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

[2024] AATA 3271

Gulzari and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3271 (10 September 2024)

Division:GENERAL DIVISION

File Number:2023/8743          

Re:Baba Ali Gulzari  

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal: Mr J Cipolla, Senior Member 

Date:10 September 2024

Place:Sydney

The decision of the Respondent’s delegate to refuse the Applicant’s application for Australian citizenship by conferral dated 2 November 2023 is affirmed.

…..................[SGD]...............................................

Mr J Cipolla, Senior Member

Catchwords

CITIZENSHIP – citizenship by conferral – delegate refused application for citizenship – whether Applicant is a citizen of Afghanistan as claimed or whether he is a citizen of Pakistan - whether satisfied of identity of Applicant – whether Applicant is of good character – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 24

Cases

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757

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

Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 234

Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808

Darwishi and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1592

GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245

Secondary Materials

CPI 16 – Assessing Identity under the Citizenship Act

National Identity Proofing Guidelines 2016

REASONS FOR DECISION

Senior Member J Cipolla

10 September 2024

1. Mr Baba Ali Gulzari (‘the Applicant’) claims to have been born on 28 March 1953 and claims he is currently 71 years old. He currently resides in Victoria. The Applicant arrived in Australia on 3 December 2010 as an illegal maritime arrival. At the time of his arrival the Applicant claimed to be a citizen of Afghanistan and he made a claim for a protection visa, claiming protection from Afghanistan.

2. The Applicant’s claims for a protection visa were duly assessed and he was granted a Subclass 866 protection visa on 6 July 2011.

3. The Applicant was issued with a Titre De Voyage on 16 April 2013.

4. On 24 October 2019, the Applicant was granted a Subclass 155 Resident Return visa.

5. On 13 July 2015, the Applicant applied for Australian citizenship by conferral and as he was over 60 at the time of applying, the delegate assessed his application under s 21(4) of the Citizenship Act.

6. On 21 August 2017, the delegate asked the Applicant to complete a Form 80, which is a form that once completed, enables the Department to assess the Applicant’s personal particulars and his character. The Applicant completed the personal particulars for assessment including character assessment (Form 80) on 28 August 2017 and returned it to the Department.

7. On 26 July 2023, the Applicant was invited by the Department to comment on adverse information. This letter noted that in an application for citizenship by conferral a delegate needed to be satisfied that an Applicant met the character requirements and the identity requirements. The letter noted that in order to be found to be of good character an Applicant must have been truthful in their dealings with the Australian Government and should not have intentionally provided false information or been involved in other material deceptions during visa and citizenship applications. The letter further noted that in order to be satisfied that an Applicant met identity requirements the delegate was able to consider information provided by the Applicant in his departmental records and was able to consider, in establishing identity, what is known as the ‘three pillars’ methodology—that is the person’s documents (including bio data), personal identifiers/biometrics and the person’s life story.

8. The adverse information letter particularised the concerns that the Department had formed with respect to the Applicant’s identity and the basis in which these concerns had arisen. The letter gave the Applicant a meaningful opportunity to comment on those concerns. The letter noted that the Applicant’s daughter Bakhtawar, had made an application for an Australian Partner visa on the basis of her relationship with Ali Reza Taban in 2013. The letter noted that in support of her Partner visa application, Bakhtawar submitted a copy of her Pakistani Birth Certificate, which listed the Applicant and his wife, Amir Begum, as her parents along with a copy of her Pakistani passport. Departmental investigations undertaken with the assistance of the relevant Pakistani authorities led to findings that the birth certificate and the passport were genuine and corroborative of the fact that Bakhtawar was a citizen of Pakistan. This information was also indicative of the fact that at the time of Bakhtawar’s birth, both of her parents were of Pakistani nationality. The letter noted that the Department had Bakhtawar’s birth certificate checked with the National Database and Registration Authority of Pakistan and that those enquiries confirmed that the national identity cards of the Applicant and his wife Amir Begum were genuine and matched the Applicant and Amir Begum’s recorded biodata details. 

9. This information led the delegate to conclude that the Applicant was not a citizen of Afghanistan as claimed, but was in fact, a citizen of Pakistan. The Departmental delegate concluded that based on the information before them they were not able to reach the requisite level of satisfaction with respect to the Applicant’s claimed identity. The delegate further concluded that a consequence of the provision of fraudulent, counterfeit, or altered documents may lead to a finding that an Applicant is not of good character and that he is incapable of meeting the character requirements.

   APPLICANT’S SUBMISSIONS

10. The Applicant engaged Mr Iqbal Safari, solicitor, from Beena Rezaee Legal & Migration to assist him with his response to the Departmental letter of 23 July 2023. The extensive response was provided in a series of e-mails with attachments that were forwarded to the Department from 23 August 2023 and the response has been duly considered.

11. The response to the adverse information letter notes that Mr Safari had represented the Applicant in providing a successful response to a Notice of Intention to Consider Cancellation (NOICC) of his protection visa under section 109 of the Migration Act dated 6 April 2022.

12. The submission notes that the Departmental delegate had formed a view that the Applicant was a citizen of Pakistan due to the fact that when his daughter Bakhtawar (DOB 20 July 1991) applied for a Partner visa, she declared to the Department that she was a citizen of Pakistan. The delegate noted that Bakhtawar’s Pakistani passport lists her father Baba Ali, as a Pakistani national, as did her Pakistani national identity card and her Pakistani birth certificate. Further to this that checks with the National Database and Registration Authority (NADRA) verified that the national identity card for Bakhtawar was a genuinely issued document. The delegate had also found that as Bakhtawar’s documents had been issued on the basis of her father’s Pakistani documents, the Applicant is considered to be a citizen of Pakistan. As a consequence of this information, the delegate suspected that the Applicant had provided incorrect information in his protection visa application.

13. The Applicant’s representative noted that with respect to the Applicant’s nationality that he had provided an Afghan Taskera in support of his Australian citizenship by conferral application. The submission notes that with respect to the section 109 Notice of Intention to Consider Cancellation (NOICC) of the Applicant’s Subclass 155 Resident Return visa, dated 17 November 2022, the Department “decided that there was not non-compliance in the way described in the notice”.

14. The Applicant’s representative stated that the Applicant relied on the contents of the statutory declaration of 5 May 2022, namely that he had always provided correct information to the Department to the best of his ability. The Applicant’s representative notes that a key consideration was the fact that the Applicant had declared upon his entry interview to Australia as an illegal maritime arrival in 2010 that he had fraudulently obtained a Pakistani national identity card and a Pakistani passport on the basis of a genuine, but fraudulently obtained Pakistani national identity card. Furthermore, that when the Applicant’s boat was approaching Australian borders that the people smugglers threw the Applicant’s identity documents into the ocean.

15. The Applicant’s representative asserts that the correct information with respect to the Applicant was that his name was Baba Ali Gulzari (previously known as Baba Ali) and that he was a citizen of Afghanistan.

16. The Applicant’s representative also makes submissions with respect to the Applicant’s Pakistani documents, referable to relevant country information which pertains to the ease in which a person can fraudulently obtain genuine documents in Pakistan, and with respect to widespread corruption in Pakistan.

17. The Applicant’s representative also makes submissions with respect to the Applicant’s Afghani citizenship and with respect to his Royal Era Taskera, asserting that in issuing the Taskera to the Applicant, the Afghan authorities had confirmed the Applicant’s citizenship was inherited through his father’s Afghan citizenship. The submission then refers to a raft of country information which indicates that verification of the Applicant’s Taskera with the Afghani authorities was unreliable and could not be relied upon.

18. The Applicant’s representative also refers to the Applicant’s three brothers’ Taskera booklets, and the relevant translations of these documents. The submission notes the Taskera’s of the Applicant’s three brothers confirm the Applicant’s father’s name, grandfather’s name, place of birth, province and district details, and that these details are replicated on the Applicant’s Taskera.

19. The Applicant’s representative also makes reference to a land dispute that the Applicant experienced in Afghanistan which necessitated his return to that country from Pakistan between 2006 and 2009. The submission notes that the Applicant had enclosed a translated application of court proceedings in Ghazni province with respect to the land claim and associated violence that the Applicant had experienced in Afghanistan as a consequence of the land claim which led to him being stabbed and hospitalised.

20. The Applicant’s representative also makes reference to Afghani identity documents pertaining to the Applicant’s children namely their Taskera’s, which each child had obtained based on the Taskera of their father and, which the representative asserts verify the Applicant’s children’s connection to the Applicant. The submission also notes that this provides significant evidence that the Applicant has been a citizen of Afghanistan since birth, an assertion verified by the issuing of Taskera’s and passports to his children.

21. The submission also makes reference to the Applicant’s life in Australia and his close connection to the Afghan Australian community and another link in the establishment of his identity. The submission makes reference to the Applicant’s stated birthdate and his surname. The submission notes that the Applicant’s surname Gulzari was chosen in honour and memory of the place that he was born.

22. The Applicant’s representative also provided documents dated 15 July 2024 pertaining to a recent decision of the Pakistani Government that it would no longer be issuing passports to any individual who has sought asylum in a foreign country. On 23 July 2024, the Applicant’s representative advised that this policy had now been reversed by the Pakistani Government.

    DELEGATE’S DECISION

23. On 2 November 2023, the Minister’s delegate refused the application on the basis that the delegate could not be satisfied as to the Applicant’s identity and was therefore prohibited from approving the application under section 24(3) of the Citizenship Act. The delegates decision record can be found at T13 pages 313 to 330. The delegate did not consider or make any findings with respect to the Applicant’s character and confined himself solely to the issue of identity.

24. The delegate made the following findings. The delegate noted that the Applicant’s Pakistani passport and his Pakistani identity card, which were not submitted with respect to his Australian citizenship application, were at a later point in time found to be genuine documents and needed to be considered as part of the assessment of the Applicant’s identity. However, given the apparent ease in which genuine documents could be issued in Pakistan, based on incorrect feeder information, it was difficult for the delegate to place any weight on these Pakistani documents as evidence of the Applicant’s identity.

25. With respect to the assessment of the Applicant’s Afghani documents and the country information provided by the Applicant’s representative, the delegate noted the information indicated the ease in which falsified documents can be obtained in Afghanistan.  The delegate noted that verification of documents via the Afghani authorities could establish whether a document was genuine and issued by a competent authority. However, the delegate noted that this verification by the Afghani authorities would not be able to pick up whether the document contained incorrect information resulting from bribery, corruption, or inadequate supporting documentation.

26. The delegate noted that the Applicant’s Taskera (697174) was sent to the National Statistics and Information Authority (NSIA) in Afghanistan for verification on 7 September 2018. The NSIA reported that “the information of this Tazkira is not corresponding to PRD Record, the mention [sic] Tazkira is not been [sic] issued by PRD.” The delegate noted that the response was indicative of the fact that the Applicant’s Taskera was non-genuine and that it may be a counterfeit document or a genuinely issued but fraudulently altered document. The delegate with respect to the Applicant’s Taskera found that “due to the low credibility associated with Taskera’s, this level of credibility flows through to the passport. As a result, I am unable to place significant weight on these documents as evidence of your identity.”

27. The delegate noted that “the department’s findings relating to the integrity of your Taskera had been explained in detail in the Afghan documents finding section above. It remains unclear why the Department should accept this Taskera as definitive evidence of your status in Afghanistan when NSIA checks have indicated the document is nongenuine.”

28. The delegate noted that the Applicant’s brothers Iqbal Ali, Gulam Hassan, and Juma Khan’s Taskera’s provided paternal line information which aligned with the Applicant’s own life story. However, the delegate noted that no NSIA or ACCRA verification checks had been conducted against the Applicant’s brothers Taskera’s and having regard to the prevalence of fraudulent Taskera’s in Afghanistan, along with the ease in which fraudulent documents can be obtained, the delegate was reluctant to accept the integrity of the Royal Era Taskera’s of the Applicants declared brothers, particularly given that the NSIA had assessed the Applicant’s own Taskera as being a non-genuine document, which the delegate noted had been purportedly issued at the same time as the Applicant’s brothers Taskera’s.

29. The delegate noted that the Applicant’s October 2023 response to the adverse information letter included Local and High Court documents referencing a land dispute in 2006 pertaining to a property which the Applicant claims that he inherited from his father. The delegate noted that the Applicant’s representative asserted that these court documents proved that the Applicant was an Afghan citizen. The delegate called into question the integrity of these documents given the prevalence of corrupt institutions in Afghanistan and the provision of falsified documentation.

30. The delegate found that with respect to the Applicant’s wife and children’s Taskera’s that he could not be satisfied that these were genuine documents due to the questionable integrity of the Applicant’s own Taskera, and the information which suggested that genuinely issued, but fraudulently obtained documents were highly prevalent in Afghanistan.

31. The delegate noted that the Applicant’s representative asserted that it would have been impossible for the Applicant to acquire Pakistani citizenship and that the Applicant could not have obtained Pakistani citizenship through the operation of any Pakistani law and hence the Department should conclude that the Applicant was a citizen of Afghanistan and not of Pakistan.

32. Having regard to submissions and contentions made by the Applicant through his representative the delegate found that it was difficult to reach a conclusion that the Applicant was not a citizen of Pakistan. The delegate noted that “ultimately, I find that I do not need to make a definitive assessment in regard to your citizenship. It is enough that at this time, your citizenship claims either conflict with verified evidence or cannot be confirmed as genuine. In particular I note the associated documents cannot be completely relied upon. As a result, I cannot be satisfied of your citizenship. Your citizenship forms a significant part of your life story and therefore any concerns surrounding your citizenship also calls into question your identity.”

33. In making these findings the delegate acknowledged the difficulties faced by people fleeing persecution and difficulties in obtaining reliable identity documents. The delegate noted that he was faced with a situation where he could not be certain of the Applicant’s identity to the standard that was expected for the conferral of Australian citizenship. The delegate found that he was unable to definitively confirm the Applicant’s country of citizenship and that this, undermined significant aspects of the Applicant’s life story and his identity. As the delegate could not be satisfied to the requisite level of satisfaction with respect to the Applicant’s identity, the delegate found that he was prohibited from approving the Applicant’s application for citizenship by conferral under subsection 24(3) of the Citizenship Act.

    REVIEW HEARING

34. On 23 November 2023, the Applicant applied to the Tribunal for a review of the decision.

35. The Tribunal conducted review hearings on 23 July 2024, 24 July 2024 and 29 July 2024.

36. At the outset of the first review hearing on 23 July 2024, the Tribunal noted that the issue before it was a decision made by delegate of the Minister to refuse the Applicants application for citizenship by conferral on the basis that the delegate could not be satisfied of the Applicant’s identity. The Tribunal noted that the Applicant had sought merits review of this decision with the Administrative Appeals Tribunal (AAT). The Tribunal noted that the AAT was an independent review body that had been set up by the Australian government to conduct merits review of Federal Government decisions. The Tribunal noted that its task was to carefully review the written evidence before it along with the oral evidence provided at hearing and apply the relevant law to determine the correct and preferable decision in the review before it.

37. The Tribunal noted that in this review the Tribunal would be determining whether or not it could be satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.

38. The Tribunal outlined in detail the procedures for the conduct of the hearing and noted that two days had been initially set aside for the hearing. The Tribunal also gave extensive instruction with respect to the use of the accredited Hazaragi interpreter that had been booked for the hearing.

1. The hearing was conducted via video conferencing facilities. Before the Tribunal hearing commenced the Tribunal numbered as exhibits, the various documents and submissions that had been provided to it. The Tribunal checked with the Applicant that he understood the interpreter and the Applicant confirmed that he did.

2. The Applicant’s representative Mr Safari advised the Tribunal that he did not have an opening statement. Mr Safari advised that the Tribunal was reviewing the Respondent’s delegate’s decision to refuse citizenship by conferral because the delegate could not be satisfied of the Applicant’s identity. In essence, the delegate could not be satisfied of the Applicant’s nationality, specifically whether he was a citizen of Pakistan or a citizen of Afghanistan. Mr Safari noted that this was the reason that the application for citizenship by conferral had been refused. Mr Safari stated that the Applicant was reliant on the written submissions that had been made with respect to the application before the AAT and the interpretation of law in respect to identity. Mr Safari noted written submissions that had been provided with respect to the applicability of the Citizenship Procedural Instructions and whether or not the Tribunal should apply those instructions. Mr Safari stated that the Applicant was also reliant on the decision of Justice Kyrou in GJDB (cited above).

3. Mr Safari advised that in order to assist the Tribunal he would be taking evidence from the Applicant and that there were four witnesses who had provided their phone numbers to provide evidence via audio conferencing facilities.

4. Ms Jones-Bolla advised the Tribunal that she did not intend to make any lengthy opening submissions and that the Tribunal had identified the respective issue in the review before it. Ms Jones-Bolla reiterated the whole issue for determination before the Tribunal was whether the Tribunal could be satisfied of the identity of the Applicant. Ms Jones-Bolla noted that identity was not defined in the Citizenship Act and was referable to case law that had been referred to in submissions and in the Citizenship Procedural Instructions (CPI). Ms Jones-Bolla noted that the AAT had applied CPI 16 in past decisions and made reference to the decision of Justice Kyrou in GJDB. Ms Jones-Bolla argued that for consistency the Tribunal should apply CPI 16. Ms Jones -Bolla advised that the Minister was reliant on CPI 16 and referred to the decision of Senior Member Walsh in Beyan and Minister for Immigration and Border Protection who found that Australian citizenship was a very important document and should not be issued where the identity of an Applicant is not clear.[1] Ms Jones-Bolla posited that if the Tribunal could not be satisfied of the Applicant’s identity, then the correct and preferable decision was to affirm the decision under review. Ms Jones-Bolla advised that she was reliant upon the written submissions that had been provided to the Tribunal and there were no further opening submissions that she wished to make.

   [1] [2015] AATA 256, [38].

5. Mr Safari in response noted that Justice Kyrou decided that the Tribunal was not legally bound to apply CPI 16. He noted that the Tribunal was just applying a statutory standard and that if the Tribunal determined that CPI 16 was useful it was not precluded from applying it, however it was not bound by it. Mr Safari stated that the Tribunal could use CPI 16 as guidance, however as an independent review body, it was not bound to follow it. Mr Safari stated that his interpretation of CPI 16 was different to the view of Ms Jones-Bolla with respect to its applicability.

6. The Applicant gave his full name and advised that his family name was Gulzari. The Applicant advised that a person’s father’s name was used as the family name and when he came to Australia he chose Gulzari as his family name as it was representative of the region in Afghanistan which he was born in, Dahmarda Gulzar in Jaghori Province, Afghanistan.

7. Mr Safari asked the Applicant whether in Dahmarda Gulzar there was a smaller locality that he was born in, and the Applicant advised that in Dahmarda Gulzar there were 9 localities, and he was born in one of those localities, Kanjo.

8. Mr Safari asked the Applicant to assist the Tribunal by stating which village he had been born in and where it is found exactly in Afghanistan . The Applicant stated that he was born in Dahmarda Gulzar in Jaghori Province which was part of Ghazni Province which was part of Kabul, the capital of Afghanistan. The Applicant confirmed his birthplace as being in Kanjo.

9. The Applicant stated that he had five brothers and one sister who were all born in Kanjo, Dahmarda Gulzar. The Applicant added that he had two children who were also born in Kanjo in Dahmarda Gulzar. The Applicant stated that there were five boys in his family including himself and that one of his brothers was from a different mother.

10. The Applicant advised that his father was born in Kanjo and that his mother was born in a sub- area of Dahmarda Gulzar, Jaghuri (T4 page 16).

11. Mr Safari asked the Applicant where his grandparents were born and he advised that they were also born in Dahmarda Gulzar, he further advised that Ali Bash was his paternal grandfather. Mr Safari asked the Applicant whether he knew who Ali Bash’s father was and he advised that he only knew up to his grandparents names and not beyond that and that he was illiterate.

12. The Applicant advised that he was born on 28 March 1953. Mr Safari asked the Applicant how he knew his date of birth and the Applicant advised that when he first came to Australia, he was not exactly sure about the date of his birth but through the provision of his Taskera he later knew his date of birth.

13. Mr Safari asked the Applicant who recorded his date of birth on his Taskera. The Applicant stated that somebody who is an official came to his area and sought details of dates of birth. This person recorded respective dates of birth. The Applicant stated that his mother confirmed his date of birth with the official.

14. Mr Safari asked the Applicant how he obtained his Taskera. The Applicant stated that after taking his details and those of his elder brother that he was taken to the district governing body, the Applicant stated that he was taken into a tent and that the officials took a photograph of him and through this process he was issued with his Taskera.

15. Mr Safari asked the Applicant how he travelled from Dahmarda Gulzar to Sang-e-Marsha where the Taskera was obtained. The Applicant stated that as he was very young, his brother put him on a donkey. The Applicant advised that in Sang-e-Marsha there was a government body and there was no government body to issue his Taskera in Jaghori.

16. Mr Safari asked the Applicant whether he attended the Taskera office in Sang-e-Marsha, the Applicant confirmed that he did and confirmed that in this locality there was a district judge and district police. Mr Safari enquired of the Applicant whether he mentioned ‘Oswaal’ in his response to this question, the Applicant stated it was an executive body that issued orders to the police in Jaghori.

17. Mr Safari asked the Applicant what his Taskera looked like when he obtained it, and he replied it was ‘bookish’.

18. Mr Safari asked the Applicant whether his brothers had Taskera’s, and he advised they had all been issued with Taskera’s.

19. Mr Safari asked the Applicant for his mother’s name, and he advised it was Bibi Ram and that his father’s name was Qambar Ali.

20. Mr Safari asked the Applicant whether he practised religion and he advised that he did and identified his religion as being Shia.

21. Mr Safari asked the Applicant what a Shia was and whether it was a subset of a bigger religion. The Applicant stated that Shia was a sect of Islam that followed the 12 Imams also known as the 12 Divine Leaders.

22. The Applicant advised that he was Afghani and that he was of Hazara ethnicity.

23. Mr Safari asked the Applicant to name his brothers and he advised they were Safdar Ali, Iqbal Ali, Gulam Hassan and Juma khan.

24. Mr Safari asked the Applicant whether they were his full biological brothers and the Applicant advised that Safdar was from another mother but the rest of his brothers were biological. Mr Safari asked the Applicant whether he had any sisters and he advised that he had one sister called Leila.

25. Mr Safari asked the Applicant whether he knew Safdar Ali’s mother’s name and he advised that he did not. Mr Safari asked the Applicant whether he remembered when Safdar Ali’s mother was alive and he advised that he did not remember and that he was the fourth child of his parents.

26. Mr Safari asked the Applicant why his father had two wives. The Applicant stated it was a normal tradition in Afghanistan.

27. Mr Safari asked the Applicant whether he was married, and he confirmed he was. Mr Safari asked the Applicant how many times had been married and he advised twice. The Applicant advised that his first wife’s name was Amir Begum Gulzari and that his second wife’s name was Zahra Khamun. Mr Safari asked the Applicant where Amir Begum currently was. The Applicant stated that she lived with him, but she was currently overseas. Mr Safari asked where Zahra Khamun was, and he advised that she was deceased.

28. Mr Safari asked the Applicant how many children he had, and he advised 14. He advised that he had 7 sons and 7 daughters. The Applicant was asked to name them. The Applicant was only able to name 11 children. Mr Safari noted that the response was not indicative of 14 children the Applicant was once again asked to name his 14 children. The Applicant upon Mr Safari’s prompt, was able to name 14 children including two Bakhtawar’s. The Tribunal clarified the answer with the Applicant and whether he had two daughters named Bakhtawar and he advised that he did because the name meant ‘good luck’.

29. Mr Safari asked the Applicant when he left his place of birth for the first time and the Applicant advised that it was in 1990. Mr Safari asked the Applicant how old he was at that time and the Applicant stated that he did not remember, he had two children at the time and that he believed that he was over 30. Mr Safari asked the Applicant when he left the place of his birth where he travelled to, and the Applicant advised Pakistan. Mr Safari asked the Applicant why he travelled to Pakistan and the Applicant stated that he escaped from Afghanistan because people were being killed and kidnapped and that he travelled to Quetta. The Applicant stated that he went back to Afghanistan around the end of 2005 or early 2006 to see whether it was liveable and to see whether he could make a claim for a family farm in Afghanistan.

30. Mr Safari asked the Applicant what he did for work in Quetta in Pakistan, and he advised that he worked in construction. Mr Safari asked the Applicant whether he had identity documents in Pakistan and he advised that he had a Pakistani identity card which he purchased for 20,000 rupees. The Applicant added that with that ID you could live in Pakistan. Mr Safari asked the Applicant how he bought his Pakistani identity card, and he advised through an agent you were able to buy an identity card in Pakistan if you had the money. Mr Safari asked the Applicant whether he attended any government offices to collect his identity card in Pakistan and he advised that he did not attend any office he just paid an agent 20,000 rupees for the card. Mr Safari asked the Applicant whether he was able to get any other identity documents in Pakistan and he advised that he was not. The Applicant stated that when he was coming towards Australia an agent organised for him to obtain a Pakistani passport. The Applicant stated that when he was travelling to Australia by boat his passport was thrown into the water by people smugglers.

31. Mr Safari asked the Applicant whether he ever received a citizenship certificate in Pakistan. The Applicant advised that he did not, and he only received a Shanakhti card, which is a computerised national ID card. The Applicant advised that his card was not computerised. Mr Safari asked the Applicant whether he attempted to computerise this card and the Applicant advised that he was not issued with that type of card.

32. Mr Safari asked the Applicant whether he applied for Pakistani citizenship whilst he was in Pakistan and he advised that he did not. Mr Safari asked the Applicant whether he completed any forms for Pakistani citizenship while residing in that country and he advised that he did not. Mr Safari asked the Applicant whether he paid any fees for Pakistani citizenship, and he advised that he did not. Mr Safari asked the Applicant whether he attended a citizenship ceremony in Pakistan and he advised that he did not. Mr Safari asked the Applicant whether he pledged loyalty to Pakistan and he advised that he did not. Mr Safari asked the Applicant whether the Pakistani government ever gave him citizenship and he advised that they did not, only the ID card. The Applicant advised that this card was accepted by Pakistani authorities. The Applicant stated that when he came to Australia as an unauthorised maritime arrival he introduced himself as a Pakistani citizen but when he had access to a lawyer, the lawyer advised him that as he had a fake ID card, and that card would not work in Australia, he should apply for protection based on Afghani citizenship.

33. Mr Safari asked the Applicant what he told his representative in immigration detention. Mr Safari stated that when the Applicant was detained, he was given access to a Legal Aid lawyer, and he explained to that lawyer that he had a fake Pakistani ID card and that he had travelled to Australia on a Pakistani passport and the Applicant told the lawyer that he was from Afghanistan. Mr Safari asked the Applicant whether he advised his legal aid lawyer that he had brought his Pakistani ID card to Australia and he advised that he did. The Applicant stated that he believed that his Pakistani ID card was not in the records of the government of Pakistan. Mr Safari asked the Applicant where his Pakistani passport and Pakistani ID card were now, and he confirmed that these documents had been thrown into the sea enroute to Australia and that they would have now expired. Mr Safari asked the Applicant whether he ever obtained a new ID card from Pakistan, and he advised that he did not. Mr Safari asked the Applicant whether he ever tried to obtain a new Pakistani passport and he advised that he did not as he would be potentially jailed for having fake documents. Mr Safari asked the Applicant about the expiry dates on his Pakistani passport the Applicant stated it was valid for 5 years and that 5 years have now passed.

34. Mr Safari asked the Applicant whether he had ever travelled back to Pakistan from Australia. The Applicant advised that he travelled to Pakistan on three occasions, two times he had travelled on a travel document and on one of these visits to Pakistan he had travelled on Afghani passport that he had obtained through the Afghani Embassy in Canberra. The Applicant confirmed that the travel document was a document issued by the Australian Government and that the name listed on the document was Baba Ali Gulzari.

35. Mr Safari asked the Applicant about how he obtained an Afghani passport for his third trip to Pakistan from Australia. The Applicant stated that he made an application for this passport online via the Afghani Embassy in Canberra and that he provided his Taskera through this online application and then he obtained his passport. Mr Safari asked the Applicant how many Taskera’s he had during his lifetime, the Applicant advised that he only had one Taskera, the one he had obtained when he was 12 years old in Sang-e-Masha, Jaghori. The Applicant advised that it was this Taskera that he used to obtain the passport.

36. Mr Safari asked the Applicant whether he provided his name for the benefit of the Afghani officials processing the passport document. The Applicant stated that his name was already on the online form that the official noted that the Applicant’s father’s name was Qambar Ali and grandfather’s name was Ali Bakhsh.

37. Mr Safari asked the Applicant whether he had a copy of this passport and he advised that he had already sent it to the Tribunal. Mr Safari asked the Applicant whether he was referring to the passport that he had sent to Mr Safari the day before the hearing. The Applicant confirmed he had sent his passport to Mr Safari the day before the hearing.

38. Mr Safari asked the Applicant whether he used these three documents to travel to Pakistan on the three occasions that he travelled there, and the Applicant confirmed he did. Mr Safari asked the Applicant whether Pakistani officials took any issue with his identity on any of his three visits to Pakistan and the Applicant advised that they did not. Mr Safari asked the Applicant whether Pakistani border officials took any biometrics from the Applicant. The Applicant stated they took pictures of his fingers and his face. The Applicant stated they examined his fingers in a slot and took a picture of his face with a camera and that he had to look a particular way for the picture. Mr Safari asked the Applicant whether he needed a visa to travel to Pakistan and he advised that he did. Mr Safari asked the Applicant where he obtained a Pakistani travel visa and he advised from Sydney through the Pakistani Embassy. Mr Safari asked the Applicant whether he had his Afghan passport with him when he applied for a Pakistani visa and he advised that he did and reiterated that on two previous occasions he had travelled to Pakistan on Australian issued travel documents.

39. Mr Safari asked the Applicant whether he represented himself as Pakistani or Afghani when he was in Pakistan. The Applicant stated he represented himself as Afghani.

40. Mr Safari asked the Applicant whether he could apply for a new Pakistani travel card now and he advised that he could not. The Applicant relayed a situation where he knew of somebody that had a Pakistani ID card and tried to get into Pakistan and applied for a government job in Pakistan but the document that he submitted was later found to be non-genuine.

41. Mr Safari asked the Applicant whether his Pakistani ID card enabled him to obtain Pakistani citizenship and he advised that it did not. Mr Safari asked the Applicant whether he faced any issues regarding his identity whilst he was in Pakistan and he advised that he did not.

42. Mr Safari turned to the Applicant’s life in Afghanistan noting that the Applicant mentioned that he returned to Afghanistan from Pakistan for a period of time before eventually returning back to Pakistan. Mr Safari asked the Applicant whether he studied in Afghanistan, and he advised that he did limited study as a young boy with a Mullah, namely religious studies, conducted in a mosque. The Applicant added that before his Farsi was good but now it was not so good. The Applicant stated that he studied in Qabergha. Mr Safari asked the Applicant why he studied in this district rather than in Kanjo. The Applicant stated that Kanjo was a small area and that Qabergha was larger and had a mosque.

43. Mr Safari asked the Applicant whether his father had land in Kanjo. The Applicant stated that his father had land in Ger, Kanjo, Gawpran and Gulzar.

44. Mr Safari asked the Applicant whether he had land in Dahmurda Gulzar and he advised that he did and that the land had been distributed. The Applicant stated that his share of the land was in Abparon. Mr Safari asked the Applicant whether he could recall names for sub- localities of the area in which his land was located in and the Applicant advised Chashma-Bakes.

45. Mr Safari asked the Applicant whether people were happy for the Applicant to work on his land when he returned to Afghanistan in Dahmurda Gulzar. The Applicant stated that he did not know about other people’s sentiments. Mr Safari asked the Applicant whether he lived peacefully with the locals, and he advised that his uncle’s grandchild Khaliq Gaj, was not happy for him to be there and was not willing to hand over land to him.

1. Mr Safari asked the Applicant whether he sought justice with respect to this land dispute and he advised that he went to a court in Girga and then in Ghazni.

2. Mr Safari asked the Applicant whether he sought justice with respect to this land dispute from higher authorities and the Applicant confirmed that he went to a higher level of authority in Ghazni and that he also attended UNHCR in Kabul. Mr Safari asked the Applicant why he would go to UNHCR for a land dispute. The Applicant said that it was an office of the United Nations and the local Afghan people worked there and they had authority to engage in land disputes. Mr Safari asked the Applicant whether he can remember all the offices he attended in Afghanistan with respect to the land dispute and the Applicant advised in Sange-Masha, Mudir and Haqooq and that he attended a court in Sang-e Masha. The Applicant advised that he also went to see the Chief Justice in Ghazni with respect to the land dispute. The Applicant stated that no decision was made by the Chief Justice. Mr Safari asked the Applicant what the resolution of his land dispute was, and he advised that it remained as it was, and he escaped from there. Mr Safari asked the Applicant whether he received any letters from authorities with respect to the land dispute and he advised that he did. Mr Safari asked the Applicant whether he had land in Dahmurda Gulzar and he advised that he did. Mr Safari asked whether that loan was subject to dispute, and the Applicant advised that it was his father’s land ‘distributed amongst us.’

3. Mr Safari asked the Applicant whether he had provided court documents. Mr Safari asked whether the Applicant had provided these documents to Home Affairs for a specific reason. The Applicant stated that when the Department of Home Affairs objected to his nationality he submitted these documents in support of his nationality.

4. Mr Safari asked the Applicant whether there were any other issues upon his return to Afghanistan from Pakistan. The Applicant stated that he had problems with the Taliban. The Applicant stated about 500 or 600 metres from his locality was an area of Pashtun ethnicity. The Applicant stated that one night the Taliban came to his home and asked for 80,000 Pakistani rupees. The Applicant stated after a period of time another group of Taliban attended his property asking for money again and that they took his household belongings. The Applicant stated that after a while they returned and took the Applicant away in a vehicle. The Applicant stated they took him to a mountain base and that he was bashed unconscious and that this was close to Sang-e Masha. The Applicant stated that he was hospitalised and upon discharge from hospital he escaped to Pakistan.

5. Mr Safari asked the Applicant whether he presented any ID documents to the courts in Afghanistan and he advised that he presented his Taskera.

6. Mr Safari asked the Applicant whether his mother or father had Afghan Taskeras and he advised that they both did.

7. Mr Safari asked the Applicant whether his wife Amir Begum had a Taskera, and he advised that she did, as did all of his children. Mr Safari advised that his children were able to obtain their Taskera’s through his identity documents.

8. Mr Safari asked the Applicant whether any of his family members served in the Afghani army, and he advised that his brother Ghulan Hassan served in the Afghan army. Mr Safari asked the Applicant whether his brothers possessed Afghan Taskera’s, and he advised they all had Taskera’s. Mr Safari asked the Applicant whether he had provided copies of his brothers Taskera’s to the Department of Home affairs and he advised that he had.

9. Mr Safari asked the Applicant when he lived in Pakistan with his family whether the family obtained Pakistani documents, the Applicant advised that he obtained a Pakistani identity card. Mr Safari asked whether the Applicant’s children obtained Pakistani identity documents and he advised that they did not. The Applicant added that during the time that they were residing in Pakistan his children possibly got a copy of his ID card.

10. Mr Safari asked the Applicant whether he had membership in any particular social group in Australia and he advised that he is part of a group of Afghans from Dahmurda Gulzar.

11. Mr Safari asked the Applicant whether he served in the Afghan army, and he advised that he did not.

12. Mr Safari asked the Applicant prior to obtaining an identity document in Pakistan whether he was able to open a bank account and he advised that he could not. Mr Safari asked the Applicant whether he could send his children to school without Pakistani identity cards and he advised that his children studied in a refugee school. Mr Safari asked the Applicant whether he could receive healthcare in Pakistan without an identity card and the Applicant advised that Afghans would be treated in Pakistani hospitals without ID cards.

13. Ms Jones-Bolla cross-examined the Applicant. Ms Jones-Bolla noted that the Applicant had given evidence under oath that his date of birth was 28 March 1953. Further to this that his evidence was that he became aware of his exact date of birth after his Taskera had been obtained and translated. Ms Jones-Bolla asked the Applicant whether that was correct. The Applicant stated it was correct because in detention he gave his date of birth as an estimate. Ms Jones-Bolla asked the Applicant when he became aware that his date of birth was 28 March 1953 and the Applicant stated that it was when he obtained his Taskera document.

14. Ms Jones-Bolla confirmed with that when his Taskera was translated into English his birthdate was confirmed. The Applicant stated until his date of birth was translated into English from his Taskera he did not know his exact date of birth and that he did not understand the untranslated version. Ms Jones-Bolla asked the Applicant when his Taskera was translated, and he advised that he could not remember when he had the document translated. Ms Jones-Bolla asked the Applicant whether the translation happened after he arrived in Australia. The Applicant stated that when he arrived in Australia he was placed in detention, he did not have a Taskera, and that he obtained it when he was outside of detention.

15. Ms Jones-Bolla asked the Applicant why he obtained his Taskera document. The Applicant stated that he was detained on Christmas Island in December 2010. The Applicant stated that he received his protection visa approximately seven months after that. The Applicant stated that he obtained his Taskera sometime later when he was living in Mildura. The Applicant stated that after he was released from detention that he went to Sydney for up to 40 days before relocating to Mildura.

16. Ms Jones-Bolla asked the Applicant how a translation of his Taskera into English assisted him in understanding his date of birth. The Applicant stated that his Taskera document was written in the Farsi language and that he had to have it translated because he did not know what it said. Ms Jones-Bolla asked the Applicant whether he could read the translation and he advised that he could not because he was illiterate, and it was read by somebody else. Ms Jones-Bolla noted that in detention the Applicant gave an estimate of his date of birth. The Applicant confirmed that this was the case because he did not remember his date of birth. Ms Jones-Bolla noted that the Applicant, in his sworn statements provided in support of his protection visa application, gave a distinct date of birth of 31 December 1958. The Applicant advised that this was an estimate because he was not sure of the date or the month and that at the time that he applied for protection he was approximately 58 years old and hence the year 1958.

17. Ms Jones-Bolla noted that the Applicant’s statutory declaration submitted in support of his protection visa application found in the bundle of documents at ST9 68-72 included his signature. The Applicant confirmed that it was his signature on the declaration. Ms Jones-Bolla noted that the statutory declaration contained an interpreter’s declaration indicating that the contents of the statutory declaration had been read back to the Applicant with the declaration being dated 3 February 2011. The Applicant stated that it was a long time ago and he had limited recollection of the document. Ms Jones-Bolla asked the Applicant why he gave a very specific date of 31 December 1958 with respect to his date of birth. The Applicant stated it was not 100% correct and that he was around 58 years old at the time. Ms Jones-Bolla noted that the documents indicated that the Applicant had a lawyer with respect to his protection visa application and the Applicant confirmed that he was represented by a lawyer.

18. Ms Jones-Bolla noted that the Applicant had completed a Form 80 personal particulars for character assessment in 2011 with respect to his protection visa application. Ms Jones-Bolla asked the Applicant whether question 4 of that document located at ST 4 page 47 was in his handwriting and the Applicant confirmed that it was. Ms Jones-Bolla noted that the Applicant claimed that his date of birth in the Form 80 was 31 December 1958 and that this form was completed on 3 February 2011. The Applicant was invited to comment on this. The Applicant stated that this was his estimated age at the time and that he was around 58. Ms Jones asked the Applicant whether the lawyer that assisted him in the completion of these forms had made up the date of birth. The Applicant claims that he stated that his age was approximately 58 and he cannot recall giving the month or date. Ms Jones-Bolla noted that the Applicant in his evidence had told the Tribunal that given these documents were prepared in 2011 he could not remember the contents of the documents but now he was giving evidence that he remembered telling his lawyer that he was 58 at the time. The Applicant was invited to comment on this. The Applicant stated that he did not remember what he told the lawyer apart from the fact that he was around 58.

19. Ms Jones-Bolla asked the Applicant whether his children were aware of his date of birth and the Applicant stated that he was not sure. Ms Jones-Bolla asked the Applicant whether his children knew what country he was born in and he advised that his children knew where he was born.

20. Ms Jones-Bolla asked the Applicant whether his daughter Bakhtawar knew where he was born, and he advised that she would know where he was born. Ms Jones-Bolla noted that Bakhtawar had completed a Form 80, personal particulars form on 12 December 2012. Ms Jones-Bolla noted that the document located at ST15 page 116 indicated that Bakhtawar had noted her father’s name as being Baba Ali Qambar Ali and that he was born in Quetta Pakistan on 1 January 1951. Ms Jones-Bolla further noted that the Applicant’s Pakistani ID card listed the Applicant’s date of birth as being 1 January 1951. Ms Jones-Bolla questioned the Applicant with respect to these birth date discrepancies. The Applicant stated that he could not remember the date of birth that was on his Pakistani identity card. Ms Jones-Bolla noted her earlier questioning of the Applicant where he confirmed that all of his children were aware of the fact that he was born in Afghanistan. Ms Jones-Bolla asked why his daughter would state in her Form 80 that her father was born in Pakistan. The Applicant stated that his daughter would have copied his Pakistani ID card details and hence she would have lied in the provision of that information.

21. Ms Jones-Bolla asked the Applicant about family composition and how he became aware that his mother’s name was Bibi and the Applicant stated he knew his mother’s name. Ms Jones-Bolla asked the Applicant whether Safdar Ali’s mother lived in the same house as his mother and the Applicant confirmed that she did.

22. Ms Jones-Bolla took the Applicant back to his Taskera evidence. Ms Jones-Bolla noted that the Applicant had given evidence that he had lost his Taskera at one point and then found it. The Applicant stated that when he was beaten up by the Taliban he had real concerns for his personal safety and that he did not have his Taskera when he returned to Pakistan from Afghanistan. The Applicant stated that he had the clothes that he was wearing and some money and that he managed to get back to Quetta.

23. Ms Jones-Bolla asked the Applicant whether he had his Taskera with him when he came to Australia. The Applicant stated that he did not, and he did not know where it was. The Applicant stated that when he reached Australia someone went to his home and found the document and sent it to him in Australia.

24. Ms Jones-Bolla took the Applicant to document T4 page 24. The Applicant identified that document as being his Taskera. Ms Jones-Bolla asked the Applicant how many times he had had his Taskera translated, and he advised only on one occasion. Ms Jones-Bolla referred to a document numbered T4 page 26. The Applicant confirmed that it was translation of his Taskera document. Ms Jones-Bolla noted that this document indicated that the Applicant was born on 28 March 1953. Ms Jones-Bolla noted that a document located at T10 page 119 appeared to be a second translation of the Applicant’s Taskera and did not refer to a date of birth but in that column stated that the Applicant was ‘Twelve (12) years old.’ Ms Jones-Bolla asked the Applicant why he had given evidence under oath that he had only one translation of his Taskera when there was clearly two translations. The Applicant stated that he made a mistake. Ms Jones-Bolla asked the Applicant why there were differences in the two translations with one translation stating that the Applicant was born on 28 March 1953 and the other omitting a date of birth and saying that the Applicant was 12 years old. The Applicant stated that there may be a difference due to the application of the Persian calendar. The Applicant confirmed that he was 12 when he got his Taskera. The Applicant stated in the Persian calendar it was the year 44 when he was 12 years old and that he could not write particular dates, because of literacy issues.

25. Ms Jones-Bolla noted the Applicant’s evidence that he had used his Taskera to obtain his Afghani passport. The Applicant confirmed that the passport was issued because of the provision of his Taskera, and that more information could be obtained from the Afghani Embassy in Canberra. Ms Jones-Bolla asked the Applicant whether he provided a translation of his Taskera to the Afghani Embassy in Canberra. The Applicant stated that he did not because they could read the Taskera document without the need to provide a translation. Ms Jones-Bolla asked the Applicant whether he needed to complete a form with respect to his passport application and the Applicant stated that the embassy was able to issue the passport based on the information contained in his Taskera.

26. Ms Jones-Bolla asked the Applicant about the date of birth was recorded in his Afghani passport located at document ST7 page 63 which clearly stated his date of birth as being 28 March 1953 with Ms Jones-Bolla noting that this was another big discrepancy with respect to the Applicant’s birthdate.

27. Ms Jones-Bolla advised that she wanted to ask the Applicant further information about his Pakistani passport and whether that was the only passport that he had issued from the Pakistani authorities. The Applicant stated that he only ever obtained one passport in Pakistan and that it was not obtained from the authorities but was obtained illegally. Ms Jones-Bolla asked the Applicant whether he used that Pakistani passport to depart Pakistan to travel to Iran enroute to Australia. The Applicant stated that he travelled to Iran using that Pakistani passport. The Applicant stated that his travel from Pakistan to Iran was organised by a smuggler. The Applicant stated that a caravan was travelling to Iran and that he joined this caravan. Ms Jones-Bolla asked the Applicant whether he obtained a visa for Iran, and he advised that he did not. Ms Jones-Bolla noted that the evidence indicated that the Applicant then travelled to Malaysia. The Applicant stated that was correct and then from Malaysia he travelled by boat to Indonesia. Ms Jones-Bolla asked the Applicant how he travelled from Iran to Malaysia, and he advised that he obtained a visa for Malaysia. Ms Jones-Bolla clarified that the passport that he used to obtain that visa was his Pakistani passport and the Applicant confirmed that it was. Ms Jones-Bolla asked the Applicant whether he took a plane from Iran to Malaysia and whether he departed Iran at its international airport and the Applicant stated that he did.

28. Ms Jones-Bolla asked the Applicant when he entered Malaysia whether he used his Pakistani passport with a visa to enter Malaysia and he confirmed that he did.

29. Ms Jones-Bolla noted when the Applicant first arrived in Australia he had an interview with a Departmental officer and there was a record of that interview. The Applicant confirmed that he was interviewed. Ms Jones-Bolla asked the Applicant whether he recalled that interview. The Applicant stated that he remembered the interview but could not remember the details.

30. Ms Jones-Bolla asked the Applicant where he was when he purchased a ticket from Iran to Malaysia and the Applicant advised that he purchased it in Tehran. Ms Jones-Bolla asked the Applicant whether he had a visa for entry into Iran and he advised that he did not. Ms Jones-Bolla took the Applicant to document number ST2 page 29 which was the Applicant’s initial interview as a boat arrival when he arrived in Australia in December 2010. Page 29 of that document indicated that the Applicant used a passport to travel to Australia and that he had an Iranian Visa. Ms Jones-Bolla noted that the Applicant’s evidence provided at hearing contradicted the evidence provided to immigration at the time of his arrival in Australia in December 2010. The Applicant was invited to comment on this. The Applicant stated that he did not remember what he said in that interview and that he travelled to Iran with a caravan and then in Iran people organised a visa to Australia.

31. Ms Jones-Bolla noted that at the time of his entry interview at ST2 at page 30, when he was asked whether the passport that he travelled to Australia and was genuine he stated yes. The Applicant was invited to comment on this. The Applicant stated that he could not remember. The Applicant stated that his initial intention when he arrived in Australia was to lodge a protection application based on him being from Pakistan but the lawyer who assisted him told him that it would not be successful. Ms Jones-Bolla asked the Applicant whether the reason that he intended to lodge a Pakistani protection visa application was due to the fact that he was holding himself out to be a citizen of Pakistan. The Applicant stated that he travelled to Australia on a Pakistani passport but the lawyer that he engaged with told him that this was not correct. Ms Jones-Bolla noted the Applicant had stated at the time of his initial arrival interview that the document was genuine. Once again, the Applicant stated that initially he wanted to lodge Pakistani claims with Pakistani identity but when he told the agent the truth the agent said that he should not lodge a claim on the basis of fraudulent documents.

32. The Tribunal enquired of Ms Jones-Bolla, given that she was raising concerns about information provided to immigration at the time of the initial boat interview, whether she was going to raise any issues with respect to the date of birth for the Applicant recorded in that interview document being 1958. Ms Jones-Bolla stated that she noted the discrepancy. The Applicant commented that he did not have any documents at that time such as his Taskera.

33. Ms Jones-Bolla noted that the Applicant in his evidence to the Tribunal talked about his return to Afghanistan from Pakistan at the end of 2005. Ms Jones-Bolla noted that in the Applicant’s evidence he stated that he had returned to Afghanistan only the once, at the end of 2005. Ms Jones-Bolla asked the Applicant whether that was the only time he had returned to Afghanistan. The Applicant stated after he migrated to Pakistan that was the only time he returned to Afghanistan. The Applicant added that this was towards the end of 2005 or 2006 he was not sure. Ms Jones-Bolla noted that the Applicant advised that he was in Afghanistan for about three years and whether that was accurate, and the Applicant confirmed it was. Ms Jones-Bolla noted that the Applicant in his evidence stated that there was a land dispute when he returned to Afghanistan and asked the Applicant how soon after his return the dispute arose. The Applicant stated that he could not remember and that possibly it occurred sometime later. Ms Jones-Bolla asked whether it was after a year had passed and the Applicant stated more like a couple of months.

1. Ms Jones-Bolla noted the Applicant’s evidence that the land dispute was with an uncle’s grandchild Kalif Sad and the Applicant stated that it was with Abdul Kalid and that he had made a mistake in his earlier evidence. Ms Jones-Bolla clarified whether Abdul Kalid was his uncle’s grandchild and the Applicant confirmed he was. Ms Jones-Bolla noted that reference pertaining to the dispute was contained in the papers at T12 page 298 and that this indicates that the Applicant’s dispute was with Dur Nisa daughter of Ahmad Ali. Ms Jones noted that this evidence contradicted the Applicant’s evidence that this dispute was with Abdul Kalid.

2. Ms Jones-Bolla noted that the Applicant in his evidence had recounted an incident involving the Taliban. Namely that the Taliban had attended his premises in Afghanistan on one occasion demanding money, on a second occasion demanding household items and on a third occasion taking the Applicant away and beating him. Ms Jones-Bolla asked when these three incidences occurred. The Applicant stated that the Taliban took money from him, on the second occasion they took household items and then on the third occasion they took him away. Once again Ms Jones-Bolla asked when this occurred. The Applicant stated it was in the last year he was in Afghanistan before he escaped back to Pakistan. Ms Jones-Bolla referred to the Applicant’s statement found at ST9 document 68 and that the Applicant claims the incident with the Taliban occurred in about 2009. Ms Jones-Bolla asked whether that was correct. The Applicant noted that he was in Australia in 2011, that he came to Australia by boat in 2010 and the Applicant confirmed that the incident with the Taliban occurred in 2009 after which he escaped Pakistan.

3. The Applicant added that upon his return to Pakistan that killing started in Pakistan and that is when he decided to leave that country. Ms Jones-Bolla asked the Applicant whether that was the only time in 2009 that the Taliban had approached him. The Applicant confirmed it was on three occasions in that year.

4. Ms Jones-Bolla noted that the Applicant’s evidence was that after being taken away and assaulted physically by the Taliban he went to the hospital. Ms Jones-Bolla asked the Applicant whether that was the only time he had been in hospital after a beating by the Taliban. The Applicant stated that when the Taliban assaulted him, a car took him to an area where doctors were treating people. Ms Jones-Bolla asked the Applicant after he returned to Afghanistan from Pakistan and whether this was the only time he went to hospital after the beating by the Taliban. The Applicant stated that after he returned to Pakistan from Afghanistan he went to Australia. The Applicant stated that after being beaten up by the Taliban this was the only time that he went to hospital. Ms Jones-Bolla asked the Applicant how long he was in hospital for, and he said approximately a week or 10 days he could not remember. Ms Jones-Bolla asked the Applicant whether he recalled what injuries were treated at the hospital and the Applicant stated there was a stabbing in his back and his shoulder. Ms Jones-Bolla noted that the Applicant had given evidence about the incident namely that the Taliban came, they took him in a vehicle, they took to a mountain, that they beat him and threw him out of the vehicle. The Applicant recalled that when he was asked about this earlier he had advised that he had been beaten and assaulted and injured. Ms Jones-Bolla noted that the Applicant’s earlier evidence at hearing varied from the account given in a statutory declaration in support of his claims for protection. Ms Jones-Bolla noted that document found in T11 at page 156 advises that the Applicant was admitted to hospital for a stab injury and was only admitted for 2 days which varied with his most recent evidence about this incident. The Applicant stated that after the incident his arm and hand were bleeding, and his head was also bleeding.

5. Ms Jones-Bolla asked the Applicant questions about his family. Ms Jones-Bolla noted the Applicant’s evidence indicated that he had been married to two wives. Ms Jones-Bolla asked the Applicant when he married Amir Begum and he advised that they married in Afghanistan, but he could not remember the date. Ms Jones-Bolla inquired whether it was before or after his relocation to Pakistan and the Applicant stated it was prior to going to Pakistan and that he and his first wife had two children in Afghanistan before they travelled to Pakistan. Ms Jones-Bolla asked the Applicant when he married his second wife Zahra. The Applicant stated that he could not remember the date and that he married her in Pakistan. Ms Jones-Bolla asked the Applicant whether he was already living in Pakistan when he married Zahra and he advised he was. Ms Jones-Bolla asked the Applicant where Zahra was living prior to their marriage. The Applicant stated that Hazara’s from Afghanistan, including Zahra, were living in difficult circumstances in Pakistan. Ms Jones-Bolla referred to the Applicant’s statement located at ST9 page 69 where the Applicant states in that declaration that he married his second wife in 1992 and took her back to Pakistan where he lived with his two wives and children until 2006. Ms Jones-Bolla noted that this evidence in the statutory declaration of 3 February 2011 contradicted the Applicant’s evidence at hearing. The Applicant was invited to comment on this. The Applicant stated that he married his second wife in Pakistan and took her to Afghanistan in 2006.

6. Ms Jones-Bolla noted that in the same statutory declaration he notes that his father had two wives and hence he had a stepmother. Ms Jones-Bolla noted that the Applicant in the Form 80 did not disclose the existence of his stepmother and only disclosed his mother and father. Ms Jones-Bolla asked the Applicant why he failed to declare his stepmother. The Applicant stated that someone helped him fill out the form, that he is illiterate, that his stepmother is dead and what is the relevance of including her in that. Ms Jones-Bolla noted that the form required and Applicant to list all parents, both natural parents, and stepparents including those parents who were deceased. Ms Jones-Bolla asked the Applicant who assisted him in completing his Form 80 in 2017. The Applicant stated a person helped him because he was not able to read or write. Ms Jones-Bolla noted that in that form the Applicant had only declared one sibling, Leila, and a half-brother and that his three full brothers were not included in that form. The Applicant stated that he asked a person to help him complete the form because of his literacy issues and apologised for any mistake.

7. Ms Jones-Bolla referred to the Applicant’s evidence that he had 14 children. Ms Jones-Bolla referred to the T documents namely T6, 44-45. These documents related to the Form 80 completed by the Applicant on 28 August 2017. Ms Jones-Bolla noted that the Applicant in this document was asked whether he had any children including biological, adopted, children from the current or previous marriage, all stepchildren and deceased children to which the Applicant advised ‘yes’. The Applicant was then asked to list his children. Ms Jones-Bolla noted that the Applicant only listed 6 children in this form. The Applicant was asked to comment on this discrepancy. The Applicant stated that his second wife Zahra had passed away and he had a son who had also passed away. The Applicant stated that at the time, he was having somebody complete the form on his behalf and he believed that he only needed to include those children who were included in his application. The Applicant stated that he had three children residing in Pakistan. Ms Jones-Bolla noted that the same form asked the Applicant to disclose whether he had a partner and that he only disclosed his first wife Amir Begum and that he failed to disclose his second wife Zahra. The Applicant was asked about this omission. The Applicant stated that he was reliant on the assistance of the person that helped him complete the form and that this person told him just to include the children that had been included in the application. Ms Jones-Bolla sought clarification of this answer noting that the Form 80 related to the Applicants application for citizenship by conferral and asked which application the Applicant was referring to. The Applicant stated the person who completed the application said just include the children who are included in the application. Again Ms Jones-Bolla asked which application the Applicant was referring to. The Applicant stated that if there was any inconsistency or omission he apologised for the mistake. Ms Jones-Bolla asked the Applicant whether what he was saying in his response was that children included in previous visa applications should have been included in response to the question in the Form 80. The Applicant stated that this was the case to only include children that have been included in previous applications and no need for recording the other children.

8. Ms Jones-Bolla noted that the Applicant in his previous evidence had advised the Tribunal that he had two daughters named Bakhtawar and whether that was accurate. The Applicant confirmed it was. Ms Jones-Bolla noted that the Form 80 completed by the Applicant in 2011 with respect to his protection visa application noted that he had 14 children included in the application and only one daughter called Bakhtawar. Ms Jones-Bolla asked the Applicant about this discrepancy. The Applicant stated he had another daughter called Gul Bakhat which is short for Bakhtawar. Ms Jones-Bolla stated that the Applicant in his earlier evidence stated categorically that he had two daughters named Bakhtawar and that he had named them that name because the word meant ‘good luck’. Ms Jones-Bolla noted the Applicant made no mention of a shortening or abbreviation for his daughter Gul Bakhat. Ms Jones-Bolla made reference to the Applicant’s entry interview to Australia contained at ST2 page 19 which records Gul Bakhat and Bakhtawar. There was no reference to a shortening of the name Gul Bakhat and there was no evidence that the Applicant used abbreviated forms for any of his sons. The Applicant reiterated that Gul Bakhat was an abbreviated form of Bakhtawar.

9. Ms Jones-Bolla asked the Applicant about children noted in the Applicant’s form 80 at T6 page 44. Ms Jones-Bolla asked the Applicant whether he could recall his son Ali Jan’s date of birth and he advised that he could not remember any of his children’s date of birth he could only remember his date of birth. The Applicant stated he does not remember his wife’s date of birth and he doesn’t even remember his mobile number.

10. Ms Jones-Bolla enquired of the Applicant whether he remembered his children’s dates of birth when the Form 80 was completed in 2017. The Applicant stated that he kept papers from the detention centre and that he gave those papers to the person who completed the form. Ms Jones-Bolla noted that the document at T6 page 50 required the Applicant to sign a declaration attesting that the information provided in the Form 80 was true and correct. Ms Jones-Bolla asked the Applicant why he would sign the Form 80 if he was not sure of the contents of the form. The Applicant stated that he apologised for any errors and that he made a mistake. Once again Ms Jones-Bolla asked the Applicant why he would sign such an important document if he was not sure of the contents of the document. The Applicant stated that other people were helping him, it was difficult to get people to help fill out lengthy forms and he apologised for any errors.

11. Ms Jones-Bolla noted that the Applicant in his evidence advised that he could not remember his children’s dates of birth, but he had listed specific dates of birth for 6 of his children in the Form 80 contained at T6 pages 44-45. Ms Jones-Bolla asked the Applicant if he knew where his children were born. He advised that two of his children Zahra, and Gulbar, were born in Afghanistan and that his 12 remaining children were all born in Pakistan. Ms Jones-Bolla took the Applicant to his 2017 Form 80 at T6 pages 44-45 which states that all of the listed children were born in Afghanistan and that this contradicted his evidence that only two of his children were born in Afghanistan. The Applicant was asked to clarify his earlier evidence. The Applicant stated that what he meant was that they were all Afghani but were born in Pakistan. Ms Jones-Bolla pointed out to the Applicant that if he is now claiming that these children were born in Pakistan, he had given false information in the 2017 Form 80. The Applicant stated that if he said they were Pakistani it was false information.

12. Ms Jones-Bolla put to the Applicant that his evidence could not be accepted. Ms Jones-Bolla stated the Applicant had held himself out to be a Pakistani in Pakistan, Iran and Malaysia and that there was no reason for stating that his children were born in Afghanistan if in fact they were born in Pakistan. The Applicant was invited to comment on this. The Applicant stated his children had passports from Afghanistan and to get these documents they were unable to say they were born in Pakistan.

13. Ms Jones-Bolla stated that the Form 80 was asking for information about where his children were born. Ms Jones-Bolla made reference to ST3 page 44-45 which formed part of an initial immigration assessment of the Applicant when he arrived in Australia by boat. The document at page 44, dated 3 February 2011, listed the Applicant’s children and notes that a number of the Applicant’s children were born in Pakistan and that the information contained in this document contradicted the 2017 Form 80. The Applicant was invited to comment on this. Ms Jones-Bolla stated that the Applicant completed these forms which were very important in respect of an application for citizenship and an application for an immigration outcome. Ms Jones-Bolla noted that the Applicant had given regularly inconsistent evidence with respect to his family members and invited him to comment on that. The Applicant stated that he had answered this question already and advised the people who assisted in the completion of the forms made mistakes and he was sorry for that. The Applicant stated that he was illiterate and cannot read or write.

14. Ms Jones-Bolla noted that the Applicant was not writing or completing the forms himself, he was conveying the answers to the person assisting him. Ms Jones-Bolla noted that the Applicant’s evidence about the birthplace of his children was inconsistent, and the Applicant was invited to comment on this. The Applicant stated that his children had all been subject to DNA testing and they were all his children. The Applicant stated that he was sorry for any inconsistencies or mistakes made in the form and that what really matters is that they were all his biological children.

15. Ms Jones-Bolla asked the Applicant how many children he had with his first wife Amir Begum, and he advised eight children. Ms Jones-Bolla noted that the Applicant had declared Ali Jan to be his biological son with Amir Begum, however, in Ms Begum’s application for an offshore humanitarian visa he is listed as her stepson. Ms Jones-Bolla noted that once again the evidence was inconsistent and invited the Applicant to comment. The Applicant stated that it might be a mistake he did not know. The Applicant stated that Ali-Jan was Ms Begum’s son and that the information had been recorded incorrectly and he apologised for that.

16. Ms Jones-Bolla asked the Applicant to tell the Tribunal what he did for work in Afghanistan, and he advised that he was a farmer working with his father. Ms Jones-Bolla asked the Applicant to advise the Tribunal what he did for work in Pakistan, and he advised that he was working in construction, building houses and that is how he was running his life.

17. Ms Jones-Bolla noted that the Applicant declared in 2011 that he had travelled to Pakistan in 1990 and whether that was correct. The Applicant stated it was correct. Ms Jones-Bolla asked the Applicant whether he could comment on what was recorded at document T6 page 38 which indicates that the Applicant worked as a builder in Pakistan from 1985 to 2010. The Applicant was invited to comment on this discrepancy. The Applicant stated that this must be a mistake that it must be 1990 not 1985 and that he did work in construction up until 2010. Ms Jones-Bolla further raised that the Applicant’s evidence at T6 page 38 indicated that prior to travelling to Pakistan the Applicant was unemployed. Ms Jones-Bolla noted that the Applicant’s evidence at hearing to the Tribunal was that prior to travelling to Pakistan he worked as a farmer, and this contradicted what was in the form. The Applicant stated that there was a period of unemployment in Pakistan.

18. Ms Jones-Bolla referred to a document located at T6 page 37 where the Applicant provided an address for his residence in Pakistan being Mohala Gulzari Nasirabad Quetta. Ms Jones-Bolla noted that the Applicant claimed that he adopted the surname Gulzari from his place of birth in Afghanistan and invited comment on whether he adopted it from his address in Pakistan. The Applicant stated it was based on his address in Afghanistan.

19. The hearing resumed on 29 July 2024.

20. Mr Safari asked the Applicant how many Taskera’s he had during his lifetime and the Applicant advised just one Taskera.

21. Mr Safari asked the Applicant whether it was this Taskera that he used to change his date of birth with the Department of Home Affairs and he advised it was.

22. Mr Safari noted that during cross-examination the Applicant had advised that he had obtained a Taskera subsequently and whether that was correct. The Applicant advised that when he arrived in Australia, he obtained a new Taskera, and that his old Taskera had been misplaced.

23. Mr Safari asked the Applicant whether he used a different calendar in Afghanistan to the Australian calendar. The Applicant stated that there was a big difference between calendars, for example when it was the year 2000 in Australia it was the year 1400 in the Afghan calendar.

24. Mr Safari asked the Applicant whether he told his migration agent in detention his exact date of birth. The Applicant stated that when the migration agent asked him for his age, he told the migration agent that he was 58 years old but did not give an exact date. Mr Safari asked the Applicant whether he knew his exact date of birth and the Applicant advised that he knew his date of birth now, but he could not remember his old one.

25. Mr Safari asked the Applicant when a person lived in a village in Afghanistan whether sons knew their mother’s name. The Applicant responded that people only knew the name of their respective family members. Mr Safari asked the Applicant whether his father was known by any other name, and he advised Qambar Ali, son of Ali Bash.

26. Mr Safari took the Applicant to document ST13 at page 103. Mr Safari noted that this was a document from the Afghan government which states that the Applicant’s father’s name was Qambar Shah. Mr Safari asked the Applicant whether that was correct, and he advised that was not correct and that his name should be Qambar Ali.

27. Mr Safari asked the Applicant to explain why he declared to the Department that he was an Afghan citizen. The Applicant stated that he is illiterate and is like a blind person and that he needed to use a representative because he did not know the language.

28. Mr Safari asked the Applicant whether he believed his Pakistani passport was genuine. The Applicant stated that he believed it was not genuine because he met a person who organised the document for him.

29. Mr Safari noted that during cross-examination he mentioned the family tree for Ms Dur Nisa. The Applicant stated that she was the daughter of Abdul Khaliq.

30. Mr Safari took the Applicant to document T11 at page 163. All documents referred to by Mr Safari were conveyed to a screen for the Applicant and interpreter’s benefit. Mr Safari asked the Applicant who Abdul Hussain, son of Yousuf Ali was. The Applicant stated that he was a person from Dahmurda Gulzar and that they belong to the same tribe.

1. The Applicant’s representative stated that it was reasonable, fair and plausible for the Tribunal to arrive at a conclusion that the Applicant was not a citizen of Pakistan and was in fact, a citizen of Afghanistan.

2. The Applicant’s representative submitted that “every salient point of the Applicant’s SFIC has been confirmed by the three witnesses.”

3. The Applicant’s representative submitted that the majority of Afghans do not know their actual year of birth and as a consequence they estimate their age.

4. The Applicant’s representative posited that the Applicant was credible and had given a credible account of his circumstances. The Applicant’s representative also pointed to apparent professional/unethical conduct by the interpreter on day two of the hearing, that when considered, should not impact the Applicant’s credibility. The Tribunal notes that the on day two of the hearing the Applicant gave evidence consistent with the questions that were being asked of him. Further to this there was no evidence before the Tribunal of the interpreter not adhering to his professional obligations during the hearing on that day.

5. The Applicant’s representative submitted that the Tribunal should rely on the decision of Justice Kyrou in GJDB.

6. The Applicant’s representative submitted that the Tribunal may find CPI 16 a useful guide “to the extent that it does not lead to a decision which deviates from the correct and preferable decision” with respect to the Applicant’s identity.

7. The Applicant’s representative in conclusion submits that having regard to the totality of the evidence before the Tribunal, the Applicant’s explanations, country information and the evidence provided by the Applicants three witnesses that there is sufficient evidence for the Tribunal to be satisfied of the Applicant’s identity as per s 24(3) of the Citizenship Act.

   RESPONDENTS POST HEARING SUBMISSION

8. The Tribunal received the Respondent’s submission on 30 August 2024. With respect to the Applicant’s documents, particularly his Taskera, the respondent contended that limited weight should be given to the Taskera for the following reasons. There were significant differences between the two translations of the document that remain unexplained. The translation located at T10 page 119 does not record any family name. The translation at T4 page 26 records the full name Baba Ali Gulzari. The two documents refer to different places of birth. The two documents also refer to the applicant’s date of birth as being 28 March 1953, with the second document referring to the applicant as being ‘twelve years old.’

9. The submission notes that the applicant invited the Tribunal not to rely on the verification check of the applicant’s Taskera on the basis that it listed the applicant’s father’s name as Qambar Shah and not Qambar Ali. The respondent contends that the Tribunal should give the document weight because it references the document number 697174 which corresponds with the applicant’s Taskera document number.

10. The respondent contends that despite the fact that the applicant’s Pakistani passport and Pakistani registration card were not before the Tribunal, there was evidence indicative of the fact that the documents were genuine. That evidence included the fact that the applicant used his Pakistani passport to purchase tickets to travel to Iran and Malaysia and that he used his Pakistani passport to depart Iran and Malaysia and to obtain a visa for Malaysia. The applicant also reported to the Department that the passport was genuine until such time as his agent told him it was a bogus document.

11. The respondent noted that there were inconsistencies with respect to the documents pertaining to the applicant’s purported land dispute.

12. With respect to the applicant’s life story the respondent submitted that there was a lack of documentary evidence and a number of inconsistencies with respect to available information which meant that the Tribunal could not be satisfied of the applicant’s identity. The submission notes that the applicant during the course of the hearing could not remember many details with respect to his life because of the passage of time or due to the fact that he was a child or because of the fact that he was illiterate. The respondent’s submission pointed out multiple inconsistencies in the applicant’s evidence. This related to evidence of hospitalisations in Afghanistan. Inconsistency with respect to court documents relating to the applicant’s purported land dispute.

13. The submission also makes reference to significant inconsistencies with respect to the applicant’s details about his children. The submission notes that the applicant gave evidence at hearing that he had two children (daughters) named Bakhtawar and that he could only name 13 of his children and not 14. The applicant was not able to recall which of his children were born in Afghanistan and which of his children were born in Pakistan. The applicant was unable to recall who his eldest children were. The applicant was not able to recall which children were born to his first wife and which children were born to his second wife. The submission notes that these inconsistencies when cumulatively considered did not assist the Tribunal to be able to be positively satisfied of the applicant’s identity for the purposes of s 24(3) of the Act.

14. The submission also stated that because of the uncanny similarities in the statements from witnesses, no weight should be apportioned to Mr Akbri’s statement, that limited weight should be given to Mr Sultani’s evidence and that Mr Jalal’s evidence should be given limited weight because it did not accord with the applicant’s life story. The submission notes that “the evidence from the witnesses does not disclose details of the applicant’s family members and at best relies on information told to them by the applicant. The witnesses’ statements do not resolve the question of the applicant’s identity.”

15. With respect to the interpreting issues on the second day of the review hearings the respondent contends that there was no evidence before the Tribunal that the applicant was under undue distress during the course of the second hearing. Despite the fact that the applicant took issue with the interpreter, there was no evidence to suggest that the applicant was not able to give his evidence in full. The submission notes that a different interpreter was used on the third day of the hearing during the applicant’s re-examination and that the interpreter continually asked the applicant to slow down so that his words could be properly translated. The submission notes that any inconsistencies with respect to the applicant’s evidence go to a question of whether the Tribunal is satisfied of the applicant’s identity and that the inconsistencies were not explained away by the interpreter issues identified on the second day of the hearing. The submission notes that the Tribunal needed to be positively satisfied of the applicant’s identity. The submission notes that was open for the applicant on day three of the hearing to clarify his evidence during re-examination.

    ISSUES FOR THE TRIBUNAL

16. There is one issue to be determined by the Tribunal:

    ·whether the Tribunal can be satisfied as to the Applicant’s identity pursuant to section 24(3) of the Citizenship Act.

17. The issue for determination with respect to the Applicant’s identity requires close consideration of a number of factors.

18. The Tribunal has had regard to the decision of the Administrative Appeals Tribunal in GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245 where Kyrou J observed at [28]:

    The three pillars approach set out in CPI 16 can provide a useful, common sense framework for assessing facts of a particular case to determine whether one can be satisfied of the identity of an Applicant for citizenship. Accordingly, the approach set out in CPI 16 can be adopted by the Tribunal to the extent the Tribunal considers that the approach may be of assistance in determining whether it is satisfied of the identity of an Applicant in a particular case.

19. The Tribunal has given close consideration to the evidence before it.

    Date of Birth of Applicant

20. With respect to the Applicant’s date of birth, the Tribunal accepts that there are differentials in birth record-keeping across countries and that a person fleeing a country because of persecution may have difficulty accessing documents. However, the evidence before the Tribunal is indicative of a number of significant inconsistencies in the Applicant’s date of birth over a significant period of time.

21. The Applicant’s date of birth is contradicted in a number of applications and forms submitted with respect to immigration applications, citizenship application and in the Applicant’s evidence at the review hearing. 

22. The Applicant’s date of birth in the Taskera document numbered 697174, which has been the subject of two separate translations, at two different points in time records the Applicant’s date of birth in one translated document as 28 March 1953 and in the second translated document as ‘twelve years old.’

23. In the Applicant’s application for a protection visa in which he was assisted by a legal representative and an interpreter, his date of birth is recorded as being 31 December 1958.

24. In the Applicant’s daughter Bakhtawar’s application for a Partner visa, she lists the Applicant’s date of birth as being 1 January 1951.

25. In his Refugee Status Assessment Record the Applicant lists his date of birth as being 31 December 1958.

26. In the Applicant’s interview after he arrived unlawfully in Australia by boat, his date of birth is recorded as being in 1958 without any reference to the day and month of birth.

27. In the Form 80 at ST4 page 47, the Applicant records his date of birth as being 31 December 1958.

28. In the Form 80 at T6 page 34, he lists his date of birth as being 28 March 1953.

29. The Applicant’s first wife Amir Begum in her offshore humanitarian visa application lists the Applicant’s date of birth as being 31 December 1958.

30. The Applicant has submitted through his representative that most Afghani’s do not know their date of birth and hence they estimate their age. The contention is that when the Applicant’s Taskera was issued to him on 28 March 1965 he was around 12 years old at the time and hence his date of birth was 28 March 1953.

31. As has been discussed, all migration applications to Australia and Form 80 documents require that the information provided in the applications and forms is true and correct and the signatory to those documents and forms are required to sign an attestation to this effect.  In his protection visa application and in his Form 80 forms the Applicant has attested that the information contained in those forms is true and correct. The visa application forms, and the Form 80 forms further require that if the information in those forms become incorrect for any reason that it is incumbent on an Applicant to amend the forms and provide the correct information.

32. Despite the differentials in the date of birth provided by the Applicant in his protection visa application and in subsequent Form 80’s the Applicant never made any amendments to clarify incorrect dates. The Tribunal acknowledges the Applicant is illiterate and this may have compounded the provision and correction of information, however, this is countered by the fact that the Applicant was assisted in the completion of those forms by lawyers and interpreters and friends familiar with the English language.

33. When the Applicant’s daughter Bakhtawar completed her application for a Partner visa in 2013, she was also required to ensure that all the information in those forms was true and correct and she had to provide an attestation to this effect. As discussed, she provided a birthdate for her father of 1 January 1951. It was incumbent upon her to provide correct information and if she had any doubts about her father’s date of birth when she was completing the form, she could have contacted her father in Australia to clarify it before committing to putting an incorrect date in her Partner visa application. In addition to this the evidence before the Tribunal indicates that in her Partner visa application, Bakhtawar in response to the question about any relatives in Australia including their immigration status, left this blank, and stated that her father was resident in Pakistan. This was clearly not the case as her father was in Australia having been granted a protection visa on 6 July 2011. The Tribunal is at a loss to understand this significant omission.

    Bakhtawar’s Partner Visa Application in 2013

34. The Tribunal has before it information provided by the Applicant’s daughter Bakhtawar in her Australian Partner visa application dated 17 December 2012, and submitted to the Australian Embassy in Islamabad Pakistan on 21 February 2013. The information provided in the Partner visa application was that the Applicant (declared to be Bakhtawar’s father) was Baba Ali Qambar Ali and that he was at the time of this application he was resident in Pakistan. The form also contained a declaration that Bakhtawar was born in Quetta Pakistan and that she was a citizen of Pakistan and that she held a Pakistani passport for which she provided the document number and date of issue and expiry.

35. As noted, the Partner visa application form contained inaccurate information with respect to her father’s date of birth and incorrect information with respect to her father’s country of residence. She noted her father was resident in Pakistan when he was in fact resident in Australia and had been since December 2010.

36. The Tribunal is at a loss to understand why Bakhtawar provided inaccurate information to the Department with respect to her father in her Partner visa application and why she failed to correct this information at a later point in time.

    Applicant’s Family Composition

37. In the applicant’s statutory declaration dated 3 February 2011 which was completed to support the applicant’s Protection visa application the evidence indicates that the applicant was assisted by a migration agent and a Hazaragi interpreter in the completion of this declaration. In the declaration the applicant states that he was married to his first wife Amir Begum in 1979 and to his second wife Zahra in 1992. The applicant attests to the fact that he had four sons and four daughters with his first wife and three sons and three daughters with his second wife, indicative of a total of 14 children. The applicant stated that his first wife Amir, and all of his children resided with him in Pakistan.

38. The evidence before the Tribunal indicates that the applicant’s first wife Amir applied for an Offshore Humanitarian visa located at ST10 page 73. In it she was asked to provide details of other people included in the application. She noted that her son Mohammad, born on 1 January 1995, a biological child, was included in the application. She also noted her daughter, Gul Bibi, a biological child born on 1 January 1994 was included in the application. She also noted that her stepdaughter Sughra, born on 1 January 1996 was included in the application as was her stepdaughter, Bakhtawar born on 1 January 1998 and her stepdaughter Sajidah, born on 1 January 2000, and her stepson Ali Jan born on 1 January 1995. The application for the visa requires and applicant to provide details of children who were dependent on her and her husband in the application. The application also lists non-dependent children (all children who are not included as dependents in this application). The applicant’s first wife Amir only lists six dependent migrating children in the application and fails, at question 14, to list non-dependent children which the Tribunal considers to be a significant omission.

39. The Applicant’s daughter Bakhtawar in her application for a Partner visa was required to complete a Form 80 personal particulars for assessment including character assessment form. In the form located at ST15 page 118, she was asked to give details of all of her brothers and sisters both natural and stepsiblings. In it, she only referred to 4 siblings­ – a brother Ramezan Ali, a sister Gulbibi, a sister Sughra, and a brother Mohammad Hadi.

40. The Tribunal notes that the applicant cannot be held to account for incomplete or inconsistent details in the forms for migration completed by his first wife Amir and his daughter Bakhtawar, however, the Tribunal notes that they provide an incomplete and inconsistent account of family composition that ultimately is unreliable.

41. The Tribunal notes that when the applicant arrived on Christmas Island on 7 December 2010, he was the subject of an immigration interview in which he noted that he had 14 children from his two wives at ST2 page 19.

42. In the Form 80, the applicant was asked at question 43 whether he had children including biological or adopted or children from current or previous marriages or stepchildren or deceased children. The form notes that if there were more than six children, he should provide details of additional children in the additional information section of the form. Despite this, the applicant only made reference to 6 of his children.

43. When the applicant was interviewed in immigration detention on 3 February 2011, he provided details of 14 children in a personal particulars for character assessment Form 80.

44. At hearing before the Tribunal, the applicant was asked to name his 14 children and was only able to name 13 of them. The Tribunal acknowledges that with this number of children there may be a degree of difficulty.  

45. Despite the fact that in no form or application prior to hearing the applicant had mentioned that he had two daughters named Bakhtawar, at hearing the applicant claimed, for the first time that he indeed did, and that they were both given this name because it meant ‘good luck’. He also claimed that his second daughter named Bakhtawar was referred to in his previous applications and forms as Gul Bakht which he claimed was short for Bakhtawar. The Tribunal does not accept the applicant’s evidence with respect to him having two daughters named Bakhtawar as since his arrival in 2010, his completion of forms relevant to his migration and in the conduct of interviews relevant to his migration, he had never mentioned this fact until the hearing before the AAT.  The Tribunal finds that this evidence was self-serving and unable to be relied upon.

46. The evidence before the Tribunal is indicative of inconsistencies provided by the Applicant in his visa applications and forms provided for immigration and citizenship purposes with respect to family composition. These inconsistencies were also evidenced at the Tribunal hearing when the Applicant, despite being given every opportunity to do so, could not name his 14 children and then claimed that this omission was attributable to the fact that he had two daughters named Bakhtawar.

    The Applicant’s Taskera

47. The Applicant gave evidence that he obtained his first Taskera when he was 12 years old in Afghanistan. The Applicant stated that the issue of this document was based on self- reporting of personal details when a government representative came to his town.

48. The evidence before the Tribunal is that there are significant differentials with respect to the translation of the Applicant’s Taskera. The translation found at T10 page 119 has no family name recorded. The translation at T4 page 26 records the name of Baba Ali Gulzari.

49. The translation of the Taskera at T4 page 26 lists the Applicant’s place of birth as being Ghazni Afghanistan and the translation at T10 page 119 lists the applicant’s place of birth as Dahmarda Gulzar, Afghanistan. The translations also contain differentials with respect to the Applicant’s date of birth with one referring to it as 28 March 1953 and the other stating ‘12 years old.’

50. The authenticity of the Taskera document has been the subject of verification checks with the Afghan authorities, the NSIA, who found that the document was not able to be verified. The Applicant’s representative has contended that the NSIA did not have the relevant information pertaining to this assessment, namely the Applicant’s village name and his age. The Applicant’s representative asserts that this adverse finding is countered by the fact that the Applicant’s brothers Taskera details match those of the Applicant.

1. Despite the document not referencing the applicant’s village name and age, the Tribunal notes that the document contained a unique document number, 697174, and despite the provision of this number the document was not able to be verified. The Applicant’s representative claims that the Applicant’s Taskera information should be accepted as it was by village mediators, the district government, and the High Court of Afghanistan. The Tribunal finds that despite this assertion the document has not been able to be verified by the NSIA in Afghanistan and in the absence of this verification the Tribunal finds that it could not be satisfied that the document has been the subject of conclusive verification.

   Life Story   

2. The Applicant claims that he was born in Afghanistan, that he received a religious education in that country and that he worked as a farmer on lands owned by his family. The Applicant fled Afghanistan in 1990 due to the civil war in that country and settled in Quetta Pakistan where he resided with his wives and 14 children. The Applicant claims that he resided in Pakistan for the next 16 years and worked during that period in construction. He claims that he went back to Afghanistan in 2006 to attempt to settle a land dispute before returning to Pakistan in 2009 after facing harm in Afghanistan at the hands of the Taliban. The Applicant claims that during his time in Pakistan he was able to obtain a Pakistani national identity card at great cost and in due course he obtained a Pakistani passport. Using this passport, the Applicant left Pakistan in 2010 and entered Iran and then using this passport he obtained a visa to travel to Malaysia and he travelled to Malaysia with his Pakistani passport. His passage into both Iran and Malaysia was uneventful. The Applicant then travelled from Malaysia to Indonesia to meet with smugglers so that he could join a boat bound for Australia. The Applicant claims that his Pakistani documents were thrown overboard by the smugglers on his journey to Australia.

3. When the Applicant arrived at Christmas Island and made it known that he wished to apply for refugee protection he was initially going to apply on the basis of being Pakistani.  However, a migration agent later told him 2 months after he arrived in detention that as his Pakistani documents had been obtained through paying money, he would be considered an Afghan citizen and not a Pakistani citizen.

4. The Applicant then claimed protection against Afghanistan and his application was approved at primary stage.

5. The Applicant with respect to his life story elicited at hearing was a poor historian and if there was a detail that he could not recall he would defer to the fact that he was a child at the time or that he was illiterate or due to the passage of time. The inconsistencies in the Applicant’s life story were apparent at hearing. The Applicant gave varying and inconsistent accounts with respect to him being targeted and injured by the Taliban and the hospital treatment that he received after the incident. The Applicant gave inconsistent evidence with respect to the land dispute that he attempted to resolve after his return to Afghanistan in 2006 and in respect of whom the dispute was with and for which there were court proceedings, the outcome of which the Applicant could not recall.

6. The Applicant has claimed that the witness statements tendered in support of his application are corroborative of his identity, However, as has been noted these statements are formulaic and appear to be a direct duplication of testimony to the word and hence the Tribunal finds them unreliable and apportions limited weight to them.

   LEGISLATION AND POLICY

7. Section 24(3) of the Citizenship Act provides:

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

8. The issue of identity when considering applications for citizenship has been dealt with by the Tribunal in several decisions including Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808; Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222; and CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757; Beyan and Minister for Immigration and Border Protection [2015] AATA 256; Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310; Darwishi and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1592 and GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245.

9. The decisions of the Tribunal recognise that the issue of identity is of significant importance because of the wide range of benefits that are conferred on a person through the grant of Australian citizenship. The Tribunal has considered the evidence closely which it has discussed extensively above. The Tribunal with respect to its decision acknowledges the impediments to the obtainment of identity documents which may be experienced by asylum seekers when fleeing persecution.

10. As has been discussed the Minister’s delegate in their decision had expressed concerns in relation to the Royal Era Taskera provided by the Applicant to the Department in support of his citizenship application. Document number 697174. Those concerns have also been echoed in the submissions of Ms Jones-Bolla on behalf of the Minister at review before the Tribunal.

11. The Applicant gave evidence to both the Minister’s delegate and the Tribunal that the Taskera document was unable to be verified by the relevant Afghani authorities because it did not contain sufficient information to allow proper verification. This included the Applicant’s age and his village. The Applicant also claims that his Taskera should be accepted on the basis that it matches the Taskera details of his brothers.  

12. The Tribunal notes that the Applicant’s Taskera and the two translations of that document contained a unique identifying number 697174 and despite the existence of that number, the verification of the document was not able to be confirmed by the relevant Afghani authority. The fact that it matches the Taskera details of his brothers Taskera’s does not assist the Applicant with respect to finding that the Applicant’s Taskera is genuine. The evidence indicates that the Applicant’s brothers Taskera’s have not been the subject of independent scrutiny and verification by the relevant Afghani authority such as the NSIA or AACRA so their provenance cannot be determined with any certainty.

13. The Tribunal finds that Applicant and his daughter Bakhtawar and his wife Amir Begum have all given inconsistent evidence with respect to critical information pertaining to family composition, children who are stepchildren or biological children and respective dates of birth of family members.

14. Evidence elicited for the first time at hearing was that the Applicant has two daughters named Bakhtawar, evidence which is not reflected in any other document before the Tribunal and the Tribunal does not accept the Applicant’s evidence that Gul Bakht is short for Bakhtawar.

15. The Applicant’s claims he spent his early life in Afghanistan and that he fled that country in 1990 and resided, worked and raised his children in Pakistan over the next 16 years. During that time, he was issued with a National Identity Card and obtained a Pakistani Passport. The provenance of those documents will never be able to be tested, as according to the Applicant, they were thrown overboard by people smugglers on route to Australia from Indonesia in 2010.

16. There is evidence suggestive of the fact that they may be genuinely issued documents and indicative of the Applicant’s status in Pakistan. Indeed, when the Applicant’s daughter Bakhtawar applied for a Partner visa to Australia she submitted a copy of her Pakistani birth certificate. That certificate lists the Applicant and Amir Begum as her parents and included the Applicant and Amir Begum’s Pakistani Civil Registration Management number. Indeed, the evidence indicates that the National Database and Registration Authority of Pakistan have verified that these numbers are genuine and matched the Applicant’s biodata details held by the Authority (see T8 page 56).

17. The issue of identity is one not to be taken lightly. The Tribunal has carefully considered the relevant legislation, the guidelines and the relevant case law including Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808; Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 and Beyan and Minister for Immigration and Border Protection [2015] AATA 256; GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245.

18. The Tribunal has given consideration to the evidence before it both singularly and cumulatively and having regard to that evidence, the Tribunal cannot be satisfied of the Applicant’s identity for the purpose of section 24(3) of the Citizenship Act.

    DECISION

19. The decision of the Respondent’s delegate to refuse the Applicant’s application for Australian citizenship by conferral dated 2 November 2023 is affirmed.

I certify that the preceding 256 (two hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Cipolla

....................[SGD].....................................................

Associate

Dated: 10 September 2024

Date final submissions received:	29 August 2024
Dates of hearing:	23, 24 & 29 July 2024
Solicitors for the Applicant:	Mr I. Safari, Beena Rezaee Legal and Migration
Solicitors for the Respondent:	Ms D. Jones-Bolla, Sparke Helmore Lawyers