Malistani and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 156

Malistani and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 156 (15 February 2023)
Division:GENERAL DIVISION
File Number(s): 2021/9740
Re:Abdul Ghafour Malistani
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S. Webb, Member
Date:15 February 2023
Place:Canberra

The decision under review is set aside and in substitution, being satisfied of Mr Malistani’s identity, the Tribunal decides his application for conferral of Australian citizenship is not refused under s 24(3) of the Australian Citizenship Act 2007 and remits the application to the Minister.
................[SGD].............................
Mr S. Webb, Member
Catchwords
AUSTRALIAN CITIZENSHIP – application for conferral of citizenship – questions of identity – significance of previous decisions relating to identity – weight to be given to previous determinations and Tribunal findings – applicable thresholds of satisfaction – limited biometric information – reliability of documents – tazkira – life story – inconsistencies – reliability of corroborative evidence – mental health considerations – identity established to satisfaction – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 37, 39
Australian Citizenship Act 2007 (Cth), ss 21, 24, 52
Australian Passports Act 2005 (Cth), ss 7, 8
Migration Act 1958 (Cth), ss 13, 14, 36, 65, 91W, 91WA, 116, 133C, 140, 189, 198
Cases
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Boy19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CFYJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 23
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Minister for Home Affairs v G [2019] FCAFC 79
Minister for Immigration and Citizenship v Li [2013] HCA 18
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Sahfai and Minister for Home Affairs (Citizenship) [2019] AATA 808
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 43
Sundararaj v Minister for Immigration and Ethnic Affairs [1999] FCA 76
Secondary Materials
Australian Citizenship Policy Statement
Citizenship Procedural Instructions
REASONS FOR DECISION
Mr S. Webb, Member
15 February 2023

Establishing identity can be problematic for some refugees of Hazara ethnicity who arrive in Australia having fled from Afghanistan. This is especially so where false documents and different names have been used and questions arise about the person’s bona fides. This is such a case. As will appear, Abdul Ghafour Malistani arrived in Australia using false documents. He immediately sought protection. Even though a protection visa was granted and he was later granted a permanent residence visa, he has faced questions about his identity for more than 12 years. Questions have been raised repeatedly about the veracity of many aspects of his alleged identity, including his name, his family, his marriage, his paternity of four children and his life story.
These processes, drawn out over many years, as well as other unfortunate circumstances, have taken their toll on Mr Malistani. His mental health and his financial circumstances have been adversely affected. Even though he was joined by his wife and children in 2021 following the grant of a partner visa, there is compelling evidence Mr Malistani’s memory is affected by mental health conditions he suffers the effects of violent and traumatic incidents in his past. These circumstances, including the effluxion of time, bear upon the task of assessing his identity claims in these proceedings for the purposes of s 24(3) of Australian Citizenship Act 2007 (Citizenship Act).
This notwithstanding, the questions about his identity are raised on reasonable grounds and they are serious. As will become clear, there are apparent inconsistencies and awkward coincidences in the evidence. There are reasonable grounds to doubt the reliability of some documents Mr Malistani produced in support of his identity, including Tazkiras and other official documents. Resolving these questions is no easy matter. Nevertheless, the Tribunal must apply the law when making the correct or preferable decision on the materials and evidence before it.
Facts
The following facts are established by materials placed before the Tribunal.
On 28 November 2009, Mr Malistani travelled by air to Australia without a visa. He used a Netherlands passport (passport number NNF259H73) (Dutch passport) issued in the name of Zalmay Mohseni, date of birth 20 February 1972.[1] Although Mr Malistani disposed of the Dutch passport in a rubbish bin, it was subsequently retrieved but the biodata page had been removed.[2] It has been established Mr Malistani’s photograph was used in the Dutch passport, but Zalmay Mohseni is not his identity.[3] On 6 January 2010, Mr Zalmay reported the passport was lost in Afghanistan on 20 November 2009.[4]
[1] T2, folio 16; T20, folio 756; ST5, folio 30; ST6, folios 70-76; ST9, folio 111; ST12, folio 133.
[2] ST3, folio 9; ST25, folio 318.
[3] ST25, folio 332.
[4] Ibid, folio 318.
On arrival at Kingsford Smith Airport in Sydney,[5] Mr Malistani attempted to engage Australia’s protection obligations, claiming to be Abdul Ghafour Malistani, an Afghan national of Hazara ethnicity, born on 21 March 1980, who fled from Afghanistan in fear for his life.[6] He provided no documents in support of his alleged identity. He was interviewed and transferred to the Villawood Immigration Detention Centre. No records of the interview have been placed before the Tribunal.
[5] T22, folio 807.
[6] ST3, folios 10-11.
On 2 December 2009, Mr Malistani applied for a protection visa under s 36 of the Migration Act 1958 (Migration Act).[7] The protection visa application Mr Malistani made is not in the documents provided to the Tribunal.
[7] ST4, folio 26.
On 9 December 2009, Mr Malistani made a statutory declaration.[8] Among other things, he declared:
[8] ST12.
1.    My name is Abdul Ghafour Malistani. It appears there has been a mistake in the spelling of my family name as the correspondence I have received from the Department of Immigration spells my name “Malisani”.
2.    In the forms that comprise my protection visa application I have used 1 January where I do not know the precise day or month of a particular event. Some of the years may also be approximations.
3.    I do not know the exact date of birth of my immediate family. I believe my wife was born in 1357. My children are aged 8 (Benazir), 7 (Zulfiqar), 5 (…) and 1 (…).[9]
[9] It is not necessary to disclose the names of minor children who gave no oral evidence.
…
4.    When I arrived in Australia I was exhausted and ill. The day after my arrival I was taken to hospital because of this. I cannot remember exactly what I said to the person who interviewed me. I do recall that I said I had travelled for four days before arriving in Australia and that I did not have a passport. This is not correct. I made these statements because the smuggler told me this is what I should say.
…
7.    I am a 29-year-old man of Hazara ethnicity from Afghanistan. My family comes from the Malistan province, but I was born in Kabul. I returned to my home province for part of my education and lived for a short while in Mazar I Sharif in Balkh Province while I attended university. I was forced to leave university and return to Kabul when the Taliban came to Mazar I Sharif and it was not safe for Hazaras to remain there.
8.    In Kabul I lived in a mainly Hazara area. My family owned a grocery shop in Kabul and we also had some farming land in Malistan. I worked at the shop after I had to give up my studies.
9.    About two years ago my wife and I together with my nephew and his wife decided that we wanted to do something about the continuing problem of human rights abuses in Afghanistan and in particular the problems faced by women. We decided that we needed to increase the awareness of people outside Afghanistan to these problems. We decided to do this by doing a motorcycle tour starting from Afghanistan, traveling first to Turkmanistan, Uzbekistan, and Pakistan and then on to Western countries in Europe and to America and Australia, where we could speak to people about what was happening in Afghanistan.
…
12. Unfortunately, we were not able to carry out our plan as I began to receive threats from the Taliban…
…
16. … a number of letters were distributed in my home village in Malistan saying the Taliban was looking for me… The letters contained death threats.
17. A villager brought one of these letters to me in Kabul. I realised my life was in danger and went into hiding, moving from place to place to avoid being found. My [Afghan] passport still has not been issued, so I found a people smuggler who obtained a false passport for me and made all of the arrangements for me to travel to Australia.
…[10]
[10] ST12, folio 133.
On 11 January 2010, in a record of interview with an officer of the Minister’s Department, Mr Malistani reported “feeling stress and was forgetting things” and he needed an interpreter due to his lack of English language.[11] The officer noted:
[Mr Malistani] asked if I had received ID docs and I confirmed I had received these before Xmas.
I asked if he had made any progress with obtaining his Afghani passport?
He said he had asked his family to look for it but that because it had been a long time ago and many comings and goings since, they had not been able to find it.[12]
[11] ST2, folios 7-8.
[12] Ibid, folio 8.
On 16 January 2010, Mr Malistani’s then representative, Roslyn Smidt, provided further information, including:
5. He raised approximately USD 35,000 from selling the property in Malistan.
6. [Mr Malistani] did not pay USD 60,000 to get to Australia. He paid USD 30,000. When he provided this information he was sick and taken to hospital and he might have provided the incorrect information. He only met a people smuggler who stated that for USD 30,000 he could make all the arrangements for the Applicant to travel to Australia. He states he took the first option of coming to Australia available to him. He did not have time to search for cheaper options because his life was at risk.
Among other documents, Ms Smidt provided translations of letters referring to Mr Malistani’s proposed motorcycle tour. In these documents, Mr Malistani is referred to as Mr. Abdul Ghofour, son of Jan Ali and his wife is referred to as Mrs. Fahima, daughter of Zahir.[13]
[13] ST1, folio 6; folios 3,4 and 5 refer.
On 9 March 2010, Mr Malistani was granted a Protection (Class XA) Protection Permanent (subclass 866) visa in the name of Abdul Ghafour Malistani (date of birth: 21 March 1980).[14] The decision maker set out the factual background and reasons for her decision, which include the following brief background information relevant to his claimed identity:
The applicant attended an interview on 7/1/2010… The applicant identified himself as a resident of Sharag Erfony and Dashed Bachey, Kabul, Afghanistan. He stated his family originates from the Hazara village of Bakla in the Malistan district, Ghazni Province, where they owned some land. The applicant spent part of his secondary education in Malistan attending a religious school and some of his extended family members still reside there. The applicant stated he established a retail shop selling groceries in Kabul after leaving his university law studies in June 1998 when the Taliban entered Mazara-e-Sharif in Balkh Province…[15]
[14] Ibid.
[15] ST3, folio 16.
With respect to identity, the decision maker found:
… On 18/1/2010 the applicant provided the department with original documents in the name of “Malistani” including a Drivers Licence. On 9/3/2010, after a telephone consultation with the National Identification Verification and Advice NSW, the delegate updated departmental records to reflect the information submitted in the application form 866C.
The applicant possesses the typical features of the Hazara people and he demonstrated fluency in the Dari language. The information provided in interview with the department is consistent with his claim of having been born in Afghanistan and having lived in Afghanistan until his departure in 2009. I am satisfied that he is a Shi’a Hazara and an Afghan citizen.
In the absence of any evidence to the contrary I find that the applicant’s identity is as stated.[16]
[16] Ibid, folio 9.
Mr Malistani is married to Fahima Malistani (nee Nadri or Nadrey).[17] They have four children (confirmed by DNA analysis)[18]. There is a dispute about associated facts, including the date of the marriage, Mrs Malistani’s background and the dates of birth of family members.
[17] ST13, folio 136.
[18] ST25, folio 346.
On 31 May 2010, proposed his wife and four children for grant of a Global Special Humanitarian visa. The Global Special Humanitarian visa application (Form 842) has not been provided to the Tribunal. On 11 July 2013, this application was refused.[19] The refusal decision is not in the documents given to the Tribunal.
[19] T2, folio 16.
On 17 November 2013, Mr Malistani sponsored his wife and four children for grant of a Partner visa. The Partner visa applications have not been placed before the Tribunal. As will appear, these applications were not dealt with until 2021.
On 14 March 2014, Mr Malistani applied for conferral of Australian citizenship (2014 citizenship application),[20] in which he set out his name, Abdul Ghafour Malistani, and stated his date of birth is 21 March 1980 and his place of birth was Malistan, Afghanistan.[21]
[20] ST14
[21] Ibid, folio 140.
On 11 January 2016, Mr Malistani was granted a 5-year Resident Return (BB-155) visa.[22]
[22] ST8, folio 104; ST9, folio 111 refers.
On 13 October 2016, an officer of the Minister’s Department contacted Mr Malistani via email, notifying Mr Malistani that a Notice of Intention to Consider Cancellation was going to be provided. On 14 October 2016, the Notice was posted to Mr Malistani (which was confirmed via further email correspondence).[23] The Notice itself has not been placed before the Tribunal. The grounds under consideration set out in the Notice are set out in a decision of the Tribunal on 23 June 2017.[24] On 2 November 2016, Mr Malistani provided a detailed response to the Notice.[25]
[23] ST7.
[24] ST9, folios 112-114
[25] ST15.
On 9 December 2016, a delegate of the Minister decided to cancel Mr Malistani’s Resident Return visa under s 116(1AA) of the Migration Act (visa cancellation decision). The terms of the decision and the reasons given have not been provided to the Tribunal in these proceedings. Matters considered by the delegate are discussed in the previous Tribunal decision.[26] It appears the delegate was not satisfied by the ‘significant contradictory and conflicting evidence’ about the applicant’s identity.[27]
[26] Ibid, folio 115.
[27] Ibid.
On 20 December 2016, Mr Malistani’s 2014 citizenship application was refused as he did not meet the permanent residence requirements of s 21(2)(b) of the Citizenship Act.[28]
[28] ST8.
Mr Malistani applied for review of the visa cancellation decision by the Tribunal (2017 AAT decision). On 23 June 2017, the Tribunal decided to set aside the visa cancellation decision and stated it was satisfied as to the visa holder’s identity and it was not satisfied that the ground for cancellation under s 116(1AA) exists.[29]
[29] Ibid, folio 121.
On 5 November 2018, Mr Malistani was issued a Titre de Voyage which was valid until 5 November 2020.[30] The document sets out his name, Abdul Ghafour Malistani, and his date of birth, 21 March 1980.[31]
[30] T4, folios 155-177.
[31] Ibid, folio 157.
On 14 February 2019, Mr Malistani lodged an application for conferral of Australian citizenship (2019 citizenship application),[32] in which he set out alternative spellings of his name: Abdul-Ghafour Malisani; Ghafour Malistani; and Abdul Ghafour Malisini.[33] His date of birth was stated to be 21 March 1980.
[32] T4.
[33] T4, folio 121.
On 1 March 2019, a National Police Certificate was issued in respect of Mr Malistani, recording details of an offence in respect of which on 23 October 2012 no conviction was recorded by the Parramatta Local Court.[34] The certificate also records Mr Malistani’s date of birth as 21 March 1980 and names by which Mr Malistani advised he had previously been known: Abdul-Ghafour Malisani; Ghafour Malistani; and Abdul-Ghafour Malisini.
[34] T6.
On 7 June 2019, a Departmental officer sent Mr Malistani a Request for information in respect of his 2019 citizenship application, stating:
You are yet to provide evidence of links between your current name, MALISTANI, ABDUL GHAFOUR and previous names MALISANI, Abdul Ghafour, MALISINI, Abdul Ghafour, MALISTANI, Ghafour and MOHSENI, Zalmay. You must provide evidence that you have formally changed your name to show the links between your present and previous name(s).[35]
[35] T7, folio 186.
On 10 June 2019, a Departmental officer sent Mr Malistani notice of an Appointment for Australian citizenship – Interview with Standard Test, scheduled for 13 August 2019.[36]
[36] T8.
On 10 September 2019, an officer of the Minister’s Department sent Mr Malistani a Notice of intention to cancel his Resident Return visa under s 133C of the Migration Act.[37] The Notice has not been provided to the Tribunal. On 1 November 2019, Mr Malistani’s migration agent, Marion Le AM, Marion Le Consultancy, provided a response to the Notice.[38] The response has not been provided to the Tribunal but documents provided to the Department in October 2019 have been placed before the Tribunal.[39] On 23 July 2020, a Departmental officer notified Mr Malistani an administrative decision was made by the Department on 18 July 2020 not to refer your case to the Minister for consideration of cancellation under s 133C(1).[40] The notice and the Department’s decision have not been provided to the Tribunal in these proceedings.
[37] T2, folio 17.
[38] Ibid.
[39] ST16-ST21.
[40] Ibid.
On 3 July 2020, Dr Sayad Javid, a psychiatrist, reported Mr Malistani was suffering from a relapse of recurrent major depressive disorder and acute onset Post Traumatic Stress Disorder following. The doctor attributed this to an assault four weeks ago whilst working as a taxi driver with threat to [Mr Malistani’s] life.[41]
[41] T9, folio 193.
On 10 August 2020, Ms Le provided further information to the Department addressing Mr Malistani’s character and his circumstances.[42]
[42] T10.
An Afghan Taskforce Identity and Character Assessment (Assessment) was undertaken. A redacted version of the report of this Assessment was prepared by the Respondent.[43] The Assessment identified concerns in relation to Mr Malistani’s identity which were not resolved, and consequently the assessor could not be certain of Mr Malistani’s identity.[44]
[43] ST25. The redacted and unredacted documents were given to the Tribunal with an application for confidentiality orders to prevent disclosure or publication of the redacted material. Being satisfied it was appropriate to do so in the circumstances, and without controversy, confidentiality orders were made on 5 October 2022 which remain in force. The parties have access to the redacted document. The unredacted document has not been provided to the Applicant and there is no cause to refer to any redacted material for present purposes.
[44] Ibid, folio 382.
On 27 October 2020, a Departmental officer sent Mr Malistani an Invitation to comment on adverse information – application for Australian citizenship by conferral (Invitation).[45] The Invitation expressly refers to the legislative requirements in respect of good character under s 21(2)(h) of the Citizenship Act and identity for the purposes of s 24(3) of the Citizenship Act. The author states:
[45] T12.
In considering you citizenship application, specifically in reference to the matters mentioned above, I will be taking into account information outlined below:
- Discrepancies and concerns that have been identified during the processing of your application which indicate that you may have provided incomplete, inconsistent or incorrect information about aspects of your identity.[46]
[46] T12, folio 643.
Specific issues are then set out in some detail in respect of:
(a)Family name;
(b)Date of birth;
(c)Education and residence;
(d)University;
(e)Employment;
(f)Family composition – parents;
(g)Family composition – brother:
(h)Family composition – possible undeclared brother;
(i)Family composition – spouse and children – dates of birth;
(j)Association with Zalmay Mohseni (and a possible undeclared aunt residing in Australia);
(k)Taskera;
(l)Afghan driver’s licence; and
(m)Other issues.

Ms Le sought a number of extensions of time in which to provide further information in response to the Invitation. It appears Mr Malistani returned to work, but was again assaulted,[47] and he suffered further severe mental health problems.[48]
[47] T14, folios 671-672.
[48] T14, folio 669.
On 2 February 2021, Mrs Malistani and the four children were granted partner visas pursuant to the application made on 17 November 2013.[49] They arrived in Australia on 3 March 2021 and subsequently travelled from Perth to Canberra. Once clear of quarantine restrictions, Mrs Malistani and the four children reunited with Mr Malistani and other family members residing in Australia.
[49] Ibid.
Ultimately, in July 2021, Ms Le provided additional information in response to the Invitation.[50]
[50] T13-T21 and T24.
On 17 November 2021, a delegate of the Minister decided to refuse Mr Malistani’s 2019 citizenship application on identity grounds.[51] The delegate stated:
After considering all the information provided on your file, in the Department’s systems and the relevant legislation, I have refused your application for conferral of Australian citizenship on the basis I am not satisfied of your identity. While I am not satisfied of your identity, I am satisfied the information I have taken into consideration when making my decision is related to you, the applicant.[52]
[51] T2.
[52] T2, folio 16.
On 13 December 2021, Mr Malistani applied to the Tribunal for review of this decision.[53]
[53] T1.
At the hearing of the application, extensive oral evidence was taken from Mr Malistani, members of his family and witnesses with alleged knowledge of Mr Malistani in Australia and in Afghanistan.
Issues and law
The Tribunal’s jurisdiction is conferred by s 52(1)(b) of the Citizenship Act:
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
(a) …;
(aa) …;
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
(c) …
…
(3) For the purposes of the Administrative Appeals Tribunal reviewing a decision of a kind referred to in paragraph (1)(b):
(a) the Tribunal must not exercise the power under subsection 22A(1A) or 22B(1A); and
(b) the Tribunal must not review any exercise of the power or any failure to exercise the power.
Relevantly, s 24 is in the following terms:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) …
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
National security
(4) …
…
As can be seen, the Minister’s power to approve or refuse to approve a person becoming an Australian citizen under s 24(1) is subject to limits set out in s 24(1A) and (3): the Minister has no discretion to approve a person to become an Australian citizen if the person is not eligible under s 21(2), (3), (4), (5), (6), (7) or (8) or if the Minister is not satisfied of the person’s identity. By operation of s 24(2), the Minister may refuse to grant approval under s 24(1) even if the person’s meets the eligibility threshold under s 21.
These provisions frame the Tribunal’s task on review. For the purposes of reviewing a refusal decision under s 24(1) of the Citizenship Act, the Tribunal may exercise all the powers and discretions conferred upon the decision maker, and it is subject to the same limits.
The delegate who made the decision under review stated:
I have considered your application against the requirements set out in subsection 21(2) of the Act.
I am prohibited for approving your application for conferral of citizenship because one or some of the circumstances below apply to you:
X Subsection 24(3) I am not satisfied of your identity
The requirements in s 21(2) are:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Close examination of the delegate’s decision reveals some but not all of the essential eligibility requirements for Australian citizenship set out in s 21(2) were assessed. The decision maker found Mr Malistani satisfied the requirements of ss 21(2)(a), (b) and (c) but did not assess whether or not Mr Malistani met the requirements of s 21(2)(d), (e), (f), (g), (h) and s 21(2A).[54] Nonetheless, the delegate decided the prohibition on approving citizenship under s 24(3) applied.
[54] T2, folios 18-19.
There is no controversy, correctly in my assessment, that Mr Malistani satisfies s 21(2)((a), (b) and (c) of the Citizenship Act.
In these circumstances there is a question about the scope of the Tribunal’s jurisdiction and power to determine eligibility requirements under s 21(2) which were not assessed by the person who made the decision under review. The question must be answered in the affirmative: the Tribunal has jurisdiction and power to determine all matters capable of being decided by the person who made the decision under review, whether or not those matters were squarely addressed or decided. Presently, however, the issue is not one of jurisdiction or power, but one of practicality and fairness.
Mr Malistani submits the correct or preferable decision is for the Tribunal to grant him Australian citizenship. By operation of s 24(1A), no such decision can be made unless Mr Malistani meets the eligibility requirements in s 21(2). No decision can be made in respect of s 21(2)(e), (f) or (g) unless the Minister is satisfied of the factual matters set out in s 21(2A). As no material or evidence has been adduced to establish the factual matters referred to in s 21(2A), and the parties did not raise or squarely address such matters in these proceedings, as a matter of practicality, the Tribunal cannot decide the question of satisfaction posed by s 21(2A). For this reason, it is necessary to remit the matter to the Minister for further consideration.
With regard to the good character requirement under s 21(2)(h), while the Tribunal has jurisdiction and power to decide if this threshold is met, and there is material capable of supporting such a finding, the parties did not squarely raise or address issues of this kind in the proceedings or in the hearing. In submissions for Mr Malistani, Ms Le described the review as not a character case. Under s 39(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal must ensure each party is given a reasonable opportunity to present their case and to consider and make submissions about documents to which the Tribunal proposes to have regard. In the circumstances, proceeding to determine the character questions without the parties having opportunity to adduce further evidence and to make further submissions addressing relevant considerations, may result in unfairness. While it would be possible to give the parties an opportunity to do so and, if necessary, resume the hearing, as it is necessary to remit the matter for reasons I have explained, the better course is for the character issue also to be remitted for further consideration.
The remaining issue to be decided is in respect of Mr Malistani’s identity for the purposes of s 24(3) of the Citizenship Act. This is a narrow issue but there are many factual matters in dispute. Before dealing with the factual aspects of this case, it is desirable to address issues arising from the legislation and the submissions of the parties.
The question of identity arises under s 24(3) in the context of a conditional prohibition on approving a person to become an Australian citizen. The Minister (or the Minister’s delegate) (in whose shoes the Tribunal presently stands) has no discretion to approve Australian citizenship without, first, being satisfied of the applicant’s identity.
The word satisfied in this context is not defined. Ordinarily, being satisfied of something refers to a state of being sufficiently assured or convinced of the thing. For the purposes of s 24(3) of the Citizenship Act, satisfaction may be achieved by reasonable evaluative judgment in consideration of available probative materials and relevant factual findings. It involves a process of rational decision making in which regard is had to all relevant considerations in respect of a person’s identity under the terms and for the purposes of the legislation, without regard to irrelevant matters. In other words, it is not sufficient to form an opinion about a person’s identity without a factual foundation drawn from findings made on assessment of relevant evidence. When exercising power, the decision maker must act reasonably,[55] and the question of satisfaction must be determined in a manner that is legally reasonable. For a state of reasonable satisfaction to be achieved, while certainty or comfortable satisfaction is not required,[56] possibility is not sufficient: it is a positive state in which the decision-maker is sufficiently assured or convinced of the person’s identity, albeit perhaps not certain.
[55] Minister for Immigration and Citizenship v Li [2013] HCA 18 per French CJ at [26] and [29].
[56] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [56].
In the context of proceedings before the Tribunal, the degree of satisfaction has been aligned with the civil standard of proof, in which the “degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved” [57] where, in the oft quoted words of Dixon J in Briginshaw v Briginshaw (Briginshaw),[58]:
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.
[57] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ at 521.
[58] [1938] HCA 34; (1938) 60 CLR 336 at 362.
Nevertheless, reference to the civil standard of proof is inapposite. Under s 33(1)(c) of the AAT Act, the Tribunal is not bound by any rules of evidence,[59] including the rule in Briginshaw,[60] albeit that such rules are available and, depending on the nature and the facts of any particular case, may usefully assist the Tribunal to make the correct or preferable decision.[61] The Tribunal must pursue the objectives set out in s 2A of the AAT Act and provide each party with a reasonable opportunity to present their case, thereby affording substantial justice to the parties.[62] The present state of law in respect to these matters is encapsulated in the words of Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority[63] at [120]:
When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.
[59] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, per French CJ at [17].
[60] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 43, per Flick and Perry JJ at [116] and [121].
[61] See, for example, Jagot J (as she then was) in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37].
[62] R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, per Evatt J at 256.
[63] [2014] FCAFC 43.
No doubt, serious or grave consequences may flow from a decision about a person’s identity. Where the Minister is satisfied of the person’s identity and all other essential preconditions are met, the person may be granted Australian citizenship with all the rights, responsibilities and obligations that entails. Should the threshold of satisfaction not be met, the person is precluded from conferral of Australian citizenship and their continuing lawful presence in Australia as a non-citizen is subject to provisions of the Migration Act which might apply from time to time. In particular, where the Minister is not satisfied of a visa holding non-citizen’s identity for the purposes of the Citizenship Act, a similar question of identity might arise in respect of the person’s visa. Subsection 116(1AA) confers discretion on the Minister to cancel a person’s visa if he or she is not satisfied of the person’s identity. Should the discretion be exercised, absent grant of any other visa, the person’s legal status would change from that of a lawful non-citizen to an unlawful non-citizen under s 14 of the Migration Act, whereupon they would be subject to detention pending removal from Australia. The gravity of consequences which might flow from an adverse identity decision under s 24(3) of the Citizenship Act can readily be understood.
Nevertheless, as has often been noted in previous cases, the word identity is not given special meaning under the Citizenship Act or the Migration Act.
The Minister’s Department has promulgated the Australian Citizenship Policy Statement (Policy),[64] including Citizenship Procedural Instructions (CPI) which deal with issues of identity. The Policy and relevant CPIs may assist a consistent approach to decision making under that Act.[65] It can be accepted, while the Tribunal is not strictly bound by such policy, and subject to any inconsistency with the Citizenship Act, it may be appropriate to apply the policy insofar as it is relevant in any particular case unless there is a good reason not to do so.[66] This is such a case.
[64] T3.
[65] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, per French CJ, Bell, Keane and Gordon JJ at [54], and Gageler J at [62].
[66] Minister for Home Affairs v G [2019] FCAFC 79
CPI 16 deals with Assessing Identity under the Citizenship Act and states:
3. The identity provisions and the Act
To establish an identity with confidence, it is necessary to obtain and confirm information about a person and their claimed identity. Obtaining identity information means collecting quality information about a person (biometrics) and their claimed identity (biographical information contained in documents and a person's life story).[67]
[67] T3, folio 101.
…
4. What is identity?
A person's identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.
…
Identities need to be trusted and secure. The Department establishes identity records that are relied upon by Commonwealth, state and territory agencies, the judicial system, across international borders and in the private sector. Trusted and secure identities create opportunities for innovation, productivity and economic stimulation. Robust identity confirmation is the basis of a trusted and secured identity.
In the context of the Department's functions, identity integrity is essential in maintaining Australia's national security, law enforcement, and economic and social interests.[68]
…
5. Three pillars of identity
When assessing a person's identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.
Documents – reliable and secure identity documents as defined by the Security Standards for Proof of Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Life Story – an account of the events that happened to a person during their lifetime.
Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.
The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.
[68] Ibid, folio 102.
The Tribunal must assess all the materials and evidence relevant to these matters in order to decide if it is satisfied of Mr Malistani’s identity for the purposes of s 24(3) of the Citizenship Act. In the unusual circumstances of his case, it is apposite to reiterate the following observations made by the Tribunal in previous cases to which attention has been drawn:
Australian citizenship cannot be granted on the basis of false statements.[69]
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society…
… where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.[70]
[69] Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267 at [41].
[70] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].
That said, it is not reasonable to put a person to proof of facts that are not known. The question for the Tribunal in a case of this kind is whether the person’s identity is raised on reasonable grounds sufficient to satisfy the Tribunal. Inevitably, this turns on matters of consistency, corroboration, context and plausibility, especially where the available materials and evidence leave open factual questions about aspects or attributes of the person’s claimed identity.
2017 AAT decision

Mr Malistani relies upon the 2017 AAT decision as to the weight and consideration to the evidence provided then, and now.[71]
[71] Applicant’s Statement of Issues, Facts and Contentions, 28 June 2022 at [76].
The Minister asserts the 2017 AAT decision is of little probative value for present purposes. The Minister argues the previous Tribunal was required to decide if it was satisfied of Mr Malistani’s identity for the purposes of the visa cancellation provisions of the Migration Act. Those provisions, and s 116(1AA) in particular, do not align with the provisions for conferral of Australian citizenship under the Citizenship Act. The standard of satisfaction required in respect of a person’s identity, so the argument goes, is significantly higher for the purpose of the Citizenship Act than it is in respect of the Migration Act,[72] which involves a ‘lower bar’ as to satisfaction of identity.[73]
[72] Respondent’s Statement of Facts, Issues and Contentions, 29 July 2022 at [23].
[73] Ibid at [25].
The Minister asserts the test under s 24(3) of the Citizenship Act is distinguished in terms from the test under s 116(1AA) of the Migration Act:[74] the former sets out a positive threshold for mandatory refusal to approve a person becoming an Australian citizen whereas the latter sets out a negative threshold for discretionary cancellation of a non-citizen’s visa.
[74] Respondent’s Post Hearing Submission, 12 December 2022 at [6].
These submissions raise an important question in respect of the probative value of previous decisions which have been made about Mr Malistani’s identity over the past 12 years and the 2017 AAT decision in particular. Of particular significance is the extent to which, if at all, previous decisions of the Minister’s delegates and the Tribunal might be relied upon as proof of Mr Malistani’s identity for the purposes of s 24(3) of the Citizenship Act.
There are several things to say about this.
The Tribunal must address the statutory question posed by the applicable legislation. The question is to be construed in its terms, with proper regard to the statutory context and the objects of the legislation.
Subsections 24(1A), (3), (4) and (4A) of the Citizenship Act impose limits on the Minister’s power to approve a person becoming an Australian citizen under s 24(1). The limit in s 24(3), the Minister must not approve, applies unless the Minister is satisfied of the person’s identity. The conditional framing of the limit on power reinforces the requirement for a positive finding on the question of satisfaction. Nevertheless, conditionality of this kind does not alter the statutory question posed and the threshold set by the legislature, namely whether the decision maker is satisfied of the person’s identity.
Satisfaction of a person’s identity is also a significant matter under relevant provisions of the Migration Act. While the power to grant a visa under 65 of the Migration Act does not expressly turn on the visa applicant’s identity, identity is an important consideration. Subsection 116(1AA) of the Migration Act is in the following terms:
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.
The discretion conferred is limited where prescribed circumstances exist under s 116(2), whereupon the Minister is not to cancel the person’s visa, or under s 116(3), whereupon the Minister must cancel the person’s visa. Furthermore, the Minister is required to refuse the grant of a protection visa in certain circumstances under s 91W or s 91WA of the Migration Act where a visa applicant does not produce evidence of their identity, nationality or citizenship or the person produces bogus identity documents.
Essentially, the discretion to cancel a person’s visa under s 116(1AA) and the bar on approving a person to become an Australian citizen under s 24(3) of the Citizenship Act are each preconditioned by want of satisfaction: where the Minister is not positively satisfied of the person’s identity.
The Minister argues the negative framing of the statutory question under s 116(1AA) of the Migration Act requires a different threshold of satisfaction than the conditional framing of the statutory question posed under s 24(3) of the Citizenship Act. No doubt, not being satisfied of a person’s identity and being satisfied of a person’s identity are different answers with different statutory consequences under s 116(1AA) of the Migration Act and s 24(3) of the Citizenship Act, but it does not follow the statutory question they answer in respect of satisfaction of a person’s identity is fundamentally altered by negative or conditional framing, or that the particular framing imports different thresholds or degrees or standards of satisfaction. To my mind, it does not.
Satisfaction has a binary quality. The decision maker is either not satisfied or satisfied of the person’s identity. The language, objects and purposes of s 116(1AA) of the Migration Act and s 24(3) of the Citizenship Act do not suggest any different conclusion.
Where the threshold of satisfaction in respect of a person’s identity is not met on the available materials and the facts of any particular case, the discretion to cancel the person’s visa under s 116(1AA) of the Migration Act is enlivened, or the bar on approving the person to become an Australian citizen under s 24(3) of the Citizenship Act applies. Absent a positive answer, where a person’s identity is far from clear,[75] the Minister (and presently the Tribunal) has no power to approve the person becoming an Australian citizen. Where the threshold is met, and the decision-maker is satisfied of the person’s identity, the contrary holds: the discretion to cancel the person’s visa under s 116(1AA) of the Migration Act does not arise, or the bar on approving the person to become an Australian citizen under s 24(3) of the Citizenship Act falls away.
[75] See Beyan v Minister for Immigration and Border Protection [2015] AATA 256 at [38], for example.
The Minister argues the consequences of a decision maker being satisfied of a person’s identity are more serious or grave under s 24(3) of the Citizenship Act than under s 116(1AA) of the Migration Act. Australian citizenship, so the argument goes, confers privileges, rights and responsibilities which necessitate a higher bar in respect of a person’s identity than applies under the Migration Act.[76]
[76] Ibid.
The Minister relies on previous decisions of this Tribunal in which it was noted the steps taken to establish identity under the Migration Act are distinguished from those applying under the Citizenship Act.[77] While there may be differences in steps taken to establish a person’s identity in adherence to policy under the Migration Act and the Citizenship Act, without express or implied statutory authority, differences of that kind are not determinative of the legal threshold of satisfaction to be applied under the particular legislation: policy is subservient to the legislation.
[77] Sahfai and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [55].
Relying on CFYJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (CFYJ),[78] the Minister asserts establishing a person’s identity under the Citizenship Act is a critical starting point for access to government services and benefits, as well as the rights and privileges of citizenship, including an Australian passport. Three observations can be made about this. Firstly, and most importantly, where the Minister is satisfied of a person’s identity and approval of citizenship is not barred by operation of s 24(3), the person would only be approved to become an Australian citizen if all other essential requirements are met under the Citizenship Act. Secondly, while an Australian citizen may be entitled under s 7 of the Australian Passports Act 2005 to the issue of an Australian passport, and in that regard the grant of Australian citizenship is a critical starting point, under s 8 of that Act the Minister must be satisfied of the identity of the person before a passport may be issued to the person. In other words, there is nothing automatic about a person being issued with an Australian passport following the grant of Australian citizenship. Thirdly, the passage the Minister relies on in CFYJ is no more than a recitation of submissions made for the Minister in that case, which the Tribunal did not expressly endorse.
[78] [2022] AATA 23 at [24].
Nevertheless, satisfaction of a person’s identity in the context of approval of Australian citizenship under s 24(1) is a significant matter with serious consequences, the gravity of which can readily be accepted. The privileges, rights and responsibilities of Australian citizenship cannot be conferred upon a person unless the Minister is satisfied of their identity and all other essential or applicable criteria are met. While a negative decision under s 24(3) is determinative, a positive decision will only result in approval of citizenship where all other requirements under the Citizenship Act are satisfied.
The power to cancel a non-citizen’s visa on identity grounds under s 116(1AA) of the Migration Act is also a significant matter associated with serious consequences, the gravity of which can readily be understood. A legally effective visa cancellation decision under s 116(1AA) has the immediate effect of changing the lawful status of the person from that of a lawful non-citizen under s 13 to an unlawful non-citizen under s 14. This may result in detention of the unlawful non-citizen under s 189 and their removal from Australia under s 198. Furthermore, by operation of s 140 of the Migration Act, a visa cancellation decision under s 116(1AA) may result in the consequential cancellation of visas held by other persons, including family members of the non-citizen.
While a negative identity decision under s 116(1AA) essentially preconditions the discretion to cancel a person’s visa, it cannot be assumed the person’s visa will be cancelled under s 116(1AA) in every case in which the discretion to do so is enlivened: exercise of the discretion requires a linked but distinct decision to be made in the particular circumstances of any case. Furthermore, a decision not to cancel a person’s visa under s 116(1AA) does not preclude cancellation of the person’s visa under any other applicable provision of the Migration Act.
Carefully considering these matters, I am not persuaded by the Minister’s submissions. No cogent rationale based on authority has been advanced by the Minister to support a higher standard of satisfaction applying in respect of a person’s identity for the purposes of s 24(3) of the Citizenship Act than would apply for the purposes of s 116(1AA) of the Migration Act. The legislation does not expressly or impliedly authorise or require a lower threshold of satisfaction to be applied to the discretion to cancel a person’s visa on identity grounds or a higher threshold of satisfaction of the person’s identity to be applied to the bar on approval of Australian citizenship.
In Boy19 v Minister for Immigration and Border Protection,[79] O’Bryan J said:
57. As noted earlier, the Member rejected the Minister’s submission that a higher level of satisfaction of the applicant’s identity was required under s 24(3) of the Act in comparison to s 116 of the Migration Act, and also rejected the submission that the Tribunal may have regard to the principle articulated in Briginshaw. The Member was correct to do so.
The Minister asserts these observations are directed to a different point, in respect of evidentiary rules and the character issue under s 21((2)(h) of the Citizenship Act, on which that case turned, and they are obiter. It is very clear, however, O’Bryan J decided no greater degree of satisfaction was required or authorised than that provided for in the terms of the legislation. This threshold, his Honour decided, is no greater than reasonable satisfaction. The Tribunal wrongly approached the statutory task by considering if it was comfortably satisfied, in the sense of being well and truly satisfied, and in so doing it adopted a degree of satisfaction that was not required by the statute.[80] Having carefully examined the text, context and purposes of the statutes, and noting the inappropriateness of importing standards from one enactment to another, I am not persuaded different degrees of satisfaction of a person’s identity are required by s 24(3) of the Citizenship Act and s 116(1AA) of the Migration Act.
[79] [2019] FCA 574
[80] Ibid at [66].
Finally on this point, decisions and findings have previously been made in respect of Mr Malistani’s identity, including the decision on 9 March 2010 to grant him a protection visa,[81] the decision to refuse to approve the grant of Australian citizenship on 20 December 2016[82] and the previous Tribunal decision on 23 June 2017 to set aside the decision to cancel his visa under s 116(1AA).[83] None of these decisions are presently binding. The statutory question the Tribunal must presently decide in respect of Mr Malistani’s identity, namely to make the correct or preferable decision under s 24(3) of the Citizenship Act on the materials and evidence placed before it in these proceedings, cannot fully be answered by findings made by previous decision makers on the materials then available.
[81] ST3.
[82] ST8.
[83] ST9.
This is not to suggest previous findings should be disregarded or given no weight, particularly if the findings bear directly upon the person’s alleged identity or the veracity of claims made in support of it. The attribution of weight is a matter for consideration in each case. While little weight may be given where the previous decision was based on limited materials which do not directly address identity considerations, greater weight may be given if the previous decision was based on the same or substantially similar materials as are presently available. Nevertheless, questions of satisfaction of a person’s identity are matters about which reasonable minds may differ when assessing the same or substantially similar materials. While each decision maker must make the correct or preferable decision under the applicable statutory provisions, it is not desirable to allow matters which have been conclusively decided to be reagitated without good cause.
While the Minister’s contentions about inconsistencies in accounts Mr Malistani has given over time in respect of aspects of his alleged identity, and the veracity of those accounts and documents which have been produced, may have been sharpened somewhat in these proceedings, the matters dealt with by the previous Tribunal in the 2017 AAT decision are substantially the same as those arising in these proceedings. The same threshold of satisfaction in respect of Mr Malistani’s identity applies, albeit for the purposes of s 24(3) of the Citizenship Act. Much of the material that is presently available was available to the previous Tribunal. Nevertheless, the Tribunal has before it evidence and materials which were not available when the 2017 AAT decision was made. The materials and evidence presently before the Tribunal are sufficient to support factual findings and consequent conclusions about Mr Malistani’s identity, without any reliance on or need to resort to findings made and conclusions drawn in previous decisions.
That said, there are gaps in the documentary records provided to the Tribunal. No record of Mr Malistani’s interview at Kingsford Smith Airport, on arrival into Australia, has been produced. Mr Malistani’s Protection visa application in December 2009 has not been provided. The Global Special Humanitarian visa and Partner visa applications which were made in respect of Mrs Malistani and the four children have not been provided. Documents Mr Malistani provided to Departmental officers in December 2009[84] and on 22 July 2015[85] have not been identified. Reliance has been placed on facts found by previous decision makers and on recitation of information contained in documents which have not been provided in these proceedings which cannot, therefore, be examined, evaluated or properly tested.
[84] ST2, folio 8 refers.
[85] ST6, folio 54.
Under s 37(1) of the Administrative Appeals Tribunal Act 1975, the Minister is required to provide the Tribunal with every document held or controlled by the Minister’s Department that is relevant to the review. With the passage of time, it is conceivable documents may have been lost or destroyed. The contents of the Assessment in T25 point to a different conclusion in this case, however. Reference is made to information and documents which have not been given to the Tribunal. This suggests the Minister’s Department holds relevant documents which have not been produced to the Tribunal. If correct, this is a matter of concern.
Identity
The identity Mr Malistani claims has the following key attributes:
(a)Before leaving Afghanistan in November 2009, his name was Abdul Ghafour;
(b)He added the name ‘Malistani’ on arrival in Australia;
(c)He chose ‘Malistani’ because he is from a village in the Malistan district;
(d)He does not know he precise date of birth and chose the first day of the solar year in 1980 as his date of birth;
(e)He was born in Kabul;
(f)His father is Jan Ali and his grandfather is Ali Juma;
(g)His father’s family is from Baghala village in the Malistan District of Ghazni Province;
(h)His parents died of cancer, his mother shortly after his father;
(i)He has a sister in Kabul who is about 10 years older;
(j)He has a brother, Assadullah, who is missing, presumed dead;
(k)He married Fahima Nadri, a teacher;
(l)She is from a neighbouring village of Nawdeh;
(m)They knew each other in Kabul;
(n)Their wedding took place at her father’s house in Nawdeh;
(o)They have four children;
(p)He was educated in Malistan and then attended Balkh University, where he studied law and politics;
(q)He left university when the Taliban took control of Mazar-e- Sharif;
(r)He owned a grocery shop in Kabul and some farming land in Malistan;
(s)He and his wife planned to undertake an international human rights awareness campaign;
(t)He was threatened by the Taliban; and
(u)He obtained a false passport from a people smuggler who arranged his travel to Australia.
Biometrics
There is very limited direct biometric information about Mr Malistani. Much of the available information is in the form of photographs.[86]
[86] T4, folio 149, 153, 154 and 178; T15, folio 667; T16, folio 702; T17, folio 734; T21, folio 767; T25, folios 812, 818, 823, 824, 825 and 840; ST11, folio 132; ST13, folio 136 and 139; ST14, folio 140 and 150; ST15, folios 167 and 172; ST16, folios 209 and 211
These materials are sufficient to establish Mr Malistani’s facial identity. I accept the photograph of Mr Malistani with his young family[87] was taken in Afghanistan prior to his departure in 2009. This is consistent with the evidence of Fahima Malistani and the apparent young ages of the four children.
[87] T17, folio 734.
I also accept DNA testing was undertaken.[88] While evidence of the results of the DNA testing is not before the Tribunal, it is not controversial, and I accept, the DNA test results proved Mr Malistani and his wife are the biological parents of their 4 children.
[88] ST 16, folios 163-164.
Documentation
It can be accepted, and I understand it is not controversial, Mr Malistani travelled to Australia using a Dutch passport in the name of Zalmay Mohseni, which included a photograph of Mr Malistani. I am satisfied Mr Malistani is not Zalmay Mohseni. The available evidence suggests Mr Malistani obtained the false passport from a people smuggler in Kabul, to whom he paid an amount of $USD30,000.

There is an issue whether Mr Malistani knows or is related to Zalmay Mohseni, perhaps through his wife’s family. There is not sufficient evidence to establish any personal or familial connection between Mr Malistani and Zalmay Mohseni.
It has been asserted Mr Malistani has an undeclared aunt living in Australia: Fatemah Mohseni. Ms Mohseni is the mother of Asef Mizaee, who also gave evidence. She was called to give oral evidence, but this was not able to be completed for health reasons: Ms Mohseni is aged and unwell. Nonetheless, her evidence is sufficient to establish she denies any relationship to Mr Malistani even though she knew his father, Jan Ali, and is from the same area. Considering Ms Mohseni’s father has the same name as Mr Malistani’s paternal grandfather, Ali Juma, it is conceivable a familial relationship might exist, albeit not presently proved. Even if that is correct, Ms Mohseni’s evidence is that she spent most of her life in Iran before travelling to Australia. She made a statutory declaration in which she stated she knew Mr Malistani in Afghanistan.[89] In her curtailed oral evidence she explained she knew Mr Malistani in Afghanistan because he was from the same area, but she did not know much about him.
[89] ST18, folio 216.
On the Country Information Report before the Tribunal, it can be accepted document fraud is a significant concern in Afghanistan.[90] It can also be accepted the information contained in official documents, including Tazkiras, may not be reliable. These matters go to the legitimacy and reliability of documents on which Mr Malistani relies to establish his identity.
[90] See ST22, folios 299-301.
In his application for conferral of Australian citizenship on 14 February 2019, Mr Malistani provided a Tazkira (No. 7577165)[91] and an Extract Translation of Birth Record dated 3 May 2010. I am unable to determine if the latter is a translation of the former. The translation does not refer to the Tazkira reference number 7577165. Nevertheless, the Birth Record translation document includes ‘Malistani’ as his family name. It records he was born in Ghazni and he was 23 years old in 2003.[92]
[91] T4, folio 153.
[92] Ibid, folio 154.
The Minister’s assertion this document has been subject to modification by Mr Malistani to include the name ‘Malistani’ is not supported by probative materials. The assertion proceeds on the assumption the Extract of Birth Record is an accurate translation of the Tazkira. It is an assumption I am not prepared to make. Furthermore, it assumes the veracity of the Tazkira and the other information supposedly translated from it in respect of Mr Malistani’s place of birth and his age.
This information set out in the translation aligns with information set out in passports issued by the Embassy of the Islamic Republic of Afghanistan (Embassy) in 2013 and 2021, each of which record Mr Malistani was borne in Ghazni and his date of birth is 21 March 1980.[93] It also aligns, in part at least, with information set out in a Tazkira (number 32095594) issued on 5 August 2019,[94] which records Mr Malistani was born in the district of Malistan in the province of Ghazni. His village is recorded to be Bolghan Khorday zayda.[95] The source and the veracity of the information contained in these documents is not established. On Mrs Malistani’s evidence she asked for Mr Malistani’s Tazkiras to be updated to align with information given to Australian authorities, and that is what occurred.
[93] T15, folio 677 and T21, folio 767.
[94] ST16, folios 209-211.
[95] Ibid, folio 211.
The Tazkira information in respect of Mr Malistani’s place of birth is not consistent with his assertion and evidence he was born in Kabul.
On 6 June 2011, the Embassy issued a document certifying:
Based on the documentation received from Road and traffic authorities in Kabul, Afghanistan, The following detail is certified.
Full Name:                 Abdul Ghafour Malistani
Place of Birth              Kabul
Date of Birth:              21/03/1980
…
Serial Number:           AA140724
…[96]
[96] T25, folio 811.
As can be seen, this document records Mr Malistani was born in Kabul, not Ghazni. The reason for this discrepancy is not clear and the source of the information certified is not established. I note the Extract of Translation of Driver’s Licence (number AA140724) dated 3 May 2010[97] does not refer to Malistani as a family name and it does not record a place of birth. This document records the date of birth as illegible.[98]
[97] ST15, folio 169-170.
[98] Ibid, folio 169.
On 27 October 2016, the Embassy certified:
… Mr. ABDUL GHAFOUR MALISTANI S/o JAN ALI was born in KABUL -AFGHANISTAN, on the 21.03.1980.[99]
The source of this information is not established.
[99] ST15, folio 166.
Mr Malistani relies on a certificate of his marriage, dated 7 May 2013.[100] The translation of this document records he was 23 years old in 2003 and Fahima was 23 years old in 2006 and:
…they got married on 22/04/1999 under marriage portion amount of 250000 Afghanis and their marriage took place in to their house located in district 13^th of Kabul city.[101]
Mrs Malistani’s age is consistent with information set out in a translation of a Tazkira (number 250180) issued on 25 January 2010.[102] I note there is some disputation about Mrs Malistani’s true parentage as recorded in her Tazkira. This is a deeply personal matter which I do not need to go any further with for present purposes.
[100] ST13, folios 136-139.
[101] Ibid, folio 136.
[102] T16, folios 713-14.
There are several issues arising from these documents.
Firstly, Mr Malistani maintains he adopted the family name Malistani after arriving in Australia. He asserts he did not have a surname, so he invented the name ‘Malistani’ because he is from Malistan.[103] His evidence is he asked for the name ‘Malistani’ to be added to his Tazkira in 2009 after arriving in Australia, which is what his wife arranged.
[103] T20, folio 762
If that is correct, the name ‘Malistani’ would not appear on any official documents from before Mr Malistani arrived in Australia on 28 November 2009. This is consistent with the translation of Mr Malistani’s Afghan driver’s licence (number AA140724) on 3 May 2010, but it raises a question about the contents of the Tazkira (No. 7577165)[104] and the Extract Translation of Birth Record dated 3 May 2010. Mr Malistani gave sworn evidence the name ‘Malistani’ was not in the Tazkira he had on arrival in Australia on 28 November 2009, which he gave to Departmental officers with his Afghani driver’s licence (Mr Malistani asserts and the Minister disputes these original documents were not returned to him and, for this reason, presently, he can no longer produce them).
[104] T4, folio 153.
The protection visa decision maker noted:
On 18/01/2010 the applicant provided the department with original documents in the name of “Malistani” including a Drivers Licence.[105]
[105] ST3, folio 9.
It is not established if the original documents were official Afghan documents or translations provided by Mr Malistani, although on his evidence he gave the Department an original Tazkira and an original Afghani driver’s licence. There is evidence he also provided translations of some documents after being taken into immigration detention following his arrival in Australia. I note Ms Smidt provided documents to the Department on 16 January 2010, of which she stated:
The translator advises the documents marked “A” is an application for an international Driver’s Licence, but states the hand written sections are virtually illegible…
The document marked “B” is an identification document in Pastoo, which is not a language for which the translator is accredited.
The document marked “C”: is a university student ID document for Abdul Ghafoor. I did not request a full translation as it is not directly relevant to Mr Malistani’s claims.
…[106]
[106] ST1, folio 2; SDT15, folio 207 (untranslated); see copy of Student Identity Card (No. 2023) in the name of Abdul Ghafour and translation on 8 April 2017 in T25, folios 814-815.
Mr Malistani asserts the original Student Identity Card he provided was a single page (No. 2374).[107]
[107] ST15, folio 207; folio 158 refers.
Doing the best with these materials, I accept Mr Malistani’s assertion he was known as Abdul Ghafour prior to leaving Afghanistan in November 2009. So much is confirmed by the documentary and oral evidence of Ayaz Pazhohish (an Australian citizen), Asef Mirzaee (an Australian citizen),[108] Arif Amini (an Australian citizen),[109] Elyas Haidari (an Australian citizen),[110] Mohammad Afzali (an Australian citizen)[111] and Mrs Malistani[112].
[108] ST17.
[109] ST21.
[110] ST19.
[111] ST20.
[112] T17.
Mr Pazhohish was a child from the same village as Fahima Nadri: Nawdeh in the District of Malistan. Mr Pazhohish’s evidence is Mr Malistani was then known as ‘Ghafour’. He was older and from a neighbouring village. Mr Pazhohish gave details of attending Mr Malistani’s wedding to Fahima at her father’s family home and recalling ‘Ghafour’ visiting the local shop on a motor bike and people saying he was a student at Balkh University. Mr Pazhohish explained he later met ‘Ghafour’ in Kabul in or about 2007 or 2008. At that time Mr Pazhohish was employed by the Ministry of Foreign Affairs and ‘Ghafour’ was seeking support for a project which involved travelling around the world on a motorbike.
Mr Mirzaee and Mr Amini were children from the same village as Mr Malistani, who knew him when they were young. Their evidence establishes he was known as ‘Ghafour’ or ‘Abdul Gjhafour’ at the time.
I am reasonably satisfied Mr Malistani adopted the surname ‘Malistani’ and he did so in the context of arriving in Australia in November 2009. Asif Nadri, Mrs Malistani’s brother gave evidence their father used the name ‘Malistani’ when applying for a passport. On his evidence, there is no familial blood relationship between Mr Malistani and his wife’s family. He explained while the name Malistani is not common, it derives from the Malistan district.
In sum on this point, absent a reliable translation, I am not persuaded Tazkira (No. 7577165) includes ‘Malistani’ as a family name, although that possibility cannot be ruled out. If I am wrong about this, there is a serious question about the origin and legitimacy of that document and the veracity of the information it contains. I am also not satisfied the Translation Extract of Birth Record on 3 May 2010 is reliable evidence Mr Malistani used the name ‘Malistani’ before departing from Afghanistan. The content of the translation does not sufficiently or squarely identify the source document to which it relates and, as I have said, it does not expressly refer to Tazkira (No. 7577165). I am unable to determine if the source document is in the materials before the Tribunal or the source of the information set out in the translation.
In his 2014 citizenship application form,[113] Mr Malistani stated his family name is ‘Malistani’ and his given names are ‘Abdul Ghafour’, and he answered No to the question Have you been known by any other names? (including name at birth, previous married names, aliases, or alternative spellings or full spelling of all names). There is no evidence Mr Malistani had been known by any other names. While there is evidence of different spellings of Malistani, including Malisani or Malisini, I am satisfied these are spellings Mr Malistani has attempted to address which are derived from misunderstanding, mis-spelling or mis-transcription rather than deception. The same can be said in respect of the different spellings of Ghafour, including Ghafoor and Ghafor, which appear in the materials.
[113] ST14, folio 140.
In all likelihood, the Tazkira (No. 32095594) was obtained to update information about Mr Malistani’s identity, as he asserts, and this was done in the circumstances described by Mrs Malistani. In all likelihood the certification documents and Afghani passports issued by the Embassy in 2011, 2013, 2016 and 2021 reflect information provided by Mr Malistani. The extent to which the Embassy or other officials verified the information contained in the certifications and passports issued to Mr Malistani is not clear on the available evidence.
The second issue arising from the documentary records is in respect of Mr Malistani’s place of birth. On the one hand, the official documents (including Afghan Passports issued in 2013 and 2021) record his place of birth as Ghazni and his 2014 application for conferral of Australian citizenship records Malistan as his place of birth.[114] On the other hand, Mr Malistani maintains he was born in Kabul, and this is reflected in a statutory declaration he made on 15 December 2009[115] and in the information set out in his application for conferral of Australian citizenship.[116]
[114] ST14, folio 140.
[115] ST12, folio 133.
[116] T4, folio 123.
Clearly, there is some difficulty reconciling the conflicting evidence about Mr Malistani’s place of birth. It is conceivable the inconsistency stems from contrivance on Mr Malistani’s part, involving the production of false documents. It is also conceivable the inconsistency is attributable to cultural differences which inform understanding of foreign terms, including the distinction between the place a person is from and the place they are born. I accept Mr Malistani is from the village of Baghala in the District of Malistan in the Ghazni Province of Afghanistan. There is no controversy his family hailed from and owned farming land in the Malistan District. I also accept his account of being born in Kabul and the circumstances under which his family moved between Kabul and Malistan during his early years.
I am satisfied Mr Malistani’s sworn evidence on this point can be accepted. His account is plausible, albeit not proved to a high degree of certainty, and in important regards it is supported by and consistent with other evidence, including witness evidence, such as given by Mrs Malistani and Mr Pazhohish. The proposition these accounts lack corroboration or consistency to the extent they should not be accepted is not persuasive in the circumstances. To my mind, the deficiency may be more readily explained by cultural and language differences, and difficulties obtaining evidence, than by a conspiracy of some kind to deceive.
The third issue arising from the documents is in respect of Mr Malistani’s date of birth. The Departmental Movement records record Mr Malistani’s date of birth to be 1 January 1980.[117] Mr Malistani explained that he did not know his date of birth and selected the first day of the year.[118] The Gregorian equivalent of the first day of the year under the Afghani Hijiri solar calendar is 21 March, the date Mr Malistani says he chose as his date of birth.
[117] T22, folio 807.
[118] ST15, folio 156.
As for the year of his birth, Mr Malistani explained he does not know the year or date of his birth. He gave sworn evidence his parents chose 1980 as the year of his birth in order to reduce his age so as to avoid mandatory military service.[119] The veracity of this assertion is difficult to test. The preponderance of the documentary materials record 1980 as the year of Mr Malistani’s birth. I am not persuaded Mr Malistani’s responses to question put to him during the interview with Departmental officer on 22 July 2015 are reliable.[120] The answers he gave were drawn from memory and are far from certain. He used words including maybe and I am not sure. It is possible Mr Malistani was 40 or 42 years old at the time of the interview,[121] or that he was 20 or 21 years old and studying at university when the Taliban took power,[122] or that he was 14 or 15 years old when the Russians departed from Afghanistan in 1989.[123] Considering Mr Malistani’s evident uncertainty about these matters, Yep but I’m not sure because as long as 30 I forget everything but I guess I said it,[124] and his equally evident difficulty understanding questions put to him (even with the assistance of an interpreter), his answers can be given very little weight without corroboration. In his sworn evidence, Mr Malistani explained he feels older than his stated date of birth. Mr Malistani’s feeling of age may be related to his experience and the debilitating effects of mental illness, about which Ms Toumo’ua (Mr Malistani’s treating psychologist) gave evidence. Mrs Malistani and her daughter Benazir gave compelling (but unqualified) evidence about Mr Malistani’s poor state of mental health from their direct experience.
[119] ST15, folio 155 refers.
[120] ST6, folios 41, 46 and 85 for example.
[121] Ibid, folio 85.
[122] Ibid, folio 41.
[123] Ibid, folio 46.
[124] Ibid, folio 86.
To my mind, even though serious questions have been raised about the veracity of the documentary records which consistently confirm 1980 as the year of Mr Malistani’s birth, the present evidence is not sufficient to make any contrary finding. I will proceed on the basis the documentary record is correct and his date of birth is 21 March 1980.
The fourth issue arising in respect of the documents is in respect of Mr Malistani’s marriage certificate and, in particular, the date and location of the marriage and whether one of the witnesses, Yasin, is an undeclared brother of Mr Malistani.
On the latter point, Mr Malistani gave evidence that that he knows Yasin, but not as a brother, as this has never been claimed. Questioned about this, Mr Malistani agreed it is possible Yasin is his brother. He observed his sister Sardar is about 10 years his senior and Yasin would be several years his senior. I accept Mr Malistani’s explanation Yasin may be his brother but note he staunchly adhered to his evidence of having only one brother, Assadullah. There is no contrary evidence. If Yasin is a brother to Mr Malistani, it might explain his presence as a witness on the marriage certificate document. On the present evidence, however, Mr Malistani’s failure to declare Yasin as his brother on grounds of asserted ignorance can be accepted as plausible.
The translated text of the marriage certificate states the marriage took place on 22 April 1999 in Kabul.[125] This is not consistent with the sworn evidence of Mr Malistani, Mrs Malistani[126] and Mr Pazhohish the wedding took place at the house of Mrs Malistani’s father in Nawdeh. I prefer the sworn witness evidence over the marriage certificate, which has an uncertain provenance. I am reasonably satisfied the wedding took place in Mrs Malistani’s father house in Nawdeh in the Malistan District.
[125] ST13, folio 136.
[126] T17, folio 731 refers.
I note the marriage certificate translation is dated 7 May 2013, well after the alleged date of the marriage. How the marriage certificate came into existence, and what evidence was relied upon, is not established with any certainty. I note in passing, in the photograph on the marriage certificate Mr Malistani appears to be much older than in the photographs in the Student Identity Cards from Balkh University, at which time the wedding is alleged to have taken place. This notwithstanding, the year of the alleged marriage is reasonably consistent with other evidence, namely:
(a)Mrs Malistani’s evidence the wedding took place several months after Mr Malistani’s parents died when he was studying at Balkh University;[127]
(b)Evidence of Seyed Mohammad Basheer, former Imam of Hazrat Imam Reza mosque, that Mr Malistani’s father died in 1998;[128]
(c)Sworn evidence of Mr Haidari that he and Mr Malistani attended Balkh University in the period from 1996 to 2000;[129] and
(d)Sworn evidence of Mr Malistani that he attended Balkh University from 1996 to in or about 2000, shortly before finishing a bachelor degree in law and politics.
[127] T17, folios 731 and 732.
[128] T17, folios 742-743.
[129] ST19, folio 218
On this evidence, it is plausible the wedding took place in 1999 and it may have occurred on the date specified 22 April 1999. There remain unanswered questions about the veracity and origins of the marriage certificate document which was evidently brought into existence on 7 May 2013.

The fifth issue arising from the documents is in respect of the dates of birth of Mr Malistani’s children and the places of birth of his daughter Benazir and his youngest son. In the 2019 application Mr Malistani made for conferral of Australian citizenship, he stated each of his four children were born in Ghazni, Ghazni Province.[130] This is not supported by evidence and it is not consistent with the evidence of Mrs Malistani that her daughter was born in Kabul[131] or Tazkiras for each of the children. The Tazkira for the daughter records that she was born in the village of Balaqistan, District of Malistan in Ghazni Province, contrary to the stated evidence of Mrs Malistani. The Tazkira for the youngest son records that he was born in Kabul but also records the village of Balaqistan. The Tazkiras for the other sons record that they were born in Balaqistan. Whatever is to be made of these records, it can be accepted none of Mr Malistani’s children were born in Ghazni.
[130] T4, folios 128-131.
[131] T17, folio 731 and T16 folios 702-712 and folios 716-718; ST 15, folios 180, 181, 183 and 184.
With regard to the dates of birth of the children, the sworn evidence given by Mr and Mrs Malistani about the premature birth of their daughter is plausible and can be accepted as an explanation for the proximity of her birth to the alleged date of their marriage. The information set out in the children’s Tazkira in respect of their ages may be accepted.
There is one final matter to consider in respect of documents. In response to questions during the interview on 22 July 2015, Mr Malistani informed Departmental officers he had been issued with an Afghani passport in 2008 which he left in Kabul and he did not have any other passport.[132] There is no probative evidence he was issued an Afghani passport in 2008, although it can be accepted he applied for a passport and permission to travel in the context of the international project he was planning to undertake at the time. There is evidence, nevertheless, Mr Malistani was issued with an Afghani passport on 26 March 2013,[133] which he omitted to mention during the interview on 22 July 2015. He failed or omitted to disclose this passport in the applications he made for conferral of Australian citizenship in 2014 and in 2019 (the application which led to the decision under review). Considering the oral evidence on this point, I accept Mr Malistani experienced a deal of confusion in respect of the passport issued in 2013. He explained he considered this was not valid and he then obtained a Titre de Voyage, issued on 2 October 2015.[134] Mr Malistani gave oral evidence, which I accept, he obtained the 2021 Afghan passport for proof of identity reasons on advice of his lawyer.
[132] ST6, folios 67-69 and 77.
[133] T15, folios 675-700.
[134] T25, folio 816-838.
Considering these matters, while there are open questions about the reliability of information contained in the documents, including the Tazkiras, marriage certificate and Afghani passports to which I have referred, as well as certificates issued by the Embassy and other documents, I am satisfied the documentary materials before the Tribunal are largely consistent with and lend support to Mr Malistani’s alleged identity, albeit not conclusively.
Life Story
Previous decision makers have recorded claims Mr Malistani made when describing his life story.[135] These include claims in respect of the composition of his family, his education, employment and other life experiences. The Minister drew attention to alleged inconsistencies between accounts Mr Malistani has given over time and documents on which he relies.[136]
[135] ST3, folios 10-11; ST9, folios 111-118; T2, folios 26-38.
[136] Respondent’s Statement of Facts, Issues and Contentions, 29 July 2022, at [8].
In order to assess the plausibility of his claims, it is necessary to consider the cogency and consistency of his story over time, having regard to his age and the extent to which his claims are corroborated by family members and others with direct knowledge of relevant events, if at all.
It is important to observe at this point there is compelling evidence from Ms Toumu’oa and Dr Javed Mr Maistani suffers from mental illness which affects his memory and his concentration. This must be taken into account when assessing the veracity, accuracy and plausibility of accounts he has given in respect of life events, family details and attributes of his identity. Perhaps especially in these circumstances, it is not appropriate or necessary to closely examine every detail Mr Malistani has given from time to time when recounting his life story and experiences in search of minor inconsistencies or to identify little discrepancies which almost inevitably exist. On this point, I note and agree with the observations the previous Tribunal made about the law in the 2017 AAT decision, citing Burchett J in Sundararaj v Minister for Immigration and Ethnic Affairs:
[5] … The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service…[137]
[137] [1999] FCA 76 at [5].
Evaluation of the plausibility of Mr Malistani’s claims turns on details of significance to his alleged life story, matters of consequence, with appropriate allowance for the language, cultural and mental health difficulties Mr Malistani has quite evidently experienced.
Mr Malistani has consistently maintained he does not know his date of birth, and he selected a date based on the start of the solar year. This aligns with 21 March under the Gregorian calendar. He has given differing accounts of his birth year. He claimed to be 29 years old when he first arrived in Australia in November 2009, being born in 1980. He also claimed his parents reduced his age in his Tazkira in order to avoid conscription into military service. As I understand his evidence on this point, it was his sister who informed him of this. As his sister, Sardar was not available to give evidence, this detail could not be tested. His account of being born in Kabul and moving with his family to their land in Malistan aligns with historical country information in respect of the varying levels of disturbance or threat to Hazaras in Kabul and in regional areas during the Russian conflict with the Muhjahideen.
The record of Mr Malistani’s answers to questions put to him in the interview with Departmental officer on 22 July 2015 is not helpful. Mr Malistani was questioned about his recollection of historical matters, in reference to the Russian involvement in and departure from Afghanistan for example. His answers were vague, imprecise, confused, substantially inconsistent and repeatedly framed by protestations he could not remember or could not be sure. Little weight can be given to this material.
Mrs Malistani’s evidence is she does not know her husband’s date of birth, but thinks he is presently 41 or 42 years old. If this is correct it aligns with him being born in 1980.
Mr Pazhohish gave evidence of knowing Mr Malistani as a child and stated:
I used to see him in local shops when we were kids. He was older than me at the time, but I knew he comes from a village called Olum Balaqsan…. His father’s name was Janali, who was a respected man in the village. Abdul Ghafour was wondering around with his motorbike, and everyone was saying he was Mr. Janali’s son. Abdul Ghafour was popular when he was studying at Balkh University because he was among very few people from our district studying at the university level. When he was coming to Malistan for the university holidays, we, the younger kids, were admiring him because of his education.
… I even remember the wedding of Abdul Ghafour and Fahima which I attend there as a school student…
Mr Pazhohish was born in 1984.[138] He told the Tribunal he went to school with Mrs Malistani’s brother Asif Nadri, they were about the same age, and he knew her younger brother Zahir. Mr Nadri gave evidence he remembered his sister’s wedding to Mr Malistani, although only vaguely as he was younger at the time. Mr Amini gave sworn evidence as a child he knew Mr Malistani who was from the same area of Balaqsan village. Mr Amini stated Mr Malistani was several years older, but he did not his own age at the time or Mr Malistani’s age. Mr Mirzaee gave evidence he knew Mr Malistani as a child, when he was 7 or 8 years old, and they grew up in the same area. Mr Mirzaee’s evidence is that he and Mr Malistani are the same age. Mr Mirzaee’s Australian driver’s licence and Document for travel to Australia record his date of birth as 21 March 1980.[139] Mr Haidari’s evidence is that he went to Balkh University with Mr Malistani in the period from 1996 to 2000 and they both took the same course in the Law Faculty and attended classes together over the four-year period. Mr Haidari explained he is from the Jaghori District and his date of birth is 1 July 1977.
[138] Exhibit 1.
[139] ST17, folios 214-215.
I note the Student Identity Cards in evidence do not set out dates in respect of Mr Malistani’s age or when the Student Identity Cards were issued.
This evidence lends support to Mr Malistani’s claims in respect of his age and his education at Balkh University, despite his evident difficulty recalling dates. His sworn evidence is he does not recall when he attended Balkh University, but he thought it might be between 1995 and 1998. I note in the record of interview on 22 July 2015, Mr Malistani explained he thought he finished school in 1996 or 1998 and then attended Balkh University[140] for four years[141], although he struggled to recall when he started and left the university suggesting he might have started in 1998 or 1999 and left in 2001.[142] The record of the interview suggests he stated “When I was studying at University, I live in Kabul in Dasht-e Barchi” with “My brother” [143], and “When I live my brother, when I live my sister, when I’m doing my university, when I start university 98 … and 99 I got married and I lived with my wife, my brother and still I keep, the same time I’m doing my study.[144] In his oral evidence, Mr Malistani explained he lived in student accommodation on campus while studying at Balkh University and when he said he lived with his brother, this was a way of saying he no longer lived with his parents.
[140] ST6, folio 44
[141] Ibid, folio48.
[142] Ibid, folios 48-49 and 54.
[143] Ibid, folio 51.
[144] Ibid, folio 54.
Mr Malistani gave evidence he thought his wife was possibly 15 or 16 years old when they married in 1999. Mrs Malistani’s Tazkira states she was 23 years old in 2003. Mrs Malistani gave sworn evidence she married her husband in 1999, several months after his parents died, while he was studying at Balkh University. This is plausible and it broadly aligns with the age of Mr Malistani’s first born child, Benazir, noting evidence she was born prematurely. Even though Mr Haidari gave evidence he was not aware Mr Malistani was married while he was attending university, he acknowledged he and Mr Malistani did not have a familial relationship and, if there was a wedding, he was not invited to attend.
Mr Haidari confirmed Mr Malistani’s account of not being able to obtain a certificate on completion of his studies at Balkh University. Mr Haidari explained, when he and Mr Malistani finished their studies, Taliban extremists were targeting Hazaras and they were forced to leave without graduating, due to the lack of security. This aligns with historical country information. It was not possible to obtain a certificate or parchment from the University on completion of their studies as this could only be obtained from the Higher Education authority but doing so was not permitted.
Mr Malistani’s detailed account of travelling on foot from the University in Mazar-e-Sharif to Malistan is geographically accurate and temporally plausible, albeit not corroborated. There is no cause to doubt he returned to Kabul and opened a grocery shop, as he and Mrs Malistani assert.
The evidence in respect of the human rights public awareness project they planned to undertake can also be accepted. This is supported by correspondence from the Office of Cultural Affairs and Community Services on 3 and 19 March 2008, the General Secretary of the National Olympic Committee on 3 March 2008 and the Ministry of Information and Culture on 4 March 2008.[145]
[145] ST1, folios 3-6.
With regard to the alleged death of Mr Malistani’s brother Assadullah and his father, the Minister asserts evidence of money transfers by Mr Malistani in on 5 and 30 July 2010[146] may have been to his allegedly missing or deceased brother, and transfers he made on 4 January 2011, 5 December 2011 and 29 January 2012[147] suggest his father may still have been alive. In his sworn evidence, Mr Malistani emphatically denied these assertions. He explained he has always stated his father died before his mother, because that is what occurred. He asserted the contrary account of his mother dying in 1995 followed by his father in 1998, as recorded by the Tribunal in the 2017 AAT decision on the basis of a letter from his sister,[148] Sardar, is not correct. Mr and Mrs Malistani both gave evidence his father died first followed, within months, by his mother, shortly before they were married in April 1999. No death certificates have been provided.
[146] T11, folios 636-639.
[147] Ibid, folios 630, 608 and 600 respectively.
[148] ST9, folio 117.
In his sworn evidence, Mr Malistani explained the money transfers he made in July 2010. In one account, he said he sent money to a close friend in Kabul whose name is Assadullah, stating this person is not his brother. In another account, under cross examination, Mr Malistani explained he once sent money to his brother’s family and, in order to do so, it was necessary to use his brother’s name as people are known by their father’s names and sending money to an underage person is not permitted. Close examination of the financial transfer records reveals the amount of $AUD575 was sent to Mr Assadullah at Kabul on 5 July 2010 and the amount of $AUD287 was sent to Mr Assadullah at Kaul on 30 July 2010. On the present materials, it is not possible to verify Mr Malistani’s explanations of these transactions, or if they were directed to the same person. Nevertheless, in the absence of any contrary evidence, his explanations are plausible even if not proved. I note Mr Malistani’s evidence of his brother’s political involvements and his sudden disappearance, and suspected death, when travelling in the lead up to regional elections in 2008. There is no probative evidence Mr Malistani’s brother was alive and living in Kabul in 2010.
With regard to the money transfers in 2011 and 2012, the first of these, on 4 January 2011 is directed to Mr. Janali at Quetta in Pakistan.[149] The transfer made on 5 December 2011 was directed to Juma, Jan Ali s/o Ali at West Kabul, Kabul.[150] The transfer made on 29 January 2012 was directed to Ali, Jan at West Kabul, Kabul.[151] In sworn evidence, Mr Malistani explained the transfers were to his children, but the children were too young to receive money transfers and his father was well known in the area, so he directed the transfers to a friend who knew his father and his children, using his father’s name.
[149] T11, folio 630.
[150] Ibid, folio 608.
[151] Ibid, folio 600.
Mr Malistani’s explanation is convoluted, and it is difficult to know what to make of the AUSTRAC records. I note Mr Malistani transferred amounts of money to himself and to his wife directly.[152] Nevertheless, I am not persuaded these money transfer records cast sufficient doubt on the evidence Mr Malistani’s father died more than 20 years ago to render Mr Malistani’s account of his family composition implausible.
[152] See T11, folio 518 for example.
The Minister submits there are discrepancies in accounts Mr Malistani and Mrs Malistani have given in respect of the circumstances of their engagement. I have examined the records to which attention has been drawn in each case. The alleged discrepancy is said to arise from information Mr Malistani provided in the 22 July 2015 interview when compared with information contained in Mrs Malistani’s statutory declaration on 5 July 2021. The discrepancy in respect of who approached Mrs Malistani’s father is a very minor detail of little consequence in the overall narrative of Mr Malistani’s alleged life story. Furthermore, the alleged discrepancy was fully explained in Mr Malistani’s sworn evidence, and it falls away, lacking probative detail he has now provided. Additionally, the record of interview suggests Mr Malistani asserted he and his wife were from the same village, whereas Mrs Malistani stated they are from different villages. In his sworn evidence, Mr Malistani explained they are from different villages within the same area, namely Nawdeh and Balaqsan. On these points, at least, the record of interview is not a reliable source of evidence.
The Minister asserts evidence obtained from Facebook suggests an association between a Zalmay Mohseni in Holland, and members of Mrs Malistani’s family. Mrs Malistani denied knowledge of any such association and knowledge of a post from Mr Mohseni in respect of Mr Malistani’s son, as did Mr Malistani. Material of this kind does not amount to probative evidence of a personal connection between Mr Malistani and Mr Mohseni, and it does not render any aspect of Mr Malistani’s life story narrative implausible.
Finally on the issue of Mr Malistani’s alleged life story, I have examined documents relating to his employment history and educational achievements, including business activities. This material establishes Mr Malistani has maintained a consistent identity since arriving in Australia in November 2009. He established a successful cleaning business which he lost when his visa was cancelled. He drove taxis, but he was forced to cease for different periods when he was violently assaulted on two occasions. Records relating to these events and Mr Malistani’s treatment for injuries he sustained confirms the consistency of his identity in Australia, even in the most difficult circumstances.
He has a record of being charged with Common Assault (Domestic Violence) and appearing in the Parramatta Local Court on 23 October 2012.[153] This record sets out his name and previous names by which he was known (being different spellings of his name associated with his immigration records). No conviction was recorded, and he was placed on a good behaviour bond for 6 months. The significance of this record is in the confirmation it provides of Mr Malistani’s identity. The offence was very minor in nature and Mr Malistani was able to give a full account of what occurred, which I accept aligns with the result handed down by the Court.
[153] T6, folio 182.
Conclusion
Having carefully examined and evaluated the attributes of Mr Malistani’s claimed identity in reference to the three pillars set out in the Policy, I am satisfied of sufficient attributes of the identity he asserts to be satisfied of his identity for the purposes of s 24(3) of the Citizenship Act.
For reasons I have explained, there is no authority for the proposition the previous Tribunal was required to apply a lower standard of satisfaction in the 2017 AAT decision when addressing the statutory question then before it in respect of Mr Malistani’s identity than applies in these proceedings. The proposition lacks legislative force or any binding authority. The Policy cannot exceed or limit the legislation it is intended to serve. The standard of satisfaction to be adopted under s 24(3) of the Citizenship Act and under s 116(1AA) of the Immigration Act cannot be determined by policy. To the extent the Policy purports to do so, it should not be adopted.

In making this decision, it has not been necessary to rely on or give weight to previous findings made by the Tribunal in the 2017 AAT decision, or by previous decision makers. None of those decisions or findings are presently binding.
Nonetheless, the decision I have made aligns with the 2017 AAT decision. While, presently, the Tribunal has the benefit of materials and evidence not before the previous Tribunal, the materials before the previous Tribunal were sufficient for the Tribunal to make a positive finding about Mr Malistani’s claimed identity in consideration of the issues then in contention (which remain substantially the same as those presently in issue). It is unfortunate Mr Malistani’s identity has remained in contest during the six years since the 2017 AAT decision was made, necessitating further findings to be made in the context of his 2019 citizenship application. Nevertheless, each decision maker must make an assessment under the applicable statute and decide for themselves if they are satisfied of Mr Malistani’s identity. That is what has occurred.
In the result, I am not able to go any further to determine if Mr Malistani meets all the remaining criteria under s 21(2) of the Citizenship Act. For those purposes, the matter must be remitted to the Minister for further consideration.
Decision
The decision under review is set aside and in substitution, being satisfied of Mr Malistani’s identity, the Tribunal decides his application for conferral of Australian citizenship is not refused under s 24(3) of the Australian Citizenship Act 2007 and remits the application to the Minister.

160. I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

............[SGD]..............................
Associate
Dated: 15 February 2023

Dates of hearing: 28 – 30 November 2022, 5 December 2022

Date for final submissions:

19 December 2022

Solicitor for Applicant:

Ms Marion Le, Marion LE Consultancy

Solicitor for Respondent:

Ms Lauren Hargrave, Clayton Utz

Dates of hearing:	28 – 30 November 2022, 5 December 2022
Date for final submissions:	19 December 2022
Solicitor for Applicant:	Ms Marion Le, Marion LE Consultancy
Solicitor for Respondent:	Ms Lauren Hargrave, Clayton Utz