Mohsin and Minister for Home Affairs (Citizenship)
[2019] AATA 1999
•18 July 2019
Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999 (18 July 2019)
Division:GENERAL DIVISION
File Number: 2017/4459
Re:Kazim Mohsin
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:18 July 2019
Place:Sydney
The Tribunal sets aside the decision of the delegate dated 11 July 2017 refusing the Applicant’s application for Australian Citizenship, and in substitution the matter is remitted to the Respondent for reconsideration with the following directions:
(a)that the Applicant’s identity has been established for the purpose of section 24(3) of the citizenship act; and
(b)that the Applicant is a person of good character, and therefore satisfies the requirements for the granting of citizenship by conferral in accordance with section 21(2) of the citizenship act.
................................[sgd]........................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
CITIZENSHIP – citizenship by conferral – delegate refused application for citizenship – document provided found to be fraudulent - whether satisfied of identity of applicant – whether applicant is of good character – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth) – ss 21, 24
Cases
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 234
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Secondary Materials
Australian Citizenship Policy, Department of Immigration and Border Protection (1 June 2016), Chapter 13 – Identity
National Identity Proofing Guidelines 2014
REASONS FOR DECISION
Deputy President Pascoe
18 July 2019
Mr Karim Mohsin (‘the Applicant’) is a 27-year-old Afghan citizen who arrived in Australia as a minor with his sister as a dependent Applicant under her Spouse (Provisional Offshore) visa granted on 18 July 2010.
The Applicant’s sister was his guardian and had been taking care of him from about the age of six when the Applicant and his siblings fled from Afghanistan to Quetta in Pakistan as they feared for their lives. At the time of moving to Pakistan, Mr Mohsin’s father had been killed and his mother could not be located and was presumed to be dead.
The Applicant was granted a permanent Spouse (Migrant Onshore) visa on 17 January 2014. On 23 February 2015 the Applicant applied for conferral of Australian citizenship under section 21(2) of the Australian Citizenship Act 2007 (Cth) (‘citizenship act’). In his application his occupation was listed as building worker. He had not been convicted of any criminal offence in Australia nor had he been involved in any activities which could be said to be a risk to Australia.
On 11 July 2017 the Minister’s delegate refused the application on the basis that the delegate could not be satisfied as to the Applicant’s identity and was therefore prohibited from approving the application under section 24(3) of the citizenship act. The delegate also refused the application on the basis that he could not be satisfied that the Applicant was of good character under section 21(2)(h).
On 30 July 2017 the Applicant applied to the Tribunal for a review of the decision. At the hearing the Applicant was represented by Mr Zarifi and the Respondent represented by Mr He. At the hearing, the Applicant gave evidence and was cross-examined by Mr He, for the Respondent. Evidence was also given by the brother of the Applicant and by his brother-in-law who were both also cross-examined by Mr He. The following documents were admitted into evidence:
·Translated copy of the Applicant’s first Afghan Taskera
·Two statements by the Applicant’s sister
·Both translated and untranslated copies of the Applicant’s second Afghan Taskera
·Statement of the Applicant’s brother-in-law
·Statement of the Applicant’s brother
·Website screenshot showing a conversion of the Gregorian calendar to the Afghan calendar
·Extract of a Department of Foreign Affairs and Trading Country information report on Afghanistan
·Website screenshot of Afghanistan’s score and ranking on the Corruption Perceptions Index 2018
·Copy of the Applicant’s new passport issued on 7 September 2018
·Website screenshot showing a comparison table of numerals and their Persian translations
ISSUES FOR THE TRIBUNAL
There were two issues to be determined by the Tribunal:
(a)whether the Tribunal can be satisfied as to the Applicant’s identity pursuant to section 24(3) of the citizenship act; and
(b)whether the Applicant is of good character pursuant to section 21(2)(h) of the citizenship act.
Central to both issues are an Afghan Taskera and an Afghan drivers licence, both of which the Respondent contended were not genuine.
LEGISLATION AND POLICY
Identity
Section 24(3) of the citizenship act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The legislation is further reinforced by the Explanatory Memorandum to the Australian Citizenship Bill 2005 and the policy guidance issued by the department in Chapter 13 of its Citizenship Policy, which states:
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 also refers to the Attorney General’s Department National Identity Proofing Guidelines published for the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach.
The issue of identity when considering applications for citizenship has been dealt with the Tribunal in several decisions including Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808; Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222; and CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757; Beyan and Minister for Immigration and Border Protection [2015] AATA 256; Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310.
The decisions of the Tribunal recognise that the issue of identity is of particular importance because of the very significant benefits conferred by Australian citizenship. The Tribunal has also emphasised the need to consider each case on its individual merits, including considering particular impediments to obtaining documents related to identity.
Good character
Section 21(2)(h) of the citizenship act provides that the Minister must be satisfied that a person ‘is of good character at the time of the Minister’s decision on the application’.
Further guidance is provided under the citizenship policy which supports the act. It is expressly stated in the policy that it does not seek to provide a ‘checklist’ for decision-makers but rather to provide guidelines within the context of each case being determined on its merits.
The policy refers to the definition of good character given by Lee J in Irving v Minister of State for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, being that it refers to ‘the enduring moral qualities of a person’. It also refers to Deputy President Breen’s decision in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 on the importance of the character requirement in a citizenship application.
A non-exhaustive list of the characteristics of good character is also set out in the policy.
Importantly, the policy also gives guidance on weighing up the various issues in a character decision. The policy provides as follows:
·In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the Applicant did;
·what is there to demonstrate that the Applicant has upheld and obeyed the law;
·has the Applicant behaved in accordance with Australia’s community standards;
·does the Applicant share Australia’s democratic beliefs and respect its rights and liberties.
IDENTITY
The Minister’s delegate in their decision had expressed concerns in relation to the Taskera provided by the Applicant to the Department in support of his citizenship application. This Taskera was initially translated as being dated 29 August 2007.
The decision-maker outlined the steps taken by the department to determine the validity of the Taskera. In particular it was stated that:
The Department regularly conducts verification checks on documents supplied in support of applications.
On 24 May 2016, your Taskera was referred to the Australian High Commission in Dubai and a verification check was undertaken on this document.
On 5 January 2017, the Australian High Commission in Dubai, United Arab Emirates advised based on the above information that, the Taskera you provided to the Department in support of your citizenship application is fraudulent.
The Applicant also provided the Department with an Afghani passport issued on 6 July 2007 which the decision-maker did not consider as sufficient evidence of the Applicant’s identity, stating the following:
You have provided an Afghan passport issued in Quetta Pakistan. I place no weight on the passports veracity as according to your own account it was obtained as a result of obtaining your Taskera, which has been confirmed as not being registered therefore fraudulent.
……….
I have also considered your response regarding how you used the Taskera to obtain an Afghan passport. I find this implausible as your Afghan passport was issued on 6 July 2007 and your Taskera issued date was on 29 August 2007. This is after the issuance of your passport.
The Applicant gave evidence to both the Minister’s delegate and the Tribunal that the first Taskera provided to the Department was obtained by relatives on his behalf. He was approximately 15 years old at the time. According to his evidence, relevant family documents, in particular his father’s Taskera, were presented to the Afghan authorities in the province where his family lived and the Taskera was subsequently issued. This document was later found by the department to have not been registered and was accordingly regarded as fraudulent.
Evidence was provided to the Tribunal that the Applicant’s sister’s Taskera, also said to have been obtained at this time, was never registered.
Three issues are relevant in relation to the first Taskera. Firstly, the age of the Applicant and his need to rely on others in order to obtain the Taskera. Secondly, problems with translation as the document was said to have been translated by a native Farsi speaker rather than a Pashto speaker and thirdly, issues with the translation of the date from the Afghani calendar to the Gregorian calendar.
It was submitted by the Applicant that it is also relevant that at the time the first Taskera was obtained on the Applicant’s behalf, Afghanistan was in a state of civil war and this affected government services especially in provincial areas.
The first Taskera was presented to the Afghan consulate in Quetta, Pakistan and used to obtain a passport for the Applicant. The date of issue of the passport was 6 July 2007. This was problematic as the date of the first Taskera was said to be 29 August 2007, which is after the date of the passport. This raised serious concerns on the part of the delegate as to the validity of both documents and as to the character of the Applicant. I note that the passport was used to obtain a visa for the Applicant to come to Australia. The visa was granted in 2010 when the Applicant was under the age of 18.
At the hearing the Applicant gave evidence that this was due to an error in the translation of the Afghani calendar. Documents supporting this contention were received into evidence. The Applicant also gave evidence, which was not contested, that in Afghanistan birthdates were not recorded. Age was estimated, based on appearance.
The Applicant’s evidence was that only the registration date on the Taskera was incorrect and that the date on the passport was correct.
The Applicant also gave evidence that when he learned of the problems with the first Taskera he applied for, and was granted, a new Taskera at the Afghani Embassy in Canberra. A copy of this new Taskera was provided on 26 April 2018. When making the application he used his father’s Taskera and that of his uncle. He filled in a form and participated in an interview before the Taskera was issued. The Respondent in their submissions also expressed concern about this second Taskera, contending that the information in the second Taskera had been included by reference to the original Taskera. They also submitted that a Taskera may be issued with little verification of the documents provided when making the application.
At the hearing the Applicant was also questioned about a driver’s license issued to him in Kabul when he returned to Afghanistan with his sister. The Respondent argued that the Applicant was too young to be granted a drivers licence under Afghan law and therefore there are issues with the veracity of the document. It was submitted that the license does not therefore provide an effective means by which to discern his identity. The Applicant gave evidence that he attended the relevant office where he completed some testing and was then granted a driver’s license. He said that he was never questioned about his age.
The Applicant’s brother gave evidence that there were many underage drivers in Afghanistan. He stated that he had come to Australia with the Applicant, their sister and her son. He reaffirmed that he was the brother of the Applicant and offered to undertake DNA testing to prove the relationship.
CHARACTER
The Minister’s delegate found that the Applicant was not of good character on the basis that the Applicant had deliberately provided fraudulent documents in support of his application for citizenship, namely the first Taskera.
On the evidence, which was not contested, the Applicant had not been involved in any criminal activity in Australia nor had he been involved in any of the activities listed in the policy and guidelines as being behaviours that indicate that someone might not be of good character. He has worked in construction, is a qualified bricklayer and will soon finish a building course. He has paid his taxes.
At the hearing the representative for the Respondent conceded that if there was a proper explanation for the discrepancy as to the dates relating to the Applicant’s passport and the date of the first Taskera then the issue of bad character did not arise.
Again, it was not disputed that the Applicant has no criminal history in Australia and has a history of regular work and study.
FINDINGS
The Applicant came to Australia as a minor. The first Taskera, said to be unregistered and therefore regarded as fraudulent, was obtained by others on his behalf. I accept that he regarded the first Taskera as genuine. It was used to obtain his original Afghani passport which enabled him to come to Australia. I accept that the discrepancy as to dates between the first Taskera and the Applicant’s passport is due to an error in the translation of the first Taskera.
The Applicant only became aware of the error in the original Taskera as a result of being informed by the Department as to their concerns. He then sought a new Taskera in Australia and it was this new application for a Taskera which gave him insight into how a Taskera was issued and the information that was required to be provided.
Given that the first Taskera was accepted for the issuing of his Afghani passport as well as a visa to come to Australia, the Applicant would have had no reason to suspect that the original Taskera was other than genuine.
The evidence of the Applicant’s brother and brother-in-law was tested under cross-examination. I accept their evidence as to the Applicant’s identity. The Applicant’s brother-in-law said that he had known the Applicant since birth. He met the Applicant’s sister in 2001 and gave evidence that the Applicant came to Australia with her in 2010.
The Applicant’s brother gave evidence consistent with that of the Applicant and his brother-in-law. He had come to Australia with the Applicant together with their sister and her son. He is about two years older than the Applicant. He gave evidence which strongly supported the Applicant’s purported identity. He was also questioned about the Afghani driver’s license but was unable to explain why the Applicant may have been given a licence when under age, other than to observe that there appeared to be many underage drivers on the road when he was in Kabul.
The issue of identity is one not to be taken lightly. I have carefully considered the relevant legislation, the guidelines and the relevant case law including Shafai and Minister for Home Affairs (Citizenship) [2019] AATA 808; Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 and Beyan and Minister for Immigration and Border Protection [2015] AATA 256.
It is well accepted that each case must be dealt with on its individual merits with appropriate weight given to individual factors.
In the current case, I accept that the first Taskera was not registered and therefore may be seen to be fraudulent. However, the Applicant could not be expected to know that registration had not occurred. He was very young at the time, the Taskera was obtained for him by others and he played little or no part in the process. There would be no reason for him to suspect that the document was false, especially as it was accepted as the basis for his Afghani passport and visa to come to Australia with his sister in 2010.
When the Applicant became aware of problems with the first Taskera he sought to obtain another through appropriate government channels. There is no evidence that he sought to do anything inappropriate or to hide information when seeking the second Taskera.
The evidence of the Applicant’s brother and brother-in-law was tested under cross-examination and remained both consistent and unshaken. I accept the evidence of the Applicant’s brother and brother-in-law completely.
I also accept that there was a mistranslation of the original Taskera from the Afghani calendar and that this fully and completely explains the discrepancy between the first Taskera and the Afghani passport issued in Quetta, Pakistan on 6 July 2007.
I find the Applicant’s date of birth to be consistent across all of the documents which record it.
CONCLUSION
The Tribunal is to have regard to the whole of the evidence before it when making a determination. It is not confined to the evidence before the primary decision maker but must answer the same question as that before the primary decision maker; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 234.
Two of the issues before the primary decision maker are now before the Tribunal, namely whether the Tribunal can be satisfied as to the Applicant’s identity and whether the Applicant was of good character at the time of the Minister’s decision on the application.
Whether the original Taskera is genuine is not critical to the outcome of these proceedings. There are many factors which may explain why it was not registered and why the Applicant relied upon it, including his age, his reliance on others and the state of Afghanistan at the time the first Taskera was issued.
I note also the provisions of section 10(1)(c) of the citizenship act which set out what is a personal identifier for the purposes of the act. I note that it includes a photograph of a person’s face and shoulders. The photographs of the Applicant on the various documents provided to the Tribunal are matching, consistent and in accordance with his appearance at the hearing.
The evidence of the Applicant’s brother and brother-in-law further give significant weight to his identity.
The Applicant has lived and worked in Australia for many years and has gained educational qualifications.
Inconsistencies as to dates especially in relation to the first Taskera and the Applicant’s Afghani passport dated 6 July 2007 are properly explained by errors in the translation of the Afghan calendar, especially where translators are used who do not have direct knowledge of the calendar and may speak a related language or dialect which may not always allow for completely accurate translation.
The Tribunal is satisfied that the Applicant’s identity is established by his passports issued 6 July 2007 and more recently in his newer passport dated 7 September 2018.
At the hearing Mr He for the Respondent conceded that if the discrepancy between the first Taskera and the Afghani passport dated 6 July 2007 were explained then the question of bad character does not arise. The Tribunal finds that this discrepancy has been properly explained for the reasons outlined. Further the Applicant has demonstrated good moral qualities in accordance with Australian values as attested by his work and education history and the evidence of his relatives.
DECISION
The Tribunal sets aside the decision of the delegate dated 11 July 2017 refusing the Applicant’s application for Australian Citizenship, and in substitution the matter is remitted to the Respondent for reconsideration with the following directions:
(a)that the Applicant’s identity has been established for the purpose of section 24(3) of the citizenship act; and
(b)that the Applicant is a person of good character, and as such satisfies the requirements for the granting of citizenship by conferral in accordance with section 21(2) of the citizenship act.
I certify that the preceding 56 (fifty - six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
...............................[sgd].........................................
Associate
Dated: 18 July 2019
Date of hearing: 24 May 2019 Advocate for the Applicant: Mr Z Zarifi Solicitors for the Applicant: Ghan Migration Advocate for the Respondent: Mr Z He Solicitors for the Respondent: Clayton Utz
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