that it took a couple of days to get to her and that he travelled in the back of a car, but he did not remember much more about it.
The Tribunal observes that that would have been in about 2005 or 2006 if the applicant’s recollection of his age is accurate.
He was also asked about his Auntie Zahra. He said that she came to visit in about 2009 and said that she would sponsor the children to come to Australia.
He said that he thinks the application for them to come was made in 2009 or 2010.
The applicant gave evidence that although the application had been made the situation in Pakistan deteriorated to such an extent that it was decided that they would leave.
That was when he was 17 years old which suggests that it was in about 2011. The applicant said that the cost was met by his grandmother and by borrowings. His application was maintained after he arrived, but his sister’s application had some mistakes in it and was rejected.
The applicant gave evidence that his sister had returned to Pakistan and had lately been both physically and mentally ill. The applicant said that he had been back not long before the hearing but that by the time that he gave evidence he had lost contact with her.
In relation to his own personal life the applicant said that his grandmother had arranged a marriage for him, and it had taken place in 2016. There is a marriage certificate in evidence that appears to support the fact and date of the marriage and the identity of the applicant’s wife.[6]
[6] Exhibit A12.
The applicant gave evidence that he and his wife have a daughter who was born in January 2017.
The Tribunal’s attention was directed to the application for a Taskera that the applicant made and submitted to the Afghanistan Embassy. The document was admitted into evidence[7] but no translation was available and the applicant was asked to provide a translation orally from the witness box, which occurred without objection.
[7] Exhibit A6.
Cross examination of the applicant
In cross examination the applicant was asked about his birthday and how he knew when it was, which he repeated was something his mother had told him. He did not know the birthdates of other family members such as his mother or sister.
He did not know whether he was born in a hospital or at home but did understand that he was born in Behsud, Afghanistan.
He was asked to describe his day to day life in Iran and said that his memories of that time were not clear. He said that they would usually stay home. He said he has some memory of playing in the park but that they were bullied and abused for being Afghani.
He had said in his evidence that his mother had worked but he did not remember if he was at home alone looking after his sister.
He was not sure if they lived at one single address in Iran and thought that they may have moved around when they lived there.
He was asked why, in that case, they only had one address listed by their aunt Zahra in the Orphan Relative visa application. He said that it was common not to change postal addresses when one moved and that the locals would advise when post came in.
The applicant said that he did not know the details of their accommodation; he knew that it was a house rather than a flat but he did not know what the rent arrangements were.
He said that he did have some playmates but that he could not remember their names as it was too long ago.
He said that he is not sure if those other children went to school but that most of them did not have papers, so they did not.
He said that he is no longer in touch with anyone in Iran and that his Grandmother says that she does not remember any details of the time there.
The applicant was also cross examined about his father’s death. He said that he had always understood that his father was travelling in a car that hit a Taliban mine.
His attention was drawn to his statutory declaration of 6 March 2018[8] and it was noted that it also said that his father was in a car that hit a Taliban mine.
[8] Exhibit A4.
It was put to the applicant that the signed witness statement, a translation of which appears at page 357 of the Supplementary T documents,[9] says that the vehicle was a bus rather than a car.
[9] Exhibit R2.
The applicant said that this is a matter of the interpretation and that the language does not distinguish between a bus and a car. The interpreter was able to clarify that this is the case and that a generic term for “vehicle” is used.
The representative of the respondent sought to make more of this but the Tribunal accepts that it is a quirk of translation rather than an inconsistency in the applicant’s evidence and it is not significant.
It was put to the applicant that his father died in about 2000 and he agreed saying then or 1999.
The applicant was told that in 2001 his aunt had said that her brother, the applicant’s father, had died 4 years earlier, which means about 2 or 3 years before the time cited by the applicant. He was asked if he could give any reason for his aunt saying that and he said he could not.
He was also told that in 2010 when his aunt sponsored the applicant and his sister to come to Australia as orphans, she listed their father as “missing”. Again, the applicant could not explain why his aunt did that save that she made a mistake.
The applicant’s sister, Wajiha had made a statement[10] when she was 17 years old. It was made in the form of an interview to a representative of the Department who was testing the evidence in support of the Orphan Relative visa application. The respondent sought to make much of what it described as “inconsistencies” between Wajiha’s statement and the evidence from the applicant.
[10] Exhibit R2 p 370 and following.
One was that she has said in her statement that the family lived in Afghanistan until her father was killed, then her mother remarried, and they then moved to Iran. The applicant’s evidence was that the family moved to Iran and that their father was killed when returning to work in Afghanistan.
The applicant said that his sister was young at the time of these events and has since had mental health issues. He said that she must have made a mistake in her interview. He maintained that those events happened in the order he described.
It is not in dispute that Wajiha was about 5 years old at the time of these events. The Tribunal does not regard the inconsistency referred to as impugning the applicant’s evidence.
Other inconsistencies were put. One was that the applicant had said that his mother told him about his father’s death. Wajiha said that their grandmother had told everyone in the household, including the applicant, at the same time.
The applicant said that his sister had made a mistake and further that they learned of their father’s death when they were in Iran not Pakistan and that their grandmother had not been there.
Another alleged inconsistency was that Wajiha said that there was a funeral at home and her father’s body was buried in Afghanistan, whereas the applicant said that the body was not recovered. The applicant maintained his version, saying that there was a ceremony in Iran but no funeral in Afghanistan because there was no body. He said that his sister must have been confused.
In this regard it is worth noting that in her statement Wajiha in fact said that she did not know whether her father’s body had been brought home. She was asked whether her father was buried but did not definitively say that it was in Afghanistan as was put to the applicant.
The transcript of the statement shows that she was asked where her father was buried and having replied “Must be in our village in Afghanistan. I don’t know.” She said she had never visited it and that she “guessed” where he is buried.
The Tribunal finds that there is no important inconsistency between the evidence of the applicant and the statement of Wajiha which must be viewed in the context of it being the statement of a 17 year old girl regarding her memories of events that occurred when she was 5.
The applicant did give evidence that his sister has had mental health problems and did suggest that they may partly explain any inconsistencies. The Tribunal does not have any basis upon which to find that mental health issues may have affected Wajiha’s statement and does not so find.
The applicant was also asked about his mother’s remarriage in about 2006 or 2007. It was put to him that until he saw his mother’s marriage certificate, he did not know the name of the man she married. The applicant was unsure if that was the case.
He said that after his mother married this man, Hussain, the family lived with him but that he did not welcome the children. He beat them and was unkind.
The applicant was asked about contact with his mother since he moved to Pakistan and he said that he had not had any, including when she apparently went to Quetta to give a statement in support of his Orphan Relative visa application.
It was put to the applicant that the move to Pakistan was not to remove the children from the less than ideal circumstances in Iran but was in fact to support the Orphan Relative visa application that was ultimately made.
The applicant said that that was the situation they were in. He said he did not understand how it helped the visa application.
In discussion before the Tribunal the parties agreed that the applicant and his sister moved to Pakistan in 2007 and that the Orphan Relative visa application was in 2010. The respondent submitted that that could still be characterised as an application that was made “soon after” the move to Pakistan, but the line of questioning was not pressed any further.
The applicant was asked whether they registered as refugees in Pakistan and obtained proof of registration cards. He said that they did not and that the cards were more generally used by Pashtuns who were less likely to be victimised in Pakistan.
It was pointed out to the applicant that the proof of registration card afforded a few advantages such as the ability to pass checkpoints or open a bank account but the applicant said that his family were concerned that if they got a card they would be more easily identified as illegal residents and may suffer persecution.
The applicant said that generally he was able to move fairly freely in Pakistan without a card, particularly as he was young.
The Tribunal accepts that the family could probably have applied for registration as refugees and that the fact that they did not does not support the application.
The applicant gave evidence that while in Pakistan they moved quite frequently, generally staying at each place for a few months or a year. They usually stayed in the same area and retained the same postal address.
It was put to him that the fact that they maintained a single postal address and the fact that they were able to own mobile phones (which should require papers) suggested that they were not in fact refugees in Pakistan. The applicant said that the address is not important and that on the occasions that he has sent money back to Pakistan he has done so without an address, just a number to identify the withdrawal. He also said that although having a mobile was supposed to require papers, that was easily avoided.
The Tribunal notes that the matters referred to do not support the application but affords them little weight.
The applicant was asked about his schooling and said that his only schooling in Hazaragi was reading the Koran. He said that when he got to Australia he worked very hard on acquiring functional English which he did by attending Thebarton College and by learning on the job working in a restaurant.
In relation to his Taskera he confirmed that he obtained it by filling out an application[11] and providing his driver’s licence and a copy of his grandfather’s Taskera.
[11] Exhibit A6.
He confirmed that he had not previously held a Taskera. When asked how he was able to get an Afghan passport in 2010 without one, he said that he did not know.
Cross examination regarding the applicant’s Taskera
The applicant was closely cross-examined about the status of his Taskera and the provenance of his grandfather’s Taskera.
It was noted that his grandfather’s Taskera, the one he had submitted to the embassy in Canberra to obtain his own Taskera was a new document that had been reissued shortly before his application.
The applicant said that there had been an old Taskera but that it was in poor condition and his grandfather was advised to obtain a new one for the purposes of the applicant’s own application. The applicant did not know what had happened to his grandfather’s original Taskera.
Much was made of the reliability of the documents submitted in support of the applicant’s Taskera application.
The respondent has submitted the Tribunal should find that the applicant’s Taskera is not genuine.
The Tribunal notes that that is a possibility although the various stamps appear to be regular.
The Tribunal is more concerned that there was apparently little effort to verify representations made by the applicant in the course of obtaining that Taskera.
If the Taskera is genuine, it appears to have been obtained simply by submitting some personal details, some photographs, and a copy of another Taskera to the Afghan embassy in Canberra.
On the applicant’s own evidence, the Taskera is of limited assistance to the Tribunal in determining the applicant’s identity.
THE APPLICANT’S AUNT
The Tribunal also heard evidence from the applicant’s aunt, Zahra.
In her evidence she said that she was originally a citizen of Afghanistan but is now a citizen of Australia.
She said that she speaks a little English but that her native tongue is Hazaragi. She said that although she was taught to read the Koran she was not otherwise educated and her reading and writing are not strong.
She said that she was present at the applicant’s birth in Afghanistan.
She said that she left Afghanistan in late 2000 to escape the Taliban. She said that her brother (the applicant’s father) was killed and that they left about 4 or 5 months after that happened.
She said she recalled sessions reading the Koran to mark her brother’s death. She said that the applicant and his sister Wajiha were in Iran with their mother at the time.
She said that she saw them in about 2007 or 2008 when she visited her parents and sister in Pakistan.
In 2009 she agreed to sponsor the applicant and his sister and in 2010 she applied for an orphan relative visa for them.
She was asked about the documentation provided in support of that application and her evidence was that she was unable to read it. She said she needed the assistance of a migration agent to fill out the documents.
She identified the Taskera that the applicant had used to obtain his Taskera as being that of her father, the applicant’s grandfather.
In cross examination she said that she knew the applicant’s approximate birth date but that her memory had been affected by anti-depressant medication, so she did not know the exact date.
She was asked about the apparently consistent postal address for the family in Pakistan. It was suggested to her that the fact that the family maintained a single postal address for an extended period suggested that they had not been forced to move around much which in turn suggested that they were not undocumented or illegal immigrants but Pakistani citizens.
She said that her mother was friends of the wife of one of their landlords and that they used her address as a postal address to ensure that they did not miss their post.
She was asked about the applicant’s Afghan passport but did not know how it had been obtained.
She was asked about her family’s access to mobile phones in Pakistan and it was put to her that the fact that they have them suggests that they are citizens of Pakistan because Country Information suggests that local identity documents are needed to buy a sim card. She said that that requirement was easily circumvented and that sim cards are freely available in the informal market.
The Tribunal finds that the evidence of this witness appeared generally reliable and it provided support for important aspects of the application, including the applicant’s place of birth. The witness did have some problems with memory of fine detail, but she acknowledged that and the Tribunal finds her to have generally been a witness of truth.
CONSIDERATION OF THE EVIDENCE
The delegate of the Minister refused the application for Australian citizenship by conferral on the basis that she was prohibited from approving it unless she was satisfied of the identity of the applicant. That prohibition arises under section 24 (3) of the act.[12]
[12]Australian Citizenship Act 2007(Cth).
The Tribunal’s review is a rehearing and all issues may be ventilated but the evidence and argument were directed at the issue of the applicant’s identity.
It is not surprising in a matter like this that there are irregularities in the documentation available to the Tribunal.
The applicant does not claim to have surviving identity documents from his childhood or youth.
At the time of the delegate’s decision the applicant did not have a Taskera. He has since acquired one and the respondent concedes that the applicant can therefore demonstrate that he is now a citizen of Afghanistan. However, the respondent submits, with some force, that the process by which it was acquired was not robust. In particular it did not involve a searching inquiry into the applicant’s identity.
In submissions the applicant’s representative urged upon the Tribunal the formulation adopted in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117];
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity.
It is true that an applicant need not provide faultless and complete documents in cases where they simply are not available. It is also true that an applicant who does not provide full documentation will need to have good reasons why the documents are not available before the Tribunal can be satisfied as to identity. However, a good reason for not having documentation does not actively count towards establishing an applicant’s identity. It merely eases the burden of providing documents where they ought to be available. While the absence of documentation may be consistent with an applicant having had a disordered or disturbed background, it may equally be consistent with an applicant being unable to document their claimed identity because it is false.
In this matter the Tribunal does not find that the applicant has made false representations about his identity.
However, the Tribunal is not satisfied that the process by which the applicant’s Taskera was obtained was so thorough that the Taskera can be viewed as reliable evidence of the applicant’s identity.
The Tribunal is aware of the rigorous standards to be applied when considering conferral of Australian citizenship.
The question of the application of the principal in Briginshaw was raised in submissions.
Both parties discussed the decision of Senior Member Illingworth in Ahamod v Minister for Immigration and Border Protection [2019] AATA 7 (8 January 2019), noting his comment at paragraph 30:
Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule.
The comment was cited to the Tribunal by both sides and the Tribunal agrees that citizenship is not a grant that should be conferred lightly.
The only other documentation available in relation to the applicant’s identity was the applicant’s Afghan passport, which the applicant himself conceded was possibly not genuine.
It was obtained on his behalf and he could not advise as to its provenance. He did not seek to rely on it.
On that basis the passport cannot be accepted as persuasive evidence of his identity.
The applicant has asked the Tribunal to have regard to the evidence of his aunt and to various statements in support of his application.
There is an interpretation of a statement from the applicant’s grandmother, Zeinab Faiz Mohammed,[13] which is essentially consistent with evidence given by the applicant. The statement was not tested by cross examination but presumably represents the evidence that the applicant’s grandmother would have given. The Tribunal accords this evidence some weight.
[13] Exhibit A2.
There are various other statements by people who claim to have known the applicant or his family.[14] Some of them say that he is an Afghan national but none of them provides a convincing basis for that statement. The Tribunal further notes that this evidence has not been tested by cross-examination.
[14] Exhibits A7, A8, A9 A10 and A11.
FINDINGS
The applicant’s evidence in this matter was consistent and he has consistently said that he was born in Afghanistan and he is a citizen of that country.
The Tribunal finds that the documentary evidence made available by the applicant demonstrates that he is now a citizen of Afghanistan but provides no important corroboration of his place of birth.
The Tribunal has regard to the evidence of the applicant’s aunt who was clear about aspects of the applicant’s life that the Tribunal considers to be important to his application.
The Tribunal is hesitant to rely on the untested evidence of other witnesses but notes that it does support the evidence of the applicant and his aunt.
The Tribunal finds that the evidence generally supports the application.
On balance, the evidence before the Tribunal is sufficient to satisfy the Tribunal of the applicant’s identity.
DECISION
The decision under review is set aside and the matter is remitted to the respondent with a direction that the applicant has demonstrated his identity for the purposes of S.24(3) of the Australian Citizenship Act 2007.
149.
150. I certify that the preceding one-hundred and forty-eight paragraphs are a true copy of the reasons for the decision herein of Member O'Loughlin.
............[sgnd]........................................
Administrative Assistant Legal
1 July 2020
Date(s) of hearing: 1 & 2 April 2019 Applicant’s representatives: Mr Besmellah Razaee Respondent’s representatives: Ms Laura Butler
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
-
Remedies
0
2
0