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

[2022] AATA 175

KXDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 175 (3 February 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2019/0356
GENERAL DIVISION	)

Re: KXDZ
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member Dr N A Manetta

DATE OF CORRIGENDUM:            15 February 2022

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. In paragraph [12] line 6, “brother-in-law” is deleted and “sister-in-law” is substituted in its place.

.........................[Sgnd]...........................

Dr N A MANETTA
  (Senior Member)

Division:GENERAL DIVISION

File Number(s):      2019/0356

Re:KXDZ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:3 February 2022

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the Tribunal is satisfied of the applicant’s identity for the purposes of section 24(3) of the Australian Citizenship Act, 2007.

..................[Sgnd]......................

Senior Member Dr N A Manetta

CITIZENSHIP – whether Tribunal satisfied of applicant’s identity – applicant had been party to false applications for entry to Australia in the past – applicant maintained spurious explanation before Tribunal – relevance of Policy documents to Tribunal’s review – meaning of “satisfy” – Tribunal satisfied of applicant’s identity on facts

Legislation

Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)

Cases
Plaintiff M64/2015 v. The Minister for Immigration and Border Protection [2015] HCA 50;  258 CLR 173
Minister for Immigration and Border Protection v. Makasa [2021] HCA 1; 386 ALR 200
Briginshaw v. Briginshaw (1938) 60 CLR 336
Boy19 v. Minister for Immigration and Border Protection [2019] FCA 574
Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431
Kumar and Minister for Immigration and Border Protection [2014] AATA 944

Secondary Materials
Australian Citizenship Policy Statement

Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member Dr N A Manetta

3 February 2022

1. This is an application by KXDZ, to whom I shall refer as “Mr A”, seeking a review of the respondent’s decision dated 14 January 2019 to refuse his application for citizenship. The application was refused on the basis that the Minister’s delegate was not satisfied of Mr A’s identity. Section 24(3) of the Australian Citizenship Act, 2007 (“the Act”) provides that the Minister must not approve an applicant becoming an Australian citizen unless the Minister is satisfied of his or her identity.

   TRIBUNAL’S TASK

2. The only aspect of Mr A’s citizenship application before me was that concerning his identity. Hearing the matter afresh on the evidence before me, I must determine whether I am satisfied of Mr A’s identity for the purposes of s 24(3) of the Act. In these matters, the Tribunal conducts what is known as a de novo merits hearing. This means that I hear the matter afresh and determine for myself what is the correct or preferable decision on the evidence adduced before me.  This type of hearing also implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasoning if that is the correct or preferable decision to reach on the evidence before me; equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasoning if that is the correct or preferable decision.  At the hearing, Ms Margush appeared for the applicant; Mr Retallic, for the respondent.

   STATEMENT OF CONCLUSION

3. I have decided to set aside the decision under review and to substitute a decision that the Tribunal is satisfied of Mr A’s identity.  I now set out the facts, including my critical findings of fact, and my reasons for this conclusion.

   FACTS

4. Mr A arrived on Christmas Island by sea aboard a vessel codenamed “Oldham”.  He landed on 30 October 2011 and was “an unauthorised maritime arrival”.  He made a claim for protection as refugee. He was interviewed at the Curtin Immigration Detention Centre on Thursday, 2 February 2012.   Mr A made factual assertions in the course of his interview, and a written statement was also apparently provided to the authorities. Mr A claimed he was born in the Daikundi Province of Afghanistan in 1975.  The interviewer’s report records that Mr A was born in “Wagir, Tamazan, Gizab, Daikundi Province” (Ex R2 at p 347) and later refers to Mr A’s “home village” as “Tamazan” (Ex R2 at p 348).

5. Mr A asserted to the interviewer – and I note that the interview was conducted with the assistance of an interpreter in Mr A’s first language of Hazaragi – as follows (Ex R2, at p 348):-

   “The claimant asserts that he fled his home village in Afghanistan because the Taliban are very strong there and the government have no power to protect him because he is Hazara. The village is predominantly Pashtun and many of them are Taliban and those who are not are supporting them anyway. He was beaten on two occasions when he was young and has suffered abuse from them all of his life until 2008, when he finally fled to Iran. He was deported back to Afghanistan in 2010 and continued working on his family farm.

   In July 2011 a Pashtun man was killed in his village and the victim’s brother Nasrullah, who is a Talib, accused the claimant of killing him.  Nasrullah blamed the claimant for the killing because the claimant had argued with the Pashtun man three days earlier, when he wanted to borrow his motorbike and the claimant refused.

   Nasrullah came to the claimant’s home and threatened to kill him. This caused the claimant to flee to Nili, the capitol (sic) of Daikundi province, where he organised accommodation for his family and then fled to Kabul.

   In Kabul, his friend Nabi who travelled regularly between Nili and Kabul, brought a message from Nasrullah that he will find you and kill you wherever you are in Afghanistan.

   The claimant fears returning to Daikundi, Afghanistan because Nasrullah, who is a Taliban fighter, blames him and wants to kill him in revenge for his brother’s death.

   The claimant also fears returning to Afghanistan on the basis of his race/ethnicity as a Hazara and his religion as a Shia. He asserts there is no security in his home village of Tamazan because there is no government control and the Taliban are dominant in the province.”

6. The record shows that the claimant gave his given and family names as “KXDZ”.   The interviewer records that Mr A made the journey from Afghanistan with the assistance of people smugglers and on a false travel document.  Mr A also arrived with an Afghan identity document called a “Taskera”. 

7. The interviewer arrived at certain conclusions of fact, some of which I now set out. First, the interviewer found that Mr A had the “archetypal appearance of a Hazara person” and that “he [spoke] Hazaragi, which is consistent with his claims”: Ex R2 at p 349.  Secondly, the interviewer referred to questions having been asked of Mr A about his village and district.  These were asked in conjunction with the use of maps. The interviewer noted that Mr A “articulated the information about his village with consistency and spontaneously described the landscape, the agriculture and the surrounding roads and road security” (Ex R2 at p 350).  The interviewer concluded that she was “satisfied that the claimant is a Shia Hazara who originates from Tamazan village, Gizab district in Daikundi province” (Ex R2 at p 350).

8. The interviewer went on to find that it was unreasonable to expect Mr A to relocate within Afghanistan.  The interviewer had also noted that Mr A had a wife and six children living in Nili, the capital of Daikundi province.  In the event, Mr A was granted a protection visa under the Migration Act 1958 on the basis that he was a citizen of Afghanistan, of Hazara ethnicity and of the Shia Muslim faith, who legitimately feared persecution on account of his ethnicity and religion. Mr A was granted the visa under the name of “KXDZ”. 

9. By an application dated 6 June 2016, Mr A applied for citizenship under the Act: see Ex R1 at pp48ff.  He appended a photograph to his application. The Department compared the photograph with another photograph it had on file. This latter photograph, which Mr A now accepts is a photograph of himself, was submitted as the photograph of a man called “NAH”.  Mr NAH was sponsored on two occasions for entry into Australia by Mr SAH, his uncle, who gave evidence before me.  In submitting the form in this way, Mr SAH effectively represented that the appended photograph was that of Mr NAH, his nephew. 

10. I am satisfied that the wrong photograph was deliberately appended: this was done to secure Mr A’s entry into Australia under an assumed name. The application in question was made in 2005 and was for a Global Special Humanitarian Visa. In 2006 an application for an Orphan Relative Visa was also made. I am also satisfied that Mr A was aware of the falsity of the applications for these visas, and I also accept that he would have been prepared to present himself as Mr NAH, that is, as Mr SAH’s nephew. Indeed, he may have done so: see the respondent’s closing submissions at [43]. The two applications were rejected in the event.

11. It is fair to say that the delegate who considered Mr A’s citizenship application placed considerable weight upon the fact that Mr A had apparently been a party to the two unsuccessful visa applications lodged in the name of Mr NAH in 2005 and 2006.  The delegate believed that Mr A had not been truthful with the Department.  The delegate’s “finding” was in the following terms (Ex R1 at p 14):

    “On the basis of the reasons mentioned above, I am faced with a situation where I cannot be certain of your identity to the standard expected for the conferral of Australian citizenship. I find that your identity cannot be satisfactorily ascertained and as such I am prohibited from approving your application under subsection 24(3) of the Act.”

12. As I have indicated, I have no doubt that Mr SAH and Mr A sought to obtain Mr A’s admission to Australia as “Mr NAH”, Mr SAH’s nephew. There was no satisfactory explanation to me by Mr SAH or Mr A as to how Mr A’s photograph found its way to the 2005 visa application form. It is quite clear, in my opinion, that the most likely explanation by far is that Mr A authorised its use in this way.  I note in this regard that Mr A’s mother’s sister is Mr SAH’s brother-in-law.  There is, therefore, a family connection that would explain Mr SAH’s interest in assisting Mr A’s entry into Australia.  Any honest scenario seems to me implausible.  In particular, I reject the suggestion there might have been a mix-up of photographs in a shop in Afghanistan or that Mr SAH mistakenly thought the photograph he appended to the form was that of his nephew because of Mr A’s strikingly similar appearance.  Both suggestions are implausible. 

13. I also note that neither Mr A nor Mr SAH, who, as I say gave evidence on behalf of Mr A, candidly admitted to me as, in my opinion they ought to have, that the applications made by Mr SAH in 2005 and 2006 were fraudulent and were made with Mr A’s knowledge. 

14. All in all, therefore, I accept that the proper inference from the evidence before me is that Mr A has in the past obtained a false travel document (as admitted to the interviewer) and was a party to the making in 2005 and 2006 of fraudulent visa applications to the Australian Government. 

15. I had before me in evidence photocopies of extracts from Mr A’s children’s passports and from Mr A’s wife’s passport, all apparently issued by the Afghan authorities: see Ex A1.  The photocopies bear Mr A’s family name as asserted by him in his application form.  This evidence supports Mr A’s claimed identity as one “KXDZ” and corroborates his assertion that he is married and the father of six children.  I accept that Mr A admitted that he travelled on a false travel document when he undertook his journey to Australia in 2011; but there is no evidence before me that directly suggests the passports issued to his wife and children, which on their face bear 2017 and their year of issue, are fraudulent.  I do not exclude the possibility of fraud in the obtaining of the passports, but the evidence before me has not led me to conclude that it is likely in this case.  In reaching this conclusion, I have borne in mind my conclusion in [14] above; namely, that Mr A has shown himself to be willing to engage in dishonesty.

16. Mr A produced to the Tribunal photocopies of his Taskera as well as a copy of an identity card ostensibly issued by the Afghan Interior Ministry in 2006.  He has also provided photocopies of his family’s Taskeras.  So far as the Taskeras are concerned, they have been checked and found to be “non-genuine” by the Afghan authorities.  “Non-genuine” means that the Taskeras have not been formally recorded in an official Taskera depository or registry: it does not mean that the documents are necessarily fraudulent.  

17. I have decided to exclude all the Taskeras from my deliberations.  They have not been shown to be fraudulent, and so I do not draw an adverse inference against Mr A on that account; but equally, they have not been shown to be genuine, and so I have not relied on them in forming my conclusion as to identity.  The identity card provides some corroboration, but I have decided to leave it out of account in the same way that I have left the Taskeras out of account.  A marriage certificate has also been provided, but again I have left this out of account.

18. I accept the respondent’s submission that document fraud is a particular problem in Afghanistan.  It is referred to, for example, at [5.54] of the DFAT Country Information Report on Afghanistan dated 27 June 2019[1].  Equally, however, I believe it is appropriate to bear in mind that Afghanistan does not have, and did not have at the relevant times, a functioning and reliable bureaucracy that can be meaningfully equated to the responsible public service agencies that operate in Australia.  It is a country that has seen, self-evidently, a great deal of turmoil.  That there is no record of the Taskeras having been registered does not bear the same significance, or necessarily support the same adverse inferences, as might arise when there is, for example, no record of a document having been registered in Australia by a responsible authority.  All in all, I have concluded that I should not rely on any of the Taskeras because I cannot be sure they are genuine, but I have not found them to be fraudulent either.  In my opinion, they are a neutral factor that neither supports nor harms Mr A’s application before the Tribunal.

    [1] Ex R6.

19. I also accept that Mr A has consistently maintained the same name while in Australia and has had both a Medicare card and a driver’s licence issued to him in Australia under that name.  This aspect of the matters carries far less weight, however, as it is to be expected that Mr A would maintain a consistent use of his name after his arrival in Australia.

    REASONS FOR CONCLUSION

20. In deciding whether I am satisfied of Mr A’s identity in this case, there are two legal issues that have assumed some importance in my mind.  I address these two issues before expressing the reasons for my conclusion as to Mr A’s identity.

21. First, there is the question of the relevance to the Tribunal’s functions in a merits review of the Government’s citizenship policy documents. Secondly, there is the question of what being “satisfied” of a person’s identity under s 24(3) means.

    Relevance of Government policy documents

22. So far as the first question is concerned, the respondent pressed me with a submission that I ought to apply the Australian Citizenship Policy Statement and the associated Revised Citizenship Procedural Instructions.  The applicant disagreed with this submission. The applicant referred me to certain remarks made by the Tribunal in the matter of Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7] where the Tribunal held that the Minister’s Instructions were not a useful aid to the interpretation of the Act and at best represented the Minister’s opinion as to the correct interpretation of the legislation. The Tribunal said that its task was, rather, to focus on the words of the Act in their context.

23. In reply to the applicant’s submission, the respondent referred me to the following passage of the plurality of the High Court in Plaintiff M64/2015 v The Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [54]:

    “Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike (21).[2] In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’(22)[3], such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (23)[4], Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’(24)[5]. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of ‘compelling reasons for giving special consideration’ is readily apparent.”

    [2] Footnote case references not reproduced.

    [3] Footnote case references not reproduced.

    [4] (1979) 2 ALD 634 at 642.

    [5] Ibid, at 640.

24. I think the respondent’s reliance on this passage overlooks an important point. There is no doubt that a Minister is entitled to issue policy guidelines to guide the exercise of discretionary powers which are vested in him or her. There is also no doubt that adherence to guidelines advances the important values of consistency and rationality, as the plurality in the High Court observed.  It is clear that this Tribunal, when exercising afresh a discretionary decision-making power, ought to follow lawful guidelines issued by a responsible Minister.  That has been acknowledged to be the case for some decades, and the decisions in Drake (both in the Federal Court[6] and in the AAT[7]) are frequently cited in this regard. 

    [6] (1979) 2 ALD 60.

    [7] (1979) 2 ALD 634.

25. But it is important, in my opinion, to recognise that the plurality’s remarks in Plaintiff M64/2015 are directed to the situation of a discretionary decision, that is, a decision where the decision-maker exercises a largely unconfined choice in the public interest.  I note the plurality referred to the power under consideration in that case as one involving “an open-textured criterion”. 

26. Where a decision-maker is required to apply a statutory standard calling not for a discretionary choice but for the application of a specific test or criterion, then “policy guidelines” do not have a role to play so far as the task of this Tribunal is concerned.  All in all, I respectfully agree with the Tribunal’s observations in Kumar in this regard.  I note that I discussed this distinction in Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431, where I had to consider whether the Citizenship Policy could inform or control this Tribunal’s decision as to whether a person met the statutory criterion of “good character” in s 21(2)(h) of the Act. I discussed the issue at some length, and it is convenient simply to repeat what I put there:-

    “[25] Mr Evans submitted that I ought to apply the Citizenship Policy when deciding whether Mr Zahidy is of good character. In this regard, I think it appropriate to refer to one potential legal difficulty.

    Application of Citizenship Policy

    [26] It has long been accepted that in the exercise of discretionary powers given by statute, the Minister may develop a policy to guide his or her decision-making (provided he or she considers each case on its merits). That principle has been held to be applicable in the case of, for example, the deportation power, a power which permits the responsible Minister to deport a person in his or her discretion. This Tribunal has often held that in the exercise of its own statutory powers of review, it ought to follow a ministerial policy governing the exercise of a statutory discretion provided the policy is lawful (and, once again, subject to due consideration of the merits of individual cases). This approach was judged appropriate forty years ago by the Federal Court in Drake v. Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60.

    [27] Mr Evans’ suggestion, however, that Drake’s case requires the Tribunal to apply Ministerial guidelines or a policy when the Tribunal applies a statutory standard (such as whether a person is of ‘good character’) is not without doubt in my opinion.

    [28] I did not hear full argument on the question, and I do not believe in those circumstances I should express a final view on the question.  I do believe it appropriate, however, to highlight the difficulty that occurs to me. 

    [29] In the absence of a statutory power permitting the Minister to formulate guidelines binding on this Tribunal as to the meaning and application of the ‘good character’ test, there is a real question in my mind as to whether the Tribunal is lawfully entitled to apply Ministerial guidelines when deciding that question. I say this because in deciding whether it is satisfied a person is of good character, the Tribunal applies a statutory standard contained in the Act itself and does not as such exercise choice as it does in the case of the exercise of a discretion.  Reasonable minds might differ, of course, over the application of the statutory standard to a given set of facts, but the application of the statutory standard of ‘good character’ does not call for the exercise of choice in the public interest.  The hallmark of a Ministerial discretionary power is the choice available to the Minister to choose to act in his or her discretion one way or another given his or her estimation of where the public interest lies. In deciding whether a person is of ‘good character’, the Minister exercises no free discretion in that matter nor does this Tribunal standing in the shoes of the Minister. If that is the correct view of the matter, it would follow that the Tribunal should not apply the Ministerial policy document in deciding whether a person is of ‘good character’ in conformity with Drake’s case unless the Tribunal is directed to do so by a statutory provision. 

    [30] That does not mean that the Minister is prevented in law from issuing guidelines to his own departmental employees to guide them in their work.  In this regard, I would refer to what was said by his Honour Justice Stephen in Green v Daniels (1976) 13 ALR 1. In that case, the Court was concerned with the statutory functions of the Commonwealth Director-General who had to be ‘satisfied’ that an applicant for an unemployment benefit was ‘unemployed’ before approving the payment of the benefit to him or her. A departmental manual effectively directed the refusal of the benefits to school leavers before the commencement of the new school year.Returning to examine the question he had earlier

    posed concerning the proper analysis of the manual, his Honour said as follows[8]:

    ‘In doing so, it should be remarked that the function of the Director-General under s.107 is to be distinguished from that of tribunals, such as licensing justices, which, in their exercise of discretionary powers to grant or refuse licences, may give effect to some general policy that they see as desirable so long as in doing so they do not preclude themselves from considering on its merits the exceptional case. The Director-General is not concerned, in his administration of s. 107, with the carrying out of any policy. No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer. He must, no doubt, for the benefit of his delegates and in the interests of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant's compliance with the criteria will be vitiated.’

    [31] I note the first portion of this passage draws the distinction to which I have earlier referred and inferentially supports the view that the Minister’s function of deciding whether he or she is satisfied the applicant is of ‘good character’ is not a discretionary one.  The second part of the passage supports the Minister’s right to issue guidelines to his or her own staff and delegates to guide them in their daily work.  But so far as this Tribunal is concerned, I query how guidelines can govern, as a matter of law, the independent non-policy decision the Tribunal must make on review as to whether it is satisfied a person is of ‘good character’ for the purposes of section 21.”

    [8] The quoted passage appears at (1976) 13 ALR 1, at 9.

1. In Zahidy, it was not necessary for me to reach a final conclusion on the question; but, having considered the matter afresh, I believe what I said in Zahidy is accurate. It seems to me that the Tribunal’s task in this case is to ask itself what the statutory criterion of “identity” in s 24(3) of the Act relevantly connotes, and then ask itself whether it is satisfied of the applicant’s identity on the evidence adduced before it.

2. In addressing what the word “identity” relevantly connotes and then asking myself whether I am satisfied of Mr A’s identity, I do not believe I should apply the Minister’s Policy Guidelines.  These may be lawful as directions to the Minister’s many delegates, which they must follow in exercising their delegated authority.  So much was made clear by the extract from Greenv Daniels which I have reproduced above.  

3. Vis-à-vis the Minister, this Tribunal does not, of course, exercise a delegated authority or perform its task as a functionary within a department that is bound to follow ministerial instructions.  Rather, it is required to conduct an independent de novo review of a decision taken within the Minister’s department.  The operational instructions that are given to departmental officials are not relevant to the exercise of this Tribunal’s review functions in a case like this.  As I have already said, this is not a case of discretionary decision-making, but is, rather, a case of the application of a specific statutory standard (i.e., whether I am satisfied of the applicant’s “identity”) having regard to the facts arising on the evidence before me.

4. I do not believe that the meaning of the word “identity” gives rise to any particular issue in this case.  For present purposes, it is sufficient to observe that a person’s identity arises at birth.  A person is born of a particular mother in a particular place and at a particular time with a particular gender.  As is frequently the case, he or she may have a particular ethnicity. The identity of the father may also be known, but equally, it might not be known.  It is also the case that a person will most often be given a first name, and the person will also be known by a family name (which may or may not be the name of one of the parents).

5. The applicant in this case asserts that his first and family names are “KXDZ”.  He asserts that he was born in 1975[9] in Tamarazan in Daikundi Province in Afghanistan.  He asserts he is of Hazara ethnicity and was born of a Hazara mother and father.  Some of these matters are referred to in his citizenship application form.  If I am satisfied as to these matters in Mr A’s favour, I believe I shall also be satisfied of Mr A’s “identity”.

   [9] Given the different calendar in Afghanistan, a recognisable day and month of birth are difficult to pinpoint. In this case, for example, Mr A’s day and month of birth are given as the 31^st of December, which is a date of convenience.

   Being “satisfied” of a person’s identity

6. The second of the two legal issues I wish to address is what it means to be “satisfied” of a person’s identity for the purposes of s 24(3). In relation to this question, I have found what was said by the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 386 ALR 200 of particular assistance. This case concerned s 501(2) of the Migration Act, 1958 which provided:

   "The Minister may cancel a visa that has been granted to a person if:
   
   (a) the Minister reasonably suspects that the person does not pass the character test; and
   
   (b) the person does not satisfy the Minister that the person passes the character test”. (emphasis supplied)

7. The High Court discussed the two statutory tests of “reasonably suspects” and “does not satisfy the Minister” in the following terms:-

   “[36] Reasonable suspicion is a state of mind – ‘a state of conjecture or surmise’ − that is based on ‘sufficient grounds reasonably to induce that state of mind’(15)[10]. The necessary precondition to the decision-maker forming a reasonable suspicion that the visa holder does not pass the character test is therefore the existence of facts sufficient to induce a reasonable person to surmise that one or more of the circumstances exhaustively enumerated in s 501(6) has occurred.

   [37] The decision-maker having formed a reasonable suspicion that the visa holder does not pass the character test, the first stage of the decision-making process is completed by the decision-maker making a binary decision either to be satisfied by the visa holder that he or she passes the character test or not to be so satisfied and in consequence to maintain the reasonable suspicion.

   [38] Satisfaction too is a state of mind − an ‘actual persuasion of [the] occurrence or existence’ (16)[11] of the thing in issue. Implicit in the statutory placing of the onus on the visa holder to satisfy the decision-maker that he or she passes the character test is a requirement of procedural fairness that the visa holder be given notice and an opportunity to make representations before the first stage of the decision-making process can be completed. Implicit in the statutory need for satisfaction or non-satisfaction is that the satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker (17).[12]”

   [10] The Court footnotes George v Rockett (1990) 170 CLR 104 at 113, 115.

   [11] The Court footnotes Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.

   [12] The Court footnotes Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [73]; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 447 [167].

8. Of particular relevance is the statement in [38] that “satisfaction” implies an “actual persuasion of [the] occurrence or existence of the thing in issue”.  The footnoted reference is to his Honour Dixon J’s widely cited discussion in Briginshaw v. Briginshaw (1938) 60 CLR 336. I bear in mind that the decision-maker, and this Tribunal standing in the shoes of the decision-maker, should not approach the question of “satisfaction” with curial models in mind[13]; but the Court in Makasa did refer to the Minister’s “satisfaction” under s 501 of the Migration Act 1958 as a state of mind involving “an actual persuasion of the occurrence or existence of the thing in issue” and, furthermore, held that a state of “satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker”. These observations are equally applicable to s 24(3) of the Citizenship Act, 2007 in my opinion.

   [13] See, for example, Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54] and [57].

9. I believe it is appropriate to adopt this approach, and so I have asked myself whether I have an actual persuasion of Mr A’s identity based on the totality of the facts known to me.  In asking this question, I bear in mind the importance of the question of identity in the context of the Act. I have in mind here what his Honour Dixon J said in Briginshaw about satisfaction not being “a state of mind attained or established independently of the nature and consequence of the fact or facts to be proved”[14].

   [14] (1938) 60 CLR 336 at 362.

10. Finally, I note that I accept the respondent’s submission that as a matter of law the Minister (or his or her delegate) is required to refuse an application for citizenship unless he or she is satisfied of the applicant’s identity. That follows from a plain construction of s 24(3). This subsection does not impose an obligation on the applicant to prove or demonstrate his or her identity, but it does make clear that the decision-maker must be satisfied of a person’s identity before citizenship can be granted: if not so satisfied, the decision-maker must refuse the application. It follows in the respondent’s submission – and I agree – that if I have a doubt about Mr A’s identity that leads me to not being satisfied of his identity, I must affirm the decision under review.

    Reasons for being satisfied of Mr A’s identity

11. In this case, I have decided that I am satisfied of Mr A’s identity having regard to the totality of facts before me.  My reasons for being so satisfied may be summarised as follows.  I accept the Christmas Island interviewer’s conclusion, and the reasons given for it, that Mr A is from Daikundi Province and that he demonstrated a spontaneous knowledge of that area when questioned by reference to maps.  I accept that Mr A is of Hazara ethnicity (and that he has the distinctive facial features that Hazaras often have).  I accept also as  a matter of fact that he is married with six children.  This was a feature of his initial interview, and it is a position that has been reiterated before me.  I have before me photocopies of extracts from passport documents that are consistent with this view.  To my mind, these documents do corroborate Mr A’s assertions.  I note again that I have left the Taskeras out of account for the reasons I have given. 

12. I do accept that Mr A lied before me, to put the matter plainly.   He was not honest to me about the circumstances surrounding the appending of his photograph to the 2005 visa application made in respect of Mr NAH.  He has sought to enter Australia dishonestly in the past. 

13. I do bear in mind, however, the notorious difficulties Hazaras have faced in Afghanistan.  Deception may be judged by an individual to be necessary in order to escape from repression where the future seems hopelessly bleak and impoverished.  That factor may not excuse Mr A’s behaviour, but in my opinion it does provide a relevant context in this case for its proper evaluation.

14. The persistence in the lie before me was, of course, of very real concern in my deliberations; but Mr A impressed me in his evidence as a simple and naïve person.  It does not surprise me that, having begun with a deception in 2005 and 2006 in conjunction with Mr SAH, he took the ill-advised decision before me to seek to explain away the appending of his photograph to the relevant application form as some sort of innocent mix-up.  The decision to present that implausible scenario to the Tribunal says something, of course, about Mr A’s lack of honesty, but it also says something about Mr A’s decided lack of sophistication.  I would also add that I accept the contention made in the respondent’s closing submission that in many respects Mr A’s other evidence to the Tribunal was either unsatisfactory or lacked cogency. I have carefully weighed that in my deliberations, but I return to Mr A’s marked lack of sophistication.  I have found after due consideration of all the facts known to me that Mr A’s unsatisfactory evidence to me has not led me to doubt his asserted identity as “KXDZ” to a point where I would say that I no longer have an actual persuasion of his identity having regard to the totality of the facts known to me.  I should also note for the sake of completeness that I do not have any suspicion that Mr A is, in fact, Mr NAH: I think that possibility is remote. 

15. Accordingly, despite his participation in an attempt to enter Australia under a false name and despite his lies and generally unsatisfactory evidence to the Tribunal, I am satisfied on the basis of all the facts known to me that Mr A is who he says he is, namely a person of Hazara ethnicity born in Tamarazan in the Daikundi Province of Afghanistan in 1975 with the name “KXDZ”. 

    FORMAL DECISION

16. The question of identity was the only question before me. Accordingly, my formal decision will be to set aside the decision under review and to substitute a decision that the Tribunal is satisfied of the applicant’s identity for the purposes of s 24(3) of the Act.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

..........................[Sgnd]................................

Legal Administrative Assistant

Dated: 3 February 2022

Date of hearing:	4 March 2021, 10 June 2021 & 13 July 2021
Advocate for the Applicant:	Stephanie Margush, Beena Rezaee Legal & Migration
Advocate for the Respondent:	Cameron Retallick, Australian Government Solicitor