FGRD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 2061
•30 June 2022
FGRD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2061 (30 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5622
Re:FGRD
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:30 June 2022
Place:Brisbane
The correct or preferrable decision is for this Tribunal to affirm the delegate’s decision under review made on 26 July 2021 refusing a grant of citizenship to this Applicant.
.....................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether prohibition under subsection 24(3) of the Australian Citizenship Act 2007 (Cth) applies – Shia Muslim – where Applicant stateless– where Applicant a refugee – inconsistent evidence about familial background – inconsistencies critical to question of identity – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634John v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 77
Secondary Materials
Australian Citizenship Policy
National Identity Proofing Guidelines
Revised Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship ActSupplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
30 June 2022
FGRD (“Applicant”) came to Australia as an illegal maritime arrival on 23 November 2011. He claims citizenship as an Afghani national and also claims that he was born on 20 August 1984. Several months after his arrival in Australia he was granted a Protection Class (XA) (Subclass 866) visa. He currently holds a Resident Return (Class BB) (Subclass 155) visa which was granted to him on 29 August 2017. He applied for Australian citizenship by conferral by way of an application dated 20 July 2016.[1]
[1] R1, T4, p 29.
Upon receipt and assessment of his above-mentioned application, the Department of Home Affairs sought clarification of certain inconsistencies apparent from his application documents with a primary focus on his name and date of birth.[2] On 8 June, 2021, he provided a response[3] to the Department of Home Affairs and provided the following by way of a life story and other details to facilitate a reliable assessment of his identity. In this response, he said:
[2] Ibid, T9, pp 94-100.
[3] Ibid, T10, pp 101-106.
(a)that he was born in Afghanistan in 1984;
(b)that he fled to Pakistan with his family when he was two years of age;
(c)that her could not produce any identity documents currently held by Pakistani authorities;
(d)that for the purposes of facilitating his access to education in Pakistan, his father created an identity for him via a previous identity held by a then-deceased person;
(e)the name of the putative citizen on this created identity was “Mr M.A” and the father of that person was said to be “Mr M.H”;
(f)the actual name of his father is not “Mr M.H” but “Mr G.A”;
(g)despite these inconsistencies in both the identity of the Applicant and his father, he (the Applicant) has at no time updated his personal particulars with the Pakistani authorities that would normally appear in his CNIC [4];
[4] Computerised National Identity Card: this is issued to citizens of Pakistan and is available to any citizen of that country that is 18 years of age or older.
(h)he produced a Pakistani marriage certificate which was issued by the Quetta Municipality Corporation. This certificate was based on information recorded in his Australian Travel Document;
(i)he attended primary school in Pakistan between the years 1989 and 1995;
(j)he commenced high school at the Iranian School in 1996;
(k)he took on the surname of “E” upon commencing his high school education in order to comply with Iranian naming conventions;
(l)he completed his secondary schooling and then went to Iran for tertiary study and, in August 2003, he graduated from Isfahan University of Medical Sciences in Iran;
(m)he then returned to Pakistan;
(n)neither he, his parents or grandparents have ever held Iranian citizenship;
(o)he has never held a Tazkera from Afghanistan due to a claimed risk of persecution as a Hazari upon any return to Afghanistan;
(p)upon arrival in Australia, he declared his identity, which is the current identity known to the Department;
(q)he has maintained that identity for the totality of the time he has resided in this country and is known by that name by the Department of Home Affairs and in all other aspects of his life in Australia including ongoing study and remunerative employment.
Before the Tribunal is a request by the Applicant for the review of a decision made on 26 July 2021 by a delegate of the Minister for Immigration, Migrant Services and Multicultural Affairs (“Respondent” or “Minister”) involving a refusal to grant the Applicant’s application for citizenship. The basis of the refusal was due to the delegate not being satisfied of the Applicant’s identity pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth) (“Act”).[5]
[5] R1, T11, pp 107-121.
The hearing was conducted before me on 19 April 2022. The sole witness at the hearing comprised the Applicant. Written material was also tendered which I have summarised into an Exhibit Register that was accepted by the parties at the hearing.[6] Attached to these reasons and marked Annexure A is a copy of this Exhibit Register.
LEGISLATIVE FRAMEWORK
[6] See, generally, Transcript, p 2, lines 24-47.
The legislation
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions made under s 24 of the Act.
The Preamble to the Act states:
“The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.”
Section 24 of the Act confers a general power on the Minister to either approve or refuse to approve an application made under s 21 of the Act. Specified circumstances are set out at ss 24(3) to (7) of the Act, that preclude the Minister from granting citizenship. This includes if the Minister is not satisfied of the person’s identity.[7] The Supplementary Explanatory Memorandum to the Act further explains:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.[8]
[7] Act, s 24(3).
[8] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth).
Citizenship Policy and Procedural Instructions
In determining an applicant’s claim for citizenship, decision-makers are assisted by executive policy. Noting that each case before the Tribunal is considered de novo, Government policy is ordinarily considered and applied unless there is a cogent reason not to do so.[9]
[9] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.
This includes Australian Citizenship Policy (“ACP”). The ACP refers to the description of identity in the National Identity Proofing Guidelines, which is published by the Commonwealth Attorney-General’s Department (“Proofing Guidelines”). Revised Citizenship Procedural Instruction 16 (“CPI16”), titled CPI16 – Assessing Identity under the Citizenship Act, also provides guidance about assessing identity and refers to the Proofing Guidelines as relevant when considering s 24(3) of the Act. These provide:
“1.1 Background
1.1.1 Establishing confidence in a person’s identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations. …
1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia’s digital economy into the future.”
Paragraph 5.1 of the Proofing Guidelines establishes that, where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include:
“1. Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2. Verification of the person’s claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
3. Verification of a person’s claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4. A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
5. Alternative methods of providing information or documents (such as provision of certified copies by trusted third parties instead of attending an in-person interaction where a person can demonstrate they live in a very remote area).
6. Providing support for individuals to obtain evidence (such as assisting a person to register their birth with an RBDM).”
CPI16 describes three pillars comprising biometrics, documents and life story, as the foundation on which assessments of identity are made:
Pillar of Identity
Individual Characteristics
Biometrics
Personal identifiers, which include fingerprints, facial images, or a person's signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life Story
A person's life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person's life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
CPI16 provides guidance for decision-makers about how to use these pillars. I have summarised the most relevant parts below:
(a)4.4. Each pillar should not be considered in isolation but should nevertheless be considered. A longitudinal approach is to be taken to the evidence and factors arising from each Applicant’s assessment process. Consistency seems to be a key consideration:
“The citizenship Applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified.”
(b)4.12. This longitudinal approach finds its manifestation in a requirement upon decision-makers to establish an applicant’s identity from birth. Satisfaction of identity at a single point in time is not sufficient. There must be consistency, logic and sustainability in the relevant chronological sequence:
“It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
[…]
[…] [decision-makers should create] a complete picture of the person’s identity from birth to present. The objective is to link the Applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life.”
(c)4.14 a similar theme of longitudinal consistency applies to the assessment of documentary evidence. CPI16 directs decision-makers to have regard to not only the plain words of the document but to ascertain whether a given document(s) contributes to a consistently sustainable “story” sought to be propounded by a claiming applicant:
“Documents are an important element of the process in establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar threeife story).
When assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent, or otherwise, and whether they element support or refute a person’s claimed identity.
The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.”
[Errors in original; my emphasis and underlining]
(d)4.15 CPI16 mandates that assessment of an applicant’s “life story” requires a decision-maker to be satisfied of a claiming applicant’s “complete identity ‘picture’” of that person from birth. Certain milestones or episodic claims by an applicant may be given more weight than others:
“There may be cases where one pillar may be given more weight than the others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information”
ISSUE
The sole issue for determination before the Tribunal is whether it can be satisfied of the Applicant’s identity as required by s 24(3) of the Act.
THE APPLICANT’S EVIDENCE IN CHIEF
The Applicant was initially asked to confirm the content of the two statutory declarations he has tendered in this case as being true and correct. Those declarations were respectively made on 3 December 2021[10] and 9 April 2022[11]. The Applicant confirmed the truthfulness of both statutory declarations.[12]
[10] A1, pages 1-9.
[11] A3, Annexure FAE1.
[12] Transcript of proceedings dated 19 April 2022, p 7, lines 17-18.
In terms of his ethnicity, he confirmed that he was a Hazari and that he belonged to the Shia Muslim faith.[13] He further confirmed that his primary language was Hazaragi but that he also spoke some Urdu due to previous communications with people in Pakistan.[14] At the hearing before me, his grasp of English was sufficient such as not to require the assistance of an interpreter.
[13] Ibid, lines 22-24.
[14] Ibid, lines 26-33.
He told the hearing that he was born on 20 August 1984 in Malistan, Afghanistan but that his birth was not registered in that country due to both he and his family being caused to flee from Afghanistan to Pakistan. He also told the hearing that the reason for the family’s trek to Pakistan was due to feared “torture and persecution”[15] due to their Hazara ethnicity and, according to him, “my colour”.[16] He identified the respective names of his parents as “Mr B.A” (father) and “Ms Z.B” (mother).
[15] Ibid, line 44.
[16] Ibid, line 45.
He confirmed that he and his family entered Pakistan illegally and that while in that country the family resided in Quetta which is the capital of Balochistan province in Pakistan. Following the family’s arrival in Pakistan the Applicant told the hearing about how his father obtain identity documents for him – and apparently only for him:
“MS LENTON: So, after your arrival in Pakistan, did you obtain identity documents in Pakistan?
APPLICANT: Yes, my father - as I said, you know, my father just provided a B form, which was belonging to other one. The intended person was deceased. His name was FGRD and just my father just provided that document for just find a way for me to just study in Pakistan because we did not have any Tazkira. We had not - because not, you know, get legally Pakistan certificate. That’s what (indistinct).
MS LENTON: Did anyone else in your family obtain a false identity, or just you?
APPLICANT: No, just me.
MS LENTON: Why did no one else get one?
APPLICANT: Because they did not need to get it. I was the only son, you know, and being the son in my family and that’s why my father get because my father was uneducated and he wanted that his - you know, the eldest son just study.”[17]
[17] Ibid, p 8, lines 12-26.
The Applicant agreed that in this false identity obtained for his by his father, the recorded name in that identity was “Mr M.A” and that the date of birth of that person was 1 September 1978. He readily agreed there was a difference in his now-claimed date of birth and the date of birth recorded in the false identity documents.[18]
[18] Ibid, see generally, lines 33-40.
In terms of schooling, he confirmed that the first school he attended in Pakistan was the Society School at which he spent something like 12 months. Due to his young age when attending that school, he has little recollection of his time there. He told the hearing that his father then arranged for him to attend a new school.
He agreed that there was an obvious disparity about his age between (1) the false identity obtained by his father and (2) his now-claimed date of birth in 1984. According to the former, he would have been 10 years of age at the time he attended the society school whereas according to his now-claimed date of birth he would have been aged about four. He was questioned about whether the Society School ever raised any questions about a 10 year old commencing primary school and he unconvincingly responded thus:
“MS LENTON: And how old were you started at the Society School?
APPLICANT: Around four years.
MS LENTON: But, according to your documents, you would have been 10. So, obviously, it would have been clear to the school that you’re not the same age as what your document said. Were any questions ever asked about that?
APPLICANT: I don’t know. The thing that I know, I was (indistinct) and not registered under the Society School and maybe the reason - but, you know, my father - why my father changed my school from the Pakistani school to Afghani school, maybe the main reason was that.
MS LENTON: Do you know that for a fact or you suspect?
APPLICANT: I think this is the main reason, yes, because - yes, yes.
MS LENTON: So, what makes you think that? Did your dad tell you, or you’re speculating as to that?
APPLICANT: No, just when I - you know, just growing up, yes. I asked my mother and father, yes, they tell the truth.”[19]
[19] Ibid, p 9, lines 11-26.
After leaving the Society School, the Applicant continued his primary school education by attending the Noor School. The classes at the Society School were conducted in the Urdu language whereas the language of the classes run by the Noor School was Hazaragi. Upon completing his primary school education, he said told the hearing that his secondary schooling was done at the Iranian School from 1996-2000. He said that he commenced his secondary school studies when he was “About 14 years, 15 years”[20] but that “I don’t know exactly, yes”[21].
[20] Ibid, line 40.
[21] Ibid, line 42.
He said that the classes in the Iranian School were conducted in Persian which is apparently “a language close to Hazaragi but the accent is different”[22]. According to his evidence in chief, he explained the circumstances of the name under which he was enrolled at the Iranian School thus:
“MS LENTON: What name did you have at that school?
APPLICANT: My name was [FGRD] on that but they asked for a surname. In Pakistan many people have just a single name and [FGRD] was my first name and middle name was [FGRD] and I didn’t have any surname. So, that’s why Iranian school, they need to have - you need to have a family name, that’s why I just called it [E][23]. I just added [E]. That’s for studying in Iranian school.
MS LENTON: Okay?
APPLICANT: And - yes. Because the system is different in Pakistan and Iran. In Pakistan, your name and your father’s name very important but in Iran you need to have first name and surname.”[24]
[22] Ibid, lines 45-46.
[23] This is one in the same as the name “[E]” appearing at the 11th dot-point of para [2] of these Reasons.
[24] Ibid, p 10, lines 8-17.
He was again asked about whether the school authorities at the Iranian School ever raised questions about the discrepancy between his age described in the false identity obtained for his by his father and his now-claimed actual age. He responded thus:
“MS LENTON: Okay. And did you have questions asked about the discrepancy between your age in your documents and your actual age at the Iranian school?
APPLICANT: No, I did not. They did not.
MS LENTON: They never asked you any questions about it?
APPLICANT: No, no. Yes, because many people, you know, I think they did not have even Tazkira and they just studying in Iranian school and they were in the same position as me.”[25]
[25] Ibid, lines 27-33.
He confirmed that after completing high school he “…went to Iran University, a medical university”.[26] He said that he attended this university for two and a half years and that following graduation in 2003, he returned to Pakistan. When asked about the nature of the qualification he obtained from that university, he responded with “It was (indistinct) degree in the field of anaesthesiology.”[27]
[26] Ibid, lines 36-37.
[27] Ibid, lines 40-41.
Upon returning to Pakistan, he told the hearing that he commenced working at the Bolan Medical Hospital in Quetta. He said that he was working under a medical practitioner trained as an anaesthetist. In terms of time frame when he was doing this work, he said “I think it was in 2004”. [28] In terms of the nature of the work he did, he said this:
“MS LENTON: And what kind of job did you have?
APPLICANT: I was just assist him in operation theatre, so in the department of, you, anaesthesiology.”[29]
[28] Ibid, line 46.
[29] Ibid, p 11, lines 1-2.
He told the hearing that he engaged in other forms of remunerative employment upon his return to Pakistan which he described thus:
“MS LENTON: Did you do any other jobs?
APPLICANT: Yes, just part-time just working in Iranian school. It was in (indistinct) school in (indistinct) region and just, yes, working, yes, as a tutor and teacher. I was a biology teacher.”[30]
[30] Ibid, line 4-6.
He confirmed that he obtained a passport in Pakistan and that the method of him obtaining that passport was as follows:
(a)based upon the “B Form” that was the basis on which his father created the false identity for him, he obtained an “ID card” in Pakistan;
(b)he then obtained a passport which was in the false identity arranged by his father;
(c)and that he used that passport for the purposes of travelling to Iran to attend university in that country and to complete his studies there.[31]
[31] See generally, Transcript, p 11, lines 8-13.
He decided to leave Pakistan in 2011 because, since 2007, he was experiencing a deterioration in the political situation in Quetta. This deterioration did, to his mind, expose him to risk because of his Hazari ethnicity:
“MS LENTON: And what made you make that decision?
APPLICANT: Because the - you know, the situation in Quetta, Pakistan. It deteriorated since 2007 and, you know, bomb blasts and target killing started, mainly, and especially, Hazara community because Iran just half a million Hazara live in Pakistan and our ethnicity as a Hazara because our ethnicity is similar to, you know, Asian people and it’s totally different with Pakistan - from Pakistan and that’s why they need - they know Hazara and they know - they know (indistinct) and that’s why we easily, you know, targeted by extremists.”[32]
[32] Transcript, p 11, lines 17-24.
He told the hearing that he arrived on Christmas Island on 20 November 2011 and that upon arrival he told authorities that his name was [FGRD] and that his date of birth was 20 August 1984. He confirmed that upon arrival, he did tell the Australian authorities that he had been known by another identity and that he did provide those authorities with a photocopy of his abovementioned ID card and passport obtained in Pakistan.[33]
[33] See generally, Transcript, p 11, lines 28-39.
He further confirmed that he has never been known by any other identity in Australia other than [FGRD].[34] When applying for citizenship, he told the Department of Home Affairs that he had been known by another identity, in particular, “Mr M.A”.[35]
[34] See generally, Transcript, p 11, 41-42.
[35] See generally, Transcript, p 12, lines 1-2.
He was asked why he had never applied for a Tazkira while in Australia and he responded thus:
“MS LENTON: Since you’ve been in Australia, why have you not applied for a Tazkira?
APPLICANT: For Tazkira because there was some reason. Firstly, you know, my parents they did not have any Tazkira and the evidence need proof, so without that I cannot make, you know, ID for myself. Even here, section - the other thing is that just going to the Afghan - Afghanistan Embassy in Canberra and just talk with them but because I had a protection visa. You know, what happened two years ago with Jamal Khashoggi in Istanbul in Consulate of Saudi Arabia, he was (indistinct). He was, you know, beheaded, he was mutilated and then burned but no one care.
MS LENTON: So, you didn’t feel safe approaching Afghanistan?
APPLICANT: Yes. Yes, the other option is just I talk with an agent, they just ask $US1500 and they send me - send someone to Malistan region and just provide you with Tazkira but I don’t know if it’s real or fake because I’m here in Australia.
MS LENTON: M’mm?
APPLICANT: And the fourth way is - and the only way is I should got to Afghanistan in my region and just find my father, you know, registration and just be - just bring my - you know, just find my father’s registration and just do it that extra work for Tazkira but at this stage it’s impossible.”[36]
[36] Transcript, p 12, lines 9-27.
In terms of current personal antecedents he confirmed the following:
(a)he is engaged in remunerative employment at an Afghan grocery store in the Brisbane suburb of Belmont;
(b)in 2018 he commenced studying for a degree in law on a full-time basis at the Queensland University of Technology;
(c)he has deferred those studies for 12 months because in 2021, his partner gave birth to a baby daughter;
(d)after the child’s birth, he said “…and then I had lots of problems and that’s what I just leave and just work full-time for a year”.[37]
[37] Ibid, lines 46-47; see generally, Transcript, p 12, lines 29-47.
THE APPLICANT’S EVIDENCE IN CROSS-EXAMINATION
Prior to reviewing the Applicant’s evidence in cross-examination, I feel compelled to tell the reader that I will be quoting relatively significant portions of the Applicant’s answers to specific questions as they appear in the Transcript. To my mind, the incoherence, unreliability and implausibility of many of the answers he gave cannot be adequately conveyed by me simply attaching these types of descriptions to his specific answers. To my mind, adequate and proper context of the incoherence, unreliability and implausibility of most of his answers can only be properly understood in the context of the words he actually spoke at the hearing.
The Applicant agreed that (1) he had previously been known as “Mr M.A”; and (2) this identity was actually of a deceased person when the Applicant’s family initially fled Afghanistan. It was put to him that his father just happened to find an identity document of a deceased person who shared the same name as him (the Applicant). The Applicant responded with “I don’t know what – what the reason. He just find that ID for me to just start studying”.[38]
[38] Transcript p 13, line 25.
He agreed that the deceased person whose identity he had assumed shared the name “Mr M.A” with him and that the name of the deceased person’s father was “Mr M.H”. Further, the Applicant agreed that “Mr M.H” is the same name that the Applicant declared as his grandfather’s name in his initial entry interview.[39]
[39] See generally, Transcript, p 13, lines 29-39.
He was asked when he started going by the name “Mr M.A” and he responded thus:
“APPLICANT: So, when - when - when my father did not provide the document, just starting studying, I think I was in - four years old that I start studying, when I was starting in Society School.”[40]
[40] Transcript, p 13, lines 41-44.
He was referred to his evidence about the Noor School being a school that specifically catered for Afghani asylum seekers and refugees. As such, the Applicant was asked whether or not the Noor School authorities ever asked the Applicant’s family for a Tazkira identifying the Applicant. He replied in the negative. It was then put to him that if this was the case then why was it necessary for him to use the name “Mr M.A” at that Noor School. His unconvincing response was put thus:
“MS ALLEN: So, if that’s the case why would you need to use the name [FGRD] at that school?
APPLICANT: Because I had already a document, you know, a B form.
MS ALLEN: There’s no documents from Noor school before the tribunal, is there?
APPLICANT: Yes. Initially, you know, just - I just remember I just - I was not - my father changed my school to Noor school, what did - you know, he do, I don’t know really because I was too young at that stage. When I get older, I find the reality, when I was 14 years old, I just found it, you know, the reality, yes. But - but my father changed my school from Society School to Noor school, I don’t know why but grown up and just ask him and they said, yes, this is the things because you don’t have any real identity, that’s why.
MS ALLEN: There’s no documents from Noor school before the tribunal, is there?
APPLICANT: Yes.”[41]
[41] Ibid, p 14, lines 8-21.
There followed a series of questions about his attendance at the Iranian high school during a period of approximately 1996 to 2000. In particular, he was asked about his evidence about a requirement that he had to add an additional name (“[E]”) to his existing name. He was specifically asked why he chose that name and he said “Because that surname is close to, you know, person’s (indistinct). Iranian, you know have – your own surname is life (indistinct), Asani, Amiri, Amini, like that and they – that’s what the reason.”[42]
[42] Ibid, lines 26-29.
He was specifically asked whether the name “[E]” is an Iranian name and the Applicant incoherently and unreliably replied in these terms:
“MS ALLEN: So, [E] is an Iranian name, is it?
APPLICANT: I didn’t want - I didn’t want to use, you know, [E] because I was (indistinct) because in Iranian, you know, they every time ask your name and surname as Australia ask but in Pakistan, no. In Pakistan, just ask your name and your date of birth and your father’s name is very important. But in Iran, your first name and surname is very important and you need to provide surname because [FGRD] was my name and they just ask what’s your surname and they just - yes, they ask (indistinct) and the [E] surname was just only - I was in Iran high school and university, that’s it.”[43]
[43] Ibid, lines 31-39.
He gave a similarly incoherent and unreliable response to the suggestion that if, as he claimed, the Iranian School catered for Afghan Hazara asylum seekers, why was it necessary for him to continue to use the name “Mr M.A” at that school? He sought to suggest that he required a passport in this particular name to facilitate his admission to, and attendance at, university in Iran. According to the Applicant, without such a passport, he would have been prevented from attending university in Iran.[44] Of course, there is nothing in the evidence to corroborate the requirement of a passport to be held by any student intending to study at an Iranian university.
[44] See generally, Transcript, p 14, lines 41-47 p 15, lines 1-4.
He agreed that he started using the name [FGRD] upon arrival in Australia in 2011. That being the case, he was asked why he did not continue using the name “Mr M.A” which his father had apparently obtained for him in Pakistan. Once again, he responded incoherently, and, to my mind, unreliably:
“APPLICANT: Because I feel if I say - because I wanted to be my - in Pakistan I couldn’t find any (indistinct), you know, to just express that, no, it’s not my real ID and I need to have in my name and my (indistinct) because the ID was false, a false document, and my father didn’t have any Pakistani, you know, document, that’s why I could not find (indistinct) to change my ID in Pakistan. So, in Australia, yes, I wanted to say the truth and because I wanted to be myself as FGRD, yes, not - no one else.”[45]
[45] Transcript, p 15, lines 9-16.
The Applicant was then taken to his evidence about his now-claimed date of birth being 20 August 1984. His best evidence was that this is the date of birth told to him by his parents:
“MS ALLEN: Okay, thank you. You’ve given evidence that your date of birth is 20 August 1984?
APPLICANT: Yes.
“MS ALLEN: Yes. How do you know that?
APPLICANT: I asked my parents. I asked my parents. They - they - they gave me - yes, this is it. They - they gave me this - this is - you know, this is your date of birth because we don’t have any registration account. I was two years old and we just fled from Afghanistan and all the things that my parents they mention.”[46]
[46] Ibid, lines 18-25.
He told the hearing that he and his family left Afghanistan in 1986 and that they travelled to Pakistan. He was asked to recall the family’s mode of travel during that trip and he responded with “I don’t know because I was too young – I just ask my parents, yes, they – they, you know, got to – come to Kandahar and from Kandahar to Chaman and Chaman just enter in Pakistan illegally.”[47] It is, to my mind, extraordinary that although the Applicant was able to record details of the family’s passage from Afghanistan to Pakistan (presumably on the basis of what he says his parents told him), he was not able to recall whether his parents had told him anything about the family’s mode of travel on that trip.
[47] Transcript, p 15, lines 45-46 and p 16, lines 1-2.
The Applicant was then asked about his evidence relating to people of Hazara ethnicity being more easily identifiable based on their language and facial features. He was specifically asked about whether anyone questioned the validity of his Pakistani identity documents in circumstances where he has the facial features of a Hazari. His incoherent, unreliable and implausible response was put thus:
“APPLICANT: In Pakistan when I left, you know, Quetta in 2011, more than 500,000, you know, Hazara was living in Pakistan in Quetta in two regions, (indistinct) and (indistinct), so around 40 per cent- around 40 per cent of them had Pakistani original ID and 60 per cent no, and - but mainly - mainly ancestrally, Hazara all belongs to Afghanistan. In north area even Malistan is not my land because we fled from north area of Afghanistan to - to central Afghanistan. In Malistan, we just, you know - if you just Google it, you know, what happened to Hazara people in Afghanistan in - once, you know, Emir Abdur Rahman Khan , you know, the king of Afghanistan. So, around 65 per cent of Hazara was massacred, killed and just the remaining was just 5 per cent. Some of them just remain in Afghanistan, there are many Afghanistan they just, you know, came to central Afghanistan and settled there. Even my mother (indistinct) and some just fled from Afghanistan to Iran, to India, Pakistan, yes.”[48]
[48] Transcript, p 16, lines 31-44.
There followed some questions about his father who, according to the Applicant, is now deceased.[49] The Applicant agreed that his father was a citizen of Afghanistan but that he had, for some reason, left his identity documents in Afghanistan. The Applicant also said his father had a Tazkira but that his father left that document in Afghanistan as well and that it simply became lost. Once again, the incoherent and unreliable nature of the Applicant’s evidence was expressed thus:
[49] See Transcript, p 16, line 46.
“MS ALLEN: And before his passing, he was a citizen of Afghanistan?
APPLICANT: He was citizen of Afghanistan, yes, but he did not have any ID because his ID was in Afghanistan, yes.
MS ALLEN: So, he left his ID in Afghanistan?
APPLICANT: Yes, yes.
MS ALLEN: Yes?
APPLICANT: So, he had ID but it was not with him.
MS ALLEN: Who did he leave it with?
APPLICANT: He live in - I don’t know what you mean.
MS ALLEN: So, you said he had an ID card but he left it in Afghanistan?
APPLICANT: Yes, he had a Tazkira. He had - - -
MS ALLEN: He had - okay. Who did he leave it with in Afghanistan?
APPLICANT: He - because, you know, he - because we left from Afghanistan in 1986 and he - his Tazkira, you know, just remain in Afghanistan and lost there, yes.”[50]
[50] Transcript, p 17, lines 1-16.
He was then asked about his mother and he confirmed she was still alive and living in Iran (as an Irani citizen) with two of his sisters. He was specifically asked why she (his mother) had not provided any statement in support of either his initial application for citizenship or in these proceedings involving the instant application. He responded with this: “No. Because she did not obtain any Tazkira as well.”[51] He was asked to list the names of his siblings and he mentioned the following names:
(a)Amina;
(b)Fatima;
(c)Mutasa; and
(d)Sanna.
[51] Ibid, line 27.
He confirmed that Mutasa has passed away but that their father did not obtain a fake identity for Mutasa and sought to explain this as follows:
“Because - maybe my father could not find another person to give the same thing for him. It’s not - you know, it’s not available for everyone to get a fake identity, you know, and any time that you want, no.”[52]
[52] Ibid, lines 36-39.
With reference to his siblings, he confirmed Amina was born in Afghanistan while the remaining three siblings were born in Pakistan. He was specifically asked whether Amina’s birth (in 1978) was reported in Afghanistan and he responded with “No. Even - even my - my mother’s birth not recorded because my family leave in regional area in Malistan, so it was a weak system.”[53] He confirmed that Fatima and Amina reside with his mother in Iran and that Sanna resides in Pakistan.
[53] Transcript, p 18, lines 1-3.
He was specifically asked about the citizenship status of his siblings and whether they have citizenship of any country. He responded thus:
“MS ALLEN: Okay, all right. And what is the citizenship status of each of your siblings?
APPLICANT: They - no, they don’t have any. They did not get any citizenship of any country. They enter in Iran illegally, not - and they went to (indistinct) in 2020 for 18 months when Taliban came (indistinct) they just come back again in Iran, again illegally. They are living in Iran illegally.
MS ALLEN: Do they have Pakistani identity documents as well?
APPLICANT: No.
MS ALLEN: No, they don’t have any identity documents?
APPLICANT: No.
MS ALLEN: None of your siblings have provided statements to support your application?
APPLICANT: No, no.”[54]
[54] Ibid, lines 21-29 and 35-36.
The Applicant confirmed he was not a citizen of any country and that the only document entitling him to reside anywhere was the current Resident Return visa granted to him on 29 August 2017 to reside in Australia.[55]
[55] See generally, Transcript, p 18, lines 38-39.
Finally, the Applicant was taken to a copy of his citizenship Application appearing in the material. In particular, he was taken to Question 17 which posed the following question:
“17. Do you hold or have you ever held citizenship of any other country?
[The form contains a “No” box and a “Yes” box. The Applicant ticked the “Yes” box]
1. Country of citizenship PAKISTAN
Citizenship is [the form contains a “Current” box and a “Previous” box. The Applicant ticked the “Current” box]
Date acquired Day / Month / Year [in the form, the Applicant left the “Day” and “Month” columns blanks but inserted “1989” in the year column]Date ended 23/11/2011[56]
[56] R1, T4, p 13.
After being referred to the above portion of his citizenship application document, the following exchange occurred between the Applicant and the Respondent’s representative:
“MS ALLEN: Thank you. So, at the top of that page, question 17, you’ve declared that you held a Pakistani citizenship between 1989 and 2011?
APPLICANT: Yes. If - if you refer to - yes, that’s the State Government. If you mean that document, yes, it’s yes.
MS ALLEN: So, that answer is based off the fake identity of [FGRD]; is that right?
APPLICANT: Yes, yes.
MS ALLEN: Okay, all right. So, you’re not a citizen of Pakistan. [FGRD] was a citizen of Pakistan?
APPLICANT: Yes, except he was passed away and my father got the B form, which was related to him and then just - I just used that document for my studies.”[57]
[57] Transcript, p 19, lines 13-24.
SUMMARY OF FINDINGS
I will deal firstly with the Applicant’s now-claimed name and date of birth comprising [FGRD] and “20 August 1984”. The only documents in evidence before the Tribunal providing any sort of evidence to support that identity comprised (1) the Applicant’s Australian issued documents and (2) the marriage certificate issued by the Pakistani authorities. Neither of those documents adequately establish the Applicant’s identity. The Australian-issued documents are based on what he has told the Australian Government about his own claimed circumstances outside of Australia prior to his arrival here. The evidentiary value of those documents is substantially compromised because those documents are entirely based on the Applicant’s self-declared information.
The marriage certificate issued by the Pakistani authorities was produced after the Applicant produced his Australian-issued documents and otherwise relies upon those documents for its now-claimed accuracy and veracity. The evidentiary value of the marriage certificate – in terms of it having any value in establishing the Applicant’s identity – is substantially tainted by the self-declared basis on which the Australian-issued documents have been produced.
All that remains before the Tribunal are the documents the Applicant says his father caused to be created for him in Pakistan giving rise to the Applicant’s false identity plus the Applicant’s Iranian academic records and his respective references as an employee and a volunteer prior to arriving in Australia. The fatal difficulty with those documents, in terms of their evidentiary value, is that they were all issued on the basis of a false identity. They cannot now be safely relied upon to displace the prohibition appearing in s 24(3) of the Act.
For example, the Applicant’s “Graduation Certificate”[58] apparently obtained in Iran records his name as “Mr M.A.E”. It also records the name of the Applicant’s father as “Mr M.H” yet in the biodata provided by the Applicant to the Australian authorities shortly after his arrive here, he told them his father’s name was “Mr G.A”. By way of further example, the document purporting to be the Applicant’s Pakistani passport records his name as “Mr H.M”[59]. Further, in the document purporting to be the Applicant’s “National Identity Card”[60] his name is recorded as “Mr M.A” and his father’s name is recorded as “Mr M.H”. The purported reference about his work in the medical field apparently issued by the Bolan Medical Complex Hospital in Quetta purports to certify something about a person referred to as “Mr M.A.E S/o Mr M.H”.[61]
[58] R1, T5, p 51 (apparently dated 22 September 2003).
[59] Ibid, T7, p 87 (containing a date of issue of 14 October 2006).
[60] Ibid, p88 (containing a date of issue of 19 March 2009).
[61] A1, p 55 (containing a date of issue of 17 March 2011).
Given the Applicant’s concession that each of these documents were issued on the basis of the false identity obtained by the Applicant’s father in Pakistan, it would not be safe to now rely on those documents as a means of reaching the sufficient level of satisfaction about his identity such as to displace the prohibition in s 24(3) of the Act.
The Applicant claims to have been born in Afghanistan yet has produced absolutely no documents from that country. There is no birth certificate, nor any Tazkira, nor any document from, for example, a mid-wife who may have assisted with the Applicant’s home birth.[62] The Applicant has not produced any independently verifiable evidence that he was born in Afghanistan on 20 August 1984 as [FGRD]. Similarly, there is nothing of a corroborative nature about the identity of his family members comprising, according to his evidence, his mother and three surviving siblings. No satisfactory explanation is offered about the absence of any corroborative material from any member of his family.
[62] In his oral evidence, the Applicant said he was not born in a hospital but born at home. See Transcript, p 15, lines 30-40.
It should be acknowledged that the material contains a statutory declaration (made on 9 April 2022) from a certain Mr Qurban Ali Safdari who works as a Scrap Metal Recycling Employee and resides in Brisbane.[63] Mr Safdari declares:
(a)that he is 54 years of age;
(b)that he “…knew [FGRD] and his father Mr G.A when we were in Quetta Pakistan”;
(c)that “Mr G.A was also an asylum seeker from Ghazni Afghanistan…[and that he] passed away in 1998”;
(d)that in terms of familiarity with the Applicant “I was occasionally seeing his son [FGRD] who was a student and parttime worker and knew him for many years in Quetta”;
(e)that he “…was granted a permanent visa in September 2013 and moved to Brisbane Australia.”;
(f)that he “…knew [FGRD] from Pakistan, I met him in a shopping center and exchanged out contact numbers.”;
(g)that “…we lived together more than three years in a sharing house in Woodridge.”;
(h)that “…[he] as Australian citizen have had consecutive connection as friend with [FGRD] even at the family level.”
[63] A3, pp 5-7.
To my mind, this statutory declaration of Mr Safdari goes nowhere near satisfactorily correcting or augmenting the dire shortfalls in the Applicant’s material purporting to establish his identity as [FGRD] born on “20 August 1984”. In this document, Mr Safdari purports to describe a certain level of social familiarity with both the Applicant and his late father. He has nothing to say about having sighted or handled or now having a copy of any document going to the proof of the Applicant’s now-claimed identity. Significantly, Mr Safdari was not called to give oral evidence at the hearing and his claimed level of familiarity with the Applicant and his late father was not tested in cross-examination. I reject his evidence on the grounds of (1) he has nothing to say about documents going to the proof of the Applicant’s now-claimed identity and (2) mere social familiarity with someone outside of Australia cannot now be safely relied upon when that someone is propounding a certain identity in Australia.
The Tribunal is thus left with absolutely no independently verifiable evidence about the Applicant’s identity aside from the Applicant’s self-made and self-defined claims and assertions about his life story. The Tribunal’s task in reaching a point of satisfaction about a person’s identity is to assess a person’s life story via a reliable linkage of the person’s identity at birth to the identity provided for in the person’s application for citizenship.
A contention was repeatedly made on behalf of the Applicant to the effect that he has maintained a firm consistency about his life story to the Australian authorities. But that firmness and consistency must align with the evidence around it which must be similarly firm, consistent, robust and capable of withstanding the scrutiny statutorily prescribed by s 24(3) of the Act. In the course of analysing the Applicant’s evidence given in both chief and cross-examination, I have expressed my misgivings about its often incoherent, unreliable and implausible nature.
In addition to his oral evidence, one need look no further than the stark inconsistencies between his respective statutory declarations appearing in the material dated 3 December 2021 and 9 April 2022. In the former, he says he commenced using the name “Mr M.A” about four or five years after the family entered Pakistan from Afghanistan. If so, he would have started using this name in or about 1990-1991 when, according to his now-claimed date of birth in August 1984 he would have been aged six or seven. Yet, in the later statutory declaration, it is propounded that he commenced his education in 1998 when he was approximately four years of age. The difficulty arises when one has regard to the abovementioned Pakistani passport which bears an issue date of October 2006 which would have made the Applicant 22 at the time of the passport’s issue.
I repeat and endorse my misgivings about the incoherent, unreliable and implausible state of the Applicant’s evidence to the effect that he required identification documents to attend school in Pakistan. It is difficult to accept that he was required to produce those documents to the school authorities in circumstances where most, if not, all of his fellow pupils were Afghani asylum seekers, many of whom attended the school without the production of identity documents.
His evidence around the various iterations of his names is similarly incoherent, unreliable and implausible. For example, there is nothing to corroborate his evidence around asserted Iranian naming customs and/or practices that saw him apparently adopt the name “[E]” after the two names “Mr M.A”. He could not satisfactorily explain why, by way of further example, he ceased using the name “Mr M.A” upon his arrival in Australia in November 2011. This is all the more odd in circumstances where, on his own evidence, he has been known by that name for the significant majority of his life.
I address, out of an abundance of caution, a contention put on behalf of the Applicant to the effect that the Tribunal should – in its determination of this citizenship matter – take into account the fact that the Applicant was previously granted a protection visa and, because the circumstance of his story were accepted for the purposes of the grant of that visa, it is now (1) incumbent on the Tribunal to accept that those findings (leading to the grant of that visa) now speak favourably about the Applicant’s identity for the purposes of this case; and (2) the Respondent is now compelled to explain why it does not accept the evidence of the Applicant’s identity. This is how the submission was put during closing addresses:
“MS LENTON: […] It is very notable, I think, that the applicant’s life story was previously assessed by the department as being credible and was accepted as true and on the basis of his story, which has not changed, he was granted a subclass 866 protection visa. At some point since then, and for a reason that I note has not been explained by the respondent at any point, they have decided that the same information and documents mean that they cannot be satisfied as to his identity.
They have not attributed this change of mind to any change in the applicant’s story or circumstances, or due to the receipt of any new information received by the Department of Home Affairs, since the grant of his protection visa. Nonetheless, they wish to refuse his application for citizenship on the basis that they are now not satisfied of his identity, an identity they were previously satisfied with, and have now no reason to now doubt.”[64]
[64] Transcript, p 21, lines 27-40.
The difficulty with the contention is that there are different statutory requirements for the grant of a protection visa compared to the exercise of this Tribunal reaching a state of reasonable satisfaction about the Applicant’s identity such as to displace the prohibition contained in s 24(3) of the Act. As submitted by the respondent’s representative during closing addresses:
“MS ALLEN: There is nothing which prohibits a protection visa being granted based on the satisfaction, or lack thereof, of identity and, in any event, the tribunal is not, on this application, bound by any previous findings of the department.”[65]
[65] Ibid, p 23, lines 24-27.
CONCLUSION
To my mind, the incoherent, unreliable, implausible and predominantly self-asserted state of the evidence goes nowhere near displacing the prohibition contained in s 24(3) of the Act. The state of the evidence does not lead me to either a reasonable[66] or positive[67] state of satisfaction about the Applicant’s identity for the purposes of s 24(3) of the Act.
[66] As propounded in the Applicant’s Statement of Facts, Issues and Contentions, see p 13, para [51].
[67] As propounded in the Respondent’s Statement of Facts, Issues and Contentions, see p 8, para [24].
The evidentiary threshold compelled upon an applicant by s 24(3) is intentional. This is because a grant of Australian citizenship upon a person is viewed as “a fundamental bedrock of the Australia polity”, which “is not to be bestowed lightly”.[68] Further, it is well-established that:
“…a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.”[69]
[68] John v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 77, at para [4], per SM Puplick.
[69] Beyan v Minister for Immigration and Border Protection [2015] AATA 256, at para [38] per SM Walsh.
DECISION
The correct or preferrable decision is for this Tribunal to affirm the delegate’s decision under review made on 26 July 2021 refusing a grant of citizenship to this Applicant.
71.
72. I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.....................[SGD]............................
Associate
Dated: 30 June 2022
Date(s) of hearing: 19 April 2022 Advocate for the Applicant: Ms Victoria Lenton Solicitors for the Applicant: Lenton Migration Law & Consultancy Advocate for the Respondent: Ms Cody Allen Solicitors for the Respondent: Spark Helmore, Lawyers EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED R1 Section 37 T Documents (149 pages) R Various 8 September 2021 R2 Supplementary Section 37 T Documents (Marked A – C) (56 pages) R Various 15 January 2022 R3 Respondent’s Statement of Facts, Issues and Contentions (8 pages) R 21 March 2022 21 March 2022 A1 Applicant Submissions
(a) Applicant Statutory Declaration (9 pages)
(b) Statement – Baqir Naiebi (1 page)
(c) Academic Records (4 pages)
(d) QUT – Proof of Enrolment Letter (1 page)
A Various 16 December 2021 A2 Applicant Statement of Facts, Issues and Contentions (13 pages)
Annexures AE1 – AE12 (104 pages)A 21 February 2022 21 February 2022 A3 Supplementary Applicant Submissions (Annexures FAE1 – FAE3) (16 pages)
(a) Applicant Statutory Declaration (4 pages)
(b) Statutory Declaration – Qurban Ali Safdari (3 pages)
(c) Applicant Notice of Tax Assessment (2019, 2020, 2021) (8 pages)
A Various 14 April 2022
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