Hussain and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 5138
•18 December 2020
Hussain and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5138 (18 December 2020)
AppID: Hussain and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType: Citizenship
Division:GENERAL DIVISION
File Number(s): 2017/4499
Re:Zulaikha Hussain
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 December 2020
Place:Sydney
The decision under review is varied such that:
(a)the Applicant satisfies the section 21(2)(h) requirement of the Australian Citizenship Act 2007 (Cth) (Act) concerning good character; but
(b)the Tribunal is not satisfied of the Applicant’s identity and is therefore prohibited under section 24(3) of the Act from approving her application to become an Australian citizen by conferral.
................................[sgd]................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship application – whether prohibition under subsection 24(3) applies – satisfaction of the identity of the Applicant – whether Applicant has satisfied paragraph 21(2)(h) – good character requirement – providing false documentation in relation to identity – decision under review is varied
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24, 26
CASES
Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
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
Egan and Minister for Home Affairs (Citizenship) [2020] AATA 2632
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Patterson [2001] HCA 51
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016) Department of Home Affairs < of Foreign Affairs and Trade, ‘DFAT Country Information Report: Afghanistan’ (27 June 2019)
Embassy of the Islamic Republic of Afghanistan (Canberra - Australia), Absentee Tazkira (Afghan National ID) < of the Islamic Republic of Afghanistan (Canberra - Australia), Verification of Tazkira (Afghan National ID) < Dictionary (online ed)
Norwegian Refugee Council and Samuel Hall, Access to Tazkera and other civil documentation in Afghanistan (8 November 2016) Norwegian Refugee Council < English Dictionary (online ed)
Research Directorate, Immigration and Refugee Board of Canada, Ottawa, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019) (6 February 2019) < Citizenship Procedural Instructions (1 January 2019) CPI 15, CPI 16
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 December 2020
THE APPLICATION
Mrs Zulaikha Hussain (Applicant) has applied to this Tribunal for a review of a decision by a delegate of the Minister (Respondent) refusing to approve her application for citizenship by conferral.
The primary basis of the Respondent’s refusal decision was that he was not satisfied of the Applicant’s identity.
The Applicant lodged her citizenship application on 11 December 2014 but because of the complexities involved in gathering and examining evidence the Respondent did not make his decision until 5 July 2017 (refusal decision). The application for review to this Tribunal was made on 1 August 2017 and heard by the Tribunal on 16 November 2020. Given the restrictions imposed by the COVID-19 safety arrangements, the hearing was conducted remotely by telephone. The Applicant was ably assisted by her daughter Ms Salma Hussain and was provided with the assistance of an interpreter in the Dari language of Afghanistan.
The Applicant herself first arrived in Australia in June 2009 as the holder of a Global Special Humanitarian (subclass XB-202) visa granted in April 2009.
CITIZENSHIP
Citizenship is a fundamental bedrock of the Australian polity. The conferral of citizenship is a “privilege”[1] which both grants rights and engenders obligations. It is a thing of legal status and a thing of value.[2] It is not to be bestowed lightly.[3]
[1] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086, [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422, [35].
[2] Beyan and Minister for Immigration and Border Protection [2015] AATA 256, [38].
[3] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
For persons not entitled to an automatic acquisition of Australian citizenship, it may be acquired in a number of other ways as specified in the Australian Citizenship Act 2007 (Cth) (Act).
One of those ways is citizenship by conferral.
Citizenship by conferral
The Act provides that an applicant may make an application for citizenship by conferral.[4] The Minister must make a decision on the application and either approve or refuse it.[5] An applicant must meet certain requirements as specified in the Act[6] and must also undertake and pass the Citizenship Test[7] (unless exempted from so doing[8]). Once those steps are complete, a qualified applicant must make the Pledge of Commitment[9] before his/ her citizenship is finally granted.
[4] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[5] Ibid s 24(1).
[6] Ibid s 21(2).
[7] Ibid ss 21(2A) and 23A.
[8] Ibid ss 21(3)(d) and (4)-(8).
[9] Ibid s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, presence in Australia and breaches of the law.[10]
[10] Ibid s 24(4)-(6).
There is, however, a foundational and fundamental matter which precedes all other considerations and requirements for the grant of citizenship.
Section 24(3) of the Act provides:
Identity
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Two important aspects of this requirements must be noted. The Minister (or his delegate) must be positively satisfied as to the identity of an applicant and the onus lies upon the applicant to establish his/ her identity.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005[11] noted that “[t]here may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen”.[12]
[11] The legislation which became the Australian Citizenship Act 2007 (Cth).
[12] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth).
ESTABLISHING IDENTITY
Decision-makers are assisted in the process of determining the identity of an applicant for citizenship by conferral by two documents. The first is the Citizenship Procedural Instructions (CPIs)[13] published in 2019 by the Department administering the Act and secondly the National Identity Proofing Guidelines (NIPG) published by the Attorney-General’s Department in 2016.
[13] Revised Citizenship Procedural Instructions (1 January 2019) CPI 16 – Assessing Identity under the Citizenship Act (CPI 16).
It is to be noted that these guidelines are just that – they are not law. While they must be given utmost consideration by any decision-makers[14] they are not to constrain the right of decision-makers to make any decision lawfully open to them to make, based on the material before them at the time of their own decision-making.[15]
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.
[15] AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J.
What is “identity”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions of ‘identity’ in the Macquarie Dictionary (online edition) include:
·the condition of being oneself or itself, and not another
·the state or fact of being the same one.
The Oxford English Dictionary (online edition) relevantly also defines ‘identity’ as follows:
·The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
·Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
There are two fundamental characteristics of identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
Although the Act gives no definition, guidance as to the meaning of the term is found in the CPIs.
The relevant sections of CPI 16 provide, inter alia:
2.1 National Identity Proofing Guidelines
This Instruction aligns with the Attorney General’s Department National Identity Proofing Guidelines 2014 (NIPG). The NIPG serves as a benchmark for identity related services and standards within the Department. While the NIPG is not specifically concerned with assessing identity for the purposes of the Act, it provides high level principles to guide identity security initiatives and is valuable in understanding the whole of government approach to identity security.
…
4.2 What is identity
The concept of identity is described in chapter two of the NIPG.
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
In the context of the Department’s functions, identity integrity is essential in maintaining Australia’s national security, law enforcement, and economic and social interests.
…
4.5 Name and identity
Name to be used
An application for Australian citizenship must be made in the applicant’s full legal name (that is, using the most recent name that the applicant has been known by) and supported by acceptable identity documents. Where an applicant has changed their name, the application must be supported by acceptable documentation.
The allowable identity documents relating to the applicant’s name for the purposes of a citizenship application would include officially issued documentation such as:
·birth and adoption certificates;
·official change of name documentation;
·marriage, divorce or other relationship status certificates or entry records;
·official passports.
…
4.6 Changes to identity information
If the applicant has changed their name, date of birth, or gender, they will need to provide official evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.
In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage. However, a change to personal/biographical data is a serious matter if the change leads to a different identity.
A change of identity (changes to component(s) of the person’s identity such as their name, date of birth or gender) diminishes the usefulness of the results of the security and criminal checks.
…
4.7 Assessing changes to attributes of a person’s identity
When assessing changes to a person’s name or other identity information, decision-makers should consider:
·the reason that the person provided the original personal information relating to their identity when they applied for citizenship;
·the reason for changing the personal information;
·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes;
·the documentation provided to support the change of personal information.
Regard should also be had to the NIPG which relevantly provides as follows:
1.1 Background
1.1.1 Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the CPIs. Instances of this have arisen in relation to people who have been refugees from conflict zones, victims of natural disasters, unauthorised maritime arrivals (back to the days of the Vietnamese “boat people”), victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities. The NIPG indicates that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include:
1. Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2. Verification of the person's claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
3. Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4. A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[16]
[16] Attorney-General’s Department, National Identity Proofing Guidelines (2016) Department of Home Affairs < at [5.1.3]. Emphasis in original.
It is also important to note what the NIPG provides in definitional terms. Paragraph 2.1.1 states:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
This definition is restated in the recent version (10 April 2019) of CPI 16 – Assessing Identity under the Citizenship Act, as identified above.[17]
[17] CPI 16 at [4.2].
The CPIs also provide a trifecta of factors used to establish identity:[18]
[18] Ibid [4.4].
Three pillars of identity Individual characteristics Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies. Documents Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
It then goes on to make explicit that:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
The CPIs state clearly at paragraph 4.16 (citations omitted):
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgment. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality'. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility, and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
ESTABLISHING THE APPLICANT’S IDENTITY
Biometrics
In reference to the first of the “identity pillars” noted above, there are no issues of biometric identification before the Tribunal. Consideration therefore depends upon an assessment of both the documentary evidence presented in support of the Applicant’s identity and the narrative of her life story.
Documentation
The Applicant has presented a number of documents to the Department in support of her application, including three of particular relevance. They consist of a taskera (the official Afghan identity card), a marriage certificate and a letter from the Consulate-General of the Islamic Republic of Afghanistan issued in Quetta, Pakistan.
Taskera
Information about taskeras can be found in the following sources (inter alia):
·Australian Department of Foreign Affairs and Trade – Country Information Report: Afghanistan (27 June 2019) (DFAT Report)
·Norwegian Refugee Council and Samuel Hall – Access to Tazkera and other civil documentation in Afghanistan (8 November 2016)
·Research Directorate, Immigration and Refugee Board of Canada, Ottawa – Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019) (6 February 2019)
·Embassy of the Islamic Republic of Afghanistan (Canberra, Australia) – information on Absentee Tazkira and Verification of Tazkira.
The relevant extract from the DFAT Report states:
The National Statistics and Information Authority (NSIA) is the authority responsible for issuing taskiras (see National Identity Cards (Taskira/ Tazkira)). The NSIA was previously known as the Afghanistan Central Civil Registration Authority, and prior to that the Population Registration Directorate (PRD), which operated within the Afghan Ministry of Interior (MOI). Since its renaming in 2019, the NSIA has operated as a separate entity. NSIA Headquarters are located in Kabul, with other representative offices located in police headquarters and district-level police offices in provincial police departments throughout Afghanistan. NSIA headquarters is the central repository for all taskira records and currently holds almost 23 million individual entries, although records held prior to 1973 are not centralised.
NSIA field offices manually record the details of birth and deaths. Each location holds two registers, which are completed simultaneously when data is entered. When the registers become full (approximately 1,000 records), both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged. One register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.
National Identity Cards (Taskira/ Tazkira)
The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras.
In May 2018, President Ghani announced the official launch of the electronic taskira (the e-taskira), becoming the first person to be issued with one. The new e-taskira cards contain a watermark security feature and microchip and comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. The card contains printed data in English, Dari, and Pashto, including the bearer’s full name, person identification number, place and date of birth, issuing authority, and dates of issue and expiry. The card is valid for either five or ten years and there is no lower age limit to issuance. It is unclear how many Afghans are in possession of e-taskiras, or what the timeline is for distribution.
Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers (sic) complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.[19]
[19] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Afghanistan’ (27 June 2019) at [5.44]-[5.48].
On 8 July 2015 the three documents mentioned in paragraph 30 above were sent to the Department’s Document Examination Unit (DEU) to verify their authenticity. On 13 August 2015 the DEU concluded that it was unable to give either an unqualified verdict that the documents were authentic or that they were forgeries – it returned an “inconclusive” result.[20]
[20] Section 37 documents (T documents) at 65.
Based on this advice the Department, on 3 November 2016, requested further information from the Applicant and this request was responded to by her in writing on 5 December 2016.[21]
[21] Ibid 68-69 and 70-71.
The Department, still not satisfied of the Applicant’s identity, on 6 December 2016 requested her to submit further original documentation, which she did on 21 December 2016.[22]
[22] Ibid 72-74 and 75-80.
The Applicant’s taskera was then sent to the Department’s overseas post at the Australian Consulate-General in Dubai, UAE that liaised with local Afghan authorities (the NSIA), which advised on 26 April 2017 that:
Takzera vol 8 dated year 1385, page (78) registration no (285) from Markaz Shahar of Ghazni province, belonging to Zulaikha d/o Mohammad Ali s/o Yaqob Ali is not registered, hence the mentioned Tazkera was fraudulent (sic) made.[23]
[23] Ibid 98.
The Applicant was given an opportunity to comment on this finding and to provide yet further documentary support to establish her identity. The Applicant indicated that she was unaware that her taskera was in any way fraudulent and explained that it had been obtained from an agent (Sakhi Ali) who was based in Quetta and was well known for helping people (especially Hazara Afghans) obtain official documents.[24]
[24] Applicant’s statutory declaration dated 30 June 2017: T documents at 94.
It was upon the basis of finding that the taskera was fraudulent and the other identity documents not verifiable that the delegate refused the citizenship application on 5 July 2017.[25]
[25] T documents at 12.
In addition to making the determination that the documentation provided was fraudulent, the delegate went on to find that, as a direct consequence, the Applicant was not a person of good character as required under section 21(2)(h) of the Act.
Following the refusal decision, the Applicant applied to this Tribunal for a review of that decision and also took steps to procure a new (second) taskera which was also submitted to the Department. She also submitted further information about her family by completion of a Form 80 (Personal particulars for assessment including character assessment).
In relation to the second taskera it was the Applicant’s evidence that her brother (who lives in Iran) travelled to Afghanistan and applied there, on her behalf, for it to be issued.[26] This document was submitted by the Department to its overseas post in Dubai for verification by the authorities in Afghanistan and, as with the first taskera, those authorities advised that it was “non-genuine due to not being registered”.[27]
[26] Applicant’s statement (undated): Supplementary section 37 documents (Supplementary T documents) at 147.
[27] Advice dated 27 January 2020: Supplementary T documents at 148.
Other documents
Doubts arise about the marriage certificate as it contains details of the Applicant’s husband’s date of birth given as June 1957,[28] whereas documents submitted by the Applicant give it as January 1967.[29] Similarly, documents such as the marriage certificate and the letter from the Consulate-General of the Islamic Republic of Afghanistan in Quetta dated February 2008 display contradictory information (although the spelling of a name in a different form may be incidental) and include what purports to be an official stamp which contains an obvious spelling error in English.[30] Given that there may be reasonable explanations for these discrepancies the Tribunal accords little weight to the issue of the veracity of these two documents.
[28] T documents at 47.
[29] Ibid 28; Supplementary T documents at 122 and 132.
[30] T documents at 55 and 56.
Life Story
The Applicant has provided details of her family. Both her parents were born in Ghazni province in Afghanistan and both are deceased. She has two brothers who are citizens of Afghanistan and live in Iran. Her husband is an Afghani citizen and lives with her in Australia as do two sons and two daughters, all of whom are Australian citizens. She has one other son, now deceased.[31]
[31] Supplementary T documents at 122-126.
The Applicant has provided little by way of evidence about her life in Afghanistan before migrating to Australia. The basis upon which she received a humanitarian visa is not set out in any of the evidence, although the fact that the Applicant claims to be a member of the Hazara community may be a relevant factor.[32] Documentation was submitted by the Department post-hearing in terms of various blank, template humanitarian visa application forms, and also an indication by the Respondent that at the time of her humanitarian visa application the Applicant had submitted a copy of her Afghani passport as a form of identification which, at that stage, the Department appears to have accepted as a form of identification. However, none of this material has added anything relevant to assist in the establishment of the Applicant’s genuine identity.
[32] Applicant’s statement dated 21 October 2017: Supplementary T documents at 135.
Whatever the circumstance, nevertheless, the Applicant has made three trips back to Pakistan since her arrival in Australia, in 2010, 2012 and 2013, all related to family weddings or reunions.[33] It does not appear that she encountered any problems with these travels and that she used Australian travel documents, with Pakistani visas, for these purposes.[34]
[33] Applicant’s statutory declaration dated 30 June 2017: T documents at 94-95.
[34] T documents at 57-61.
Discussion
The establishment of identity in relation to the specific task which faces any decision-maker dealing with questions of citizenship (in this instance, the Tribunal) goes beyond what might be expected in ordinary day-to-day living. In ordinary day-to-day living people are generally accepted, prime facie, as being who they say they are and proof of their identity is rarely required. Even when some form of identification is sought, the production of a drivers licence, a Medicare card or some other simple document usually suffices.
However, proving the actual details of a person’s identity for the purposes of a grant of citizenship is a different matter and requires a higher level of “satisfaction” for any decision-maker. It is inherent in the nature and importance of citizenship as a concept and as a legal identity that the standard of proof must be to the highest level possible.
Establishing the requisite degree of “satisfaction” is an objective test.
In Egan, Deputy President Pascoe outlined the authorities of the High Court in establishing what might constitute “satisfaction” as far as the Minister is concerned in terms of making decisions, such as those related to identity.[35] He drew attention to the decision of then-Chief Justice Gleeson in Patterson to the effect that:
Obviously, the precondition that the Minister be satisfied that the refusal or cancellation is "in the national interest" cannot be met simply because the Minister subjectively had such satisfaction. If, objectively, there is no reasonably arguable foundation for it, the precondition will not exist.[36]
[35] Egan and Minister for Home Affairs (Citizenship) [2020] AATA 2632, [137]-[140].
[36] Re Patterson [2001] HCA 51, [333].
Similarly, then-Acting Chief Justice Gummow and then-Justice Kiefel in SZMDS noted that there must always be adequate material before a decision-maker for them to come to an objective decision:
the inadequacy of the material before the decision maker may support an inference that the decision maker has applied the wrong test or was not “in reality” satisfied of the requisite matters...[37]
[37] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, [34].
The documents supplied by the Applicant in this matter are unsatisfactory. Some are fraudulent and some cannot be verified or authenticated. In such circumstances, the Applicant’s narrative of her life story has also not assisted to improve the Tribunal’s level of satisfaction as to her identity.
There are steps which the Applicant could take to ensure that she presents to the Australian authorities documents which have a high degree of integrity.
The Applicant has already taken some steps to be in touch with the Embassy of the Islamic Republic of Afghanistan in Canberra and has sought their help to verify her identity documents.[38] It appears that this process was not completed before the Applicant engaged her brother to try and obtain a replacement (second) taskera on her behalf from Afghanistan because she was not satisfied with the level of service received from the Embassy.[39] It equally appears that Sakhi Ali is an unreliable intermediary who has ill-served the Applicant on more than one occasion.
[38] Embassy of the Islamic Republic of Afghanistan (Canberra - Australia), Verification of Tazkira (Afghan National ID) < Applicant’s statement dated 8 November 2020.
[39] Applicant’s statement dated 8 November 2020.
In her statement of 21 October 2017, the Applicant expressed a willingness to return to Afghanistan to attempt to obtain the necessary documentation but, understandably, expressed her and her family’s concerns about the security situation in that country.[40] There is some hope that this situation might improve but, for the moment, the Applicant’s concerns are well founded and well understood.
[40] Supplementary T documents at 135.
The Tribunal appreciates that it is difficult for the Applicant to access key primary documents. However, it is not impossible. The information available from the Embassy of the Islamic Republic of Afghanistan in Canberra indicates that an “Absentee Tazkira” can be obtained by a process initiated through the Embassy. The Embassy website states:
ABSENTEE TAZKIRA (AFGHAN NATIONAL ID)
The Embassy of Islamic Republic of Afghanistan is not the authority to issue Tazkira (Afghan National ID). Only, part of the process for obtaining a Tazkira in absentia can be initiated through this Embassy. An Afghan, who wish to obtain a Tazkira, can initiate the process at this Embassy based on having one of her/his paternal relatives’ Tazkira including father, grandfather, siblings, uncles (father’s brothers), aunts (father’s sisters) and cousins of father’s side.
All the applicants need to read the following instructions and information carefully:
1. Appointment: Applicants MUST book an appointment online prior to coming to the Embassy. Clients with no prior appointment will not be serviced. For booking an appointment please click on this link.
2. Visit In-person: An applicant MUST visit the Embassy in-person on the date and time of his/her confirmed appointment and have the required documents ready.
3. Required Documents:
a) Application Form. The applicant needs to fill an application form available here. The name and contact number of a representative or relative MUST be in the application, who will, on behalf of the applicant, follow up the process with the Afghanistan Central Civil Registration Authority (ACCRA) in Afghanistan.
b) Tazkira of Parental Relatives. The applicant will need a copy of one of her/his paternal relatives’ Tazkira including father, grandfather, siblings, uncles (father’s brothers), aunts (father’s sisters) or cousins of father’s side.
c) Photographs. Five recent photographs (1 photo for Embassy use and 4 to go with the package) with a white background (size: 4x4.5 cm).
4. Fee: The Embassy does NOT charge for this service.
5. Procedure: Once an interview is conducted with the applicant on the date and time of the appointment and the completed and duly signed form is submitted at the Embassy, a document package will be prepared by the Embassy. An official letter from the Embassy, addressed to ACCRA, will be included in the package. The Embassy will send the scanned copies of the document package to ACCRA copied to Consular Affairs Directorate of MoFA. The original package will be returned to the applicant on the same day. The applicant should send the original package to her/his representative or relative in Afghanistan, whose details are included in the application form, for further assessment and processing. After this, the file is closed at the Embassy and requires NO further follow up.
If the applicant fulfils all the requirements and is deemed entitled for a Tazkira by ACCRA, he/she will be issued an Afghan Tazkira in absentia by ACCRA. Applicant’s representative or relative, mentioned in the application form, can collect the original Tazkira from ACCRA, Afghanistan (NOT from the Embassy). Please note that this process requires a long waiting period and depends on the follow up of the applicant’s representative or relative with the ACCRA. The Embassy has no control and influence on the process within ACCRA.[41]
[41] Embassy of the Islamic Republic of Afghanistan (Canberra - Australia), Absentee Tazkira (Afghan National ID) <>
This indicates that what the Applicant needs to do is obtain a taskera from one of her paternal relatives and include it in material to be submitted to the Embassy in order to receive a taskera here in Australia. It appears that this potentially includes her brothers who are resident in Iran, and who would presumably have such documentation given that they have Afghanistan citizenship,[42] and have been able to live there and to travel freely back to Afghanistan. It is not known if access to her late father’s taskera (if still available) would also be of any assistance to her. This is a matter for the Applicant to resolve.
[42] Supplementary T documents at 126.
It is only when the Department is presented with a primary document such as the taskera or at least documents which link securely to such a primary document that it can be satisfied as to the identity of any applicant.[43]
[43] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808, [41].
In CDNB, the Tribunal observed:
I proceed on the basis that production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.[44]
[44] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757, [9].
Similarly, in Dhayakpa, the Tribunal said:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.[45]
[45] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310, [117].
Where there is any significant doubt as to an applicant’s identity documentation and the Tribunal cannot be satisfied of his/ her identity as required by the legislation, it must therefore reject the citizenship application.
In Al-Hussaini, I said:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.[46]
[46] Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267, [100]. Emphasis added.
After referencing the decision in Dhayakpa, I went on to say:
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.[47]
[47] Ibid [102]-[103].
Similarly, I made the point in Adalat that:
Consideration of the material before the Tribunal leads it to a clear conclusion that the identity of the Applicant as Mahmoud Adalat is not established to any reasonable degree of satisfaction and that, as a result, the Respondent cannot be sufficiently satisfied of that identity to approve a grant of citizenship. The Respondent must therefore refuse the application.[48]
[48] Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360, [64]. Emphasis added.
It is for these reasons that the Tribunal is not satisfied of the identity of the Applicant and, as a result, is prohibited by section 24(3) of the Act from approving a grant of citizenship.
THE “GOOD CHARACTER” QUESTION
The CPIs provide that:
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship applications[49]
[49] CPI 15 – Assessing good character under the Citizenship Act at [4.4].
It appears that the Department takes the view that if an applicant has provided material to the Department which is eventually determined to be false, forged or fraudulently obtained, this should lead to a finding that the applicant in question fails the “good character” requirement in section 21(2)(h) of the Act.
As the Tribunal is not satisfied of the Applicant’s identity, a determination in favour of the Applicant in relation to the good character requirement under section 21(2)(h) cannot overcome the prohibition in section 24(3).
However, the Tribunal does not adopt the Respondent’s position that the submission of material later determined to be inauthentic leads, ipso facto, to a finding of failure of the character test in section 21(2)(h). Each case must be decided on its individual circumstances and merits.
The Applicant has submitted a number of letters of support from friends and family members.
Nazifa Jamali, Ruqaya Hassani, Mahsoom Ali and Latifa Hekmat[50] are all able to attest to the fine personal qualities of the Applicant – matters which are not in doubt. It is clear that the people who know her hold her in the highest levels of regard and affection. Likewise, Dr Razia Dehsabzi knows her to be a person of “good moral qualities”.[51] Again, this is not in doubt.
[50] T documents at 88-93.
[51] Ibid 97.
There may well be cases in which an applicant has acted in a way which they thought was entirely honest and proper and they are genuinely unaware that the documentation which they submitted is false or forged. There are many cases, for example, where women rely upon male members of their family to obtain documentation and they have no understanding of, or control over, such processes. The same may be the case in relation to children or people who are functionally illiterate. It is not unusual for people to use the service of intermediaries where they cannot access direct government services, facilities or agencies themselves.
This is highlighted by the Respondent’s comment in his statement of facts, issues and contentions that:
the applicant’s knowledge of the issuance process of documents is limited as in each case, she sought assistance from a third party to obtain the documents on her behalf.[52]
[52] Respondent’s statement of facts, issues and contentions dated 23 October 2020 at [28.3].
To make a finding that a person who is placed in this position is not a person of good character, when one considers the meanings which have been ascribed to that phrase in innumerable Court and Tribunal cases, can be grossly unfair. What is required before any such determination is made is a close and detailed consideration of the facts and circumstances in each individual case. A positive finding of mala fides is required.
There is no evidence that such an assessment has been undertaken in this case and, upon consideration of the evidence that has been presented before it, the Tribunal does not endorse or support the finding of the delegate that the Applicant is not a person of good character and that she fails to satisfy the section 21(2)(h) requirement.
DECISION
The decision under review is varied such that:
(a)the Applicant satisfies the section 21(2)(h) requirement of the Act concerning good character; but
(b)the Tribunal is not satisfied of the Applicant’s identity and is therefore prohibited under section 24(3) of the Act from approving her application to become an Australian citizen by conferral.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 18 December 2020
Date(s) of hearing: 16 November 2020 Date final submissions received: 20 November 2020 Advocate for the Applicant: Ms S Hussain Solicitors for the Respondent: Ms S Balakrishnan, Australian Government Solicitor
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