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

[2021] AATA 3192

Mahdawi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3192 (27 August 2021)

Division:GENERAL DIVISION

File Number:          2018/7627

Re:Benjamin Mahdawi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:27 August 2021

Place:Melbourne

The decision dated 26 November 2018 to refuse the Applicant citizenship is set aside.  The matter is remitted to the Respondent with a direction that Mr Benjamin Mahdawi’s identity is satisfied in terms of section 24(3) of the Australian Citizenship Act 2007 (Cth).

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Senior Member D. J. Morris

Catchwords

CITIZENSHIP – where applicant applied for Australian citizenship by conferral – where delegate of Minister refused application as delegate not satisfied of applicant’s identity – migration and personal background of applicant – where applicant satisfies Tribunal of identity – decision set aside and matter remitted to respondent with direction

Legislation

Administrative Appeals Tribunal Act 1975, ss 33A, 37, 38AA
Australian Citizenship Act 2007, ss 21, 24, 52

Births, Deaths and Marriages Act 1986 (Vic), s 28

Cases

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Neat Holdings Pty Limited v Karajan Holdings Pty Limited & Ors [1992] HCA 86

Secondary Materials

Attorney-General’s Department - National Identity Proofing Guidelines (2016)
Department of Foreign Affairs and Trade, DFAT Country Information Report – Afghanistan, dated 27 June 2019
Department of Foreign Affairs and Trade, DFAT Country Information Report – Iran, dated 20 April 2020

Department of Home Affairs, Australian Citizenship [Policy Statement] - Citizenship Policy Instructions, Reissued 27 November 2020 (as revised)

REASONS FOR DECISION

Senior Member D. J. Morris

27 August 2021

1. On 18 November 2014, Mr Benjamin Mahdawi applied for Australian citizenship by conferral. On 26 November 2018, a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), refused Mr Mahdawi’s application on the basis that the delegate was not satisfied of the Applicant’s identity and so was therefore prohibited from approving the application under section 24(3) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

2. Section 52(1)(b) of the Act provides that a decision of this nature is reviewable by the Tribunal.  Mr Mahdawi lodged an application for review of the decision and lodged further documents in support of his application.

3. A hearing was held on 15 June 2021 by video, as is permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), owing to the current public health emergency. Mr Mahdawi was represented by Ms Jill Vidler, solicitor advocate, of Vidler & Associates. The Minister was represented by Mr Zeng He of Clayton Utz. The Applicant gave evidence and was cross-examined. Mr Fahim Fayyazi, a migration agent formerly engaged by Mr Mahdawi, also gave evidence.

4. The Respondent submitted a volume of documents under section 37 of the AAT Act

   
   

   (‘T’ documents) (Exhibit R1); and a further volume of documents under section 38AA of the AAT Act (supplementary or ‘ST’ documents) (Exhibit R2).

5. The Applicant submitted the following documents, which were admitted into evidence:

   (a)Applicant’s submission dated 7 June 2021 (Exhibit A1);

   (b)Applicant’s tazkira dated 9 January 2019 (Exhibit A2);

   (c)Applicant’s identity verification form, translation dated 8 February 2019 (Exhibit A3);

   (d)Applicant’s bundle dated 22 February 2019 (Exhibit A4);

   (e)Applicant’s Certificate III in Carpentry dated 20 January 2017 (Exhibit A5);

   (f)Applicant’s BM Farming and Carpentry Business, extracted 27 August 2020 (Exhibit A6);

   (g)Applicant’s statutory declaration, declared 31 August 2020 (Exhibit A7);

   (h)Photograph A – family in Iran, lodged 7 June 2021 (Exhibit A8);

   (i)Photograph B – Applicant as baby with father and grandmother, lodged 7 June 2021 (Exhibit A9);

   (j)Photograph D – Applicant at home with mother in Tehran, lodged 7 June 2021 (Exhibit A10);

   (k)Photograph E – Applicant as a child in Iran, lodged 7 June 2021 (Exhibit A11);

   (l)Bundle of three appendices, lodged 7 June 2021 (Exhibit A12);

   (m)Letter from Sita Namaratne, dated 24 July 2020 (Exhibit A13);

   (n)Letter from Declan Gerard Allen, dated 3 September 2020 (Exhibit A14);

   (o)Letter from Nazer Nazir, President New Life Social Community dated 26 July 2020 (Exhibit A15);

   (p)Statutory Declaration of Nasir Mahdawi, declared 7 June 2021 (Exhibit A16);

   (q)Statement of Mahdi Panahi Jelogir, dated 7 June 2021 (Exhibit A17);

   (r)Statement of Fahim Fayyazi, dated 11 June 2021 (Exhibit A18);

   (s)Statement of Sina Mahdawi, dated 9 June 2021 (Exhibit A19);

   (t)Statutory declaration of Mahmood Karimi, declared 10 June 2021 (Exhibit A20);

   (u)Statutory declaration of Mir Abdullah, dated 8 June 2021 (Exhibit A21);

   (v)Statement of Madhi Mahdawi, dated 9 June 2021 (Exhibit A22); and

   (w)Statement of Applicant, signed not dated, lodged 1 August 2020 (Exhibit A23).

6. The Applicant also lodged a Statement of Facts, Issues and Contentions (‘ASFIC’), as did the Respondent (‘RSFIC’).  At the end of the hearing, the Tribunal directed that the Applicant provide two documents, namely:

   (a)The document issued to the Applicant’s parents by the Iranian hospital in relation to his brother recording the brother’s name and date of birth; and

   (b)The original tazkira of the Applicant, as sent to his father from Afghanistan.

7. The Tribunal made arrangements for the Respondent to inspect these documents at the Registry of the Tribunal. Both parties also lodged further written submissions, by leave of the Tribunal.

   PERSONAL AND MIGRATION BACKGROUND

8. Mr Mahdawi was born in a private hospital in Tehran, Iran, in 1996.  It was submitted that as an unregistered refugee, although he was not permitted an official Iranian birth certificate, the hospital gave the Applicant’s mother a notice recording his birth at the hospital.  Ms Vidler said that this notice has subsequently been lost, despite extensive searching by relatives in Iran. She said inquiries had been made this year at the hospital, but its ownership had changed hands and the relatives were told a birth confirmation from 1996 is not available. Even if it was, the Applicant would have to personally request a record of birth.

9. Mr Mahdawi is Hazara and a Shi’a and, while a citizen of Afghanistan, has never lived in that country.  He was aged around 14 when he came to Australia with his parents as an undocumented arrival in January 2010. In March 2010, the Applicant was granted a permanent protection (subclass 866) visa (TD, p 17 and  ASFIC, p 3).  He was subsequently granted a resident return visa, which he still holds.

10. In October 2014, Mr Mahdawi lodged an application for Australian citizenship by conferral (TD, p 115).  On five occasions between March 2017 and August 2018, the Department of Home Affairs wrote to Mr Mahdawi seeking various information to assist the delegate to confirm the Applicant’s identity.  The Applicant replied to each of these letters.

    LEGISLATIVE FRAMEWORK

11. Section 21(1) of the Act sets out that a person may make an application to the Minister to become an Australian citizen.  Section 24 of the Act provides that the Minister must approve or refuse to approve the person becoming an Australian citizen.

12. Section 24(3) of the Act concerns identity:

    Identity

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

13. Division 5 of the Act sets out in detail the identity provisions.

14. In considering Mr Mahdawi’s application for Australian citizenship, the Minister’s delegate also consulted a document produced by the Department titled Citizenship Policy, DIBP (‘the Policy’) and dated 1 June 2016.  Chapter 13 of the Policy provides guidance to departmental officers in relation to the provisions of Division 5 of the Act:

    The identity provisions prohibit the approval of a citizenship application 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.

15. The Policy goes on to state that the concept of identity is as described in what was then the Attorney-General’s Department’s National Identity Proofing Guidelines of 2004 and provides a website link to those guidelines.  The successor of that document is the National Identity Proofing Guidelines, published by the Department of Home Affairs in 2016 (‘the Guidelines’).

16. The Policy provides guidance to decision-makers (principally officers of the Department who hold the Minister’s delegation) in how they should arrive at a state of satisfaction about the identity of a person applying for Australian citizenship.  Whilst the Policy is not binding on the Tribunal, standing in the shoes of an original decision-maker, the approach taken by Brennan J (as His Honour then was, writing as President of this Tribunal) in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has received the approbation of the Courts:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular  case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

17. Consequently, the Tribunal is guided by the Policy in considering whether it can be satisfied of the identity of the Applicant in terms of his application for Australian citizenship.  However, two important things must be kept in mind.  First, where the Policy has content which appears to conflict with the Act, the latter prevails. Secondly, where rigid application of the Policy would result in an injustice or leads to a perverse result, common sense must be applied according to the particular circumstances of the case to prevent such a result.

18. The Australian Citizenship Policy had been revoked on 27 November 2020 and replaced with a new document, the Australian Citizenship Policy Statement, effective from that date.  The Respondent provided a copy of that document.  The Tribunal should apply the new document in considering this matter. The Respondent advised that the Australian Citizenship Instructions (‘CPIs’) and the Guidelines remain in force.

    Summary of the Respondent’s position

19. The Respondent in essence submitted that Mr Mahdawi has provided limited documentation relating to his identity since his arrival in Australia in 2010.  The Respondent submitted that the explanations given by the Applicant in relation to the lack of documentation relating to his birth are inconsistent with information provided by his parents and country information.

20. The Respondent submitted that there are inconsistencies in Mr Mahdawi’s life story which have not been ‘plausibly’ explained and finally that Mr Mahdawi ‘has not demonstrated that he has taken reasonable steps to obtain material that would support his application for citizenship.’

21. The Respondent referred to the ‘three pillars’ of identity, set out in the CPIs:

    1Biometrics - i.e. personal identifiers such as fingerprints, facial images, and signatures.

    2Documents – i.e. reliable identity documents with ‘robust identity proofing processes’, containing personal information such as name, date of birth, nationality, citizenship and possibly biometric information.

    3Life story – the CPIs say “A person’s life story is a narrative of the events that happened to them from birth to [the] present.  Offices should consider the events that happened to the person, and the information and detail correlating to the events.  A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.”

22. The Respondent submitted that the CPIs further provide that a single pillar of identity should not be relied upon because it is ‘generally inadequate for providing a reliable basis on which to establish a person’s identity’. The CPIs further say that officers must verify a person’s identity from birth using an evidence-based approach and should be ‘verified incrementally’ throughout a person’s life and considered historically. Finally, the CPIs state that officers may have regard to relevant country information to assess a person’s life story, particularly where the person is unable to provide identity documents.

23. In oral submissions, Mr He contends that Mr Mahdawi has provided limited documentation and no documents from Iran. The Respondent further submitted that the reason for the change of the Applicant’s surname is not clear and directed the Tribunal to the DFAT Country Information Report – Iran (‘CIR-I’), which indicates that a person born in Iran would have to be registered and the Applicant has not so far provided any such registration.

    ORAL EVIDENCE

    Evidence of the Applicant

24. The Applicant’s lawyer first asked Mr Mahdawi what efforts he had made to get a copy of the birth notice (i.e. the notice given to the Applicant’s mother by the private hospital where he was born).  Mr Mahdawi told the Tribunal that because his parents were Afghani refugees the Iranian authorities would not issue a formal birth certificate, instead a notice is given by the hospital simply recording a name and a date the child was born. Mr Mahdawi said he had asked his parents and they ‘had no idea’ about it.  He said that he contacted a (named) cousin who lives in Iran.  He said:

    She went to the hospital where I was born to ask for a certificate or letter.  Unfortunately, because it is a long time ago, they would not provide it and would not issue it unless the person is physically there.

25. Mr Mahdawi confirmed he had never been to Afghanistan. He was then asked what evidence he relied on to obtain the tazkira (i.e. official record of identity from the Afghani Government).

26. Mr Mahdawi said that his father made a booking on-line with the Embassy of the Islamic Republic of Afghanistan in Canberra and they drove to Canberra from Melbourne, accompanied by two witnesses, who he named.

27. The Applicant said that he and his father filled in ‘ID forms’ before an Embassy officer and the forms were endorsed and returned to them.  Mr Mahdawi said they were then posted to a lawyer in Afghanistan, Mr Nasir Rezaei.  Mr Mahdawi said that his entitlement to a tazkira was through his father.

28. Ms Vidler asked Mr Mahdawi whether the Embassy contacted any government office in Afghanistan to alert them that the representative would be coming to obtain tazkiras for him and for his father.  Mr Mahdawi said he did not know.  All he knew was that once the tazkiras were issued they were sent to his father’s address in Australia.

29. Ms Vidler then asked the Applicant about his surname.  She asked whether the family used the surname ‘Mahdawi’ in Iran.  The Applicant said “no”, they used ‘Hussaini’ and continued to use this surname when they first came to Australia.  He said it was the decision of his parents to change the family name.  He said: “I don’t know how they came up with the family name, all I know is that Dad changed it.”

30. Ms Vidler asked Mr Mahdawi whether the name was changed officially, which was confirmed. Mr Mahdawi also said that all the family in Australia are now known by the surname ‘Mahdawi.’

31. The Applicant was then asked about his early years in Iran.  He said he went to a refugee school in Tehran until grade five, describing it as an unregistered school for refugees in what he thought might have been an old factory. He said the classes were conducted in Farsi, not with an Afghani syllabus.

32. Ms Vidler asked Mr Mahdawi about a photograph with his grandmother and whether she lived with him. He replied: “I can’t really remember.  I don’t think so.  She passed away about two or three years ago.  She used to live with my uncle, I think.”

33. Mr Mahdawi said that his parents did not own a house in Iran because that was not permitted.  He said he never visited his father at work but knew he was doing work such as ‘cheap labouring’ and cleaning and loading and unloading.  He said he was young and did not know whether his father worked every day.

34. Mr Mahdawi said he did not remember travelling around Iran or his parents travelling and his memories about coming to Australia were only that it was by boat, when he was about 12 or 13 years old, and he remembered crying because water was coming into the boat.

35. Under cross-examination, Mr Mahdawi said he recalled writing to the Department

    
    

    (TD, p 162) about the change in his surname.  He said he did not believe he was ever issued with a refugee ID card in Iran, nor any other form of identification from the Iranian Government.  He told the Tribunal that some ‘forms’ are given to refugees once they attain the age of 18, but not when younger.

36. Mr Mahdawi said that a refugee could not obtain a mobile phone SIM card in Iran, and he did not have a mobile phone until he came to Australia. He said he knew when young not to get caught “because I would be sent back to Afghanistan”.  Mr Mahdawi said he believed his parents did have refugee ID cards.  He did not know from whom they rented their house in Tehran.

37. Mr Mahdawi said he had never seen any certificate issued by the hospital where he was born, if indeed one had been issued.  Mr Mahdawi said he had originally thought the Iranian Government had chosen the name ‘Hussaini’, which is what he informed the Department, but now did not believe that.  He said his father had helped him fill in the forms.

38. When asked about obtaining the new tazkira, Mr Mahdawi said he and his father drove up to Canberra from Melbourne in December 2018 with two witnesses. He said it was his father’s idea.  He said he provided his Medicare card and driver licence to the staff member of the Embassy, and his father’s old tazkira.  He said his father filled in a form given by the Embassy officer, which was in the Dari language, but he knew it was a form about identity.

39. He said the witnesses were called forward and they countersigned the document and the Embassy staff member took the documents away and applied an official stamp. The officer then returned the paperwork to his father. Mr Mahdawi said they went to the local post office in Canberra and his father photocopied the forms and they were then sent to his father’s lawyer in Afghanistan, Mr Rezaei.  He said: “After a couple of months I was issued with an Afghan tazkira.  I received it in the post”.  Mr Mahdawi said he could not now remember whether his father posted the forms to the lawyer from Canberra or after they had returned to Melbourne.  He said that the hard copy of his tazkira was later sent back to his father from the lawyer in Afghanistan, together with his father’s new tazkira.

1. In answer to direct questions from the Tribunal, Mr Mahdawi said he remembered lodging a form with the Victorian Registry of Births, Deaths and Marriages to change his surname from ‘Hussaini’ to ‘Mahdawi’; he said that all the family were filling in the forms together at the same time, and he guessed he was aged 17 or 18 at the time.  He said he cannot remember the detail of the family discussion other than it was a suggestion of his father to which the family all agreed. Mr Mahdawi said he personally did not like the surname ‘Hussaini’ because so many people had that surname.

2. Mr Mahdawi said he did not remember the name of the hospital he was born in and found out it had changed ownership after he asked his cousin to visit it, and she reported back to his father.  He said his cousin had been to the hospital three or four times, endeavouring to obtain some evidence that the Applicant was born there.

   Evidence of Mr Fahim Fayyazi

3. Mr Fayyazi gave evidence by telephone.  He confirmed that he formerly represented both the Applicant and his father as a migration agent, having been engaged by them in 2020.  The Tribunal made clear to Ms Vidler that Mr Fayyazi was being heard as an expert with special knowledge, not as an advocate for the Applicant or his family.  Ms Vidler said that the evidence she wanted to bring forward was about the general process for Afghan citizens in Australia wishing to obtain absentee tazkiras. 

4. Mr Fayyazi said he was aware of the process of obtaining a genuine absentee tazkira from the Afghanistan issuing authorities.  He said:

   In 2018 a person who wanted to obtain one had to arrange an appointment with the Embassy to complete an Identity Verification Form.  They must go to the Embassy in person with two witnesses.  Then the ID is verified by Embassy authorities in Canberra.  It is stamped and a photograph is attached.  The hard copy is returned to the person applying and the Embassy sends an email copy to the Registration Authority in Kabul.  A representative in Afghanistan must show the hard copy to the Registration Authority.  It usually takes approximately one month to obtain the tazkira.  An Applicant must show a tazkira of a relative from the father’s side – father, uncle, etc. and must show their tazkira to get the verification form.  Witnesses must say they know the person applying for the absentee tazkira.  Then the Embassy would issue the identification form.

   Once the tazkira is issued, usually the representative would give it to someone going to Australia or they may post it.

5. Regarding the refugee ID cards issued in Iran, Mr Fayyazi was asked what his knowledge was of the process.  He said:

   It is very difficult for Afghani refugees to get the cards.  Iranian authorities say you can come, but then they assault and behead people.  People must line up to get a so-called blue card.  They issue very few cards and then have lunch.  A small proportion of the people applying will actually get one.  Then they must return, and the same thing is repeated another day.

6. Mr Fayyazi said that if a refugee with a blue card (or ‘Amayesh’ card) leaves Iran or is deported, the cards are taken and not returned.  He said sometimes the blue cards must be renewed after six months or one year, and there is now a fee for renewal.

7. Under cross-examination, Mr Fayyazi said he had discussed with the Applicant’s father how they obtained the tazkiras. The Applicant’s father told him about his visit to the Embassy with his son and two witnesses and being issued with an identity verification form which was then sent to the father’s representative in Afghanistan. Mr Fayyazi said he asked the Applicant’s father why he wanted a fresh tazkira himself and was told their previous migration agent had recommended it.

8. Mr Fayyazi said that under Afghan law, a person seeking a tazkira or a replacement tazkira must be present or they must have formally appointed a representative whose details are recorded. In the latter case, the representative can then obtain an absentee tazkira.

9. Mr Fayyazi said that the purpose of the identity verification form issued by the Embassy is so the representative of a person can go to the civil registration authority in Afghanistan where the records are recorded on paper files, and the volume number and tazkira number of the male relative can be used to enable the family link to be found and verified.  He said that a representative can be anyone in Afghanistan, provided they themselves have a tazkira.

   CLOSING SUBMISSIONS OF THE APPLICANT

10. Ms Vidler said that five of the family have Australian citizenship and two, the Applicant and his father, do not. She said that Mr Mahdawi has not provided any bogus document but there are instances of inconsistencies and bad advice given to him, which he has followed, but submitted they do not make his application fatal.

11. Ms Vidler said that Mr Mahdawi has built a successful career in Australia, employing others in his business including a brother and was not afraid to admit when he did not know details of the family history or why they had been unable to get a copy of his notice of birth.

    CLOSING SUBMISSIONS OF THE RESPONDENT

12. Mr He said that because Mr Mahdawi had applied for citizenship in October 2014, he had attained the age of 18 and is treated separately from his father. He noted that it appeared from the evidence that some of the material submitted to the Department in Mr Mahdawi’s name had in fact been written by the Applicant’s father, but that does not change the fact that there has been inconsistent information provided.

13. Mr He said that at the time of Mr Mahdawi’s birth, his birth would have been registered, relying on the CIR-I. He said that the tazkira that Mr Mahdawi has now received was provided based on information in the Applicant’s father’s tazkira and submitted that the Tribunal cannot be positively satisfied of the Applicant’s identity.

    CONSIDERATION

14. Section 24(3) of the Act means that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity.  It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied regarding this requirement.

15. The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is ‘satisfied’ of a requirement.  Briginshaw v Briginshaw (‘Briginshaw’) [1938] HCA 34; (1938) 60 CLR 336 is the leading authority, and it has been frequently and contemporarily re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86, by Toohey J for the Court, at [2]). In Briginshaw, Dixon J (as he then was) said:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

16. The Tribunal therefore must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

17. The Parliament of Australia has decided that being reasonably satisfied of the identity of a prospective candidate for Australian citizenship is essential because, once citizenship is conferred, the citizen becomes entitled to a range of significant rights and privileges and has certain responsibilities, for example to enrol to vote.

18. An Australian citizen is also entitled to apply for an Australian passport and travel abroad and may avail him or herself of consular assistance when necessary and the protections under international law of a citizen of this country.

19. There was no issue of character in relation to Mr Mahdawi’s application for citizenship.  That was properly conceded by the Respondent. The Tribunal notes that the Applicant has completed an apprenticeship in carpentry and has established his own apparently successful business in Victoria, employing others. He provided a national police certificate which contained only two minor infractions.

20. The Tribunal notes that the DFAT Country Information Report – Afghanistan (‘CIR-A’) states, at paragraph 5.46:

    The Tazkira is the primary form of identification for Afghan citizens.  In addition to being required for employment, and admission to school and universities, to obtain approval to run a business, and to buy, rent and sell property, tazkiras act as the primary document necessary to obtain other documentation.

    (Emphasis added.)

21. The CIR-A goes on to explain, at paragraph 5.49, that authorities in Afghanistan did not historically issue birth certificates. Parents of a newborn child would usually apply for a tazkira from the local population office.

22. It would seem to me that there have been regrettable features in relation to some of the material that Mr Mahdawi provided to the Department, and notably he has not always successfully clarified things on the several occasions when Department officers sought additional information. Part of the problem has been that he relied on the advice of his father, who in turn relied on the advice of others. This is most unfortunate because it led to incomplete and sometimes misleading information being provided. 

23. An example is the email dated 25 February 2018 Mr Mahdawi sent to the Department which stated (TD, p 162, as written):

    Our real family name was mahdawi but the government of Iran use to choose any name for afghan refugees and they choose hussaini because afghan refugees were being hated in Iran and Iranian government would choose any name they like or do anything they want as they were the law and we had no power to stop them.

24. This was completely misleading.  In his application for citizenship, Mr Mahdawi explained the change of name was because there were ‘lots of community with the same surname’ (TD, p 106).  In August 2018, the Applicant changed his story to state (TD, p 174, as written):

    I didn’t changed anything of myself or my surname.  My parent’s changed the family surname and I’m part of sibling.  I didn’t asked why and don’t [know] why the reason. And I don’t think this changing of surname got anything to do with me Because my parents change it.

25. This second explanation is consistent with oral evidence Mr Mahdawi gave at the hearing and with the oral submissions made by Ms Vidler on his behalf.  Although it is clear to me that there was no attempt to hide the change in the surname, because it was completely disclosed to the Department, the differing accounts of why the name was changed only served to cloud the issue and thereby create doubt in the minds of the officers considering the citizenship application.

26. However, considering all the evidence as a whole, I am satisfied that this case is different from one where a bogus document has been provided or where a false identity has been exposed. There is no evidence of any bogus document being proffered by the Applicant and his identity, in terms of how he has been known, has only changed in respect of his surname, a legal change effected in 2014 in accordance with Australian law.

27. In respect of Mr Mahdawi’s birth, I am satisfied to accept the evidence that a notice was given to his parents by the operators of the private hospital where he was born, but that notice has since been lost or mislaid. In Exhibit A12 was the following statement from the Applicant’s cousin, translated from Dari into English on 7 June 2021:

    I, Sakine Rezaei, am a niece (sister’s daughter) of Ishaq Al Hussaini [i.e. the Applicant’s father].  On 07/04/2021 I went to Moftah Hospital located in Varamin City.  I referred to the Mofta Hospital in Varamin in order to obtain a duplicate certificate for Benjamin.  Unfortunately, they did not give me one and stated that his mother or father has to be present.  I tried a lot but unfortunately, they did not pay attention because we are not citizens.  This is because citizens of Afghanistan have no value in this country.

28. This statement was accompanied by a copy of the writer’s Amayesh card with a photograph.  I find this broadly consistent with the oral evidence Mr Mahdawi gave at the hearing and accept it as evidence of him employing best endeavours to obtain at least a copy of the notice of birth issued by this hospital (or perhaps its predecessor on the same site) when he was born.

29. I am further satisfied to accept Mr Mahdawi’s evidence that he travelled to Canberra at the end of 2018 with his father, and two witnesses who personally knew them, to complete the identify verification form that was then sent to his father’s (and his) representative in Afghanistan. At the end of the hearing I asked for the original of the Applicant’s tazkira to be provided to the Tribunal.  I have inspected the original and am positively satisfied that this is a document apparently issued by the relevant authorities of the Afghanistan Government.  I consider the Respondent’s oral submission that this tazkira should somehow not be accepted because it was based on information provided by his father somewhat curious. 

30. Mr Mahdawi’s evidence of what took place accords with the evidence given by Mr Fayyazi of what he knows to be the administrative process for obtaining an absentee tazkira. It is also consistent with the process set out on the Afghanistan Embassy website, extracts of which the Respondent provided in the supplementary T documents.  Mr Mahdawi’s father had to furnish his old tazkira to the Embassy official and the Embassy website explains that advice is communicated to the home government that an identity verification form has been issued to a named person.  In terms of the father providing his details, this would not seem to me to differ significantly from established practice in most countries, including in the Australian states and territories, when a child is born, for a parent, as the informant, to apply for registration of the birth.

31. I take into account that the tazkira is not strictly a primary document issued at the birth of the Applicant, as a birth certificate would be, but for Afghan citizens it is, as the CIR-A points out, equivalent. I also consider the tazkira has greater status than other identity documents Mr Mahdawi has provided since his arrival in Australia, such as his Titre de Voyage, a Medicare card, a driver licence and registration documents relating to his business, all of which are in evidence. These documents, precisely because they were issued by Australian authorities, do not provide a ‘chain of identity’ linked back to a time before the Applicant arrived in Australia.  

32. However, the tazkira issued by the Afghanistan Government is of a different nature.  First, it is based on a primary document (i.e. the old tazkira of Mr Mahdawi’s father). I note that the Respondent made some submissions about the father’s old tazkira and submitted that inquiries had failed to confirm it was issued by the directorate in Afghanistan.  Ms Vidler pointed out that an error was made in the translation in respect of the district where it was issued, which meant the inquiry by the Department was based on this error.  I am inclined to accept that submission.

33. Secondly, the new tazkira is issued only after the civil registration authority has cross-checked the family origins through the volume and number on the paper files it holds.  While, because it was issued in 2019, the tazkira does not carry the significant weight an original birth certificate (or tazkira in the Applicant’s name) would carry, it does carry significantly more weight than identity documents issued since Mr Mahdawi arrived in this country in 2010. That is because it provides a patrial link between Mr Mahdawi, his father and his father’s birth in Afghanistan, and an acknowledgement by the Afghani Government that the Applicant is entitled to be issued it.

34. I do not find the CIR-I very helpful in clarifying what is available in terms of the registration of children of Afghan refugees born in Iran, except for the fact that it states, at paragraph 3.165, that there are one million registered Afghan refugees in Iran, “plus up to 2 million undocumented ones”.  The CIR-I goes on to discuss the Amayesh card but says “no such cards have been issued since 2007”.  The CIR-I does confirm that Amayesh cards must be surrendered when a refugee leaves Iran. The CIR-I also records at paragraph 3.168 that refugee children were not able to register in national public schools before May 2015 when the Supreme Leader in Iran issued a decree allowing all children in Iran, regardless of their legal status, access to formal education. Mr Mahdawi’s evidence that he was schooled at an unofficial school before he and his family left Iran and came to Australia in 2010 when he was aged around 14  accords with this commentary in the CIR-I. 

35. My consideration of all the evidence is that the Respondent has made no submissions in relation to the biometric ‘pillar’ in the Guidelines, other than to say that what biodata has bene provided dates from times after Mr Mahdawi arrived in Australia. In terms of the second ‘pillar’, there is no Iran-sourced identity document relating to the Applicant, but there is a tazkira which appears authentic and has been issued following a proper application for an absentee tazkira to the Afghanistan Embassy in Canberra. The Respondent provided in the supplementary documents (STD, pp 216-220) a copy of the forms issued by the Afghanistan Embassy in Canberra in terms of identity verification. The life story ‘pillar’, to which I should have regard, provides a narrative supportive of Mr Mahdawi’s claims regarding his background. The Iranian issued documents relating to his younger brothers, one a vaccination certificate and one a doctor’s notice of birth issued by a hospital, do not relate directly to Mr Mahdawi but are relevant as corroborative of the family composition.

36. In respect of the surname change from ‘Hussaini’ to ‘Mahdawi’, as I say above, it is regrettable that different reasons have been proffered for that change.  However, before the Tribunal is a copy of the registered Change of Name form, dated August 2014 (TD, p 147), lodged in accordance with the relevant Victorian statute. There has been no subterfuge in this change, and such a name change is permitted by law. There is ample evidence in the papers before me that Mr Mahdawi has never hidden the name change, including in interactions with authorities such as the police and the Department. 

37. The Victorian Registrar of Births, Deaths and Marriages is empowered to require an applicant for a change of name to establish to the Registrar’s satisfaction that the change of name is not sought for a fraudulent or other improper purpose (section 28 of the Births, Deaths and Marriages Act 1986 (Vic)).  There was no evidence before me that this was the case here.

1. I take into account the evidence in written statements of the Applicant’s mother (Exhibit A16) and his brother, Mr Mahdi Mahdawi (Exhibit A22). Mr Mahdi Mahdawi records that he is one year younger than the Applicant, he has known him as his brother all his life, and that he went to “refugee school in Tehran with Ben when I was about 7 or 8 and I was there only a couple of years before we started our trip to Australia.”

2. After the hearing, the Tribunal directed that the notice of birth of the Applicant’s next oldest brother be provided, which the Tribunal was advised was in the possession of the family. What in fact was subsequently provided was a notice of birth (apparently from a different hospital, but still in Iran) of a younger brother of Mr Mahdawi, not his next oldest brother.  However, the authorised translation of the documents records the names of this brother’s parents consistent with other evidence of the names of the Applicant’s parents. It also records this brother’s date of birth consistent with family composition information that the Applicant had earlier provided, as the Respondent conceded in post-hearing submissions.

3. In addition, the Applicant’s representative provided a vaccination certificate for the Applicant’s next oldest brother, Mahdi, recording his date of birth in 1997, and his initial vaccinations given to newborn babies on the day of birth, plus later vaccinations administered at the appropriate age.  While this is a document which supports the identity of his brother rather than the Applicant, it provides another piece of the mosaic necessary to contribute to a consistently related ‘life story’ to which the Guidelines refer.

4. I also take into account the statements by individuals who knew the Applicant and his family in Iran.  These statements confirmed the authors’ knowledge of him as the son of his parents and a member of the family unit, together with the photographs tendered which are said to show him as a small boy. The weight that is attributed to this evidence is tempered because it cannot be corroborated, but where it is consistent, it does contribute to the building blocks necessary for a congruous life story.

5. The unsettled nature of the Applicant’s birth and early life as an unregistered refugee in Iran must fairly be taken into account, together with what endeavours he has made to obtain information about his identity from both Iran and Afghanistan.  In addition, those elements of his life story relating to his mother and siblings which are consistent and have been accepted by the Government in terms of citizenship by conferral for other family members are also taken into account. An additional important factor is the age of the Applicant when he departed Iran; he was a young child in the care of his parents.  As a minor he did not have the identity documents an adult would be expected to have or be able to obtain.

6. Considering the three pillars, the Guidelines say that more than one should be relied upon. The biodata of Mr Mahdawi is consistent, but the weight of that is not heavy because it dated from after 2010. I am satisfied that the absentee tazkira issued in 2019 is documentation which links the Applicant with his family and with their origins in Afghanistan. I am also satisfied that the accounts of his life story and other evidence from other family members is consistent with who he says he is, within the family composition. This third element is important, because it places the Applicant within a family unit with other corroborative evidence about them, and no evidence proffered by the Respondent which challenges his membership of that family.

7. To reiterate, as mentioned above, Sir Owen Dixon wrote, in Briginshaw:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

8. I have concluded that the collection of material and evidence before me positively persuades me of the identity of Mr Benjamin Mahdawi. It is understandable that some of the conflicting information given to the Department raised doubts in the mind of the delegate considering the application, but the additional and more consistent evidence adduced in this hearing, especially in regard to the obtaining of the absentee tazkira, and the material about his siblings provided after the hearing, is sufficient for me to find that the correct and preferable decision in this matter is that the prohibition in section 24(3) of the Act is not apposite in Mr Mahdawi’s case. 

9. As identity was the only barrier signalled by the Respondent as preventing the processing of  Mr Mahdawi’s application, the matter will be returned to the Respondent with a direction that this requirement of the Act is satisfied.

   DECISION

10. The decision dated 26 November 2018 to refuse the Applicant citizenship is set aside.  The matter is remitted to the Respondent with a direction that Mr Benjamin Mahdawi’s identity is satisfied in terms of section 24(3) of the Act.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated: 27 August 2021

Date of hearing:	15 June 2021
Counsel for the Applicant:	Ms Jill Vidler
Solicitors for the Applicant:	Vidler & Associates
Counsel for the Respondent:	Mr Zeng He
Solicitors for the Respondent:	Clayton Utz