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

[2022] AATA 2231

Najafi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2231 (13 July 2022)

Division:GENERAL DIVISION

File Number(s):      2020/5315

Re:Zohra Najafi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:13 July 2022

Place:Melbourne

The Tribunal affirms the decision under review.

..............................[SGD]..........................................

Dr Damien Cremean, Senior Member

CATCHWORDS

CITIZENSHIP — application for Australian citizenship refused — requirement of identity allegedly not satisfied — lack of documentation provided by Applicant — no response to requests for further documents — identity not established — decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

13 July 2022

INTRODUCTION

1. The Applicant, Ms Zohra Najafi, applied to this Tribunal on 1 September 2020 for a review of a decision of a delegate of the Respondent dated 19 August 2020 made under s 24(1) of the Australian Citizenship Act 2007 (Cth) (‘Act’).

2. The delegate refused the Applicant’s application for Australian citizenship under that Act on the ground that she did not satisfy the identity requirement under s 24(3).

   HEARING

3. A hearing took place in this matter on 4 October 2021.

4. Affirmed evidence via interpreter was given by the Applicant at the hearing, in which she was self-represented. Evidence was also given at the hearing by her husband, Mr Esmail Musawy.

5. Both the Applicant and her husband were cross-examined.

6. The Respondent was represented by Mr Matthew Daly, Associate at Mills Oakley Lawyers, but called no witnesses. 

   LEGISLATION

7. Section 24(3) the Act provides as follows:

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

   ISSUES AND CONTENTIONS

8. The Applicant argues that the decision under review should be set aside.

9. This is on the basis, as I take it, that the correct or preferable decision is that her identity is established sufficiently for it to be said that she does not fail to meet the requirement in

   
   

   s 24(3) of the Act.

10. In support, the Applicant has provided several documents including Statutory Declarations which, it is submitted, establish the identity she claims to have as Zohra Najafi.

11. The Respondent, however, argues that the decision under review should be affirmed.

12. This is on the basis that, in circumstances where there is a paucity of evidence regarding the Applicant’s claimed identity, I cannot be satisfied of her identity for the purposes of

    
    

    s 24(3) of the Act.

13. It is submitted that I cannot be satisfied to a degree of reasonable satisfaction of the Applicant’s identity.

    Applicant’s case

14. The Applicant gave affirmed evidence at the hearing confirming that her identity is Zohra Najafi. She arrived in Australia on 25 February 2009.

15. Further, there are documents on file which are in support of her position. This includes information which supports, in several respects, the Applicant’s version of events (and of the identity she claims) in the Respondent’s Statement of Facts, Issues and Contentions.

16. The Applicant said she was born in Pakistan (she claims in Quetta on 27 March 1989) but grew up in Iran from the age of one. She said that the only documents she has are an Afghani passport and marriage certificate. The Applicant agreed she had no taskira to produce.

17. A Statutory Declaration on file by Abuzar Mosawy, made on 18 March 2008 in support of a partner visa application, states the Applicant there referred to — Esmail Musawy — is his brother and his partner is Zohra. It states that they are old family friends from Afghanistan. Zohra Najafi is referred to as Esmail Musawy’s de facto spouse and it is said those two persons are engaged to be married and that the marriage ‘is a genuine match.’

18. The Declaration states that they have been engaged for a year but that Esmail Musawy was waiting to be granted citizenship in Australia before actually marrying and that he also wanted to be able to save money to be able to ‘join’ Zohra.

19. Also on file is a certified translated taskira from the General Directorate of Statistics of the Islamic Republic of Afghanistan relating to Sayed Sarwar Najafi, the Applicant’s father, with an image of Mr Najafi. The taskira states he was born in Khas Urozgan, Urozgan in 1965, is married and is self-employed. The taskira states that the name of Mr Najafi’s grandfather is Sayed Najaf.

20. Another translated document on file is an identity pass from the Government of North West Frontier Province, Pakistan, relating to Sayed Sarwar. It states that he is 25 years of age and that his daughter is Zohra. The name of his wife is noted as ‘illegible’, but she is aged 19 years.

    Respondent’s case

21. The case for the Respondent is a straightforward one. Namely, that the Applicant has failed to discharge the burden on her to gather all the information she reasonably can in support of her claimed identity.

22. It is pointed out, as is correct, that s 24(3) of the Act allows no discretion: either I must be satisfied as to an identity which is claimed or not. There is no halfway measure.

23. The Respondent’s argument is that so far, the Applicant has only provided limited documents to support her claimed identity.

24. The Respondent points out that the Applicant’s passport shows a date of 5 June 2008, which is only shortly before her arrival date in Australia and does not support her identity since birth.

25. More importantly, the Respondent says the Applicant has not provided a copy of her taskira or other identity cards relating to her — and not to others — despite requests to do so by the Department. Nor has she provided a copy of her identity card referred to in her marriage certificate.

26. Further, the Respondent has proffered a Project Chameleon assessment prepared by the Complex Identity Advice section. That assessment supports a view that the Applicant’s father may be Sarwar Mossawi, and not Sayed Sarwar Najafi as claimed, and hence that the Applicant may in fact be Zohra Mossawi, and not Zohra Najafi.

27. In addition, the Respondent argues that the Applicant has provided ‘extremely limited evidence’ about her life story and has failed to complete a Form 80.

    CONSIDERATION

28. There­­ are often difficulties of proof in cases of this kind where people have left their homeland frequently with few or no possessions and nothing of substance to establish their identity.

29. I am fully aware of the problem and I am sympathetic to those who find themselves in this situation.

30. But in the end, I must apply the law of Australia in deciding the question of citizenship. In this case, the relevant rule is set out in s 24(3) of the Act.

31. I agree with the Respondent’s submission that s 24(3) gives me no discretion — either identity is established to my satisfaction or it is not.

32. In this case, I am not satisfied that the Applicant has established the identity she claims.

33. There are, in my view, significant areas where there is nothing to corroborate the Applicant’s version of events. In particular, there is no taskira.

34. The Applicant has failed to respond to the Respondent’s requests for further information — which in itself is significant — and has not taken up the offer I made for her to provide a closing statement outlining or further detailing her position. I do not consider she has made all reasonable endeavours to advance the case she is putting.

35. I am concerned, as well, to a significant degree about the result of the Complex Identity Advice which places the Applicant’s account in very serious doubt.

36. In all the circumstances I am unable, for all these reasons, to reasonably find in her favour and to set aside the decision under review.

    DECISION

37. Accordingly, the decision under review is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of
Dr Damien Cremean, Senior Member.

..............................[SGD].........................................

Associate

Dated: 13 July 2022

Date of hearing:	4 October 2021
Applicant:	Self-represented
Advocate for the Respondent:	Mr Matthew Daly
Solicitor for the Respondent:	Mills Oakley Lawyers