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

[2022] AATA 46

MSLQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 46 (19 January 2022)

Division:GENERAL DIVISION

File Number:          2018/7176

Re:MSLQ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:19 January 2022

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian Citizenship by conferral – identity and good character requirements not satisfied – where the applicant is a citizen of Afghanistan – two Taskeras provided – both Taskeras not registered according to verification centre – where the applicant provided verification letters from the Embassy – verification centre results preferred – provision of fraudulent material not indicative of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24, 52  

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Bill 2005

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

19 January 2022

1. MSLQ, the applicant, is a citizen of Afghanistan. He first arrived in Australia on 6 April 2010, as an irregular maritime arrival. On 13 April 2011, he was granted a Protection (Class XA) (subclass 866) visa.

2. On 15 April 2015, the applicant lodged an application for Australian Citizenship by conferral (‘Citizenship application’) under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

3. On 26 May 2017, the applicant was requested to provide further information to verify his identity. The applicant provided a completed ‘Personal particulars for assessment including character assessment’ form (Form 80) along with a statement advising that he did not hold any overseas identity documents as he had resided illegally in Pakistan. On 17 July 2017, the Department emailed the applicant advising that it was implausible that the applicant could reside, work, marry and have children in Pakistan and not be able to provide any documents regarding these events.

4. On 26 September 2017, the applicant provided a copy of his Afghan identity document (First Taskera), issued on 20 March 2014, reference number 10089731. On 2 November 2017, that document was sent for verification to the Afghanistan Central Civil Registration Authority (ACCRA), National Identity Verification Centre (verification centre). On 13 December 2017, the verification centre advised that the First Taskera was not registered and was therefore considered fraudulent.

   5.On 26 June 2018, the applicant responded to an invitation to comment on the adverse information, by providing a copy of his First Taskera along with a letter of verification of the First Taskera from the Embassy of the Islamic Republic of Afghanistan, Canberra (Embassy). The letter from the Embassy, dated 21 June 2018, stated that the First Taskera was verified as a genuinely issued document.

5. On 28 November 2018, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act and was also not satisfied of the applicant’s identity under subsection 24(3) of the Act. This is the decision under review in these proceedings.

6. The issues for the Tribunal to determine in these proceedings is whether it is satisfied of the applicant’s identity in accordance with subsection 24(3) of the Act, and, if so, whether the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

7. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

8. Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(3) of the Act provides:

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

9. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 relevantly explained that:

   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.

10. The Act also relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’

    IDENTITY OF THE APPLICANT

11. Citizenship Procedural Instruction 16 ‘Assessing Identity under the Citizenship Act’ (CPI 16) offers guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 16, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

12. The CPI 16 relevantly provides:

    (a)The Department relies on a combination of the three pillars of identity: biometrics, documents, and life story. A single pillar should not be relied upon to establish a person’s identity as ‘[c]onsidering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity’ and to ‘comprehensively test and evaluate a person’s claims with regard to their identity’.

    (b)Relevantly, ‘[o]nly reliable identity documents’ can satisfy the document pillar.

    (c)An application for Australian citizenship must be made in the applicant’s full name and supported by acceptable identity documents. Allowable identity documents include officially issued documentation such as a birth certificate, marriage certificate, or official passport.

    (d)A non-genuine feeder document can result in the issuance of (fraudulently obtained) genuine secondary documents.

    (e)In the case of a person providing genuine identity documents that have been fraudulently obtained (for example, documents that have been bought), the applicant’s knowledge of the issuance process of the documents may be limited, and therefore inaccurate. Where a person is unable to explain the process to obtain their document, it may be a relevant consideration going to the legitimacy of the document and may form the basis for giving less weight to the document in the assessment.

13. As to relevant identity documents, the Taskera, a one-page official identity certificate, is the primary form of identification for Afghan citizens. In addition to being required for employment, admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, Taskeras act as the primary document necessary to obtain other forms of identification. The Islamic Republic of Afghanistan National Statistics and Information Authority (NSIA) is the authority responsible for issuing Taskeras; previously known as ACCRA; see DFAT Country Information Report Afghanistan dated 27 June 2019 (DFAT Report). The verification of identity documents is conducted via the Department’s overseas post in Dubai who liaise with the Afghan authorities directly.

14. The applicant claimed in his Form 80 that he never had a Taskera.

15. On 26 September 2017, the applicant provided the First Taskera to the Department.

16. At hearing, the applicant stated that his wife obtained the First Taskera to confirm his identity for his application for citizenship. He said that he knew people who had applied for citizenship and were asked to provide their Taskera and that was why his wife obtained it in 2014, prior to him applying for citizenship in 2015. The applicant however did not provide a copy of the First Taskera to the Department with his application for Citizenship nor when he was asked multiple times to provide documents to verify his identity. The applicant stated that he did not provide it prior to 2017 because it was in Afghanistan and he did not think it was important to provide it earlier.

17. The applicant’s wife said in a written statement translated on 30 May 2021:

    “4. In about 2014 I travelled to Ghazni Afghanistan to visit my Paternal uncle [name redacted]; My uncle was living in Ghazni City at that time. I ask my husband for his permission. He agreed and told me to obtain Taskera for him too.

    5. While I was staying at my uncle’s house, I went to obtain Taskera for my husband using my father In-Law’s Taskera with my cousin [name redacted] which I still have present with me my father in laws Taskera.

    6. [My cousin] assisted me to obtain my husband’s Taskera. With serial Number 100089731 on 20 March 2014.

    7. I personally went to Population Registration, Ministry of Interior Affairs to obtain this Taskera to the best of my knowledge the Taskera is genuine, later in 2017 I have used this Taskera to obtain Taskera for my children, my children’s Taskera has been verified by Ministry of interior and foreign affairs…”

18. At hearing, the applicant’s wife said she obtained the applicant’s First Taskera in 2014 at his request. She confirmed that she used her father-in-law’s Taskera to get the applicant’s First Taskera but said she left the document in Afghanistan as it was not safe to travel with it through Pakistan.

19. A verification report received by the Department from ACCRA, showed that the First Taskera was not registered.

20. The applicant provided another Taskera issued on 12 February 2019, reference number 31161185 (new Taskera).

21. On 13 January 2020, the applicant provided a letter from the Embassy confirming the new Taskera as verified together with an (untranslated) internal letter apparently from the National Identity Verification Centre which the Embassy had received. The applicant also provided confirmation of an appointment at the Embassy on 11 December 2019.

22. The verification letters the applicant has obtained from the Embassy do not assist in establishing the applicant’s identity. The Embassy is run by the Ministry of Foreign Affairs (MFA) and is separate to the NSIA (and previously ACCRA), which were part of the Ministry of Interior. Country information shows that while the MFA has a section responsible for verifying civil documents, ‘international agencies report that there have been cases of documents with MFA attestation subsequently being independently verified as non-genuine.’

23. Additionally, the applicant advised at hearing that when he contacted the Embassy to verify the First Taskera, he did not need to attend the Embassy in person. He said he was advised to apply for the new Taskera and filled out a form which was sent to Afghanistan. He said he provided his father’s Taskera and his Australian driver’s licence as identification. The applicant said he obtained his Australian driver’s licence by providing a fake licence from overseas. He said he obtained the fake licence by paying someone in Pakistan and it was arranged.

24. The Department sought verification of the new Taskera. The verification results from the NSIA Department of Certification of Identity Card in Absence dated 20 November 2019, recorded that it was not registered.

25. The DFAT Report notes that document fraud in Afghanistan is a major problem, ‘because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued based on false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras, given they are the primary document used to obtain other forms of identification.’

26. For these reasons, I prefer the verification results received from NSIA (in relation to the new Taskera) and ACCRA (in relation to the First Taskera) to the letters from the Embassy. Based on the verification results, the First Taskera and the new Taskera were found to be non-genuine and unreliable as a basis for confirming the applicant’s identity.

27. On 11 May 2020, the applicant provided further Taskeras for three of his siblings. The applicant’s wife confirmed at hearing that in 2017, she used the applicant’s First Taskera and her father-in-law’s Taskera to obtain her children’s Taskeras. While these documents may carry some weight in terms of consistency of the data submitted, they are not identity documents of the applicant and do not overcome the difficulties in establishing the applicant’s identity following the provision of two non-genuine Taskeras.

28. In a statutory declaration for his protection visa application, the applicant claimed to have travelled to Pakistan with his family in 1999 and resided there until 2010 illegally. In a separate application for the applicant’s spouse and children lodged on 11 May 2012, the applicant provided a statement that he travelled to Pakistan in 2003. He claims to have had no identity documents due to having resided in Pakistan with his family illegally. This is despite the applicant residing, attending school, working, getting married, and having four children in Pakistan.

29. The applicant’s wife and children still live in Pakistan, but the applicant said that they have no official documents other than their Taskeras and passports. The applicant’s children attend school in Pakistan; however, the applicant said it was not an official government school. He advised that he sends money to his family by transferring funds to a business in Pakistan. He stays in contact with his family via telephone but explained that they did not require identification to purchase a SIM card (as the respondent submits) and said that it was obtained through members of the community.

30. At hearing, the applicant said he could not recall exactly when he got married but that it was around 2001. He said he never registered the marriage as it was a religious ceremony. The applicant said he had a certificate, but it was not an official document. In any event, he said he did not know where the certificate was.

31. Contrary to the applicant’s evidence that his marriage was not registered, at hearing, the applicant’s legal representative provided a copy of a certificate of marriage obtained by the applicant’s wife in 2017. The applicant then explained that the certificate of marriage was obtained through the Court, where two witnesses were required for each party. The witnesses needed Taskeras, as did the applicant and his wife. The applicant advised that he provided the First Taskera and that the certificate was issued based on the documents provided and the presence of four witnesses.

32. The applicant has provided statutory declarations from Mr ‘R’ and Mr ‘S’ in support of his identity. Both witnesses also gave evidence orally at hearing. Both Mr R and Mr S state that they knew of the applicant as a child in Afghanistan through social events in the community. Following the applicant’s arrival in Australia, he worked with both Mr R and Mr S in Adelaide and/or Sydney for a period. At hearing, Mr R and Mr S confirmed that they knew the applicant as a member of the same community back home.

33. When questioned at hearing about his relationship with the witnesses, the applicant said that he was not close with Mr S, he was just a member of the same community. He said Mr R was older than him and he had some interactions with him through the community when he was in Pakistan. Despite Mr R and Mr S now attesting to the applicant’s identity, the applicant did not list them as contacts (friends/relatives) in Australia in his arrival documents to Australia in 2010.

34. I give limited weight to the evidence of Mr R and Mr S as to the applicant’s identity from birth. They plainly now know the applicant in Australia, however the evidence of the applicant’s identity prior to his arrival in Australia is vague. They were not close friends, contacts, or relatives. They only knew of each other as being from the same community in Afghanistan.

35. I am not satisfied on the available evidence of the applicant’s identity. The applicant has provided no reliable identity documentation prior to his arrival in Australia nor any reliable documentation of his life in Pakistan. The provision of two non-genuine identity documents also casts doubt on whether the information the applicant has provided about his identity and life story is genuine. This is exacerbated by the admission of the applicant that he had obtained his Australian driver’s licence using a fake overseas licence and the fact that his First Taskera, which is not considered genuine, was used to obtain his certificate of marriage and Taskeras for his children.

    GOOD CHARACTER

36. The term ‘good character’ is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15). As to the definition of good character, the CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

    Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion…

37. The CPI 15 states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

38. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: not practise deception or fraud in dealings with the Australian government such as intentionally providing false personal information or other material deception during visa and citizenship applications.

39. The provision of fraudulent material to the Department is conduct specifically contemplated under CPI 15 as conduct that is not indicative of good character. In the present case, the applicant has provided inauthentic documentary evidence regarding his claimed identity on two occasions.

40. As such, the applicant does not meet the good character requirement.

    DECISION

41. The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 19 January 2022

Date of hearing:	31 May 2021
Date final submissions received:	23 June 2021
Solicitors for the Applicant:	A Ryburn, Ryburn Solicitors
Solicitors for the Respondent:	I Leonard, Australian Government Solicitor