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

Merzaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 221 (16 February 2021)
Division:GENERAL DIVISION
File Number:2019/6277
Re:Tayiba Merzaei
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:16 February 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent to refuse a grant of Australian citizenship under s 24(3) of the Citizenship Act dated 30 August 2019, is affirmed.
.....[SGD]..............................................................
Member S Barton
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – satisfaction as to identity – insufficient evidence regarding identity of the Applicant – limited primary documentation – Applicant arrived in Australia in 2010 as an irregular maritime arrival –reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Australian Citizenship Act 2007 (Cth) – ss 24, 24(3) 52(1)(b)
CASES
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw v Briginshaw (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Mohsin and the Minister for Home Affairs (Citizenship) [2019] AATA 1999
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
SECONDARY MATERIALS
Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016) – Chapter 13
Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) – para 2.1.1
Department of Home Affairs, ‘Citizenship Procedural Instructions’ (2019) – CPI 16 – Assessing Identity under the Citizenship Act
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member S Barton
16 February 2021
THE APPLICATION

This is an application for the review of a decision by a delegate of the Respondent
made on 30 August 2019 (the Reviewable Decision). This decision refused Ms Tayiba Merzaei’s (the Applicant) application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused because the Respondent was not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
FACTS
The Applicant states that she was born in Afghanistan in 1996.
On 27 May 2003, the Applicant’s mother lodged an unsuccessful application for a Global Special Humanitarian (subclass 202) in Iran. The Applicant was included in this application, and named as Tayebeh Khateri, born 1 January 1995.
The Applicant arrived in Australia with members of her immediate family as an irregular maritime arrival on 9 April 2010. She was included in her father’s application for a protection visa on 29 September 2010. In this application, the Applicant was named as Tayiba Merzaei, born 31 December 1995.
On 30 September 2010, the Applicant was granted a protection visa and, on
20 August 2015, was subsequently granted a Resident Return (subclass 155) visa which she continues to hold.
On 10 November 2014, the Applicant applied for Australian citizenship by conferral. In this application the Applicant identified herself as Tayiba Merzaei born on 20 July 1996 in Kabul, Afghanistan.
On 30 August 2019, the Department of Home Affairs (the Department) refused the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied of her identity.
On 1 October 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of this decision.
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Citizenship Act.
THE ISSUE
The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Friday 6 November 2020. The Applicant was represented by

Mr Reza Aein, a registered Migration Agent. The Respondent was represented by Mr Arran Gerrard of the Australian Government Solicitor, who appeared in person. All parties appeared before the Tribunal in person.
On the same day, the Tribunal also heard an application by the Applicant’s father regarding the refusal of the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied of his identity. While each matter is assessed on its respective merits, the evidence, submissions, and the cross-examination in her father’s matter are relevant to the current decision under review.
The Applicant gave oral evidence.
The Respondent made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Applicant’s Statement of Facts, Issues and Contentions, received 24 July 2020, inclusive of Annexure A (statutory declaration of Z dated

13 March 2020 and a copy of Z’s passport) and Annexure B (statutory declaration of F, undated) (Exhibit A1);
(b)Written submission on behalf of the Applicant by the Applicant’s representative, dated 26 March 2020 (Exhibit A2);
(c)Statutory declarations of the Applicant dated 13 March 2020 and 9 April 2020, and declarations from her maternal aunt and her mother’s cousin dated 13 March 2020 (Exhibit A3);
(d)Respondent’s Statement of Facts, Issues and Contentions, dated 14 July 2020 (Exhibit R1); and
(e)Section 37 documents, comprising T1 – T25 (Exhibit R2).
(f)Evidence admitted by the Tribunal in matter Re Merzaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 39 on 6 November 2020 (Exhibit T1).
RELEVANT LEGAL PRINCIPLES
Section 24 of the Citizenship Act contains sub-ss which prohibit the conferral of Australian citizenship in certain circumstances. Section 24(3) of the Citizenship Act states:
24Minister’s decision
…
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
(Emphasis added.)
The issue of identity is also addressed by Chapter 13 of the Australian Citizenship Policy (the Policy) at 158:
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
The Policy refers to the Attorney-General’s Department’s ‘National Identity Proofing Guidelines’ (2016) (the Guidelines), published for the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach. The concept of identity is described in the Guidelines.
The Guidelines at 7 [2.1.1] state that:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
The CPI 16 – Assessing Identity under the Citizenship Act of the Department of Home Affairs’ ‘Revised Citizenship Procedural Instructions’, (2019) (the Citizenship Instructions) (at [4.4]) identifies three pillars of identity: biometric, documents and life story. It also states:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
The Citizenship Instructions provide some guidance as to the meaning of being “satisfied of a person’s identity” at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.

Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person. Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
As established by Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal will ordinarily apply a relevant ministerial policy, unless there are cogent reasons not to do so. In Drake, Brennan J explained the importance of applying policy to guide decision making at 640:
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
The Tribunal has had regard to two relatively recent decisions, Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999 and Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808, that have some broad similarities to the current matter before the Tribunal, particularly with respect to the country of origin and the veracity of documentation.
The issue of identity has also been considered in: Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 (Gjura); CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 (CDNB); Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan); and Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa).
The above decisions all recognise that the issue of identity is of considerable importance, given the very significant benefits conferred by Australian citizenship. As Member Grigg stated in Gjura at [32]:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.
Identity cannot be taken lightly and, as in the above decisions, each case must be considered on its individual merits, with due regard to the relevant factors and impediments to obtaining documents related to identity in each individual case.
In the matter of Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30] (Ahamod), the Tribunal considered the standard of proof contemplated in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). In doing so, the Tribunal considered the significance attached to a grant of citizenship and the consequences that flow from it. The Tribunal further noted that a higher level of satisfaction of an applicant’s identity is required in such cases:
A certificate of Australian Citizenship is a legal document of considerable significance. Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.
The Tribunal in Ahamod also noted the decision in the matter of Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579, where Senior Member Morris (with reference to Briginshaw) considered the meaning of the statutory term “satisfied” in relation to Australian citizenship applications, at [56]:
Essentially … the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges …
Accordingly, the Tribunal must be persuaded to a degree of reasonable satisfaction as to the Applicant’s identity, having regard to their particular circumstances, and given the significance of the consequences that flow from the grant of citizenship.
In determining whether the Tribunal is satisfied of the Applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not or are not, to use Deputy President Nicholson’s words in Dhayakpa at [117], “established or undisturbed”. In such places, the issuing of official documentation may be hampered by conflict, civil strife or under-developed bureaucratic and administrative structures.
In this matter, the Applicant’s country of origin, Afghanistan, has experienced over 40 years of conflict and domestic strife with varying degrees of intensity. During this period millions of Afghanis fled, making their way over the border into neighbouring countries— most notably to Pakistan and Iran. Many, during periods of relative stability, returned. The borders are also transcended by ethnic, tribal and sectarian affiliations which result in considerable cross-border movement.
Since the 1970s, the normal administrative structures of the Afghan state, where they have existed, have been subject to considerable degradation and disruption. Moreover, the state and its administrative functions have been beset and weakened by corruption and malpractice, a situation exacerbated by tribal competition and high levels of illiteracy.
As such, the Tribunal recognises that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either 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”.
In considering the issues that arise in this application, the Tribunal is guided by the approach taken by Member Kennedy in CDNB at [9], who states:
[P]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants …
In Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (Confidential) at [34], the Tribunal found that where the Minister had not been provided with any documentation to enable him to form an opinion regarding the identity of an applicant, the application is properly rejected. The Tribunal also found that evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of a person (at [35]).
In Dhayakpa (at [117]) the Tribunal noted that the decision in Confidential was not authority for the proposition that a document is a requirement for the Minister to be satisfied as to identity, but rather that it:
stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected…
A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker refuse a grant of citizenship where they are not satisfied of the applicant’s identity.
EVIDENCE
In her application for the conferral of Australian citizenship, lodged 30 October 2014, the Applicant gave her date of birth as 20 July 1996 and her place of birth as Kabul, Afghanistan. In handwriting, she wrote, “Wazirabad, Kabul, Afghanistan, 1996-2010” (Exhibit R2, p 98).
The Applicant provided the following documents to address proof of identity requirements (Exhibit R2, pp 108-111):
(a)certified copy of the Applicant’s Titre de Voyage issued on 29 November 2013;
(b)certified copy of the Applicant’s Western Australian leaner’s permit;
(c)Bankwest bank statement for the period of June to September 2014; and
(d)a passport photo of the Applicant.
On 22 March 2016, the Department requested the Applicant provide additional original documents to assist with the finalisation of her application (Exhibit R2, p 115). These original documents included the following:
(a)fully completed Form 80 (Personal particulars for assessment including character assessment);
(b)fully completed Form 1399 (declaration of service)
(c)Titre de Voyage;
(d)Afghan passport;
(e)Afghan National identity card (Tazkera) with National Accreditation Authority for Translators and Interpreters (NAATI) translation;
(f)proof of residence card;
(g)birth certificate with NAATI translation; and
(h)marriage certificate, with NAATI translations.

The Department also requested any additional documents that may assist with her case, including overseas driver’s licences, school reports or educational certificates.
On 28 August 2017, the Department wrote to the Applicant inviting her to comment on adverse information (Exhibit R2, pp 149-153). The Department advised the Applicant that given no significant identity documents were provided, current and past departmental records were researched and analysed in the course of assessing her citizenship application.
The Department’s correspondence claimed that (Exhibit R2, p 150):
Records show that you and your family lodged a Global Special Humanitarian (subclass 202) in Tehran, Iran, on 27 May 2003. In this application you were a dependent applicant using the identity of Taybeh Khateri with a date of birth

1 January 1995.
This visa application was processed in Tehran, Iran and refused on 20 January 2005. The decision record was handed in person to the primary applicant in Iran. The application was found on a physical file and contained photos of all members of the family unit.
The discovery of the Global Special Humanitarian (the GSH) visa revealed inconsistencies in the Applicant’s application for Australian citizenship and the information before the Department. In the GSH application, the Applicant is represented as Tayebeh Khateri, born on 1 January 1995, and the family had been living as refugees in Iran since 10 May 1995.
The Applicant did not declare the use of any other names in her application for Australian citizenship. In her Form 80, the Applicant also declared that she had not been known by any other name and had never had another date of birth (Exhibit R2, p 151).
The Applicant was advised that a facial comparison test had been undertaken on the image of Tayebeh Khateri, from the GSH application, and an image of Tayiba Merzaei, from her February 2015 citizenship test. The comparison indicated they were the same person (Exhibit R2, p 151).
The Applicant responded to the invitation to comment on the adverse findings on
20 September 2017 (Exhibit R2, pp 158-159). The Applicant advised the following:
(a)She did not lodge the GSH application and was only seven years of age at the time.
(b)She has always known as Tayiba, daughter of Murad Ali.
(c)In Afghanistan people do not use surnames, so her father chose the surname Merzaei while at Christmas Island Detention Centre.
(d)She was not aware of the GSH application and this was the first time she had been advised that it had been lodged.
(e)She completed forms with the Afghan Embassy in Canberra that were sufficient to obtain an Afghan passport.
CONSIDERATION
The Applicant’s Father
As stated above, the Applicant’s hearing took place on the same day that her father’s application for a review was heard. Like her, the Applicant’s father was seeking review of a decision to refuse the conferral of citizenship under the Citizenship Act s 24(3), because the delegate was not satisfied as to his identity. This Tribunal affirmed the decision to refuse the conferral of citizenship.
In the Applicant’s father’s matter, there were inconsistencies relating to his name, date of birth and place of residence. There were also inconsistencies regarding the information he provided for his children. While each matter must be treated on its merits, the evidence, submissions and statements considered in her father’s matter are relevant to the proper consideration of the Applicant’s application.
The Tribunal is also mindful of observations made by Senior Member Puplick in Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267 (Al-Hussaini) at [121-123]:
In essence, the Respondent lays upon the Second Applicant’s mother the burden of failure for his application. It is, the Respondent states, entirely his mother’s fault that his application fails.
The injunction of visiting the sins of the father (mother) upon the children dates back to the Old Testament where it is both affirmed and rejected.
However, the Act requires that each application be considered on its own merits and although the First Applicant has provided information about the Second Applicant which appears to be false, this does not necessarily mean that the Second Applicant must bear all the consequences arising.
(Footnotes omitted.)
There are notable differences between Al-Hussaini and this matter (and the Respondent is not suggesting that it is the father’s fault this application should fail). Nevertheless, the Tribunal is mindful that any false information provided by the father should not necessarily mean the Applicant must bear all the consequences.
Documents in the Citizenship Application
Limited weight can be placed on the Applicant’s Titre de Voyage, Learners permit and bank statement. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into her identity.
Previous visa application
In the Applicant’s submission, her representative stated that the Applicant had no knowledge of the lodgement of the GSH application, nor did she consent to it (Exhibit A1, para [25]). This is a plausible submission. A child in those circumstances may be aware of an attempt being made by her parents and broader family to gain access to another country— for example, some explanation might have been offered to her when she had her passport photo taken. Equally, there may be plausible circumstances where a child may not be aware at all.
However, even if it is accepted that the Applicant was not aware of the visa application, it does not automatically follow that she was unaware of different names, dates of birth and places of residence used before she made her Australian citizenship application.
The Applicant’s Name
In a written submission, the Applicant’s representative sought to address the issue of the different name used in the GSH visa application (Tayebeh Khateri) and the name (Tayiba Merzaei) provided in her Australian citizenship application (Exhibit A1, paras [22]-[24]).
The submissions for the Applicant explain that when lodging the GSH vis application, the Applicant’s mother wrote the Applicant’s first name into what she thought was the correct English translation. Tayiba became Tayebeh. Taken in isolation, this explanation is not unreasonable— pronounced phonetically both names are very similar. The matter of the surname is more complex.
The Tribunal accepts that surnames are not commonly used in many parts of Afghanistan. (A prominent example is the former Afghan presidential candidate and politician,

Dr Abdullah. To meet the needs of Western media, the then Foreign Minister became

Dr Abdullah Abdullah[1]).
[1] See Dexter Filkins, The Forever War (Vintage Books: New York, 2009) 66.
The Applicant’s submission states (Exhibit A1, para [23]):
The Applicant also has explained that in order to begin a new life for her and her family in Australia, her father…chose to set himself and his family apart from his clan in Afghanistan and thereby abandoning their previous clan/tribal name “Khateri”. He then used the name “Merzaei” which is another name of a clan/tribe they belonged to in Afghanistan. This was in part because of …[his] fear that the terror they tried to flee from [in]Afghanistan would later on haunt them thus, in order to protect him and his family, he needed to dissociate himself and his family from this particular clan – only by not using the clan’s name’.
The Applicant’s father, during the hearing for his matter, provided the following explanation on his choice of surname (transcript, pp 21, 32):
[M]y wife is my cousin - my cousin so we are from same tribe and yes, Khateri is the surname - is the tribal name of my wife's - my wife - she is my cousin as well so I chose another one - I chose Merzaei.
…
The Khateri descending [from] my wife's family - brothers - father - mother and then Merzaei as I said before - Merzaei is a branch of that - of that tribe, so and I chose Merzaei to be my surname.
…
As I stated before, that it wasn't a big performance for me to have a surname. Since Khateri I said before was a bigger branch - under the umbrella and Merzaei was my grandfather so I chose Merzaei.
Further to the above explanation, in response to a question regarding the surname he would use in Afghanistan, the Applicant’s father replied (transcript, p 33),
[n]ot any difference … It's no difference for me. So I don't mind.
There are some clear inconsistencies in the above explanations. The choice of “Merzaei” was supposedly to protect the family from using “Khateri”, a surname used by the Applicant’s extended family in Perth (although he did not provide any explanation as to how this would in fact protect his family). Further, as stated above, the Applicant’s father did not mind which name he used in Afghanistan.
The father said he chose “Merzaei” in place of “Khateri”, suggesting he used or was aware of the use of Khateri as a surname. The surname “Khateri” is also used in the translation of a marriage certificate issued in 2003 in Tehran (Exhibit T1, Section 37 Documents, p 241). The Applicant’s father, when questioned about the translation of this certificate at his hearing said (transcript, p 17):
… So in Afghanistan – this is unfortunate and quite common. In Afghanistan if you want to get a document, document or use a different surname, it's easy to obtain. So this was obtained by my wife, so – and it was, it's like – the system is quite bad, so it's corruption there. So anybody can pay and choose or do the – obtain the documents they want.
While the document is of limited utility as an official document, it does demonstrate the family’s active use (and arguably, choice) of the name Khateri.
The Applicant’s submissions state that the Applicant has always been known as Taybia Merzaei, daughter of Murad Ali. However, it seems implausible that in the period leading up to her lodging her Australian citizenship application, she was oblivious to the use of the surname Khateri at some point by her parents— not least because it is also the surname of her extended family in Perth.
The use of the two surnames by the family, and the failure to declare the use of any other names in her application for Australian citizenship and her Form 80 can only create uncertainty surrounding her identity.
Date of birth
There is inconsistent information regarding the Applicant’s date of birth, which is detailed below.
(a)On the GSH visa application her date of birth is listed as 1 January 1995.
(b)In the application for a protection visa submitted by her father in 2010, her date of birth is listed as 31 December 1995 (Exhibit T1, Section 37 Documents, p 168).
(c)
In her application for Australian citizenship and in subsequent documents the Applicant has submitted in support of her application, her date of birth is listed as

20 July 1996 (Exhibit R2, pp 98, 127).
(d)In her Tazkera the Applicant is listed as “14 years old in 1387” (Exhibit R2, p 162). The year 1387 is based on the calendar used by Afghanistan. In his matter before the Tribunal, the Applicant’s father submitted NAATI translations of the Tazkeras of the Applicant’s family members. These identify 1387 as being from 20 March 2008 to 20 March 2009 (Exhibit T1, Section 37 Documents, pp 299–309). According to this date, the Applicant could be born in 1994 or 1995.
(e)On a translation of the Applicant’s parent’s marriage certificate, ‘96’ is written above her name. The Tribunal finds that the provenance of this notation is unknown and it can be given little weight (Exhibit T1, Section 37 Documents, p 241).
The Applicant did not address the issue of these discrepancies, beyond stating that she was not aware of the GSH visa application which gave her date of birth as 1 January 1995.
The Tribunal accepts that in Afghanistan one’s date of birth does not have the same cultural relevance as it does in Australia, and that 31 December or 1 January are frequently given as days of birth. The translation of the solar calendar used by Afghanistan into the Gregorian calendar used by Australia may also present some difficulties. Nevertheless, the inconsistencies with date of birth and the lack of a plausible explanation does not assist in gaining a clear picture of the Applicant’s life story.
Residence
The uncertainty surrounding the Applicant’s date of birth also presents challenges in identifying her place of birth and subsequent residency.
The translation of her parent’s marriage certificate lists her place of birth as Tehran. However as stated above, this document has significant flaws and the Tribunal gives this evidence little weight (Exhibit T1, Section 37 Documents, p 241).
The GSH visa application lodged in 2003 identifies the Applicant’s place of birth as Afghanistan. It also states the family arrived in Iran in May 1995. If this were an accurate account, the Applicant would have spent her much of her childhood in Iran.
In her Australian citizenship application, the Applicant lists her place of birth as Wazirabad in Kabul, Afghanistan (Exhibit R2, p 98). In her Form 1399, in response to the request to give all details of where she has lived outside Australia, the Applicant gave the dates of July 1996 to December 2009 and listed Kabul, Afghanistan (Exhibit R2, p119).
It is impossible to reconcile these two accounts. In a submission, the Applicant’s representative stated (Exhibit A1, para [28]):
… the Applicant and her family sought refuge in and transited through several countries such as Iran, Pakistan, Malaysia and Indonesia…
The fact that the family sought refuge in Iran is not disputed by the Applicant.
During her father’s hearing, he was asked when he left for Iran. He replied that he was “Not hundred per cent sure” (transcript, p 40). When asked if the Russians were still in Afghanistan when he left for Iran, he replied ‘Yes, they were still in Afghanistan’ (transcript, p 40). The Soviet Union withdrew its forces from Afghanistan in February 1989.
When asked when he went back to Afghanistan, the following exchange took place (transcript, p 40):
TRIBUNAL:Okay, all right. So [you were] living in Kabul. And you went to Iran, where were you living in Iran?
APPLICANT:   Tehran.
TRIBUNAL:     Tehran. And when was it that you went back to Afghanistan?
APPLICANT:   Eight to 10 years after living in Iran and went back to Afghanistan.
TRIBUNAL:     So before September ’11, before the terrorist attacks?
APPLICANT:   Not recall.
TRIBUNAL:     So not before that or doesn't (indistinct).
APPLICANT:   Cannot recall. [I don’t] remember.
TRIBUNAL:Okay. Were the Americans and NATO in Afghanistan when [you] went back?
APPLICANT:   Yes.
TRIBUNAL:     So they were there?
APPLICANT:   Yes, it was a bit safer, better. So, yes, I returned there.
Based on this account, the Applicant’s family would have departed Afghanistan for Iran before 1989 and would not have returned in eight or ten years, but sometime after the International Security Assistance Force arrived in Afghanistan in late 2001. This is inconsistent with the account of the family arriving in Iran in 1995, where the Applicant’s mother lodged a claim for the GSH visa in Tehran in 2003 (and was advised of the result in the same city in 2005). It is also inconsistent with the Applicant’s account, and indeed, her account.
The 2003 GSH visa application lists four of the Applicant’s siblings, three of whom are recorded as having been born in Iran in 1998, 1999 and 2003 (Exhibit T1, Section 37 Documents, p 249). During his hearing, the Applicant’s father stated (transcript, p 12):
I have eight kids. So that's definitely three were born in Iran, [sic] but the fourth one could be Iran or Afghan.
In her Form 1399, the Applicant listed those same three sibling (two of whom have different years of birth) and all list Afghanistan as their country of birth (Exhibit R2, p 118).
It seems implausible that the Applicant would be unaware that she lived for a period, however long that may have been, in Iran. It is also implausible that she was unaware of where her younger siblings were born. This calls into question the accuracy of the information provided in her application.
Other documents
The Applicant stated that she had provided sufficient information to the Afghan Embassy to acquire an Afghan passport (Exhibit R2, p 159). The Applicant has not provided the details of how this was done or the documentation with which it was done (Exhibit R2, p 174). The Applicant has provided a copy of her Tazkera (Exhibit R2, p 162), however, having been issued in 2017, it sheds little meaningful light on her identity.
CONCLUSION
There are three pillars of identity: biometric, documents and life story. In this matter, the biometric pillar alerted the Department to a previous visa application. That information challenged the date of birth, the place of birth and the residence history the Applicant provided in her citizenship application. These challenges, which go to the heart of the Applicant’s presentation of a life story, cannot be overcome with the current documents and information before the Tribunal.
As previously stated, the Tribunal is mindful that any false information provided by the father should not necessarily mean the Applicant must bear all the consequences. However, the Applicant has not provided plausible explanations regarding the family’s surname, her date or birth, and where she has lived prior to her arrival in Australia.
The Applicant was probably born in 1995 or 1996. She was likely born in Afghanistan and spent an unknown part of her childhood in Iran. Both her and her family are Shia from the Hazara ethnic group and arrived in Australia in 2010. Since that time, the Applicant has received her high school and tertiary education in Perth. She has married and had two children. Nevertheless, much of her life story remains unclear and cannot be satisfactorily ascertained.
The Tribunal recognises that the Applicant probably spent much of her early life in either places of strife or ones of relative refuge— an experience shared by millions of her fellow Afghanis. The Tribunal also recognises the different Afghani customs relating to names and dates of birth, as well as the degradation of what remained of the Afghan state around the time of her birth, during the civil war. However, this alone cannot explain the inconsistencies and uncertainties in the Applicant’s account.
Having regard to the significance of the grant of Australian citizenship and considering the Applicant’s individual circumstances and the evidence available to it, the Tribunal is not satisfied as to the Applicant’s identity.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent to refuse a grant of Australian citizenship under s 24(3) of the Citizenship Act dated 30 August 2019, is affirmed.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Members S Barton

....[SGD]...................................................................
Associate
Dated: 16 February 2021

Date of hearing:

6 November 2020

Representative for the Applicant:

Representative for the Respondent:

Mr Reza Aein, Home Migration Services

Mr Arran Gerrard

Solicitors for the Respondent:

Australian Government Solicitor

[2021] AATA 221

16 February 2021

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