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 39 (22 January 2021)
Division:GENERAL DIVISION
File Number:2019/6050
Re:Murad Ali Merzaei
APPLICANT

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

DECISION
Tribunal:Member S Barton
Date:22 January 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent 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 – 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
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw and 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), Re (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
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – Chapter 13
National Identity Proofing Guidelines, Attorney-General’s Department, 2016 – para 2.1.1
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member S Barton
22 January 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 the Applicant’s 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
Mr Murad Ali Merzaei (the Applicant) submits that he was born in Kabul, Afghanistan, around 1969.
On 27 May 2003, an unsuccessful application for a Global Special Humanitarian (subclass 202) visa was lodged in Iran by the Applicant’s wife. In this application, which included both him and his immediate family, the Applicant was named as Morad Ali Khateri, born
8 August 1969.
The Applicant arrived in Australia as an irregular maritime arrival on 9 April 2010 and lodged an application for a protection visa on 29 September 2010. In this application, the Applicant stated that his name was Murad Ali Merzaei, and that he was born
31 December 1969.
On 30 September 2010, the Applicant was granted a protection visa and on 12 May 2015, was subsequently granted a Resident Return (subclass 155) visa.
On 15 October 2014, the Applicant applied for Australian citizenship by conferral. On
30 August 2019, the Department of Immigration and Border Protection
(the Department) refused the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity.
On 23 September 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the 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 review of a decision made under s 24 of the Citizenship Act.
THE ISSUE
The issue to be addressed is whether the Tribunal is satisfied of the Applicant’s identity.
MATERIAL BEFORE THE TRIBUNAL
The matter was heard on 6 November 2020. The Applicant appeared in person and was represented by Mr R Aein.
The Respondent was represented by Mr A Gerrard of the Australian Government Solicitor, who appeared in person.
The Applicant gave oral evidence and was cross-examined. The Tribunal was assisted by a qualified interpreter at the hearing in the English and Dari languages. The Applicant used the services of the interpreter in giving evidence.
The Applicant called Z (his sister-in-law) and F (a cousin of his wife) as witnesses.
The Respondent made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Statement of Facts, Issues and Contentions of the Applicant dated 24 July 2020, inclusive of Annexures A and B (Exhibit A1);
(b)Written submission of the Applicant’s representative on behalf of the Applicant dated 26 March 2020 (Exhibit A2);
(c)Statutory declarations of the Applicant dated 13 March 2020 and 9 April 2020, and declarations from N (the Applicant’s sister-in-law) and Z (the Applicant’s sister-in-law) dated 13 March 2020, (Exhibit A3);
(d)Respondent’s Statement of Facts, Issues and Contentions, dated 25 June 2020 (Exhibit R1); and
(e)Section 37 documents, comprising T1 -T25 (Exhibit R2).
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 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.
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 an 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 his particular circumstances, and given the significance of the consequences that flow from the grant of citizenship.
In determining whether the Tribunal is satisfied of 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 time, the normal administrative structures of the 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 arising 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 on 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 his application for the conferral of Australian citizenship lodged 15 October 2014, the Applicant provided the following documents to address the proof of identity requirements (Exhibit R2, pp 257- 266):
a.Applicant’s Titre de Voyage dated 31 October 2012
b.an Alinta Energy tax invoice dated 2 September 2014;
c.a letter from Dr N Al Salihee dated 2 October 2014; and
d.Titre de Voyage documents for the Applicant’s children.
On 18 March 2016, the Department requested the Applicant provide further original documents (Exhibit R2, p 267), including an Afghan passport, an Afghan National identity card (Tazkera), as well as a birth certificate and marriage certificate with National Accreditation Authority for Translators and Interpreters (NAATI) translations. The Department also requested any additional documents that may assist with the Applicant’s case, including overseas driver’s licences, school reports or educational certificates.
On 22 August 2017, the Department wrote to the Applicant and provided him with an invitation to comment on adverse information in relation to his application. The Department also noted that the Applicant had not produced any significant identity documents to support his claim. (Exhibit R2, p 283).
The Department stated (Exhibit R2, p 283):
Records show that you and your family lodged a Global Special Humanitarian (subclass 202) visa application in Tehran, Iran, on 27 May 2003. In this application you were a dependent applicant using the identity of Morad Ali Khateri with a date of birth 8 August 1969.
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 Department drew attention to inconsistent information regarding the Applicant’s name, date of birth and residence, as well as previous visa applications to Australia and documentation provided as part of his citizenship application (Exhibit R2, pp 284- 285).
The Department stated that in his entry interview conducted on 12 April 2010, the Applicant advised that his name was Murad Ali Merzaei and he was 41 or 42 years of age, born in Kabul, Afghanistan and that he had no documents of identity (Exhibit R2, p 284). In his Protection visa application, the Applicant stated that he was not known by any other name and that he had resided in Afghanistan from his birth until 2010. The 2003 visa application for a Global Special Humanitarian (subclass 202) visa stated that the family had been living as refugees in Iran since 10 May 1995 (Exhibit R2, p 284).
In his application for the Protection visa, the Applicant stated that neither he nor any members of his family had previously applied for a visa for Australia (Exhibit R2, p284). The Applicant further stated that he had not been refused a visa to any country (Exhibit R2, p 284).
The correspondence from the Department further noted that in a Citizenship identity interview on 16 February 2017, the Applicant conceded the photo of Morad Ali Khateri in the 2003 application was of him, though he said he never lived in Iran and that his family lodged the application (Exhibit R2, p 285).
During the interview, when asked why he had not obtained the documents requested in a letter dated 8 March 2016, the Applicant claimed to have approached the Afghan Embassy in Australia to obtain a passport but was yet to receive any documents (Exhibit R2, p 285).
The Department’s correspondence also listed some further inconsistencies, including the following (Exhibit R2, p 285):
(a)An untranslated copy of the Applicant’s Afghan driver’s licence provided on 20 March 2017 did not match the number on the copy of the driver’s licence provided at the interview. Additionally, no original documents had been provided.
(b)The 2003 visa application contained a copy of the marriage certificate for the Applicant and his wife. Purporting to be issued on 25 May 2003 by the Afghan Embassy in Tehran, the certificate lists the country of birth for five of the couple’s children, three of whom were born in Tehran. In his Protection visa, the Applicant listed all five as having been born in Afghanistan.
The Applicant responded to the invitation to comment on the adverse findings on 20 September 2017 as follows (Exhibit R2, pp 292-293):
(a)He was unaware that his wife had lodged the visa application from Iran in 2003 because it had been initiated by his wife and father-in-law.
(b)The pronunciation of his name is the same irrespective of the spelling Morad or Murad. In Afghanistan he was known as Murad Ali Son of Rahm Ali; Khateri is his wife’s surname.
(c)Dates of birth in Afghanistan are not recorded with month or day, it is always the year.
(d)Driver’s licences are issued in different places in Afghanistan, which is why the two licences differed.

The Applicant also attached his Tazkira, along with his children’s Tazkiras (with NAATI certified translations). Each respectively provides the place of birth to be Dawlat Khani in the Surkh Parsa district of Parwan province, Afghanistan (Exhibit R 2, pp 298-310).
CONSIDERATION
Documents in the Citizenship Application
Limited weight can be placed on the Applicant’s Titre de Voyage, his utility bill, a reference letter from Dr N Al Salihee, and the Titre de Voyage documents for his children. The Applicant also later provided his Australian learner’s permit and Medicare card (Exhibit R2, p 281). These documents were obtained after the Applicant’s arrival in Australia and provide little insight into his identity.
Previous visa application
As detailed above, in 2003 the Applicant’s wife lodged an application for a Global Humanitarian Visa (subclass 202) in Tehran, Iran. In the application it stated that they had fled Afghanistan because (Exhibit R2, p 115),
… [the] Taleban regime was after killing all Hezareh group and Shiat sect of Islam. Destruction of their houses, killing women, children, men- we feared for our lives, our house was placed into fire, killing some relatives…
(Errors original.)
The Applicant states that he was not aware his wife had submitted the Application. However, a broad decision had been made to leave Afghanistan. During the hearing the Applicant stated (transcript, p 31),
… everybody back in Afghanistan everybody wants to move, to flee the country. We have in back of our mind that we will leave the country eventually, so before coming to Australia about a year before that we decided.
According to the Applicant, it is the fact that his wife submitted the application without his knowledge that explains the discrepancies in his personal details. The Applicant’s representative stated that the application was completed by the Applicant’s wife and her parents, who live in Perth.
It seems implausible that the Applicant would have been unaware of something as significant as lodging an application of this nature, given its tremendous implications for the family. It also seems unusual given the patriarchal nature of Afghan society.
The Applicant’s Name
In a written submission, the Applicant’s representative has sought to address the issue of the different name used in the visa application lodged in Iran by the Applicant’s wife (Morad Ali Khateri) in 2003, and the name (Murad Ali Merzaei) he provided in 2010 (Exhibit A1, paras [20]-[23]). The submission states (Exhibit A1, paras [21], [23]):
The Applicant has explained that he has always been known as “Murad Ali son of Rahm Ali”. This is the actual name he uses by virtue of his Afghan origin. It is very uncommon in Afghan culture to use a surname as practiced by those countries with the influence of western culture. Rather, an ordinary Afghan citizen would usually place after their first name the suffixes “son of” or “daughter of”. It is a fact that the use of surnames as practiced in Australia is only adopted by educated families in Afghanistan…
… The applicant’s wife, … unknown to the rest of her family applied for them a Global Special Humanitarian visa while they were in Iran fleeing from the atrocities in their homeland Afghanistan. The result of that application was never known to the applicant. When applying for the visa, the applicant’s wife … who is not an accredited nor authorised Translator of the Dari (Persian) and/or Pashto languages into the English language, wrote in the visa application the names of each of her family members according to what she knew were the correct English translations or equivalents of their names. Thus, when she wrote her answers in the application form using the English language the name of her husband “Murad”, she had mistakenly translated it into “Morad”.
The Tribunal accepts that Murad Ali and Morad Ali are, for all intents and purposes, the same name; the explanation for the variation in spelling is plausible.
With respect the various use of the surnames ‘Khateri’ and ‘Merzaei’, the following explanation is provided in the Applicant’s submission(Exhibit A1, para [22]):
The applicant has also explained that in order to begin a new life for him and his family in Australia, he 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 the name of another patriarch of theirs 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 the stigma brought by the use of the particular clan name ‘Khateri’.
The Applicant called two witnesses, Ms Z (his wife’s sister) and Ms K (a cousin of his wife). Both stated that in Afghanistan they only knew him as Murad Ali and that they did not use surnames. This reflects the statements they made in their statutory declarations (Exhibit A1, Annex A and Annex B).
In his statutory declaration submitted to the Tribunal (Exhibit A3, para [10]), the Applicant stated:
That in Afghan culture, the use of Surnames is not a norm however, when I was in detention at Christmas Island, I adopted the name “Merzaei” which is another tribal name of a clan I belong to in Afghanistan to determine my lineage. I chose “Merzaei” from “Khateri” since I wanted to use another surname when we were in Australia.
During the hearing, the Applicant stated (transcript, page 21, 32):
… my 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.
In response to a question regarding the surname he would use in Afghanistan, the Applicant replied (transcript, p 33),
[n]ot any difference … It's no difference for me. So I don't mind.
There are some inconsistencies in the above explanations. There is a contention that the Applicant never had a surname—he was simply Murad Ali—and that he was unaware of the 2003 visa application lodged by his wife which used the surname ‘Khateri’. He then states he chose ‘Merzaei’ in place of ‘Khateri’, suggesting he used or was aware of the use of that surname. Moreover, as will be discussed later in these reasons, the surname ‘Khateri’ is used in the translation of a marriage certificate issued in 2003 (Exhibit R2, p 241). However, the Applicant failed to answer the question on his application for a Protection visa asking if he had ever been known by another name (Exhibit R2, p154).
Additionally, the choice of ‘Merzaei’ was supposedly to protect him from the stigma of using ‘Khateri’ (a name used by his extended family in Perth). Yet when asked which surname he would use in Afghanistan the Applicant stated, ‘I don’t mind’ (transcript, p 33).
The decision to change a surname is, on its face, no impediment to the establishment of identity. However, the context of this name change is significant: in two separate interactions with Australian authorities, once in 2003 and the other in 2010, the Applicant was represented as having different surnames. One instance involved an unsuccessful visa application, the other was provided in an application for a Protection visa after an unauthorised maritime arrival.
The Tribunal accepts that, in many parts of Afghan society, surnames are not used. It is plausible that to conform with the norms of Australian society, a surname will be chosen and that it might reflect a tribal affiliation or identity. The Tribunal also accepts that Afghan tribal structures include various clans and cadet branches, which can create a stratum of identity. However, the Tribunal has no evidence before it that Merzaei is a cadet branch of the Khateri tribe. While this may be the case, there is nothing before the Tribunal except the assertion of the Applicant and his family to confirm the nature of the tribal connection. Independent expert evidence regarding the tribal affiliations may have provided greater certainty around the Applicant’s choice of surnames.
Date of birth
The Applicant has provided inconsistent information regarding his date of birth. In his statutory declaration and Tazkira, his date of birth is listed as 14 January 1969 (Exhibit A3 & Exhibit R2, p 279). In the 2003 visa application, his date of birth is listed as 8 August 1969 (Exhibit R2, p 99). In the Applicant’s application for a Protection visa it is 31 December 1969 (Exhibit R2, p 154).
The Applicant advised the Department (Exhibit R2, p 292),
… in Afghanistan we have only the year of birth with no month or day. Hence, while entering Australia everyone had 31 December or 1 January as their day and month of birth and I did not want it. Hence, asked to put it down as 14 January.
I did not know about the GSH application lodged in Tehran and the date of birth given to me the application [sic].
During the hearing the Applicant stated that 31 December 1969 was chosen for him upon his arrival at Christmas Island (transcript, p 23),
[y]es, when you first came - come to camp they will ask you, "How old are you?" So you will tell the age. They will then chose [sic] the year for you and the date of birth will be given - the month and date will be given by them as well.
The date 14 January 1969 also appears in the Applicant’s Tazkira. During the hearing, the Applicant said (transcript, p 27),
… [e]verything is translated is that's what's meant to be, only the translator asked Murad Ali, so, 'What is your date of birth and your Medicare card in your Australian documents. You have to give me a month and day'. So he provided the month and day to them, the translator, who has put it in this translation of the document.
(Errors original.)
In summary, the Applicant has chosen his own date of birth which does not usefully assist in establishing his identity.
Residence
In his 2010 application for a Protection visa, the Applicant stated he had been in Afghanistan from his birth until February 2010 when he left for Pakistan en route for Australia (Exhibit R2, p 175). In the 2003 visa application submitted in Tehran by the Applicant’s wife, it stated that the family had lived in Tehran since 10 May 1995 (Exhibit R2, p 113). When asked about the discrepancy during the hearing, the Applicant stated (transcript, p 28):
It was a big mistake, but looking at my past, what I have been through, and the difficult life I had so I will request - humbly request from the Member and the tribunal to consider my other - what I have stated is true but it's not false. It's true.
During the hearing, the Applicant was asked when he left Afghanistan for Iran, he stated 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 he was 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 what the Applicant said, he 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 (ISAF) arrived in Afghanistan in 2001. This is inconsistent with the account of his family arriving in Iran in 1995, where his wife lodged a claim for an Australian visa in Tehran in 2003 and was advised of the result in the same city in 2005. It is also inconsistent with the information he provided to Australian authorities upon his arrival in 2010.
While it is true in some rural parts of Afghanistan, the departure of the Soviets in 1989 and the arrival of ISAF in 2001 would not provide a meaningful guide to the passage of time, both were significant events that would certainly have been noticed in Kabul.
While some concessions can be made for fading memories with the passage of time, there is too much inconsistency to have any certainty regarding his and his family’s moments, beyond his wife being in Tehran in 2003 and 2005.
Other documentation
The 2003 visa application lists five of their children, three of whom are recorded as having been born in Tehran (Exhibit R2, p 107). During the hearing, the Applicant 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 his application for a Protection visa, the Applicant stated that the five children listed were born in Afghanistan (Exhibit R2, p 249). The Tazkiras provided by the Applicant all state the children were born in Afghanistan (Exhibit R2, pp 301-310). This calls the accuracy of these documents into question.
The driver’s licence and the translation of the marriage certificate provided by the Applicant are of limited use in determining his identity (Exhibit R2, p 239 -240).
In the following exchange that took place during the hearing, the Applicant stated that his surname ‘Merzaei’ had been inserted retrospectively into the driver’s licence (transcript, p 24):
APPLICANT: In the original document you cannot see Merzaei there, no.
MR GERRARD: So this is an incorrect translation?
APPLICANT: No, the translation is okay but since we have to have a surname for the - like obtaining the licence here so as you can see, the Merzaei is in the bracket so this is something added to that - to the document but the rest is okay.
The translation of the marriage certificate, issued in May 2003, states that the Applicant’s surname is Khateri and that they were married in Kabul in 1988. However, during the hearing the Applicant said he was married around thirty years ago in 1990, in Tehran (transcript, pp 11, 31).
When asked why the translation of the marriage certificate says Khateri, the Applicant said (transcript, p 17),
It's because [I] used the surname Khateri in the forms. For that reason, they would have put "Khateri" in my marriage certificate as well. ...
… 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.
The Tribunal attributes limited weight to these two documents.
The Applicant claims his family’s Afghan identity documents, save a marriage deed, were all destroyed in a fire, a claim also made in the 2003 visa application (Exhibit R2, p112). The Applicant’s wife also stated in that application, ‘our house was put into fire, killing some relatives.’ Presumably this was the fire that destroyed the documents.
When the Applicant was asked about the documents during the hearing, the following exchange took place:,
TRIBUNAL:… Earlier we spoke about your wife had said that the documents you held had all been burnt.
APPLICANT: Yes.
TRIBUNAL: What documents were they?
APPLICANT: Yes, in Afghanistan we don’t have much documents, so that could be the Tazkira and the property paper, something like that.
TRIBUNAL: Okay. And how did they burn?
APPLICANT: … [I]t is a war torn country, it can happen. It’s war there.
The Applicant’s answer was remarkably unspecific, particularly if relatives were killed in the same fire as alleged in the 2003 visa application. There are no clear details regarding when and where this occurred. It is reasonable to assume that, even if relatives were not killed in the fire, the fire would have destroyed not just documents, but other family possessions. Such an event would typically result in some degree of trauma, or at the very least disruption and inconvenience. The Tribunal finds that such a significant life event would be remembered in some detail.
CONCLUSION
The Applicant was probably born in 1969. He is Hazara and is called Murad Ali. Beyond that, much remains uncertain. There is not enough detail to discern ‘…some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context’ (the Guidelines at 7[2.1.1]). In short, we cannot be clear about the Applicant’s identity.
There are considerable inconsistencies in the information provided by the Applicant concerning dates of birth and residence. He has implausibly denied knowledge of a visa application. He has freely admitted that he was not completely truthful about some of the information which he previously provided, notably where he lived and where his children were born.
The Tribunal recognises that for much of the Applicant’s lifetime, Afghanistan has been characterised by considerable disruption and strife and that the standard of bureaucratic administration is far removed from that of Australia. Additionally, the Tribunal acknowledges that there are different customs and traditions relating to the use of surnames and dates of birth in Afghanistan. However, this alone cannot explain the inconsistencies in the Applicant’s account.
As noted by Senior Member Walsh in Beyan at [38]:
… the Tribunal should not countenance an outcome which could lead to such a certificate [of Australian citizenship] being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
Having regard to the significance of the grant of citizenship and considering the Applicant’s individual circumstances, as well as the evidence available to it, the Tribunal is not satisfied of the Applicant’s identity.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

30 August 2019, is affirmed
.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

......[SGD].................................................................
Associate
Dated: 22 January 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 39

22 January 2021

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Immigration

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Statutory Interpretation

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