KSHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

KSHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1969 (19 June 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0060
Re:KSHD
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:19 June 2020
Place:Adelaide

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Australian Citizenship Act 2007 and that the Applicant is of good character pursuant to s 21(3)(f) of the Australian Citizenship Act 2007.
................................[Sgnd]....................................
Senior Member B J Illingworth
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – fraudulent documents – whether Tribunal is satisfied Applicant is of good character – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Beyan and Minister for Immigration and Citizenship [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34
Confidential the Minister for Immigration and Citizenship [2013] AATA 144.
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 93
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255.
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines, 2016
Australian Citizenship Policy (2016) (Cth)
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Senior Member B J Illingworth
19 June 2020

INTRODUCTION

KSHD ("the Applicant") has applied for a review of the decision of a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Respondent"), dated 8 December 2018, refusing his application for Australian Citizenship by conferral because he did not satisfy ss 24(3) and 21(3)(f) of the Australian Citizenship Act 2007 (“the Act”).
At the hearing before the Tribunal, the Applicant appeared in person and was represented by Ms Alyce Boemia of Beena Rezaee Legal & Migration. Mr William Evans, Australian Government Solicitor, appeared on behalf of the Respondent. The Tribunal was also assisted by an interpreter in the Hazaragi language.
BACKGROUND
The Applicant is a citizen of Afghanistan. He is currently aged 50 years.
The Applicant arrived in Australia on 1 February 2010 as an irregular maritime arrival and was later granted a Protection (Class XA) visa on 10 November 2010.[1]
[1] Exhibit A, T2/8.
On 20 May 2011, the Applicant sponsored his wife and five children for an Offshore Humanitarian (Class XB) visa, which was refused.[2] The Applicant's wife and five children are now awaiting the decision to grant a Partner (Subclass 309) visa.[3]
[2] Exhibit B, T35/348.
[3] Ibid T36/419.
On 10 December 2014, the Applicant lodged an application for Australian citizenship by conferral on the basis of permanent or enduring physical or mental incapacity under s 21(3) of the Act.[4] The Applicant, through his solicitor, provided supporting documentation in accordance with the Department's requests.
[4] Exhibit A, T5/88.
On 8 December 2018, the Applicant's application was refused on the basis that the delegate was not satisfied that he was of good character under s 21(3)(f) of the Act and was not satisfied of his identity pursuant to s 24(3) of the Act.[5] In particular, the delegate concluded that two taskeras provided by the Applicant and sent for verification were found to be fraudulent. Further, because the delegate decided that the Applicant's son, SKH, was a former member of the Pakistan Army, it was unlikely that SKH and consequently the Applicant and his family were Afghan refugees residing illegally in Pakistan.
[5] Ibid T2/8-17.
On 7 January 2019, Applicant applied to this Tribunal for a review of the delegate's decision.[6]
[6] Ibid T1/1-7.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The issues to be determined by the Tribunal are:
(a)whether the Tribunal can be satisfied of the Applicant's identity pursuant to s 24(3) of the Act; and
(b)whether the Tribunal can be satisfied that the Applicant is a person of good character pursuant to s 21(3)(f) of the Act.
LEGISLATIVE FRAMEWORK
Identity Requirement
Section 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 states:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
Further, Chapter 13 of the Australian Citizenship Policy (“the Policy”) of June 2016 provides that:
Overview of the identity provisions
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person's identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person's identity.
The Attorney-General's Department, National Identity Proofing Guidelines refers to the concept of identity as ‘not a fixed concept; it is highly dependent on context.’[7]
[7] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1, 2.1.1.
In Ahamod and Minister for Immigration and Border Protection,[8] the Tribunal examined the standard of proof contemplated in Briginshaw v Briginshaw[9] and found the higher level of satisfaction is required in the granting of citizenship, stating, at [30]:
A certificate of Australian Citizenship is a legal document of considerable significance. Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.
[8] [2019] AATA 7.
[9] [1938] HCA 34.
Good Character Requirement
Section 21(3) of the Act sets out the criteria to become an Australian citizen for a person with a permanent or enduring physical or mental incapacity. Relevantly, s 21(3)(f) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time that the decision is being made.
The term “good character” is not defined in the Act; however, there is guidance on the application of the good character requirement in the Policy. The Tribunal is not bound to apply the Policy; however, should give regard to and apply the Policy unless there are cogent reasons not to do so.[10] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case.
[10] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship where good character is involved. It states:
‘Good character' refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs,[11] Lee J said, at 431-432:
Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[11] (1996) 68 FCR 422.
Chapter 11 of the Policy also sets out the phrase "enduring moral qualities" as encompassing the following concepts:
·characteristics which have been demonstrated over a long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The Policy also outlines the characteristics of good character as an Applicant who would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible …
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information … or other material deception during visa and citizenship applications
oinvolvement in bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
onot be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct …
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
The assessment about whether an Applicant is of good character requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences. A decision maker needs to look holistically at an Applicant's behaviour over a lasting or enduring period of time.
THE DEPARTMENT'S FINDINGS
In the delegate's decision to refuse the Applicant’s application for Australian citizenship by conferral, the delegate stated:[12]
You have been requested to provide overseas identity documents to support your claimed identity in Australia and have not done so. You have provided to the department various documents to support your family's identity however they have been found to be fraudulent. You have been requested to respond to adverse information before the department with regard to your and your family's claimed ethnicity and identity and have not provided sufficient or satisfactory evidence in support of your claims.
…
Finding
After weighing up all of the information available to me I cannot be satisfied of your identity to the level expected for the purposes of conferral of Australian citizenship.
[12] Exhibit A, T2/14.
In relation to the Applicant's character, the delegate found:[13]
One fundamental expectation of the Australian community with respect to Citizenship applicants is that they have been honest and accurate in their dealings with the Australian Government. As articulated below, in the 'identity section', your provision of fraudulent identity documents and statements about your son to the department have raised concerns about your identity and your claims before the department. You have not satisfactorily addressed these concerns when they have been put to you for comment and your responses are misleading. I find that the provision of false personal information about yourself and your family and the provision of a fraudulent document to the department is not indicative of some one of good character.
[13] Ibid T2/11.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant gave oral evidence at the hearing. He also called two witnesses to give oral evidence, namely, Mr SH and Mr SN. Their statutory declarations were also received into evidence. Several other character references were also received.
The Applicant’s Evidence
The Applicant provided the Respondent with two statutory declarations dated 23 February 2016[14] and 12 January 2018,[15] which were provided to the Tribunal and which I will now summarise.
[14] Ibid T13/136.
[15] Ibid T23/196-198.
Statutory Declaration dated 23 February 2016
The Applicant said he was a permanent resident of Australia and was granted refugee protection after fleeing his home country of Afghanistan.
When he fled Afghanistan, he did not take his taskera with him. He declared that he was in immediate danger and had to flee in haste. He said he had been beaten and arrested by the Taliban. He was being taken to prison but when the arresting party became involved in a roadside skirmish, he was able to escape. He then hid in the mountains and subsequently returned at night to his village, gathered his family and fled. They did not take any belongings or documents and did not tell other members of the village. They walked through the mountains where they were picked up by a vehicle and taken to the Pakistan border. There, with the assistance of people smugglers, they were taken to Quetta in Pakistan.
The Applicant declared he could not return to Afghanistan to acquire another taskera. That trip was impossible and too dangerous. He is a Hazara man and fundamentalists in Afghanistan persecute and kill Hazaras. Further, he has a Subclass 866 visa, which does not permit him to travel to Afghanistan.
The Applicant does not have a current Pakistan police clearance. When he visits Pakistan, he attends the police station in Quetta where he registers his presence in Pakistan. Prior to his departure he would return to the police station where he was issued a Pakistan police clearance, which is then taken by immigration officials at the airport upon his departure.
Statutory Declaration dated 12 January 2018
This statutory declaration was prepared in response to an adverse letter from the Respondent regarding the Applicant’s citizenship application.
The Applicant declared that he was born in Shashpar, Jaghori, Afghanistan in December 1968, and is a citizen of Afghanistan. He is a Hazara of Shia Muslim faith. He declared that he fled Afghanistan with his wife and five children in 2009 and resettled in Pakistan as a refugee. He left Pakistan in 2010 to come to Australia with the intention of sponsoring his family to join him for a better life and to avoid deportation back to Afghanistan.
The Applicant rejected the allegations of the Respondent with respect his son, SKH, being a member of the Pakistan Army. He declared that his son played the sport of wushu, which is a martial arts discipline. The club that his son attended approached him and asked him to compete in wushu for the Pakistan Army, which is common practice in Pakistan. He declared that many Afghan refugees in Pakistan compete, or have competed, at national level in the sport of wushu for the Pakistan Army. He declared that his son both competed in and coached wushu. He referred to evidence from his son’s wushu clubs confirming that fact.
SKH ceased competing in wushu approximately one year earlier when he was attacked and injured during a home invasion. He could not go to a Pakistan Army hospital because he was a civilian. He was taken to a hospital in Quetta.
The Applicant also provided an example of an Afghan refugee who competed for Pakistan in karate. She is shown in internet photographs in a Pakistan uniform with medals around her neck.
The Applicant declared he was worried for the safety of his family.
As for the bogus taskeras provided by the Applicant to the Department, he said that he did not know at the time they were submitted that they were bogus. He believed the taskeras were registered with the Ministry of Interior Affairs in Afghanistan because they were obtained from the Consulate of Islamic Republic of Afghanistan in Quetta. Each taskera had a different registration number on them.
The Applicant’s family has now obtained verified and attested taskeras from the Directorate of Population. These taskeras have been attested by the Ministry of Justice and Foreign Affairs. The Applicant declared that based on those taskeras, his family members have also acquired MRZ [machine readable zone] passports.
The Applicant further declared that on each occasion that he has visited Pakistan, he was first required to obtain a visa and entered and exited Pakistan as a foreigner, which supports the submission that he is not a citizen of Pakistan. The Applicant also declared that his father’s taskera had been located which also evidences his Afghan citizenship and heritage.
The Applicant declared there were others living in Australia who could attest to his Afghan heritage and who knew him in Afghanistan. The Applicant also referred to and detailed his mental health issues from which he has been suffering from for several years.
The Applicant’s Oral Evidence
The Applicant confirmed he was married in Afghanistan. His wife is from the same village. He does not recall the date of his marriage. Dates are not important in Afghan culture. The Applicant explained the makeup of his family and his five children. His children were all born in the same village. His eldest son is not referred to in his partner visa application.
When the Applicant arrived in Australia, he wanted to sponsor his entire family, which included his wife, her mother and his children. He contacted his mother-in-law and told her that his wife and children would have to be sponsored first. His mother-in-law did not understand. The Applicant’s eldest son was close to her and became upset and argued with the Applicant. He left home and they have had no news as to his whereabouts and no contact with him for some years. The five children to whom he referred in his partner visa application excluded his eldest son.
The Applicant outlined his faith. He said that when he and his family fled Afghanistan in 2009 it was not a safe place for them to live. When they arrived in Pakistan they did not register as refugees because they were in the country illegally. Further, there were also extremists who were targeting people of Shia Muslim faith.
The Applicant confirmed the contents of his declaration in relation to his taskera. When he fled Afghanistan, he did not take his taskera with him. The Applicant obtained his current taskera in 2017 based on his father’s taskera.

His family obtained their first batch of taskeras in Pakistan at the Afghan Consulate in Quetta. He said his family’s taskeras were also issued based on his father’s taskera. They needed taskeras for their subsequent applications. He said they were surprised those taskeras were not valid, particularly because they applied for them at a government authority in Pakistan.
His family subsequently went to Kabul, Afghanistan where they obtained the Applicant’s marriage certificate and valid taskeras. First, they obtained the Applicant’s taskera which was issued based upon his father’s taskera. Taskeras were then issued to the Applicant’s family members based upon his taskera. The Applicant provided his father’s taskera to the Tribunal.[16]
[16] Exhibit I.
The Applicant said his son, SKH, started to learn wushu when the family moved to Pakistan. He was the only child who learned the discipline. The Applicant said he first learnt that his son was competing for the Pakistan Army when he received a letter from the Department. Prior to that, he thought it was just a sport for exercise. He did not know too much about his son competing in wushu. He said SKH was very good at wushu and was promoted through his club and he then competed for the Pakistan Army. He participated in competitions at a national level but could not compete at an international level because he is not a citizen of Pakistan. He said that for his son to compete at the national level, he did not have to show any evidence of citizenship.
The Applicant was referred to various Facebook screenshots which were photographs depicting his son, SKH. This included:
(a)A photograph of SKH wearing a Pakistan tracksuit top with a large number of, what appears to be, competition medals hung around his neck.[17]
(b)Photographs showing SKH in army camouflage attire, including Pakistan Army uniform, in posed positions.[18]
(c)A photograph showing SKH as a young teenager receiving what appears to be a certificate from a gentleman dressed in army attire.[19]
[17] Exhibit B T43/522 and T63/608.
[18] Ibid T63/10 and T63/612.
[19] Ibid T43/524.
Other than photographs of SKH dressed in Pakistan Army attire, there was no other photograph suggesting engagement in the Pakistan Army. The Applicant was asked about the photographs which depict SKH in an army uniform. The Applicant said he that he had asked his son about those photographs. SKH said that he was just showing off when he had the photographs taken. He said his son was provided the uniform by his team and the club.
The Applicant was referred to a photograph which showed on SKH’s wearing a Pakistan Army uniform with a nameplate with the name, “K”, which is SKH’s middle name. The Applicant said that “K” is a common name and that it was not his son’s army uniform. There was no name “S” (his son’s first name) on it and he surmised it may be someone else’s uniform. He was adamant that his son was not a member of the Pakistan Army and could never be a member of that army because he is not a Pakistani citizen.
The Applicant said that his son no longer competes in wushu, including for the Pakistan Wushu Team, albeit he still trains at his club. He is not permitted to participate anymore because of his identity.
The Applicant explained the circumstances in which he stopped including his eldest son in his list of family members. He said his eldest son was not happy with him and left home and has not been seen since. Hence, the family did not get a taskera for him because he was not with them.
The Applicant said he did not know the exact dates of birth of his children. He has a poor memory. He said the dates of birth referred to in the various taskeras were an approximation. It was common for children born in remote areas to have approximate dates of birth. The Applicant’s children were not born in hospital and there was no record of their birth.
The Applicant clarified the police clearance document referred to in paragraph [8] of his statutory declaration dated 23 February 2016.[20] The document he obtained was not a police clearance certificate but was an exit permission. When people leave Pakistan, they need permission to leave. He made a mistake in the statutory declaration when describing the title of the document.
[20] Exhibit A, T13/136.
The Applicant was referred to the letter of clinical psychologist, Damien McInerney, dated 15 April 2016,[21] in which he said that the Applicant had a fear of obtaining a Pakistan Police Clearance because in so doing it might put his family at risk should an application for such a certificate be sent to police in Quetta, because that is where his family lives without authorisation. In all other respects he confirmed the contents of his statutory declaration in respect of the process of entering and leaving Pakistan.
[21] Ibid T13/135.
The Applicant was referred to his marriage certificate[22] which he provided as part of his offshore humanitarian partner visa application. He explained that at the time of his marriage there was no official certificate issued. The Applicant said the certificate produced was an official document created through the Imam whose signature appears on the document. Other signatories included his father-in-law, uncles, brother-in-law and other relatives. The Applicant cannot read or write but he recognised the signatures. He could not otherwise read the body of the text.
[22] Exhibit B, T33/403.
The Applicant said that he has never been accused of committing a crime and has no criminal offender history. He volunteers with community organisations including at his mosque. He volunteers with the Jafaria Islamic Society and provides support for those in his community who are in need or who are sick.
The Applicant said that he sends money, about once a month, to his family in Quetta either through money exchange or he gives money to friends who are travelling to Pakistan to pass onto his family. He will give money to the money exchange and then it is transferred to his family. He will call his family, give them the details of the transfer number and they then go to a supermarket in Quetta where the money exchange is located, and withdraw the money.
In cross-examination, the Applicant further explained the circumstances in which he left Pakistan and ultimately came to Australia. He explained that people smugglers arranged his travel by airplane to Indonesia. His personal documents, including his passport, were provided to him by the people smugglers. The Applicant had no identity documents of his own. Someone at the airport arranged a boarding pass which was given to the Applicant before he boarded the plane.
Upon arrival in Indonesia the various documents including the passport, identity documents and boarding pass were taken from him by an associate of the people smugglers. He then travelled to Thailand and from there he travelled to Australia by boat. He paid $16,000 (USD) to travel to Australia.
Upon his arrival in Australia, the Applicant was interviewed on the 21 February 2010 at the Christmas Island Detention Centre (“arrival interview”).[23] In that interview, his age was recorded by the interviewer as 41 years, with his year of birth being 1969. His wife’s age was recorded as 38 years. The Applicant identified all six children, including the eldest son with whom he no longer has contact. The arrival interview document also recorded the Applicant’s parents and siblings. The Applicant was questioned about the various ages and dates of birth of those referred to in the document. For example, the Applicant said that he and his wife were the same age, yet the arrival interview document records her being four years younger than the Applicant. The Applicant maintained that he told the interviewer they were about the same age. The Applicant maintained that insofar as there is reference to the ages of his family they were estimates only.
[23] Ibid T27/222-245.
The Applicant was then referred to his application for a Refugee Status Assessment (“RSA application”),[24] which included a questionnaire conducted on 3 April 2010, two months after his arrival interview. This document contains a table setting out his family details and in which his wife was then listed as 42 years of age, being the same age as the Applicant. He could not explain the difference in age compared to his arrival interview but maintained that he told the first interviewer he and his wife were the same age.
[24] Ibid T28/252-298.
The Applicant was referred to his statement of claims, included in his RSA application. He reaffirmed the fears he therein expressed, namely, that he will be killed by the Taliban and others due to religious persecution and that the government, the police and the Afghanistan Army cannot protect themselves and cannot protect Shia Hazaras.
The Applicant was then referred of his original marriage certificate[25] and the English translation of that certificate.[26] He confirmed that the original marriage certificate was prepared by the Imam and the original and the translation were provided as part of a Split Family (subclass 202) visa application. In cross-examination, the Applicant could not recall the circumstances in which the translation was requested or prepared but rejected the proposition that it was not an accurate translation of the original marriage certificate.
[25] Ibid T23/403.
[26] Ibid T32/381.
The Applicant was cross-examined at length about the first batch of taskeras obtained in respect to his wife and daughter.[27] His evidence remained consistent that the family obtained their taskeras by applying to the General Consulate in Quetta, Pakistan. He explained that his family had his father’s taskera, which enabled them to identify the Applicant’s taskera which in turn enabled the family members to obtain their respective taskeras. The Applicant’s wife went through a similar procedure to obtain the Applicant’s taskera.
[27] Ibid T32/386
The Applicant was subsequently made aware that the taskeras of his wife and daughter were false. He did not know they were not genuine. They then obtained their second batch of Taskeras by travelling to Afghanistan.
The Applicant was also questioned about differences in the two translations of the taskera that were before the Tribunal. It was also noted that his wife’s taskera in fact referred to her own father and not the Applicant’s father. The Applicant maintained that he understood his wife provided his father’s taskera to obtain her taskera and did not know why it referenced her own father. He repeated that a person applying for a taskera would usually take his or her own father’s taskera. He also explained that because he and his wife were related, namely cousins, it may have made it easier to obtain a taskera linking to the wife’s natural father.
The Applicant said that his wife obtained his taskera. He explained that his family could obtain the taskera because the area from which he came in Afghanistan had a registry book which contained, as part of its record, his father and grandfather together with photographs, names, details and serial numbers. When the Applicant was asked by the Department for his taskera to be certified by the appropriate Afghan authority, he asked his family to travel to Afghanistan to obtain it. He explained in detail the journey his family undertook to obtain their taskeras. They travelled to and from Afghanistan with the assistance of people smugglers who arranged their travel across the border. Once over the border in Afghanistan, they took a taxi to Jaghori where they met three witnesses who were to take part in obtaining the taskeras. They had arranged this meeting before leaving Pakistan. He explained that the family had not previously tried to obtain taskeras this way before, because it was not safe. In 2017 it was safer to travel to Afghanistan, albeit some risk remained. The Respondent also referred the Applicant to the original and translated copy of the taskeras.[28] The photographs were not identical. The Applicant could not explain that difference.
[28] Exhibit O.
The Applicant was cross-examined at length about the various Facebook photographs of his son SKH which I have referred to above.
The Applicant’s evidence was consistent that SKH was never a member of the Pakistan Army and that his only involvement with the Pakistan Army was to compete in wushu. To the extent that his is depicted in a uniform, SKH told the Applicant he just playing dress up and showing off. The Applicant maintained this was all for show and was adamant his son was an Afghan citizen.
The Applicant said that the pictures of his son concerned him. He said he spoke to his son about his concerns and that SKH said he did not think it would cause an issue. He was interested in wushu and competing in the sport and was not aware of the consequences of the photographs.
The Applicant was referred to a translation of an Islamic Republic of Afghanistan, Ministry of Education high school document (Quetta)[29] which confirmed his children’s attendance at school between 2010 and 2017. He explained that students can attend the school without the need for documents because it is an Afghan school. The school is organised by the Afghan government. The Principal is Afghan and knows the children. The Applicant fervently maintained his family lived in Pakistan for more than 10 years as undocumented refugees. They lived in an area that was safe. He described the area as a kind of a camp which was accessed by a gate. Most of the time the Applicant and his family remained within the confines of the camp but would sometimes leave to go to the market. He said the area outside the camp was not safe. The children’s school was inside the camp.
[29] Exhibit B, T58/588-592.
The Applicant maintained that he never knowingly provided false documents to the Respondent. He said that he always told the truth and insofar as he had documents going to his identity, he has provided those documents in his possession to the Department. Insofar as there may be other documents, such as Afghan driver’s licence, he cannot obtain them because he would have to go to Afghanistan. He did attempt to locate such documents but could not find them.
The Applicant said he is illiterate. He left school in year two at the time of the revolution. He cannot read English. He could not read the original taskera or the marriage certificate. He could not read the English translation of his marriage certificate. He did not know there were mistakes in the documents. In relation to his 2013 partner visa application, he was assisted by a migration agent to complete the documents.
Evidence of Mr SN
Mr SN provided a statutory declaration dated 23 November 2017[30] and gave evidence before the Tribunal. He was assisted by the interpreter.
[30] Exhibit D.
Mr SN was born in Afghanistan and came to Australia in 2001. He was granted Australian citizenship in 2007.
Mr SN was born in the same area as the Applicant and they have known each other for a long time. They came from the same background and same tribe and have had a close relationship throughout their lives.
Mr SN described his and the Applicant’s families as close friends. They were related and shared a lot of things in common including attending the same mosque and events.
Mr SN is approximately seven years older than the Applicant. He remembered the Applicant’s birth and attending his birth ceremony. He would attend the Applicant’s home when he was growing up and they have remained close friends. They were close neighbours in Dehba Village in Jaghori.
Mr SN knew the Applicant’s father. He also knows the Applicant’s wife, who he said was the Applicant’s cousin. He attended their wedding. He declared that the Applicant and the whole of his family are Afghan nationals. He also declared that other Afghan citizens from the same area of Afghanistan are living in Adelaide and know the Applicant. He said that the person appearing before the Tribunal was the same person that he grew up with.
When Mr SN heard that the Applicant had fled Afghanistan, and subsequently arrived in Australia, he spoke to him while he was at the detention centre. When the Applicant was released and granted a protection visa, he went to the airport to receive him. He has continued to maintain a close friendship with the Applicant.
In cross-examination, Mr SN said that he suggested the Applicant apply for his wife and children to come to Australia, but was not aware he had provided fraudulent documents
Evidence of Mr SH
Mr SH provided a statutory declaration dated 22 November 2017[31] and gave evidence by telephone. He was a former Afghan citizen and was granted Australian citizenship in 2014. He has known the Applicant and his family since his childhood, and they are distant relatives. His aunt and the Applicant’s uncle were married. He lived in a village approximately two hours from the Applicant’s village and he would go to the Applicant’s home with his aunt on many occasions. He would see and play with the Applicant.
[31] Exhibit Q.
Statement of SKH
The Applicant’s son, SKH, provided to the Tribunal a statement signed and dated 15 August 2019.[32]
[32] Exhibit E.
SKH said that he was born on 31 December 1998 in Shashpur, Jaghori, Afghanistan and is a citizen of Afghanistan. He is a Sayed Hazara and Shia Muslim. He fled Afghanistan to Pakistan with his family in 2009 because of persecution of Hazaras and Shias in Afghanistan. He confirmed that he was an undocumented refugee along with his parents. He said his father, the Applicant, lives in Australia as a permanent resident and that his oldest brother is missing.
SKH detailed his interaction with the Pakistan Army through wushu. He said it was a common and accepted practice for Afghans to train with and compete in different Pakistan sporting teams. They were chosen to join such teams because of their skills and were not required to prove they were Pakistan citizens to enable them to compete.
He detailed various teams for whom he competed in wushu and that he was asked to train with and compete for the Pakistan Army Wushu Team. They lent him sports team jumpers and matching pants every time they competed so they looked professional and could be identified as a team. He appeared for the Pakistan Army Wushu Team in the 2011, 2012 and 2013 National Championships. Pakistan Army members would attend to watch the competition and presented awards.
SKH stopped competing and training in 2016 when he was shot during a home invasion. He has since resumed training at Wushu Gymnastic Academy but no longer competes in national Pakistan wushu competitions or with the Pakistan Army Wushu Team.
SKH referred to various photographs of himself which were received into evidence. He explained, in similar terms to the Applicant, what is depicted in those photographs, namely:
(a)The photograph of SKH in a Pakistan Army Wushu Team uniform,[33] shows him receiving a cash prize after winning a medal at the 2013 National Championship. SKH does not know the Pakistan Army officer in the photograph personally.
(b)Posed photographs of SKH with a large number of medals[34] were taken by a professional photographer after the National Championships. SKH explained that he borrowed a tracksuit top with the Pakistan flag on it from a friend to wear in the photograph.
(c)The photograph of SKH receiving an award from a Pakistan Army officer[35] was taken between 2010 and 2011. The officer had attended the championship to view his performance and skills.
(d)The photographs of SKH with Pakistan Army officials, including receiving a cash prize,[36] was one of the last competitions he competed in. SKH does not know the army officers in those photographs.
[33] Exhibit B, T43/520.
[34] Ibid T43/521-522, T63/608 and T63/613.
[35] Ibid T43/524.
[36] Ibid T43/525.
In relation to the photographs depicting SKH in Pakistan Army uniform with the nameplate “K” ,[37] he said he had never been part of the Pakistan Army. He trained with and competed for the Pakistan Army Wushu Team. The uniform was borrowed from another person named “K”, which is a common name in Pakistan. He put the uniform on for fun. The photograph of him wearing an army beret[38] which was borrowed from a friend was, again, just for fun. He said that he Googled an image of the Pakistan Army logo which he added to the photograph to make him look good.
[37] Ibid T63/610 and 615.
[38] Ibid T63/612 and 617.

SKH said that he never meant to cause trouble for his father’s citizenship application.
Other Evidence
The Applicant also provided the Tribunal with a letter from the Jafaria Islamic Society dated 29 May 2019,[39] which is a registered charitable organisation that looks after Shia Muslim refugees and migrants from Afghanistan, Pakistan and India. The Society, with the help of community members, helps new arrivals in Adelaide by providing jobs, accommodation and assisting in English language support. It also organises Islamic events for community members. The author of the letter said that the Applicant has been known to the organisation for the last three years, is an active member of the organisation and participates in volunteer work with different refugee programs and Islamic events.
[39] Exhibit F.
The Tribunal also received a character reference from Ms AN dated 3 June 2019[40] who met the Applicant through STTARS [Survivors of Torture and Trauma Assistance and Rehabilitation Service] and the Circle of Friends in Adelaide. She has assisted the Applicant to improve his English. Ms AN sees the Applicant weekly. She describes him as an honest, straightforward, kind and considerate man who suffers greatly from his long separation from his family about whom he constantly worries. She supports the Applicant’s application for citizenship and believes he would be an excellent Australian citizen.
[40] Exhibit G.
The Tribunal also received a psychological report from STTARS dated 17 June 2019.[41] The author of the report, Dr Ana Holas (PhD), has been working with the Applicant since January 2019. He had seen other practitioners at STTARS since 2013. She described the Applicant as having psychological symptoms indicative of severe depression and post-traumatic stress disorder (“PTSD”) with psychological distress and suicidal ideation.
[41] Exhibit H.
Dr Holas described the Applicant’s psychological recovery as challenging with minimal variation in relation to his psychological presentation. She described the Applicant’s prolonged separation from his wife and children as an important factor which profoundly affected him. She described his sense of helplessness and worry in his focus on his family and their lack of safety. The Applicant reports an inability to sleep and often presents to counselling appointments experiencing intense headaches due to night terrors and nightmares. She opines that his psychological presentation is consistent with his claimed history of traumatic experiences. She supports the Applicant in his application for citizenship and believes that achieving Australian citizenship will increase the sense of safety and give him hope for re-building his life and being reunited with his family.
THE APPLICANT’S SUBMISSIONS
The Applicant submitted that his family composition was clearly established, having regard to the documents provided and the consistency of the evidence of the Applicant with regards to his family history.
It was submitted that the claims and explanations of the Applicant mirror the experiences of other undocumented Afghans living in Pakistan. By way of example, the Applicant referred to Hazara people living in “Hazara Town” in Quetta, because it is safe, and they try not to leave the area unless necessary. They survive without documents. This generally accords with the evidence of the Applicant about his family’s lifestyle in Quetta.
The Applicant referred to the two different sets of taskeras received by the Tribunal. As for the second set of taskeras, it was submitted they were valid. The Ministry of Foreign Affairs in Afghanistan, it was submitted, provided the translation and attests to the authenticity and genuineness of the taskeras. However, insofar as there were different photographs on the translated taskeras, the Applicant could provide no explanation other than perhaps his family did not have enough copies of the same passport size photographs. Nonetheless, it was submitted that the Ministry of Foreign Affairs in Afghanistan had attested to the taskera translations which is proof of their authenticity, despite different photographs.
The Applicant submitted that he had provided as many identity documents to the Respondent as possible. This included three generations of taskeras, being that of his father, himself and his children, the details of which are consistent and all of which had been attested to by the Ministry of Foreign Affairs in Afghanistan.
The Applicant provided country information to the Tribunal[42] in closing submissions which confirmed that undocumented Afghans in Pakistan were able to apply for proof of registration cards between 2006 and 2007. The Applicant submitted that he arrived in Pakistan in 2009 and was therefore prevented form registering with the Pakistan authorities. Nonetheless, it was submitted that the Applicant provided as many identity documents that were available to him as an undocumented refugee living in Pakistan.
[42] Human Rights Watch, Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees.
The Applicant referred to the passport and new Afghan marriage certificate which contain the same photograph proving the Applicant’s identity. The Applicant also referred to the Applicant’s Pakistan visitor visa which is further confirmation that he is an Afghan citizen and not a Pakistan citizen.
It was submitted that detailed explanation has been given with respect to SKH’s involvement in wushu and the Pakistan Army Wushu Team. The fact that SKH was involved with the Pakistan Army Wushu Team did not negate the significant evidence before the Tribunal with respect to the Applicant’s identity and Afghan citizenship. It was submitted that the Applicant should not be held accountable for the actions of his teenage son, and the photographs taken of SKH in Pakistan Army uniform. It was submitted that the Facebook photographs cannot outweigh the significant credible documentary evidence and oral evidence with respect to the Applicant’s identity. It was also submitted that two Afghan witnesses, Mr SN and Mr SH, have attested to personally knowing that the Applicant is from Afghanistan.
At paragraph [20]-[21] of the Applicant’s Statement of Facts, Issues and Contentions (“SoFIC”) it is submitted that:
20.In accordance with the Procedures Advice Manual (Policy) which refers to the concept of identity as described in the National Identity Proofing Guidelines:
‘identity is not a fixed concept and is highly dependent on context. It is some combination of characteristics or attributes that allows a person to be uniquely distinguished from others within specific context.’
21.The Policy states identity is not solely established by identity documents. It is also established by the Applicant’s biometrics and life story.
It was submitted that the Applicant has always been truthful with respect his identity and tried to produce valid documents to the Respondent. It was submitted that the Applicant and his family were themselves the victims of documentary fraud in Pakistan by the production of fraudulent taskeras which he and his family immediately sought to remedy. This is evidence of his good character.
It was submitted that there was sufficient evidence that demonstrated the Applicant’s good character; that he provides for his family, volunteers and supports his community and has never committed a crime despite his ongoing personal struggles. The matters raised by the Respondent that questioned the Applicant’s good character, it was submitted, were minor in nature and were outweighed by the evidence of the Applicant.
RESPONDENT’S SUBMISSIONS
The Respondent submitted there were two issues for the Tribunal to consider, namely:
(a)whether the Applicant is of good character; and
(b)the identity of the Applicant.
These two issues, it was submitted, are intrinsically linked.
It was submitted that the Tribunal should look holistically at the Applicant’s behaviour over a long lasting and enduring period. The Policy defines characteristics of good character as:
(c)abide and respect the laws of Australia and other countries;
(d)be honest and financially responsible; and
(e)be truthful and not deceive the Australian government or other governments by providing false information.
The standard is high, and the citizenship process is a cornerstone of Australia’s inclusive democracy.
The Respondent referred to Fenn and Minister for Immigration and Multicultural Affairs,[43] at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.
[43] [2000] AATA 931.
In considering the identity of the Applicant, the Respondent adopted the legal principles set out in the Applicant’s SoFIC. The Respondent relies on three elements in determining identity, namely:
(a)biometrics;
(b)identity documentation; and
(c)details as to an individual’s life story.
It was submitted that those three elements are to be relied on together and only in exceptional circumstances can one single element be relied upon. It was submitted that a high level of satisfaction was required by the Tribunal. If there is any doubt as to the Applicant’s identity, the Tribunal should not provide an outcome that would lead to a person being granted citizenship where identity is unclear. The Respondent referred to s 24(3) of the Act, which provides an absolute prohibition on grant of citizenship where identity has not been established to the satisfaction of the Minister.
The Respondent referred to the Applicant’s evidence, including the circumstances which led him to flee from Afghanistan to Pakistan. The Respondent was critical of the Applicant, who disclosed for the first time in evidence that he had an Afghan driver’s license and that when asked why he had not disclosed its existence or sought to obtain this document, his response was that he had not been asked for it.
The Applicant was also criticised with respect to multiple marriage certificates provided and containing differing information. Further, the Respondent noted that the Applicant, in detailing how we came to Australia with the assistance of people smugglers, had not previously disclosed the arranged flights from Pakistan and the provision of a false passport. Nor was it previously disclosed that these documents had been taken from him in Indonesia by people smugglers. The Respondent submitted that the Tribunal should have regard to the fact that this information had not previously been disclosed by the Applicant.
The Respondent was also critical of the two sets of taskeras produced by the Applicant. In relation to the first batch of taskeras, which were obtained with the Applicant’s father’s taskera, they were known to be fraudulent having been obtained from the Afghan embassy in Quetta.
In relation to the second set of taskeras, the Respondent was critical that different photographs had been used on the English translation of those documents and the absence of any satisfactory explanation by the Applicant.
The Respondent was also critical of the Applicant’s evidence in relation to the receipt of money transfers by his family in Pakistan. Particularly, that his son was not asked to show identification to collect that money.
The Respondent also raised numerous issues going to the Applicant’s credibility. The Respondent referred to inconsistencies about the Applicant’s reported age of his wife. In particular, the Respondent criticised the fact that the Applicant, in his arrival interview, stated that his wife was four years younger and subsequently in his RSA application interview, stated that she was born in the same year as the Applicant.
The Respondent repeated the submissions in relation to the two sets of taskeras provided by the Applicant, that the first set of taskeras were fraudulent and that the evidence surrounding the obtaining of the taskeras, was vague.
The Respondent was also critical of the circumstances in which the second set of taskeras were obtained. It was submitted that country information produced by the Applicant in closing submissions that it ‘normally it takes a few days to obtain a taskera’,[44] was inconsistent with the Applicant’s evidence that they were obtained on the same day.
[44] Landinfo, Report Afgahnistan: Tazkera, passports and other ID documents.
The Respondent also referred to the unsatisfactory nature of the evidence of SKH’s engagement in the sport of wushu and the Pakistan Army.
The Respondent referred to the obligation of the Applicant to exhaust all avenues to obtain identity documentation, which in this case included the failure of the Applicant to obtain his Afghan driver’s licence.
The Respondent referred the to case of Dhayakpa and Minister for Immigration and Border Protection,[45] which accepted the propositions laid out in Confidential the Minister for Immigration and Citizenship[46] and the principle 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.
[45] [2015] AATA 310.
[46] [2013] AATA 144.
It was submitted that the Applicant had changed his story from time to time to suit the migration outcome that he sought to advance. It was submitted that on his arrival in Australia, he denied holding identity documents but later admitted to having used fraudulent passports and holding an Afghan driver’s licence. Again, the Respondent referred to issues with the Applicant’s marriage certificate and his son’s posing as a member of the Pakistan Army. It was submitted that the Tribunal cannot be satisfied of the identity of the Applicant.
The Respondent referred to Taradel and Minister for Immigration, Multicultural and Indigenous Affairs,[47] at [23]:
I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.
[47] [2005] AATA 1255.
The Respondent submitted that the Tribunal should not accept the Applicant’s evidence and should affirm the decision under review.
CONSIDERATION
The Tribunal is required to be satisfied of the Applicant’s identity and good character within the meaning and for the purposes of ss 24(3) and 21(3)(f) of the Act respectively.
The Applicant was a credible and reliable witness. He has limited education, leaving school in year two because of the civil war in Afghanistan. He is illiterate and comes from an unsophisticated background. He gave his evidence frankly and honestly. It was not disputed that he suffered a permanent injury to his right arm following an attack by the Taliban and that he suffers PTSD, anxiety and depression. The Tribunal accepts that these conditions impact upon the Applicant’s daily life.
The Tribunal has also received evidence from two witnesses who know the Applicant and his family from their time in Afghanistan. They were credible and reliable witnesses whose evidence was relevant to both identity and good character. The Tribunal accepts this evidence.
Identity
The Tribunal accepts the Applicant’s evidence with respect to his family history and identity. It follows, that it is accepted that in about 2009 the Applicant was apprehended by the Taliban, that he escaped their custody, returned to his village at night and fled with his family to Pakistan. The Tribunal accepts that when fleeing Afghanistan, the Applicant did not take personal papers, including identity papers relating to himself or his family.
The Applicant and his family resided in Quetta, Pakistan as undocumented refugees until he left Pakistan to travel to Australia. His family continue to reside in Quetta as undocumented refugees.
The Respondent argued that the photographic evidence of the Applicant’s son, SKH, wearing Pakistan Army uniform and sports attire establishes that SKH is, or was at the time of the photographs, a member the Pakistan Army and by inference that the Applicant and his family are Pakistan citizens and not Afghan citizens.
However, the Applicant explained SKH’s skill and achievements in the sport of wushu and that, through his wushu club and because of his excellence in the sport, he was invited to compete in the sport for the Pakistan Army. According to SKH’s statement, the photographs date as early as 2010 or 2011 when SKH was aged 12 or 13 years receiving an award from a member of the Pakistan Army. The explanation that at a young age his performance and skills were being assessed by the army officer is credible and gives explanation as to why in subsequent years he competed for the Pakistan Army.
Later photographs referred to by the Respondent depict SKH as a teenager. Insofar as the four photographs which depict SKH as a teenager in army attire, the Tribunal accepts the evidence of the Applicant, as supported by the statement of SKH, that he dressed up in uniform for fun and at a time when he was competing in wushu for the Pakistan Army. The Tribunal accepts that SKH was not a member of the Pakistan Army and that the Applicant and his family are Afghan citizens.
The Tribunal notes that there have been inconsistencies in various dates in documents to which the Tribunal has been referred, particularly in relation to dates of birth. For example, the arrival interview document records his wife’s age as four years younger than the Applicant and his RSA application records her as the same year of birth. The Tribunal accepts that in Afghanistan, dates, particularly dates of birth, are not regarded as important and are often not officially recorded. However, the Applicant maintained that he always said that he and his wife were the same age and could provide no explanation for the error in the arrival interview. He could not read or write. He was unable to check the accuracy of the document written in English. Importantly, the details of family members are generally correct and consistent. To the extent that the Tribunal has been referred to such inconsistency they are not significant and do not raise doubt about the Applicant’s identity when view against the balance of the Applicant’s evidence.
In respect of the first batch of taskeras, the Applicant did not dispute that the original taskeras produced to the Respondent are fraudulent, but the Tribunal accepts that he did not know they were fraudulent and submitted them to the Department with the belief that they were genuine. Upon being notified that the taskeras were fraudulent, the Applicant arranged for his family to be smuggled back into Afghanistan to obtain valid taskeras.
In respect of the second batch of taskeras, the Tribunal accepts that the Ministry of Foreign Affairs in Afghanistan has attested to the validity of the original taskeras and the English translations. Insofar as different photographs appear on the original and translated taskeras, the Tribunal accepts the Applicant’s submission that the document system in Afghanistan is not to the same standard to that of Australia, and that it is possible that the Applicant’s family did not have enough passport sized photographs when obtaining the taskera translations. The difference in photographs does not enliven any suspicion about whether they are genuine taskeras accurately translated.
The Respondent’s submission about the time taken to obtain the second batch of taskeras did not accord with country information might have more force if it were not for the fact that they have been verified as authentic taskeras. The authenticity is the important factor and outweighs any concern about the speed with which they were obtained.

The Tribunal notes that Respondent’s submission that it should have regard to the fact that Applicant disclosed, for the first time in evidence, that he had been provided with identity documents in Indonesia and that he held an Afghan driver’s licence. However, the Tribunal notes that these documents were not in the Applicant’s possession at the time of making an application for Australian citizenship. The Tribunal accepts that the Applicant did not have identity documents in his possession at the time of the arrival interview which was the question being asked of him. The fact that he did not tell the interviewer that people smugglers created and gave him fraudulent identity documents does not suggest he was being dishonest with the Respondent in detailing his identity and family history. It is not suggested by the Respondent that he was asked about the way he travelled to Australia and what documents he produced to facilitate that journey; or that he gave a dishonest response in his arrival interview. Given the circumstances in which he travelled to Australia I am satisfied that he did not conduct himself in a manner to deceive or mislead the interviewer.
The Respondent submitted that the Applicant produced little documentation to substantiate his identity. The Tribunal prefers the Applicant’s submission that he provided the Department with as many identity documents available to him, having been an undocumented Afghan refugee living in Pakistan. This documentation included taskeras of the Applicant’s father, wife and children, which contribute to establishing the Applicant’s family composition and life story. Further, the Tribunal accepts that he was not asked about a driver’s licence before the hearing and that he looked but could not locate the licence.
The Respondent was also critical of the evidence of the Applicant as it related to sending money to his family in Pakistan, in particular, that his son would collect the money from the exchange without the benefit of identification documents. However, the Applicant gave an explanation of the process as he understood it to be, from his perspective living in Australia. That explanation did not enliven a concern about the reliability and credibility of the Applicant’s evidence either as to his identity or good character to which I will refer in a moment.
Taking into account the Applicant’s evidence as to his life story, personal circumstances, and movements as a refugee, together with the details of the fact of his marriage and births and names of his children, and his evidence generally as it related to his family story; and weighing that against the inconsistent dates and the Applicant’s explanation for those inconsistencies, and those other criticisms raised by the Respondent, the Tribunal is satisfied of, and accepts, the Applicant identity.
Good Character
The Applicant gave evidence that he provides financially for his family in Pakistan, volunteers with his local community and has never committed a crime. This is despite his own ongoing personal struggles, including mental health issues.
Further, the Tribunal accepts the medical evidence that confirms the Applicant suffers from PTSD, anxiety and depression. This evidence tends to corroborate the Applicant’s evidence about being seized by and then escaping the Taliban, that he suffered injury at the hands of the Taliban and his difficult journey first in escaping Afghanistan and then travelling to Australia. The anxiety and depression which is contributed to by his separation from and fear for his family is relevant when assessing his evidence.
As noted above, the Applicant was found to be a credible and reliable witness. He has been truthful and consistent in relaying his life story and has endeavoured to produce valid documents to the Department in support of his identity.
The Tribunal acknowledges that the Applicant unknowingly provided fraudulent taskeras to the Department. However, he was dependent upon others, namely his family in Pakistan, to obtain those documents. He comes from an unsophisticated background. He is illiterate. He has, as did his family, relied on the honesty and reliability of others who they believed were authorised to provide valid taskeras.
It is true that it is the responsibility of the Applicant to ensure documents provided to the Respondent are genuine. However, the circumstances in which the false taskeras were obtained, and provided to the Respondent in the honest belief that they were genuine, do not give rise to an adverse finding as to the Applicant’s good character. Further, his immediate steps to remedy that by arranging for his family to travel to Afghanistan and obtain genuine taskeras is to his credit. The criticism that this was achieved in a short period of time which was contrary to Country Information is without merit in circumstances where the second batch of taskeras are genuine.
On balance, the Tribunal finds that the Applicant was a person of good character, who has respected and abided by Australian law and has been truthful in his dealings with the Australian government.
CONCLUSION
The Tribunal is satisfied as to the Applicant’s identity as referred to in his application and that he is of good character for the purposes of the eligibility criteria to become an Australian citizen.
DECISION
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Australian Citizenship Act 2007 and that the Applicant is of good character pursuant to s 21(3)(f) of the Australian Citizenship Act 2007.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for the decision herein of

.....................[Sgnd]......................................
Associate
Dated: 19 June 2020

Dates of hearing:
15 November 2019; and

15 January 2020

Advocate for the Applicant: Alyce Boemia, Beena Rezaee Legal & Migration

Advocate for the Respondent: William Evans, Australian Government Solicitor

[2020] AATA 1969

19 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies