Jawadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 3981
•29 October 2021
Jawadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3981 (29 October 2021)
Division:GENERAL DIVISION
File Number: 2020/5608
Re:Samim Jawadi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:29 October 2021
Place:Melbourne
The Tribunal affirms the decision the subject of review.
...................[SGD].....................................................
Senior Member C. J. Furnell
Catchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – Afghanistan – whether Minister can be satisfied of Applicant’s identity under s 24 of the Australian Citizenship Act 2007 (Cth) – application of Australian Citizenship Policy Statement – documents – life story – decision affirmed
Legislation
Administrative Appeals Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Bill 2005 (Cth)
Migration Act 1958 (Cth)Cases
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567
Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1716
Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
Ater and Minister for Home Affairs (Citizenship) [2019] AATA 4677
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw (1938) 60 CLR 336
Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514
Dhayakpa and Minister for Immigration & Border Protection [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641
Machar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1615
Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Secondary Materials
Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Collins Dictionary (online, 2021)
Department of Foreign Affairs and Trade, Afghanistan: CI170606110840909 – Taskeras – Availability – Kabul, Ghazni and Parwan
Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan (27 June 2019)
Department of Home Affairs, Revised Citizenship Procedural Instruction 16 – Assessing Identity Under the Citizenship Act (1 January 2019)
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
Macquarie Dictionary (online, 2021)
Oxford English Dictionary (online, 2021)
REASONS FOR DECISION
Senior Member C. J. Furnell
29 October 2021
The applicant has applied for Australian citizenship by conferral.[1]
[1] T7, p.107, with “T” being a reference to documents provided by the respondent under s 37 of the Tribunal’s constituent legislation (the Administrative Appeals Tribunal Act 1975).
Under the Australian Citizenship Act 2007 (the Act) (s 24(1)), when a person makes such an application, the respondent becomes obliged to approve or to refuse to approve the application. That decision must, however, be to refuse to approve unless the respondent is satisfied of the identity of the applicant (s 24(3).
On 4 September 2020, a delegate of the respondent decided to refuse to approve the applicant’s application because the delegate was not satisfied of the applicant’s identity.[2]
[2] T2.
On 14 September 2020, the applicant applied to the Tribunal for review of that decision.[3]
[3] T1, p.6.
In conducting that review, the Tribunal stands in the shoes of the respondent in order to “do over again” that which was done by the respondent’s delegate.[4]
[4] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
Standing in those shoes in this proceeding, the Tribunal needs to decide whether it is satisfied of the applicant’s identity.
On the material before me, I am not so satisfied.
Before outlining my reasons for being not so satisfied, I should first comment on the regulatory and policy context.
REGULATORY AND POLICY CONTEXT
As already mentioned, an application for citizenship must be refused absent satisfaction as to the applicant’s identity. Hence (and as stated in the Explanatory Memorandum to the Australian Citizenship Bill 2005), where an applicant’s identity is unclear, his or her application must be refused.
The requirement for clarity is reinforced when regard is had to the significance of the context. While the Tribunal’s task in this proceeding is evaluative[5] and it may be that principles of relevance to the application of rules of evidence have no role to play in it,[6] nevertheless I adopt Senior Member Morris’ comments in Sinnathamby that:
“[e]ssentially … the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.” [7]
[5] Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635 at [52,] where it was said that the “…process of a decision-maker being satisfied of identity is an evaluative one, and is not ‘amenable to the application of an evidentiary burden of proof, such as the balance of probabilities’.”
[6] See BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [66], where it was said to be correct to conclude that the principle derived from Briginshaw v Briginshaw (1938) 60 CLR 336 – a principle to the effect that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved – did not apply in the context of a Tribunal determination as to whether it was satisfied of a particular matter. Compare Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567 at [24]-[25] and Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30], each of which applied Briginshaw.
[7] Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579 at [56]. See also Machar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1615 at [25]. Indeed, it has been said that “a certificate of Australian citizenship is a document of such fundamental significance that a higher level of satisfaction of identity is required”: Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [36].
The identity concept is left undefined by the Act. Its ordinary, grammatical, meaning, however, extends to the “condition, character, or distinguishing features of a person,”[8] the individual characteristics of a person by which the person is recognised[9] or the set of characteristics of a person which distinguishes the person from others.[10]
[8] Macquarie Dictionary (online, 2021). Found at: Collins Dictionary (online, 2021). Found at
[10] Oxford English Dictionary (online, 2021). Found at:
The meanings so given to the concept of “identity” are reflected in relevant government policy. In this regard, while I am not bound by government policy,[11] where it is relevant and in the absence of cogent reasons to the contrary, I propose to take it into account and intend to apply it.[12]
[11] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].
[12] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25].
On 27 November 2020, the document then outlining government policy with respect to citizenship (entitled “Australian Citizenship Policy”) was replaced by a policy statement (entitled “Australian Citizenship [Policy Statement]”). The Policy Statement, among other things, purports to outline overarching legislative requirements for the process of becoming an Australian citizen and for personal identifiers of persons applying for Australian citizenship.
While the Policy Statement did not apply when the decision the subject of review was made, I am able to take it into account as, in making my decision, I am not limited to material before the original decision-maker. To the contrary, it is on the basis of material before me that I must make my decision.[13]
[13] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 [14], albeit in accordance with the law as it applied to the original decision-maker when the original decision was made.
In any event, taking the Policy Statement into account as opposed to the Australian Citizenship Policy makes no material difference in this proceeding. The particular relevance of the Policy Statement in this matter lies in its express reference to Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (“CPI 16”). CPI 16 formed part of the relevant policy framework in place at the time of the decision the subject of review.
CPI 16 elaborates on the concept of identity. It is said not to be a point in time concept but, rather, one that needs to be considered historically and verified incrementally throughout a person’s life. Consistently with the dictionary definitions mentioned earlier, it is said in guidelines referred to in CPI 16 (and with which CPI 16 is said to align)[14] (with my emphasis) that 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.”[15]
[14] National Identity Proofing Guidelines 2014 (“Guidelines”). See CPI 16 [2.1].
[15] Guidelines [2.1.1].
Paraphrasing what has been just said, a person’s identity comprises a set of his or her characteristics or attributes over time, characteristics that enable the person to be distinguished from others.
CPI 16 offers guidance as to how a decision-maker might come to be satisfied of a person’s identity. Regard ought to be had to information provided or obtained pursuant to what are characterised as the three pillars of identity, the objective being to determine whether information so provided or obtained is consistent.[16] In this regard:
“[t]he three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant… In that context, to be satisfied of an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.”[17]
[16] CPI 16 [4.12].
[17] MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576 at [75].
Those three pillars of identity[18] are:
(a)Biometrics. These are expressed to involve personal identifiers, which include fingerprints, facial images, or a person’s signature.[19]
(b)Documents. The relevance of documents is said in CPI 16 to derive from the fact that they may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. While documents are said not to establish identity of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate pillar one (biometrics) and pillar three (life story) information. It is said that, when assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent and whether they support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells.[20]
(c)Life story. This “pillar” is described as a narrative of the events that happened to the relevant person from birth.[21] A person’s life story may include details of (amongst other things) family composition, education, employment, countries of residence, countries visited, social footprint and online presence.[22]
[18] CPI 16 [4.4].
[19] CPI 16 [4.13]. It is said that the term biometrics refers to the recorded measurement of a person’s unique, physical, identifiable attributes used for identification and authentication and to anchor an individual to a claimed identity. It is a concept similar to that of “personal identifier”, as defined in s 10 of the Act.
[20] CPI 16 [4.14].
[21] CPI 16 [4.15].
[22] CPI 16 [4.4].
I have found that, in the applicant’s case, there is a lack of consistency in information provided or obtained in relation to two of the three identity pillars, documents and life story,[23] a lack for which there has been no clear and consistent explanation.[24]
[23] As for biometrics, the applicant contended that “…there are no issues of biometric identification before the Tribunal.”: applicant’s undated statement of facts, issues and contentions [47]. The Tribunal accepts this contention.
[24] Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1716 at [39].
DOCUMENTS
Taskiras[25]
[25] In these reasons, the relevant instrument is referred to as a “taskira”. The Tribunal is conscious, however, that spelling of the instrument varies and is, for instance, sometimes referred to as a “taskera” or “tazkera”.
While it may be that “no law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society,”[26] the requirement for clarity as to a person’s identity can make it difficult for citizenship applicants, especially those who come from a society where “the issuing of official documentation may be hampered by conflict, civil strife, and/or under-developed bureaucratic and administrative structures.”[27]
[26] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [16], citing Dhayakpa and Minister for Immigration & Border Protection [2015] AATA 310 at [117].
[27] Ater and Minister for Home Affairs (Citizenship) [2019] AATA 4677 at [64].
Here, the Tribunal’s capacity to rely on what would appear to be official documentation was so hampered. As will become apparent later when discussing the applicant’s life story, he was (according to him) born into a society experiencing conflict and civil strife – Afghanistan.
The primary form of identification for Afghan citizens is and was the taskira, a document required for employment and admission to schools and universities, to obtain approval to run a business and to buy, rent and sell property.[28]
[28] Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan (27 June 2019) [5.46].
Prior to the introduction in 2018 of electronic taskiras, they:
“…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 complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.”[29]
[29] Ibid [5.48].
Because of the decentralised process of issuance and because of the absence of robust security features, document fraud is a “major issue in Afghanistan.”[30] Moreover, genuine documents can be issued “…based on false information with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras…”.[31]
[30] Ibid [5.54].
[31] Ibid.
Document fraud being particularly problematic in the case of taskiras is evident from the facts before me.
Three taskiras (or documents purporting to be taskiras) have been provided by or on behalf of the applicant to Commonwealth agencies since his arrival in Australia in 2010.
Taskira number XXXX61[32] was provided by the applicant’s then migration agent on or around 20 December 2010.[33] It is expressed to have been issued to the applicant on 4 December 2000.[34] While, in 2010, the applicant stated that his father obtained the taskira,[35] in 2019, in a statutory declaration, the applicant stated that he obtained the taskira himself from Sange Masha in Afghanistan but misplaced it after he came to Australia in 2010.[36]
[32] For confidentiality reasons, the Tribunal does not propose to refer to taskira numbers in full.
[33] T6, p.86.
[34] T27, p.517-8.
[35] T6, 83.
[36] T13, p.310 (Statutory declaration of 27 August 2019).
In response to that 2019 declaration, it was put to the applicant that he would have been 11 years old when he allegedly obtained the taskira[37] and that the photograph on the document was not consistent with a boy then aged 11 (being more reflective of a young adult).[38]
[37] A task that would appear to have been difficult for an eleven-year-old given, for instance, the need to provide attestation of identity as a pre-condition to the local authority approving of the issue of a taskira. See Department of Foreign Affairs and Trade, Afghanistan: CI170606110840909 – Taskeras – Availability – Kabul, Ghazni and Parwan, p.2.
[38] T18, pp.341-2. It was said that he would then have been aged 11 given material lodged concerning his birth date.
In reply, in 2020, it was said on the applicant’s behalf that, in light of the matters so put, the applicant “had come to the realisation that this taskera may not be genuine [my emphasis].”[39]
[39] T23, p.470.
In the applicant’s undated statement of facts, issues and contentions (A’s SFIC) it was stated that:
(a)the taskira had been lost and that was “the reason why the Applicant did not reproduce the document in support of his identity in subsequent dealings with the Respondent.”
(b)the process that the applicant undertook to obtain the taskira had been explained in a response provided on his behalf on 9 October 2019. In that response (which was in fact provided in February 2020), it was stated that the applicant had obtained the taskira himself in Afghanistan in or around December 2000[40] and that he believed it to have been a genuine document.[41]
(c)the applicant was unable to comment, with any degree of certainty, on whether the taskira is a genuine document.
[40] T23, p.470. What was said is that the applicant obtained the taskira approximately one month after his father had been killed. In material lodged with the Tribunal, it had been said that his father was killed on 5 November 2000: eg, T6, pp.85, 88.
[41] T23, p.470.
None of what the applicant said about this taskira prior to the hearing of this proceeding was true. Virtually until the date of the hearing, the applicant was contending either that the taskira was genuine or that it may have been genuine, and (subject to his statement in 2010 that his father had obtained the taskira) that he had procured its issue in Afghanistan in the year 2000. Based on his oral evidence, however, the applicant knew the taskira was not a genuine document.
I note that the taskira and two letters, which I discuss later and which I find also not to have been genuine, were only provided in the context of an ultimately successful review of an initial decision in May 2010 to decline the applicant’s application for a visa. The applicant arrived in Australia at the beginning of February 2010. The taskira was provided after a review interview in late August 2010,[42] while the letters were provided in December 2010.[43] As these documents were not provided in the context of the May 2010 initial assessment, I infer that the production of them was only arranged after the applicant had arrived in Australia.
[42] T6, p.86.
[43] T6, p.85.
Taskira XXXX69[44] was submitted by the applicant on 7 March 2017.[45] According to the applicant, he obtained this taskira on 16 May 2010 because he had lost taskira XXXX61 not long after arriving in Australia.[46]
[44] T31.
[45] T32, p.529.
[46] T13, p.310; T23, p.470.
On 12 February 2019,[47] the respondent was advised that the Afghanistan Central Civil Registration Authority (ACCRA) in Kabul had verified taskira XXXX69 as genuine.[48] That confirmation does inspire some confidence that the document is genuine. It does not, however, address the risk (mentioned earlier) of the document having been issued in reliance on “false information”, a risk which I consider to be material given, in particular, the context in which it was said to have been issued.
[47] T9, p.123-5.
[48] T10, p.130.
According to the applicant, taskira XXXX69 was issued after he had arranged for his brother, Abdul Waheed, to obtain a duplicate of taskira XXXX61. His brother apparently went to Sange Masha to get it.[49] As the family had moved to Quetta in Pakistan before 2010, he would have had to travel from there to Afghanistan to do so. His brother would have been aged 14 at the time if he had been born in 1996 (as asserted on behalf of the applicant in February 2020[50] and by the applicant’s, and Waheed’s, mother).[51] At the hearing of this proceeding, however, the applicant’s evidence was to the effect that Waheed had been born in around 1990. This inconsistency in the material before me leaves me uncertain not only as to Waheed’s age but also as to the circumstances in which taskira XXXX69 was issued.
[49] T13, p.310 (statutory declaration of 27 August 2019)
[50] T23, p.472.
[51] See the mother’s certification of her sons’ birth dates at T23, p.476. In the certificate, Abdul Wahid is referred to as “Waheed”.
That uncertainty is exacerbated given that, contrary to the applicant’s alleged instruction to his brother, taskira XXXX69 is not a duplicate of taskira XXXX61. As pointed out by the respondent, “the volume number, page number and registration number of the Tazkiras are completely different”.[52] This resulted in the applicant coming to believe “upon further thought” that taskira XXXX69 was a newly issued taskira, not a duplicate.[53] Presumably, to the knowledge of the applicant, taskira XXXX69 was never going to be a duplicate of taskira XXXX61, given that (as the applicant was aware) the latter taskira was not genuine.
[52] T12, p.295.
[53] T23, p.471.
At the hearing of this proceeding, the applicant gave evidence to the effect that he was advised by his solicitors to obtain another taskira, prior to him becoming aware that taskira XXXX69 had been verified as genuine. It was, apparently, considered that there was a risk of the respondent rejecting the genuineness of taskira XXXX69 because of the process adopted in procuring its issue. While the applicant’s evidence on the matter was not entirely clear, it seemed to be to the effect that his solicitors’ concerns about the taskira were echoed by staff at the Embassy of Afghanistan in Canberra.
This concern about the process involved in obtaining the taskira is reflected in statements made by the applicant in a statutory declaration of 3 June 2020. In it, he stated that:
My lawyer advised me I should obtain a Taskera through the Embassy in Canberra so the Department can be absolutely satisfied. Going through the Embassy to obtain a Taskera is the proper process for Afghans outside of Afghanistan who are living in Australia.
This concern about the acceptability to the respondent of taskira XXXX69 led to the issue in February 2020 of taskira XXXXX X05.[54] The applicant says he obtained it through the Embassy of Afghanistan in Canberra using his paternal cousin’s taskira as a reference and using an “in absentia” process to do so. He sought a new taskira because he “wanted to make sure the Department is satisfied of who I am”.[55]
[54] T24.
[55] Statutory declaration of 3 June 2020.
In the decision the subject of review, it was suggested that the “in absentia” process was not available to the applicant because he then had a subsisting taskira, the process only being available to replace lost taskiras or for first-time applicants.[56] A note on the bottom of the verification form, provided in connection with the applicant’s “in absentia” application for the taskira,[57] appears to corroborate the limited role of the in absentia process. When asked at the hearing about this, counsel for the applicant contended that the applicant was a first-time applicant as it was the first time that he had applied at the Embassy for a taskira. This seems an unlikely explanation and one not, for instance, reflected in the note to the aforementioned verification form.[58]
[56] T2, p.22.
[57] T26, p.512.
[58] The note at T26, p.512 reads in part: “…I certify that I have never previously obtained an Afghan Tazkera and have no other record with the population statistics registration office…”.
Whatever the case in relation to the genuineness, validity or otherwise of the various taskiras, they tell a consistent story about certain characteristics or attributes of the applicant’s identity, being name, his father’s name and the date and place of his birth.[59]
[59] Compare T24, p.481; T27, p.518 and T31, p.525.
The story they tell also concerns the applicant’s credibility. When regard is had to what transpired in relation, in particular, to taskira XXXX61, as well as to other matters which I will address shortly, I find that the applicant has been prepared to lie when he thought it convenient to do so and to persist with his lies until doing so became untenable. The overall impression I had of the applicant is that, at any particular time, he was prepared to mould his evidence to suit what he then felt to be in his interests.[60]
[60] In a letter of 2 April 2021, a clinical psychologist, Dr Rubinstein, opined that the applicant had memory problems which were quite likely to have “arisen because of the stresses he is currently enduring.” This might offer an explanation for any errors of fact which the applicant currently makes but it fails to explain enduring factual errors in statements made by and on behalf of the applicant since he arrived in Australia in 2010.
As in Sahki,[61] dishonesty in dealings with the respondent “is a very serious matter.” Whether, however, the applicant’s dishonesty would be:
“…sufficient for the Tribunal to find that Applicant is not of good character for the purposes of s 21(2)(h) of the Act is a matter upon which the Tribunal does not have to make a decision because of the finding that the Tribunal is not satisfied of the Applicant’s identity.”
Put simply, I need not consider the issue of good character, even if I can,[62] given my conclusion in relation the issue of identity.
[61] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73]-[74].
[62] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [22] suggests that I would be able to enlarge the scope of this proceeding to consider the character issue but cf Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 where, at [66], Rares J stated that “… the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration.”
Other documents
The taskiras are not the only documents obtained or provided in relation to the applicant.
In 2010, in connection with his application for a visa, the applicant provided two letters. One was a letter allegedly from Zafar Sharif, the Governor of Jaghori, dated 1 June 2003, advising that the applicant’s father, the late Barat Ali Jawadi, was killed by the Taliban and that the applicant’s brother was lost on the way to Kabul. The other was a letter from the “Imam and Elders of Siya Zamin”, dated 22 May 2003, advising that the applicant’s father was killed by the Taliban and that the applicant’s brother, Ashraf, had been missing since 2002.[63]
[63] See T2, p.17.
In light of the material I will get to shortly concerning the applicant’s brother, Ashraf, each such letter is either not genuine or, if genuine, based on false information. Of these alternatives, I find it to be more likely that they are not genuine, noting the doubts about their validity expressed in 2010 in the context of the independent merits review of a decision concerning the grant of a visa to the applicant.[64]
[64] See T6, p.87.
The applicant submitted a Titre De Voyage (travel document), a Victorian drivers licence, a Medicare Card, a Bank letter, a student identity card, a Health Care Card and a letter from the Embassy of Afghanistan, as well as other similar “identity” documents issued in Australia.[65]
[65] T8, pp.117-8; T15, pp.327-8; T29, p.521.
All these documents were issued after the applicant arrived in Australia and, other than the embassy letter and the Titre de Voyage, would either have been issued based on information supplied by the applicant or are secondary, in the sense of having been obtained in reliance on other documents. In terms of establishing the applicant’s identity, I do not attribute much weight to them. Their probative value (in terms of establishing identity) very much turns on the probative value of information supplied by the applicant (in a context where I have concerns about the applicant’s credibility) or on the probative value of the document(s) on the basis of which they were issued.[66] Indeed, documents issued by authorities in Australia are generally “…simply evidence of who the Applicant says he is, not of who he is”.[67]
[66] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [41] where reference was made to Australian documents being procured based on secondary documents.
[67] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [48], cited with approval in Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514 at [52].
As for the Titre de Voyage,[68] while it lends some support to the applicant’s identity claim, that support is not significant. This is because the issuance of such a document occurs in a context that differs from citizenship. In the latter context, the bar set by the steps necessary to establish identity may well be higher than that set in other contexts, such as under the Migration Act 1958.[69]
[68] T15, p.327.
[69] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [55].
The letter from the Embassy of Afghanistan in Canberra of 3 March 2015,[70] however, corroborates certain of the characteristics of the applicant’s identity reflected in the story told by his taskiras. It confirms his place and date of birth and that his father is Barat Ali (also corroborated in a further document issued in 2017, being the applicant’s marriage certificate[71]).
[70] T29, p.521.
[71] Annexure 1 to the A’s SFIC.
Documentary information – Summary
Overall, there are a number of inconsistences in the story told with respect to documents made available by the applicant,[72] particularly in relation to their provenance.
[72] CPI 16 [4.14]: “The crucial element of a document, whether genuine or not, is the story the document tells.”
LIFE STORY
I turn now to another “pillar of identity”, the applicant’s life story. The idea of this pillar is said in CPI 16 to be to try and create an identity picture from birth.
In recounting aspects of the applicant’s life story (as described by or on behalf of the applicant), I will (as was done in the decision the subject of review) address inconsistencies concerning particular characteristics or attributes of the applicant’s identity.
Before doing so, however, I will first outline certain particulars of the applicant’s life story as recounted in a review decision made in 2010 in relation to the applicant’s application for a visa (with my emphasis):
The claimant said he was a Hazara Shia who was born in 1989 in a Siya Zamin, Jaghori, Ghazni Province. He is single. He went to school from 1994 to 1999, from 1999 to 2004 he was self employed as a farmer…
His father was a school teacher teaching English to boys and girls, and he was shot and killed by the Taliban. His brother disappeared when he was on his way to Kabul to do the entrance exam for the University of Kabul. After his brother disappeared, the Taliban threatened the claimant that if he continued to study at school, he also would be killed or go missing. After he was threatened, the claimant left school and started farming…
His father was a well known teacher of girls at Abdul Ghafor Sultani High School and Pushti Chub School who was killed by the Taliban on 5 November 2000 in front of the former school. In late 2002, his elder brother disappeared on his way to Kabul to sit for a University entrance exam. The Applicant himself was then threatened by the Taliban and told to stop studying…
He said he left Afghanistan in 2004 with his mother, his two younger brothers and younger sister. His eldest brother, Ashraf, has been missing since the end of 2002…
I asked the claimant about the seven year age gap between him and his brother Ashraf who had disappeared; the claimant said that Asraf’s (sic) mother was his father’s first wife who died; his father remarried and the claimant and his younger siblings were from his father’s second marriage…
I asked the claimant how he had remembered the date of his father’s death so precisely given the assessor’s comment he couldn’t be precise in interview with the assessor and that he had stated at the beginning of our interview that he had a bad memory. The claimant said he offered to find out the precise date for his adviser by ringing his mother who had the date written in the back of the family Koran…
After the Review Interview, on 17 December 2010, the adviser Kevin Ford forwarded for me from the claimant two letters, with translations obtained by the adviser… The first letter, dated 1 June 2003, was on ‘Ministry of the Interior, Ghazni Province, Jaghoor District’ letterhead, was stated to be from ‘Zafar Sharif, Governor of Jaghori’, and stated it was ‘to certify’ that the late Barat Ali Jawadi had been a school teacher, was ‘a sympathiser for the Education Department of Jaghori’ who was threatened by the Taliban, continued working in a girls’ school, and was ‘killed by Taliban Terrorist’ in front of Abdul Ghafoor Soltani High School on 5 November 2000. The letter said that two years after this, in 2002, ‘his eldest son was lost on the way to Kabul...
The second letter, dated 22 May 2003, was signed by several people, and was addressed to ‘The high office and attention of Jaghoori District’. The letter was stated to be from the ‘Imam and Elders of Siazamin, Hotajul Islam Amini’. The letter stated that the late Barat Ali Jawadi had been a good school teacher and was ‘killed by Taliban criminals near the Ustad Abdul Ghafoor Soltani high school on 5 November 2000’. The letter said that two years after this, in 2002, ‘the eldest son of this family has been missing from the road bound to Kabul’…
After the review interview, the claimant’s adviser forwarded to me copies of the taskeras for the claimant and his mother.[73]
[73] T6, pp.81-6.
As previously outlined, the documentary material forwarded to the reviewer was not genuine. Moreover, and as soon will become apparent, the applicant has now sought to resile from or vary his position in relation to much of the foregoing.
Family composition
There are significant inconsistencies in the material provided or obtained in relation to the applicant’s family composition.
Ashraf
As just indicated, when he first arrived in Australia in 2010, the applicant claimed that he had four siblings, an older brother (Ashraf), two younger brothers (Abdul Waheed[74] and Hadi) and a younger sister (Fatima). His older brother, Ashraf, was said to have gone missing in 2002 on the way to Kabul to study.
[74] In certain of the material before the Tribunal, reference is made to “Wahid”, as opposed to “Waheed”.
The applicant provided an elaborate story about his missing older brother. It was said that he:
“…had finished Year 12 at school and he was travelling to Kabul to sit a test for entrance to university. His brother wanted to study literature and in Jaghori there was no university. His brother left one afternoon and the family has not heard from him since. The family had tried to find his brother by asking people who were travelling to Kabul and drivers going to other places to ask about his brother.”[75]
[75] T6, p.82.
The missing status of Ashraf was apparently attested to by the applicant in a statutory declaration he made in March 2010, which is not before me.[76] As mentioned earlier, it was also corroborated by two letters submitted on the applicant’s behalf in December 2010. The first is a letter of 1 June 2003 and allegedly from Zafar Sharif, Governor of Jaghori. In the letter, it is stated that the father was killed by the Taliban in November 2000, that his oldest son “was lost on the way to Kabul” and that the applicant had made attempts to find out his older brother’s whereabouts. The second is a letter of 22 May 2003 from the Imam and Elders of Siazamin, Hotajul Islam Amini, in which it is stated that in 2002 “the eldest son of this family has been missing from the road bound to Kabul” and goes on to state that the applicant’s mother had been searching for her eldest son.
[76] T2, p.24. Reference is made to this declaration in the decision the subject of review.
When, in March 2017, the applicant lodged his application for Australian citizenship, he did not include Ashraf as one of his siblings.[77]
[77] T32, p.540.
In July 2019, the applicant confirmed that Ashraf was still missing.[78]
[78] T23, p.473; T10, pp.133-4.
In August 2019, in a statutory declaration made by the applicant in response to queries concerning Ashraf[79] and, in particular, in response to material suggesting that the applicant had been sending money to Ashraf in Indonesia[80], the applicant stated that he had regained contact with Ashraf in 2011 but that he was still missing when he had lodged his visa application in 2010.[81]
[79] T12, p.296.
[80] T10, p.134.
[81] T13, p.310.
In February 2020, in a submission made on the applicant’s behalf[82] in response to material put to the applicant suggesting that Ashraf attended school in Quetta, Pakistan in around 2002,[83] it was again stated that the applicant only regained contact with Ashraf in 2011, having lost contact with him in 2002.
[82] T23, p.473.
[83] T18, p.342.
In June 2020, in a further submission made on the applicant’s behalf, however, Ashraf was said never to have been missing.[84]
[84] T26, p.505.
Also in June 2020, in a statutory declaration made by the applicant, he reiterated that Ashraf had never been missing. In that declaration, the applicant also stated that he had always been in contact with Ashraf, who had lived with the applicant’s mother other than when, in 2006, he had travelled to Kabul for studies.
The applicant suggests that when he chose to lie about his brother, Ashraf, having gone missing he had been negatively affected by erroneous advice of “people smugglers” and others.[85]
[85] Statutory declaration of applicant of 3 June 2020.
I do not accept that the applicant is somehow a victim in all this. He has repeatedly lied about his brother, a lie which he reinforced by submitting non-genuine documentation in support of it.
Moreover, that Ashraf was missing is not the only inconsistent information provided by the applicant in relation to his brother.
As mentioned earlier, in 2010, when asked to explain the age gap between him and Ashraf, the applicant stated that he was the son of his father’s second wife while Ashraf’s mother was their father’s first wife.[86]
[86] T6, p.83.
This was reflected in the February 2020 submission made on behalf of the applicant. In that submission it was said that, as the applicant “...has stated in the past, Ashraf is his half-brother. … [the applicant] and Ashraf have the same father, but different mothers.”[87]
[87] T23, p.473.
The story was changed in the submission of June 2020 made on behalf of the applicant. In that submission, it was said to have been a mistake to assert in the February 2020 that the applicant and Ashraf were half-brothers.[88]
[88] T26, p.505.
In his statutory declaration made in June 2020, the applicant stated that Ashraf is his full brother. Again, saying he was his half-brother was said to have been a “mistake”.
I note that this “mistake” about the nature of the applicant’s relationship with Ashraf arose in 2010 and persisted until early 2020.
Fatima and Hadi
As outlined earlier, in 2010, the applicant stated that he had two younger brothers (one of whom was Hadi) and a younger sister (Fatima).
In March 2017, this statement was repeated in a document, the information in which was declared by the applicant to be correct.[89]
[89] T32, p.540.
In August 2019, in a statutory declaration, the applicant referred to a particular method of sending money overseas to make it safer for his mother “or sister” to collect.[90]
[90] T13, p.310.
In the submission made on the applicant’s behalf in February 2020, however, it was stated that the applicant had advised that “Hadi and Fatima are not his biological siblings, rather, his neighbours from before he came to Australia.”[91]
[91] T23, p.471.
Support for the applicant’s current position that he has only two siblings, Ashraf and Abdul Waheed, is found in a statutory declaration made in July 2021 by a Mr Abdullah Mohammad.
In oral evidence at the hearing of this proceeding, the applicant said that Hadi and Fatima had been his neighbours in Pakistan. When asked why he would list neighbours as his siblings the applicant stated that he was simply trying to support them. When questioned as to the nature of that support, the applicant said that he had intended to try to bring them to Australia. The clear inference from this is that the applicant had planned to deceive Australian authorities by claiming that his former neighbours were, in fact, his siblings in the belief that, by doing so, it would facilitate the grant of visas to them.
Waheed
In his June 2020 statutory declaration, the applicant spoke of his brother, Waheed, having been martyred in 2011. Waheed’s tombstone in Pakistan indicated that he was 22 years old when he died. This would have meant that the year of his birth was 1989, the year in which the applicant claims to have been born. The applicant had claimed that Waheed was born in 1996.[92] In October 2019, the applicant was asked about this apparent inconsistency.[93]
[92] See, for instance, T32, p.540.
[93] T18, p.342.
In response, in February 2020, it was stated on behalf of the applicant that the tombstone was in error, his family having not been involved in the burial,[94] and that Waheed had been born in 1996, a statement corroborated in an undated certificate said to have been from the applicant’s mother.[95]
[94] T23, p.472.
[95] T23, p.476.
If Waheed had been born in 1996, it seems difficult to conceive how he, as a 14-year-old, would have travelled from Pakistan to Kabul to procure the issue of taskira XXXX69 (as contended by the applicant). If, however, he had been born in 1989, it calls into question either his relationship with the applicant or the applicant’s claim to have been born in 1989.
I note that in his oral evidence at the hearing of this proceeding, the applicant adopted a third position in relation to Waheed’s year of birth. The applicant’s evidence was that Waheed was younger than him by around 1 to 1.5 years, a statement he repeated despite it having been put to him that material lodged with the Tribunal by him or on his behalf stated that Waheed had been born in 1996.
Other inconsistencies
The applicant’s family composition is not the only aspect of the applicant’s life story in relation to which information provided or obtained reveals significant inconsistencies.
In terms of where his mother (and Ashraf) lived, details were provided by the applicant in a statutory declaration made in June 2020. She is said to have lived in Quetta, Pakistan in the period 2002 to August 2011, then in Kabul in the period to November 2015 and thereafter in Indonesia.
As mentioned earlier, in 2010 the applicant stated that he, his mother and siblings left Afghanistan for Pakistan in 2004, not 2002. Right up until the hearing of this proceeding, the applicant maintained the position that they fled Afghanistan in 2004.[96]
[96] A’s SFIC [13]: “As the security situation continued to worsen in Afghanistan, the Applicant and his remaining family members fled to Quetta, Pakistan in 2004”. Note, however, that in the immediately preceding paragraph of the A’s SFIC, it is said that the applicant fled to Quetta in 2012, with the year being said to be an estimate.
While the applicant now says that his mother has been living in Indonesia since 2015, in March 2017, the applicant stated that his mother was then living in Pakistan[97] (a statement he then declared to be correct[98]).
[97] T32, p.539.
[98] T32, p.543.
Life story information – summary
There are significant inconsistencies in life story information provided or obtained in relation to the applicant, particularly with respect to those aspects of his identity concerning his family composition.
DECISION
I am not satisfied of the applicant’s identity. Inconsistencies in both documentary and life story information concerning the applicant are significant.
The decision the subject of review is affirmed.
I certify that the preceding 91 (ninety one) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
.....[SGD]........................................
Associate
Dated: 29 October 2021
Date of hearing:
5 July 2021
Advocate for the Applicant:
Solicitors for the Applicant
Shaukat Akbari
Beena Rezaee Legal & Migration
Advocate for the Respondent:
Sarah Hardie
Solicitors for the Respondent:
HBL Ebsworth Lawyers
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