Nadiri and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2022] AATA 3656

Nadiri and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3656 (2 November 2022)
Division:GENERAL DIVISION
File Number: 2019/1802
Re:Arash Nadiri
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member C. J. Furnell
Date:2 November 2022
Place:Melbourne

The Tribunal affirms the decision under review.
...................[sgd].....................................................
Senior Member C. J. Furnell
Catchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – Australian Citizenship Act 2007 (Cth) – Afghanistan – whether Minister can be satisfied of applicant’s identity under s 24 of the Australian Citizenship Act 2007 (Cth) – inconsistencies as to applicant’s surname and date of birth – application of the Australian Citizenship Policy Statement – application of Citizenship Procedural Instruction 16 – Tribunal satisfied of applicant’s identity – whether the Tribunal can be satisfied that applicant is of good character – application of Citizenship Procedural Instruction 15 – provision of false personal information and bogus documents in visa and citizenship applications – Tribunal not satisfied applicant is of good character – decision affirmed
Legislation
Administrative Appeals Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567
Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw (1938) 60 CLR 336
Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514
Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Fang and Minister for Immigration & Border Protection [2018] AATA 3686
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457
Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 603
HSCK v Minister for Home Affairs [2019] AATA 4392
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
KLJG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2447
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Mohamad v Minister for immigration & Border Protection [2018] AATA 687
Mohammadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 702
NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Rafaat and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1743
Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801
Rusanov and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2548
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121
Sherwan and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 1702
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362
Taradel and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 1255
Tran and Migration Agents Registration Authority [2022] AATA 2470
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Collins Dictionary (online, 2021)
Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan (27 June 2019)
Department of Home Affairs, Citizenship Procedural Instruction 15 – Assessing Character under the Citizenship Act
Department of Home Affairs, Revised Citizenship Procedural Instruction 16 – Assessing Identity Under the Citizenship Act (1 January 2022)
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
Macquarie Dictionary (online, 2021)
Oxford English Dictionary (online, 2021)
REASONS FOR DECISION
Senior Member C. J. Furnell
2 November 2022

The applicant applied for Australian citizenship by conferral in January 2015.[1]
[1] T5, pp.90-102, with “T” being a reference to documents provided by the Respondent under s 37 of the Tribunal’s constituent legislation (Administrative Appeals Act 1975), “ST” being a reference to supplementary documents so provided and “FST” being a reference to further supplementary documents so provided.
Under the Australian Citizenship Act 2007 (the Act) (s 24(1)), when a person makes such an application, the respondent becomes obliged to approve or to refuse to approve the application. That decision must, however, be to refuse to approve in certain circumstances.
For instance, the decision must be to refuse to approve an application for citizenship unless:
(a)the respondent is satisfied of the identity of the applicant (s 24(3)).
(b)the applicant is eligible to become an Australian citizen under any of certain provisions of the Act (s 24(1A)). Of those provisions the only one of potential relevance in this case[2] renders eligibility for citizenship conditional on the respondent being satisfied that the applicant is of good character at the time of the decision
[2] Seven eligibility provisions are identified in s 24(1A). Most require the respondent’s satisfaction as to the good character of the relevant applicant. The others might apply where the applicant is aged under 18, born in Papua or was born in Australia. One applies where the applicant has a permanent or enduring physical or mental incapacity (s 21(3)).
(s 21(2)(h)).
In March 2019, a delegate of the respondent decided to refuse to approve the applicant becoming an Australian citizen. The delegate was not satisfied of the applicant’s identity or that the applicant was then of good character.[3]
[3] T2, pp.7-19; T13, p.201.
In April 2019, the applicant applied to the Tribunal for review of that decision.[4]
[4] T1, pp.1-6.
In conducting that review, the Tribunal stands in the shoes of the respondent in order to “do over again” that which was done by the respondent’s delegate.[5]
[5] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
Standing in those shoes in this proceeding, the Tribunal needs to decide whether it is satisfied of the applicant’s identity and that he is now of good character.
I am satisfied as to the applicant’s identity but not satisfied that the applicant is now of good character, for the reasons which follow.
First, however, I should list the material that was before the Tribunal and certain aspects of both the regulatory and policy context and factual context.
Material before me
In this proceeding I have had regard to the submissions made at and before, and evidence adduced at, the hearing,[6] and to certain documentary material lodged with the Tribunal prior to the hearing.
[6] In terms of submissions made before the hearing, reference is made to the respondent’s Statement of Facts, Issues and Contentions of 8 April 2022 (R SFIC) and to the applicant’s statement of facts, issues and contentions of 25 February 2022 (A SFIC).
As for evidence adduced at the hearing, the Tribunal heard from the applicant, his wife (called in these reasons “Ms RN”) and one of his brothers (called in these reasons “brother KA”).
As for documentary material lodged with the Tribunal, it included:
(a)A volume of documents provided by the respondent under ss 37 and 38AA of the Tribunal’s constituent legislation (being the “T” documents).
(b)A supplementary volume of documents provided by the respondent under ss 37 and 38AA of the Tribunal’s constituent legislation (being the “ST” documents).
(c)A further supplementary volume of documents provided by the respondent under ss 37 and 38AA of the Tribunal’s constituent legislation (being the “FST” documents).
(d)A copy of a “taskera” numbered XXXXX 05[7] dated 24 June 2019 in the name of Esmatullah, son of Nadir Ali.
[7] In order to minimise the unnecessary disclosure of personal information and minimise the risk of identity theft, the Tribunal does not propose to refer to taskera numbers, purported taskera numbers, or the numbers of other identity documents, in full.
(e)An English translation of that taskera made in September 2019, indicating the applicant was “27 years old in 1381 (1381 equates to a period between 21 March 2019 to 20 March 2020)” (and, hence, suggesting that that he was born in in 1992 or 1993).
(f)An English translation of that taskera made in November 2020, indicating the applicant was “27 years old in 1381 (1381 equates to a period between 21 March 2002 to 20 March 2003)” (and, hence, suggesting that he was born in 1975 or 1976).
(g)A letter of 27 August 2020, signed by a Mr Sadiqi, consul of the Canberra embassy of the Islamic Republic of Afghanistan, stating that taskera XXXXX 05 “is a verified and genuinely issued document,” that “Mr Esmatullah S/O Mr Nadir Ali” is the holder of the taskera, and that “Mr Esmatullah” was born in December 1980.
(h)A letter of 27 August 2020, again signed by Mr Sadiqi and repeating what was said in Mr Sadiqi’s other letter of 27 August 2020 but, rather than stating when the applicant was born, instead stating that “Mr Esmatullah S/O Mr Nadir Ali… is 27 years old of 1381 solar year”.
(i)A letter of 28 January 2021, signed by Mr Yosufi, First Secretary in charge of consular affairs at the Canberra embassy of the Islamic Republic of Afghanistan, stating that taskera XXXXX 05 “is a verified and genuinely issued document” and that “Mr Esmatullah S/O Mr Nadir Ali” is the holder of the taskera and that “he is 27 years old of 1381 solar year”.
(j)An undated document from the National Statistics and Information Authority, National Identity Verification Center of the Islamic Republic of Afghanistan with respect to taskera XXXXX 05, stating that “Esmatullah” (whose father’s name is Nadir Ali) is “27 years old in 1381 (1381 equates to March 2002 to March 2003)” (and, hence, suggesting he was born in in 1975 or 1976).
(k)An English translation made in June 2021 of that undated document
(l)A taskera Booklet of Nadir Ali issued in October 2017 (number XXXX14), and English translation thereof.
(m)A certificate of Discharge in 1955 from Military Service of Nadir Ali (XXXX09), and English translation thereof.
(n)A statutory declaration of Ms RN of 18 May 2022.
(o)An Australian citizenship certificate of Ms RN.
(p)A Norwegian Country of Origin Information Centre, “Landinfo”, report of May 2019 titled “Afghanistan: Tazkera, passports and ID documents”.
(q)A May 2022 letter from the secretary of the World Baba Mazari Charity.
(r)A web page captured on 2 December 2021 concerning the process for obtaining an absentee taskera.
(s)A June 2019 Department of Foreign Affairs and Trade Country Information Report on Afghanistan (the “DFAT report”).
(t)An October 2021 publication of Ali Reza Yunespour entitled “Documentation Problems for Asylum Seekers and Refugees from Afghanistan” (the “Issues in Afghan Documentation article”).[8]
[8] Mr Yunespour is understood to be a partnerships coordinator with the Indigo Foundation which describes itself as a community development organisation based in Australia and is said to have worked “in DFAT and as a lecturer at American University of Afghanistan in Kabul”: see and policy context
As is apparent from what was said earlier, for the applicant to succeed in this proceeding, I need to be satisfied that he is of good character and of his identity. This raises the issue of what it means to be satisfied of something and the nature of the material necessary in order to arrive at a state of satisfaction.
As submitted by the applicant, for the Tribunal to be satisfied of something requires only that it be reasonably satisfied of that thing; not, for example, comfortably satisfied of it.[9] A state of reasonable satisfaction is not, however, one arrived at irrespective of context. Indeed, contrary to the gist of the applicant’s submission, what is required in order to arrive at that state may vary depending on the significance of the context.
[9] A SFIC [21] citing BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
In particular, while the Tribunal’s task in this proceeding is evaluative[10] and it may be that principles of relevance to the application of rules of evidence have no role to play in it,[11] in considering whether to find that it is satisfied of something, the weight of the material required by the Tribunal to support the finding may be influenced by the gravity of the consequences of making the finding.
[10] Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635 at [52], where it was said that the “…process of a decision-maker being satisfied of identity is an evaluative one…”.
[11] See BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [66], where it was said to be correct to conclude that the principle derived from Briginshaw v Briginshaw (1938) 60 CLR 336 – a principle to the effect that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved – did not apply in the context of a Tribunal determination as to whether it was satisfied of a particular matter.
In this regard, in HZCP it was said (with my emphasis) that:
“…the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, his Honour captured its essence by saying ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’.”[12]
[12] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [186]. See also Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567 at [24]-[25] and Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30], each of which applied Briginshaw. See also Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37] which was permissive of the application of the principle derived from Briginshaw in Tribunal proceedings. See also LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50], citing Briginshaw. See the discussion of these cases in HSCK v Minister for Home Affairs [2019] AATA 4392 at [141]-[147]. See also NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 at [41] where an assessment as to whether a crime was serious was said to be influenced by the consequences of a finding that it was.
Here, we are dealing with the issue of whether a person should become an Australian citizen, with all its attendant rights and responsibilities. It is a context of significance.[13] This suggests that, for the Tribunal to find that it is satisfied that the applicant is who he says he is or that he is of good character, the material in support of the finding needs to be significantly probative of it.
[13] See Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579 at [56] and Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [36].
I turn now to consider the policy context. Before doing so, however, I should mention submissions made prior to the hearing on behalf of the applicant in which he appeared to suggest that it would be inappropriate to seek to apply government policy.[14] That apparent suggestion was not one pursued at the hearing. There, on behalf of the applicant, it was contended that the Tribunal may apply government policy but was not required to do so. Insofar as that represents the applicant’s submission, I accept it.
[14] A SFIC [25]-[33].
In this proceeding, while not bound to do so,[15] I have sought to apply government policy where it is relevant and in the absence of cogent reasons to the contrary.[16] When, as here, the Tribunal is required to arrive at an opinion[17] based on an evaluative judgment, as I see it, applying government policy is particularly appropriate.[18]
[15] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25]. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767, it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case … Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”
[17] BOY19 v Minister for Immigration Protection [2019] FCA 574 and Border at [54]: “…the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment.”
[18] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [54], where it is said: “Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) , Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines.”

As for the government policy I have sought to apply, reference is made to the Australian Citizenship Policy Statement reissued on 27 November 2020 (policy statement). This policy statement provides context for citizenship procedural instructions to be used in making decisions under the Act, instructions outlined in what are characterised in the statement as related framework documents.[19]
[19] Policy statement [2.1].
Instructions to be so used when assessing a citizenship applicant’s character are provided for in Citizenship Procedural Instruction 15 – Assessing Character under the Citizenship Act (CPI 15), while Citizenship Procedural Instruction 16 outlines instructions for use in assessing matters to do with identity (CPI 16).
In accordance with CPI 15[20] and consistent with case law,[21] a person’s character is something to be assessed objectively by reference to the person’s enduring moral qualities. It is not determined by the person’s reputation.
[20] CPI 15 [3.1]; [3.3]
[21] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432; BOY19 v Minister for Immigration & Border Protection [2019] FCA 574 at [51].
In the Act, the term “good character” is “…used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant.”[22] As an holistic assessment,[23] various aspects of a person’s life are of potential relevance,[24] such as the person’s family life, employment history, payment of taxes and contributions to the community.[25]
[22] VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32], citing Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[23] Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 603 at [56], where it is said that “…the Tribunal must look holistically at the Applicant’s behaviour over time and be satisfied of ‘enduring moral qualities’…”
[24] CPI 15 [3.3].
[25] CPI 15 [4].
A consideration of those things might occur in the context of determining whether the person concerned has behaved in an ethical manner[26] and has been legally observant.[27] In this regard, in CPI 15,[28] it is said that:
(a)as a general proposition, a person of good character would not “…practise deception or fraud in dealings with the Australian Government, or other organisations, [by] for example: intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications…”.[29]
(b)If an applicant knowingly presents “incorrect information or a bogus document, this may reflect on the person’s character…” albeit that if this occurs “…unknowingly, there would be no ground for character concern.”[30]
[26] CPI 15 [3.3]; Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457 at [17].
[27] As cited in CPI 15, Zheng v Minister for Immigration and Citizenship [2011] AATA 304: “In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant.”
[28] CPI 15 [4].
[29] Adopted in Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457 at [18].
[30] CPI 15 [11]. As to the concept of a “bogus document”, see Migration Act 1958, s 5(1).
As already mentioned, an application for citizenship must be refused absent satisfaction as to the applicant’s identity. Hence (and as stated in the Explanatory Memorandum to the Australian Citizenship Bill 2005), where an applicant’s identity is unclear, his or her application must be refused.
As with the “good character” concept, the identity concept is left undefined by the Act. Its ordinary, grammatical, meaning, however, extends to the “condition, character, or distinguishing features of a person,”[31] the individual characteristics of a person by which the person is recognised[32] or the set of characteristics of a person which distinguishes the person from others.[33]
[31] Macquarie Dictionary (online, 2021). Found at: align="left">[32] Collins Dictionary (online, 2021). Found at
[33] Oxford English Dictionary (online, 2021). Found at:
The meanings so given to the concept of “identity” are reflected in and elaborated on in CPI 16. A person’s identity is said to be “…defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.”[34] It is said not to be a point in time concept but, rather, one that needs to be considered historically and verified incrementally throughout a person’s life.[35]
[34] CPI 16 [4].
[35] CPI 16 [11].
Put shortly, an assessment of a person’s identity entails a consideration over time of a set of characteristics or attributes that enable the person to be distinguished from others.
CPI 16 offers guidance as to how such an assessment might be conducted. Regard ought to be had to information provided or obtained in relation to what are characterised as the three pillars of identity.[36]
[36] CPI 16 [5].
Those three pillars of identity are:
(a)Biometrics. These are expressed to involve a “measurable characteristic that is unique to a person such as fingerprints or face”.[37]
(b)Documents. While documents are said not to establish identity of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate pillar one (biometrics) and pillar three (life story) information. It is said that, when assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent and whether they support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells.[38]
(c)Life story. This “pillar” is described as an “account of the events that happened to a person during their lifetime”.[39] It can entail a consideration of key chronological events in a person’s life, using the other two pillars to piece together and corroborate information.[40]
[37] CPI 16 [5]. See also [5.1].
[38] CPI 16 [11.1].
[39] CPI 16 [5].
[40] CPI 16 [11.2].
In having regard to information provided or obtained in relation to these three pillars, “the objective is to determine whether the information pursuant to the three pillars is consistent.”[41] In this regard:
“[t]he three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant… In that context, to be satisfied of an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.”[42]
[41] CPI 16 [11].
[42] MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576 at [75].
Before considering issues as to the applicant’s character and identity in the regulatory and policy context just outlined, mention should be made of some aspects of the factual context.
Aspects of Factual context
The applicant submits that:
(a)He is of Hazara ethnicity and the Shia faith.[43]
(b)He was born in Jaghori, Ghazni, Afghanistan where he lived until around 2001.[44]
(c)In 2002, he was married to Ms RN.
(d)From 2001 to 2010, he lived in Hazara Town, Quetta, Pakistan,[45] albeit with some time spent back in Afghanistan.[46]
[43] ST14, p.213.
[44] ST14, p.210.
[45] ST14, p.211.
[46] ST17, p.299.
In February 2010, he arrived in Australia as an unauthorised maritime arrival.[47]
[47] ST14, p.240.
In March 2010, when initially interviewed by an officer of the respondent, the applicant stated that:
(a)his name was “Ismatullah Nadir Ali.”[48] Roughly a month later, his name was said to be “Esmatullah Nadirali”[49] and that he had also been known by the name “Esmatullah Nadri”.[50]
(b)he was aged 30;[51]
(c)he was born in 1980 (a statement repeated in documentation lodged a month later[52]).
(d)he was married and had three sons the oldest of whom (referred to in these reasons as Son 1) was said to have been born in 2003.[53] In documentation lodged on behalf of the applicant in April 2010, this was repeated (noting his children’s surname was then said to be “Nadirali”[54] and also “Nadri”).[55]
(e)He had been issued a taskera but it had been lost.[56] In the documentation lodged in April 2010, however, it was said by the applicant that he had a taskera in the name of “Esmatullah Nadirali”, it had been issued in approximately 1992 and that it was at his family home in Afghanistan, albeit that he thought his “family home is currently occupied by another person”.[57]
(f)He had a sister and three brothers, one of whom (called in these reasons “Brother TH”) was missing,[58] a statement he repeated in April 2010.[59]
[48] ST14, pp.208, 210.
[49] ST14, pp.238, 241, 248, 260, 262, 270 and ST17, p.298.
[50] ST17, p.282.
[51] ST14, p210
[52] See, for example, ST16, p.270.
[53] ST14, p.213. The others were said to have been born in 2006 and 2008.
[54] ST15, pp.242, 254.
[55] ST17, p.274.
[56] ST14, p.212.
[57] ST14, p.241; ST15, p.253.
[58] ST14, p.214.
[59] ST15, p.255; T16, p.265; ST17, p.276.
In a statutory declaration made by the applicant in April 2010, he stated that:
(a)He was 30 years old.
(b)He was married with three children.
(c)His brother (whom I infer was Brother TH) had been kidnapped in 2008 and the applicant feared he had been imprisoned or killed by the Taliban.[60]
[60] ST17, pp.298-300.
In December 2010, the applicant was granted a protection visa.
In March 2011, the applicant’s wife applied for a visa.[61] In it she:
(a)named “Esmatullah Nadiri” as her proposer.[62]
(b)stated she had three sons each of whose surname was “Nadiri”.[63]
(c)Stated that Son 1’s relationship with her was “son biological”.[64]
[61] ST20, pp.315-341.
[62] ST20, p.325.
[63] ST20, pp.316-317.
[64] ST20, p.316.
In support of his wife’s application, in March 2011, the applicant signed the application form[65] and swore three statutory declarations in the name of Esmatullah Nadiri.[66]
[65] ST20, p.339.
[66] ST20, pp.344-346.
In further support of that application, a marriage certificate was provided. In an English translation of the certificate the applicant is named “Esmatullah s/o Nadir Ali”[67] and is said to have been born in December 1980.[68]
[67] T20, p.356; see also ST23, pp.417-429.
[68] ST23, p.420.
In June 2011, the applicant changed his name from “Esmatullah Nadiri” to “Arash Nadiri”.[69]
[69] T6, p.108.
In November 2012, the applicant’s wife applied for another visa.[70] On her behalf it was submitted that she and the applicant “have three children”. She:
(a)specified her three sons’ surnames as “Nadiri”;[71]
(b)named as her proposer “Arash Nadiri”, who she said was the father of her children;[72]
(c)stated that she had three sons “[o]ut of” her marriage;[73]
(d)stated that only she and the applicant had custody, access and guardianship rights in relation to the children;[74] and
(e)submitted various identity documents, including a taskera issued in December 2010 for Son 1 which named “Esmatullah Nadiri” as his father, identified a village in Ghazni province of Afghanistan as Son 1’s place of birth and specified September 2003 as the month in which Son 1 was born.[75]
[70] ST23, p.363.
[71] ST23, pp.365, 370-371.
[72] ST23, pp.373, 376, 447.
[73] ST23, p.363.
[74] ST23, p.373.
[75] ST23, p.436.
In an undated statement made by Ms RN, apparently in support of her November 2012 application, she stated that:
“Father of my sons and me has 3 children…and we love all the children…Me and the kids want to live with him please. Kids miss him too much.”[76]
[76] ST23, p.447.
In a form completed in November 2012 by the applicant as sponsor of his wife’s November 2012 visa application, the applicant stated that he was born in December 1980, had three dependent children[77] and Son 1 was a dependent family member of his wife.[78] The applicant declared the information in the form to be complete and correct.[79]
[77] ST23, p.393.
[78] ST23, p.391.
[79] ST23, p.397.
In an undated statement made the applicant in support of his wife’s application, the applicant said that he was born in December 1980 and that he and his wife “…now have three sons...These kids are the only evidence of our ongoing relationship…”[80]
[80] ST23, p.448.
The wife’s visa application in relation to Son 1 was refused in May 2013.[81] In reasons for the refusal it was stated that DNA testing had established that Son 1 was not the biological child of the applicant or of his wife.[82]
[81] ST24, p.449; It was accepted in relation to her and her other two sons: ST25, p.458.
[82] ST24, p.452.
In responding to the DNA results, the applicant’s wife was said to have stated in April 2013 that:
(a)Son 1 was, in fact, the applicant’s nephew (being the son of Brother TH).
(b)Son 1 had been “customarily adopted” because his actual father had gone missing.
(c)Son 1’s father (Brother TH), however, had returned.
(d)She had lived with Son 1’s parents (which I take to include Brother TH) one year ago (ie, in around April 2012, before lodging her second visa application in November 2012).
(e)Two years ago (ie, around April 2011) the applicant had been told by Brother TH’s wife that Brother TH was “now ok”.
(f)She had wanted to return Son 1 to his parents, but the applicant would not let her.[83] At the hearing of this proceeding, Ms RN denied making this last statement.
[83] ST24, p.455.
As mentioned earlier, in January 2015 the applicant applied for Australian citizenship by conferral. He included two children in his application (not Son 1).[84] In it (and in the accompanying identity declaration[85]) he noted his change of name from Esmatullah Nadiri to Arash Nadiri[86] and said he was born in December 1980.[87]
[84] T93.
[85] T6, pp.114-115.
[86] T5, p.97.
[87] T5, p.91.
In March 2017, in response to a request for evidence as to his identity, the applicant provided a copy of taskera number XXXXX 44 (and an English translation thereof) in the name of Esmatullah Nadir Ali, purportedly issued in July 2013, and in which he is said to have been “20 years old of 1381 equal to 2002” (and, hence, was said to have been born in 1982).[88]
[88] T9, p,127,
At the same time, the applicant lodged a personal particulars form stating that he was born in December 1980.[89]
[89] T9, p.130.
In October 2017, the respondent sought further information from the applicant[90] to which the applicant then responded by way of a statutory declaration.[91]
[90] T10, p.148.
[91] T11, p.158.
Amongst other things, the applicant was asked why Son 1 was included “…as one of your own children in your family composition at the time of your Entry interview and on the Bio data form completed at same time on Christmas Island in 2010, as well initially, but later withdrawn, on your wife’s provisional Partner visa application in 2012.”[92]
[92] T10, p.151.
In response to that question, the applicant stated that he had included Son 1 “…as one of my children because his father…was missing at that time and we feared he might have been killed. …[Son 1] had a very bleak future without his father to protect him. Therefore I wanted to save him by bringing him to Australia.”
The applicant was also asked about the circumstances of issue of the taskera number XXXXX 44 (being the taskera purportedly issued in July 2013 and furnished by the applicant to the respondent in March 2017).
In response, the applicant stated that the taskera was obtained “…by my friend using my father’s taskera in Afghanistan,” noting that his older taskera had been lost.[93]
[93] T11, p.158.
In December 2017, the applicant was granted a resident return visa.
In December 2018, the applicant was invited to comment on what was characterised as adverse information.[94] In the invitation it was noted that the Afghanistan Central Civil Registration Authority (ACCRA) had advised in July 2018 that the information in taskera XXXXX 44 did not correspond with the records of the Afghan Population Registration Department and that the taskera had not been issued by that department, the authority responsible for issuing taskeras.
[94] T12, pp.191-194.
The applicant failed to respond to that invitation and his application to be granted Australian citizenship was refused in March 2019.
Identity consideration
I am satisfied as to the applicant’s identity.
The characteristics or attributes of the applicant that allow him to be uniquely distinguished from others, as revealed in information provided or obtained in relation to the three pillars of identity referred to earlier (including information about his parents, place of birth, education, places of residence and places visited), have generally been consistent.
This is not to say that there are no such inconsistencies. As is apparent from aspects of the factual context previously outlined, there are inconsistencies in information the applicant has provided in relation to his surname, date of birth and family composition (insofar as it relates to the parentage of Son 1).
As for inconsistencies as to the applicant’s surname, shortly after his arrival in Australia in 2010, the applicant adopted a variety of surnames (such as Nadir Ali, Nadirali and Nadri) before ultimately settling upon Nadiri. I do not, however, find that these inconsistencies impinge on the veracity of the applicant’s identity claim. They are explicable as derivatives of the applicant’s father’s name (as accepted by the respondent), adopted in a cultural context where, according to Brother KA, surnames or family names are not (or, at least, not often) used.[95]
[95] This evidence is corroborated to an extent in the Issues in Afghan Documentation Article. There at p.9 it is said that “Firstly, most Afghan families include an Islamic or Arabic component to their first names such as Mohammad Javid or Ahmed Hussein. However, these persons could simply be known respectively as Javid and Ahmed or Hussein in their families, workplaces, and villages/towns… In similar cases asylum seekers have either chosen their father’s names (as per the old handwritten passport) or just adopted a surname during their arrival to comply with the requirements of government officials in Western countries”.
As for inconsistencies in the applicant’s date of birth (and, hence, his age), it is these inconsistencies on which the respondent primarily relied at the hearing of this proceeding in submitting that the Tribunal ought not be satisfied of the applicant’s identity.
Documentation provided by the applicant generally suggests he was born in 1980 or around 1975. As for 1980 being his year of birth, this reflects and appears to derive from the applicant’s statement to immigration authorities when he arrived in Australia that he was 30 years old. That statement, he says, reflected an estimate, one he said he made in conjunction with Australian officials.[96] As for 1975 being his year of birth, as is apparent from aspects of the factual context previously outlined, this is generally reflected in documentation sourced from Afghanistan.
[96] A SFIC [11].

The applicant’s evidence at the hearing was to the effect that he did not know his actual date or year of birth as he was born in a small village, one in which birth records were not maintained.[97] Ms RN, the applicant’s wife, stated at the hearing that she, too, did not know how old her husband was.
[97] A SFIC [10].
I accept that evidence.[98] The uncertainty as to his year of birth evident in the material before me is, I find, explicable by, and reflective of, the cultural and social context in which he claims to have been born.[99] As such, to an extent, it corroborates rather than detracts from the applicant’s identity claims. In this regard, I note:
(a)SM Millar’s statement in KLJG that there “…is little importance attributed to birth date and birth order in Afghanistan.”[100]
(b)The comment in the DFAT report that “[r]eporting of birth dates is unreliable, and reported dates are likely to be approximate.”[101]
[98] In his evidence, the applicant described the process by which he obtained his first taskera in Afghanistan. He said the people who issued it had estimated his then age to be 27 after the applicant’s father had told them that he, too, could not recall the year of the applicant’s birth. According to the applicant, most Afghanis do not know their date of birth.
[99] This compares to the situation confronted by SM Groom in an unreported Tribunal decision made in March 2022 a copy of which was lodged with the Tribunal by the respondent. A tendency to place less emphasis on dates was not seen by the Senior Member to explain discrepancies in information provided given that those discrepancies included a significant variation in relevant dates and inconsistencies in relative ages of relevant persons. The Tribunal notes that a more concise differentiation of the decision is precluded by a confidentiality order made in relation to it.
[100] KLJG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2447 [39].
[101] DFAT report at [5.49].
As for inconsistencies in the applicant’s family composition, as is apparent from aspects of the factual context, in his dealings with officers of the respondent in the period from March 2010 to November 2012, the applicant stated or inferred on several occasions that he was the father of Son 1. Since April 2013, however, Son 1 has been said to be the applicant’s nephew and the son of Brother TH.
I find that the reasons for this inconsistency are not such as to impinge on the applicant’s identity claim. I address those reasons in more detail in the context of discussing issues of character. Put simply, however, the claim by the applicant that he was the father of Son 1 is explicable either by reason of the applicant having assumed a parental role in relation to Son 1 or the applicant having sought to improve Son 1’s prospects.
The inconsistencies just outlined are not, in my view, such as to undermine the significance, from an identity perspective, of the documentary and biometric material provided by the applicant.
That material is generally corroborative of the applicant’s life story, internally consistent (subject to the three inconsistencies just discussed), extensive and includes documentation I consider to be highly probative as to identity.
As to that last point, the documents provided by the applicant in support of his claimed identity include:
(a)A copy of a “taskera” number XXXXX 05 dated 24 June 2019. As recently stated in Hassanzada,[102], taskeras are a “primary form of identity documentation in Afghanistan”.[103]
(b)Letters from the embassy in Canberra stating that taskera to be “… a verified and genuinely issued document”.[104]
(c)A letter in relation to that taskera from the National Statistics and Information Authority, National Identity Verification Center of the Islamic Republic of Afghanistan, which corroborates the applicant’s evidence as to the validity of the taskera by identifying, consistently with the taskera, the applicant, using the name he used when he entered Australia in 2010, his father and his date of birth.
[102] Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 603 at [46].
[103] The primary form of identification for Afghan citizens is and was the taskera (sometimes spelled taskira or tazkera), a document required for employment and admission to schools and universities, to obtain approval to run a business and to buy, rent and sell property: DFAT Report at [5.46].
[104] See the letters of 27 August 2020 from Mr Sadiqi and the letter of 28 January 2021 from Mr Yosufi. While the two letters from Mr Sadiqi differ, they only do so in relation to the applicant’s date of birth.
As to the 2019 taskera, the respondent submitted that “…little weight can be placed on this document given the applicant’s history of providing bogus documents and inconsistent information to the Department.”[105] In circumstances where the respondent has been unable independently to verify it, the taskera is not, said the respondent, evidence of the applicant’s identity. Given the prevalence of document fraud in Afghanistan, it might (said the respondent) have been issued in reliance on fraudulent documentation.[106] In support of that submission, the respondent took the Tribunal to an unreported March 2022 decision of SM Groom refusing to accept as genuine a taskera purportedly verified by the Afghan National Statistics and Information Authority.[107]
[105] R SFIC [32].
[106] R SFIC [33].
[107] See footnote 99 in relation to this decision.
I reject the respondent’s submission concerning the 2019 taskera and, in so doing, attribute to that document significant probative value in terms of corroborating the applicant’s life story and establishing his identity. I accept that the provision of non-genuine “feeder” documents may result in the issuance of fraudulently obtained genuine document[108] and that this might be a particular problem in the case of taskeras.[109] Here, however, and unlike the position addressed in March 2022 by SM Groom, there seemed little reason to doubt the validity of the documents submitted by the applicant to obtain the taskera (which appeared principally to comprise the applicant’s father’s taskera).
[108] CPI 16 [11.1].
[109] DFAT Report at [5.54], where it is said that 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…”
I remain satisfied as to the genuineness of the taskera despite the earlier provision of bogus documentation either by the applicant or in connection with visa applications he sponsored (an issue to which I will return). Any inference I might have drawn from this as to the genuineness of the taskera is, however, overwhelmed by the letters from the Afghan authorities mentioned earlier, the applicant’s convincing evidence as to the process adopted in procuring the taskera’s issue, and the other material corroborating the accuracy of the identity information in the taskera (being material I will soon outline).
As suggested earlier, the documentary and biometric material provided by the applicant is extensive and is, generally, both corroborative of the applicant’s life story and internally consistent.
As for documentary material provided by the applicant issued (or at least purportedly issued) either by the Islamic Republic of Afghanistan or prior to the applicant’s arrival in Australia, in addition to the taskera and letters mentioned earlier, it included:
(a)For each of his two sons, a taskera issued in December 2010 and specifying the applicant as the child’s father and their place of birth as a particular village in Afghanistan,[110] and an English translation thereof.[111]
(b)A passport of Ms RN issued in February 2011, including in it her two sons and Son 1, albeit with Son 1’s aspect of the passport having been stamped “cancelled”.[112]
(c)A taskera for Ms RN issued in December 2010,[113] and an English translation thereof.[114]
(d)A marriage certificate and English translation thereof.[115]
(e)A copy of the applicant’s father’s taskera issued in August 1975,[116] and an English translation thereof.[117]
(f)A copy of the applicant’s mother’s taskera XXXXX 75 issued in April 2016,[118] and an English translation thereof.[119]
(g)A passport in the name of the applicant’s father issued in October 2017.[120]
(h)A passport in the name of the applicant’s mother issued in October 2017.[121]
(i)An Afghan driver licence.[122]
[110] T20, pp.347 and 349.
[111] T6, pp.111-112. Note that the applicant states that his sons were born in Pakistan (T11, p.158). The explanation for their taskeras specifying a place of birth in Afghanistan is found in the Issues in Afghan Documentation Article at p.10, where it is said that “…regardless of where one was born, government officials in Afghanistan write the village, district, and province as per the Tazkera of one’s male relatives (i.e., father, grandfather, uncle, brother, etc.) on the new Tazkera… For instance, a boy was born in Kabul in 2006. His father’s Tazkera was from Ghor Province. On the boy’s Tazkera, his birthplace was written Ghor…”.
[112] T11, pp1.69-171; ST20, p.253; ST23, p.440.
[113] T20, p.354.
[114] T20, p.355.
[115] T11, p.174; ST20, p.356; ST23, pp.417-429.
[116] T11, p.162.
[117] T11, p.161.
[118] T11, p.165.
[119] T11, p.164.
[120] T11, p.163.
[121] T11, pp.166-168.
[122] T7, p.120.
As outlined later, the genuineness of certain of these documents is open to doubt. Nevertheless, the story they tell is one generally consistent with the applicant’s life story.
Similarly, documents issued after the applicant’s arrival in Australia are also generally consistent with his life story. They include a Titre De Voyage (in the applicant’s name and specifying a date of birth in December 1980),[123] a Victorian driver licence (in the applicant’s name and specifying a date of birth in December 1980),[124] a June 2011 change of name certificate issued under Victorian legislation (in the applicant’s name and specifying a December 1980 date of birth)[125] and a utility account (specifying the applicant’s name).[126]
[123] T6, p.110; ST23, p.443.
[124] T6, pp.106-107.
[125] T6, p.108.
[126] T6, p.109.
Other than the Titre de Voyage, these documents would either have been issued based on information supplied by the applicant or are secondary, in the sense of having been obtained in reliance on other documents. In terms of establishing the applicant’s identity, I do not attribute much weight to them. Their probative value (in terms of establishing identity) very much turns on the probative value of information supplied by the applicant or on the probative value of the document(s) on the basis of which they were issued.[127] Indeed, documents issued by authorities in Australia are generally “…simply evidence of who the Applicant says he is, not of who he is”.[128]
[127] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [41] where reference was made to Australian documents being procured based on secondary documents.
[128] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [48], cited with approval in Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514 at [52].
As for the Titre de Voyage,[129] while it lends some support to the applicant’s identity claim, that support is not significant. This is because the issuance of such a document occurs in a context that differs from citizenship. In the latter context, the bar set by the steps necessary to establish identity may well be higher than that set in other contexts, such as under the Migration Act 1958.[130]
[129] T6,110.
[130] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [55].
Biometric information was also provided by the applicant. While not strongly probative of his identity claim, the information was corroborative of it in that it was consistent with his life story. It included various photographs of himself and his family members, such as photographs said to be of his marriage ceremony in Pakistan in 2002[131] and a photograph said to be of the applicant as a young boy with his mother and father in the village in Afghanistan in which he grew up.[132]
[131] T11, pp.180-183.
[132] T11, pp.176-177.
Lastly, as submitted on behalf of the applicant, his identity has been corroborated by third parties, including by Ms RN and Brother KA. It has also been corroborated by a person who characterises himself as a community leader who, under the letterhead of the Hazara Australian Community Association of Victoria, stated in relation to the applicant that “I know him and his family for so long and knew them back in Afghanistan.”[133]
[133] ST20, p.343.
In light of these matters, I am, as mentioned, satisfied of the applicant’s identity.
Character consideration
The respondent submitted that I ought not be satisfied as to the applicant’s good character for, essentially, two reasons. The first concerned his conduct in relation to Son 1 and the second concerned his provision of bogus documents.[134]
[134] R SFIC [41].
Before outlining my response to that submission, I mention that the overall impression I had of the applicant after hearing from him was favourable. He seemed to me to be a man striving to make a good life in Australia for himself and his family, while positively contributing to the Australian community in his role as a husband, father and taxpayer.
That impression was reinforced after hearing from Ms RN. In terms of the applicant’s character generally, her evidence was glowing. The applicant is, according to Ms RN, “a great husband and an even better father”,[135] a person who has always worked since coming to Australia, never been on welfare and been the main provider for his entire family.[136] It is clear that Ms RN regards her husband with great affection and respect.
[135] May 2022 statutory declaration of Ms RN at [5].
[136] Ibid at [7].
Ms RN is not the only one to speak highly of the applicant.
In a May 2022 letter from the Secretary of the World Baba Mazari Charity, it is said that the applicant is a person of good character who undertakes voluntary work in the community and makes charitable donations. In an October 2017 reference, a doctor said of the applicant that “…he is a reliable person, he has got a good character he has been working full time.”[137] Similar sentiments were expressed in another October 2017 reference by a person, said to be a community religious leader, under the letterhead of the Hazara Australian Community Association of Victoria. Amongst other things, it said that the applicant is a “hard worker, honest person with a good character in the community.”[138]
[137] T11, p.172.
[138] T11, p.173. Note that the author of that letter also authored another letter in support of the applicant’s character in February 2011: ST20, p.343.
Despite the impression I formed of the applicant, I am nevertheless not satisfied of his good character. In making the evaluative judgement required in the circumstances, it is not sufficient that I believe that that the applicant might be a person of good character, which I do. Instead, under the Act, I need to “reach an affirmative belief that he is a person of good character.” [139] I have not reached that belief in relation to the applicant.
[139] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [55].
As is apparent from aspects of the factual context, in his dealings with officers of the respondent in the period from March 2010 to November 2012, the applicant stated or inferred on several occasions that his nephew, Son 1, was his son. In doing so, he misled the respondent.
Whether misleading the respondent in this way reflects adversely on the applicant’s character depends largely on whether he considered himself to be Son 1’s father at the time he misled the respondent.
Under the heading “adoption,” in her statutory declaration of May 2022, Ms RN states that she was living with Son 1, his siblings and mother in Pakistan, that Son 1 and all his siblings saw her and the applicant “as their caretaker and parent” and that Son 1’s mother was distressed because her husband (Brother TH) was missing and had begged “us” to take care of Son 1. In these circumstances, Ms RN said “… it felt very natural” to have Son 1 as “our adoptive son”, as it was “the right thing to adopt him at that stage”. In characterising Son 1 as her adoptive son, Ms RN reflected the response she provided in 2013 to advice that DNA testing has revealed that Son 1 was not her biological son.[140]
[140] ST24, p.455.
Ms RN’s evidence at the hearing was largely consistent with her declaration but, at the hearing, she did not characterise what had occurred in relation to Son 1 as an adoption and there was less emphasis on Son 1’s father being missing. That was just as well.
In terms of adoption, in the reasons for the refusal of Son 1’s visa application, it was stated that:
(a)Afghan law, which is based on Islamic Sharia law, did not “allow any form of adoption, whether it is formal or customary”.[141]
(b)It was customary for a child’s paternal uncles to assume “caring arrangements or guardianship” of a child if the child’s father went missing.
(c)Such an arrangement or guardianship would terminate if the child’s father returned.[142]
[141] ST24, p.455.
[142] ST24, p.456.
The accuracy of these statements was not challenged when expressly raised in the course of the hearing. Indeed, on the applicant’s behalf, it was accepted that Islamic law does not provide for customary adoption. Nevertheless, it appeared to be submitted, implicitly, that the applicant’s character ought not be impugned by reason of him having falsely claimed to be the father of Son 1.
I do not accept this submission.
There appeared to be two elements to the submission. First, in order for false statements made by a person to reflect adversely on the person’s character they need to have been made with the intention to mislead (or, perhaps, recklessly as to their veracity). Second, the applicant did not intend to mislead (and, perhaps, was not reckless) when falsely stating that he was the father of Son 1. This was because he was said to have assumed responsibility for Son 1 (and, inferentially, a parental role in relation to Son 1) pursuant to a guardianship or caring arrangement which came into existence when Brother TH went missing.
I have sympathy for the first element of the applicant’s submission but reject the second element. Even if a guardianship or caring arrangement did arise when Brother TH went missing and, as a result, the applicant came mistakenly to believe that its effect was to render him Son 1’s father,[143] that arrangement ended when Son 1’s actual father, Brother TH, ceased to be missing.
[143] See, for example, Mohammadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 702 where, at [73], it was accepted that evidence of bad character might not be found where an applicant has incorrectly represented that culturally adopted children were his children, such as occurred in the circumstances considered in Rafaat and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1743. I note, however, that the assumption of a parental role in relation to Son 1 does not explain why in April 2010 the applicant had identified the other children of Brother TH to be his nephews and nieces: see ST14, pp.243 and 274.
I accept that Brother TH was missing when the applicant first arrived in Australia, as the applicant indicated in both March and April 2010. Brother TH might also have been missing when Ms RN lodged her first visa application in March 2011, claiming that Son 1 was her biological son.[144] (I digress to note that I do not accept the applicant’s submission to the effect that that he has no responsibility for that claim. I do accept his evidence that he had not completed the 2011 visa application, was unable to write or read English and whoever had completed the application had not asked him about Son 1. Nevertheless, the applicant is responsible for the accuracy and completeness of that documentation. He elected to sign it in the knowledge that he did not fully comprehend what was said in it, or was uncaring as to its accuracy. That reflects a preparedness to be reckless with the truth. As it happened, the document contained a falsehood, being that Son 1 was the biological son of the applicant’s wife.)
[144] See ST20, p.324 where, in the visa application of 2011, Brother TH is listed as missing.

I find, however, that Brother TH was not missing when, in around November 2012, in connection with Ms RN’s second visa application, the applicant stated or inferred he was the father of Son 1.
That Brother TH was not missing in November 2012 is consistent with Ms RN, in her November 2012 application, stating that he was then residing in Pakistan[145] (noting that in the March 2011 visa application, when asked about the country where Brother 1 was living, the response was “missing”[146]). I also note Ms RN’s statement in April 2013 to the effect that:
(a)She had lived with Son 1’s parents (which I take to include Brother TH) one year ago (ie, in around April 2012); and
(b)Two years ago (ie, around April 2011) the applicant had been told by Brother TH’s wife that brother TH was “now ok”.
[145] ST23, p.376.
[146] ST20, p.324.
Hence, given that Brother TH had ceased to be missing, the basis on which the applicant might, for a time, have considered himself to have a parental role in relation to Son 1 no longer existed at the time of the November 2012 visa application, a time when he:
(a)As sponsor of the visa application, stated (in a form he declared to be true and correct) that he had three children and that Son 1 was a dependent family member of his wife.[147]
(b)In a separate undated document (which I nevertheless infer was made at around the time of the November 2012 visa application given that it was apparently made in support of that application) stated that he and his wife “…now have three sons...These kids are the only evidence of our ongoing relationship.”[148]
[147] ST23, p.391.
[148] ST23, p.448.
That Brother TH was not missing at the time of these statements is not only reflected in statements made by Ms RN in April 2013. At the hearing, the applicant said that he remembered making the latter statement after Brother TH ceased to be missing.
Hence, the applicant continued to claim to be Son 1’s father when the purported basis for the claim no longer applied. He did so, he said, because Son 1’s mother had asked him to, apparently because she thought that Son 1 would be better off by emigrating to Australia, albeit under the false premise that he was the applicant’s son.
The applicant’s evidence in this regard is also reflected in Ms RN’s evidence at the hearing. She said, in effect, that by characterising Son 1 as her son, she was trying to procure a future for Son 1 brighter than the one he would have had were he to remain in Pakistan. According to Ms RN, Son 1’s mother had begged Ms RN to include Son 1 in her visa application for his safety and a better future.
In these circumstances, by continuing to claim he was Son 1’s father, the applicant was deliberately seeking to mislead the Australian immigration authorities.
That deliberate deception was compounded in 2017. As mentioned earlier, the applicant was then asked why Son 1 was included “…as one of your own children in your family composition at the time of your Entry interview… as well initially, but later withdrawn, on your wife’s provisional Partner visa application in 2012.” The applicant’s response was that he had included Son 1 “…as one of my children because his father…was missing at that time …[Son 1] had a very bleak future without his father to protect him. Therefore I wanted to save him by bringing him to Australia.”[149]
[149] T11, p.158.
Clearly, there were two temporal aspects to the question posed of the applicant, one relating to the time of the applicant’s entry interview in 2010 and the other relating to the time of the partner visa application in November 2012. The applicant’s response to the question was misleading because, in stating that Brother TH “was missing at the time”, it suggests that Brother TH was missing in November 2012, a time when he was no longer missing.
As I see it, in continuing to claim that he was the father of Son 1, the applicant chose to perpetrate a deceit on the Australian authorities, a deceit only exposed as a result of the conduct of DNA tests. The applicant’s true relationship with Son 1 was only admitted when the results of those tests were divulged. Even then, the applicant chose in 2017 to suggest misleadingly that, in around November 2012, there was a rationale for his claim to then be a parent of Son 1 (being that Son 1’s actual father was missing), a rationale that:
(a)was consistent with his wife’s explanation that there had been a customary adoption; and
(b)which, in fact, did not then apply.
Hence, I find that in 2012 the applicant deliberately misled the respondent and endeavoured to do so again in 2017.
I accept that, in so misleading the respondent in 2012, the applicant was seeking to assist Son 1 to escape from difficult circumstances. The moral obloquy occasioned by a lie in such circumstances is clearly less than a lie told, say, “for the purposes of personal enrichment”.[150] Several years later, however, in 2017, the applicant chose to again try and mislead the respondent, but he did so then, presumably, in order to advance or protect his interests.
[150] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [72]. See too KLJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2447 at [20].
It was put to the applicant at the hearing that he had passed off his nephew as his son to try and get a better life for his nephew and that he had been willing to lie to the government if it served his interests. The applicant’s response (which I accept was sincere) was to apologise and express his regret.
The applicant’s endeavours to mislead the Australian authorities in relation to Son 1 do not inspire confidence that the applicant would not again engage in deceit were he to perceive it to be in his interests to do so. Moreover, they reflect a repetitive failure to behave in an ethical manner. Such an ethical failure is not, however, determinative.[151]
[151] See, for example, Sherwan and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 1702.
In Shah,[152] the Tribunal was satisfied as to the good character of a citizenship applicant despite having found that she had lied to the authorities twice about the martial status of her son. The assessment was “marginally tipped” in the applicant’s favour[153] in a context where it was said to have been important that there was no evidence of the person concerned having made other false or misleading statements.[154]
[152] Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121.
[153] Ibid at [37].
[154] Ibid at [36].
In this case, unlike the situation addressed in Shah, we are confronted by several untruthful or misleading statements made over a number of years in a context where:
(a)the applicant’s deception was only acknowledged by him after the respondent’s DNA testing had made it evident; and
(b)the applicant has been involved in the provision of bogus documentation (an issue to be addressed shortly).
In Rafaat,[155] the Tribunal addressed a situation where the applicant concerned had made a false claim to be the biological parent of certain children. The applicant was nevertheless found to be of good character. Unlike Rafaat,[156] however, here, I do not find that the applicant was acting naively without any attempt at migration fraud.
[155] Rafaat and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1743.
[156] Ibid at [57]-[58].
While deliberately misleading the authorities in the context of visa and citizenship applications is not determinative, it is significant. That significance is reflected in both policy and various Tribunal and judicial decisions.
As for policy, as mentioned earlier, in CPI-15 it is said that, as a general proposition, a person of good character would not intentionally provide false personal information in the context of a visa or citizenship application. That is what the applicant did.
As for Tribunal and judicial decisions, just as honesty “…in making statements to Departmental officers has long been regarded as indicative of the good character of an applicant”,[157] a lack of honesty when dealing with the respondent has been considered a “very serious matter”.[158] In a context where, as here, a person applies for citizenship there has been said to be a “…reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.”[159] The “…observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications.” [160]
[157] Mohammadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 702 at [68].
[158] Taradel and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 1255 at [23]; Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73].
[159] Mohamad v Minister for immigration & Border Protection [2018] AATA 687 at [39].
[160] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35]. See also Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 603 at [61] where, in the context of repeated lying motivated by a concern for relatives in a dangerous place, it was said that “… knowingly deceiving the Australian government in the way he has undermines fundamental principles underpinning Australia’s migration process”.
To do as the applicant has done and seek to mislead the respondent shows disrespect for the laws of Australia and for the institutions of government, thereby reflecting adversely on the applicant’s character “in the statutory sense.”[161]
[161] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [88].
In comments frequently approved of,[162] in Nguyen it was said that
“Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship. Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.”[163]
[162] Rusanov and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2548 at [90]-[91]; Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [41]; Chalou and Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514 at [43]; Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801 at [25].
[163] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 at [82]-[83].
In a similar vein, in Fang,[164] it was said that citizenship applicants “…must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement…”.
[164] Fang and Minister for Immigration & Border Protection [2018] AATA 3686 at [97].
In Tran,[165] it was said that “…any person who knowingly provides false or misleading information should not be allowed to access the benefits of either…” the system that deals with migration or citizenship.
[165] Tran and Migration Agents Registration Authority [2022] AATA 2470 at [192].
While the ethical failures constituted by the applicant’s endeavours to mislead the Australian authorities in relation to Son 1 might not be determinative, the suggestions in the decisions just mentioned that there can be no excuse for making false statements and that truthfulness is an absolute requirement convey the significance with which those failures ought to be regarded in assessing character. Those failures weigh against a conclusion that the applicant’s moral qualities are such as to warrant being satisfied that he is now of good character. I find that they do so to an extent which overrides the otherwise favourable impression I formed of the applicant. This is the more so given that those failures occurred in a context involving the provision of bogus documents in circumstances which tell against the applicant’s character.
In March 2017, the applicant provided to the respondent a document which, in its terms, appeared to be a taskera issued in July 2013 and numbered XXXXX 44.[166] I find it to have been a bogus document. The respondent was advised by the Afghanistan Central Civil Registration Authority in 2018 that information in the document did not correspond with the records of the Afghan Population Registration Department and that the taskera had not been issued by that department, the authority responsible for issuing taskeras.[167]
[166] T9, pp.127-128.
[167] T12, pp.191-194.
Initially in this proceeding, the applicant accepted that the document was bogus.[168] His position in relation to the document changed in the course of the hearing, however, principally because the document was obtained by the applicant at the same time as his brother obtained his taskera, utilising the services of the same person in Afghanistan. The brother had then gone on to use the taskera he had obtained in support of his claimed identity when seeking successfully to be granted Australian citizenship.
[168] A SFIC [45].
As I see it, the brother’s success in using his taskera in the context of his citizenship application says little about the genuineness of the document provided by the applicant. There is no material before me suggestive of the respondent being always able to detect non-genuine documents or as to the nature of the personal information each of the applicant and his brother would have provided in order to procure the issue of the relevant documents (apart from the submission of details of the applicant’s father’s taskera).
The provision of a bogus document does not, however, necessarily tell against a person’s character.
In KLJG,[169] SM Millar said that:
“In the absence of information to show that the Applicant could readily obtain a legitimate document but chose not to do so, or that the provision of a fraudulent document was a deliberate attempt to mislead or deceive the Department, I am not satisfied that this reflects adversely on her character.”
[169] KLJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2447 at [55].
The KLJG decision was one made in a statutory context that differs from that currently before the Tribunal. It was one where a decision adverse to an applicant may be made if the Tribunal was satisfied that the applicant was “not of good character”. Here, a decision adverse to the applicant must be made unless the Tribunal is satisfied that the applicant is of good character.[170]
[170] Ibid at [11].
In the latter context, a person’s failure to provide a document readily obtainable would not generally reflect on character (albeit it may be of relevance in deciding whether to be satisfied of the person’s identity). Hence, the applicant’s failure to have provided a genuine taskera before 2019 is not relevant to an assessment of his character. On the other hand, however, the provision of a bogus document would reflect adversely on character unless the Tribunal can be satisfied that it did not reflect a deliberate attempt to deceive and that the person seeking to rely on the document would not have known or suspected that the document was bogus.[171] As I see it, this is consistent with CPI 15, insofar as it suggests that when a bogus document is provided “…unknowingly, there would be no ground for character concern.”
[171] It would also not reflect adversely on character if it was apparent that no express or implied representation as to the document’s authenticity was made in relation to the relevant document.
I am not satisfied that the provision of the purported taskera did not reflect a deliberate attempt to deceive and that the applicant would not have known or suspected that the document was bogus.
While the applicant’s evidence was that he was told by the person in Afghanistan who procured the document that it was a genuine taskera, the evidence before the Tribunal as to the identity of that person is inconsistent. In his statutory declaration in response to queries raised by the respondent in March 2017 the applicant stated that the taskera was obtained “…by my friend using my father’s taskera in Afghanistan.”[172] In his submissions to and evidence before the Tribunal, however, he stated that the taskera was obtained by a lawyer in Afghanistan.[173]
[172] T11, p.158.
[173] A SFIC [45].
The bogus taskera is not the only document of doubtful validity provided to the respondent in matters in which the applicant was involved.
In the context of Ms RN’s 2012 visa application, sponsored by the applicant, a document purporting to be a taskera issued in relation to each of her “sons” in December 2010 was provided.[174] The purported taskera in relation to Son 1 incorrectly identified the applicant as Son 1’s father.[175] That document is bogus in that it is either not a genuine document or it was obtained on the basis of fraudulent information. In his evidence, the applicant stated that he knew that the document had identified him as Son 1’s father. (I note that Son 1’s “taskera” being bogus raises doubt about the genuineness of the other children’s taskeras given that it would appear that the same person procured the issue of all three “taskeras”,[176] doubts reinforced given Ms RN’s evidence that she has since obtained replacement taskeras for her children.)
[174] ST23, pp.431-436.
[175] ST23, p.436.
[176] Ms RN’s May 2022 statutory declaration at [19]. According to Ms RN, the taskeras for the three children were arranged by an agent she paid to procure them.
Also, in the context of her 2012 visa application, Ms RN produced an extract from a passport issued in February 2011 indicating, incorrectly, that Son 1 was her child.[177] Again, that document is bogus in that it is either not a genuine document or it was obtained on the basis of fraudulent information. In addition, the evidence before the Tribunal is inconsistent in relation to the circumstances by which the passport came to be issued. According to Ms RN, she “filled out the relevant personal details” at the Afghan consulate in Quetta in order to obtain the passport.[178] According to the applicant, however, Ms RN’s “…Afghani passport was made by a paid passport agent in Quetta, Pakistan. She did not attend the Consulate…”.[179]
[177] ST23, pp.439-442.
[178] May 2022 statutory declaration of Ms RN at [21].
[179] T11, p.158.
A document apparently certifying in October 2011 registration by the Afghan consulate in Quetta of the marriage of the applicant and Ms RN[180] appears to bear the signature of the applicant.[181] In his evidence, the applicant denied having signed the document.
[180] ST23, pp.418-429.
[181] ST23, p.420.
The ethical failures constituted by the applicant’s endeavours to mislead the Australian authorities in relation to Son 1 occurred in a context involving the provision of bogus documentation. That documentation was provided in circumstances which tell against the applicant’s character. Even if the provision of that documentation did not entail a deliberate attempt by the applicant to deceive, I am not satisfied that he did not know or suspect that the documentation was bogus.
Conclusion

It might well be that the Tribunal’s concerns as to the applicant’s character will diminish with the lapse of time so that they might ultimately come to be overridden by factors supportive of a conclusion more favourable to the applicant. As things stand, however, while the applicant might be a person of good character, I have not reached the affirmative belief necessary to be satisfied that he is such a person.
Hence, while I am satisfied as to his identity, I am not satisfied that the applicant is now of good character.
Accordingly, the decision under review to refuse to approve the applicant’s application for citizenship is affirmed.

I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

......................[sgd]..................................................
Associate
Dated: 2 November 2022

Dates of hearing: 26 May 2022 and 30 August 2022

Advocate for the Applicant: Besmellah Rezaee

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Advocate for the Respondent: Siran Nyabally

Solicitors for the Respondent: The Australian Government Solicitor

Dates of hearing:	26 May 2022 and 30 August 2022
Advocate for the Applicant:	Besmellah Rezaee
Solicitors for the Applicant:	Beena Rezaee Legal & Migration
Advocate for the Respondent:	Siran Nyabally
Solicitors for the Respondent:	The Australian Government Solicitor