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

[2022] AATA 2550

Nowrozi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2550 (12 August 2022)

Division:GENERAL DIVISION

File Number(s):      2021/2739

Re:Sayed Qadir Nowrozi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:12 August 2022

Place:Adelaide

The decision under review is affirmed.

.................[SGND].............................................

Senior Member B J Illingworth

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to the Applicant’s identity pursuant to section 24(3) of the Australian Citizenship Act 2007 – Applicant’s credibility questioned – decision under review is affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases
BOY19 V Minister for Immigration and Border Protection [2019] FCA 574
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Australian Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member B J Illingworth

12 August 2022

INTRODUCTION

1. The Applicant has applied for a review of the decision of a delegate of the Respondent dated 7 April 2021 to refuse to confer Australian citizenship upon the Applicant, pursuant to the Australian Citizenship Act 2007 (Cth) (the Act) because the delegate was not satisfied of the Applicant’s identity as required by s 24(3) of the Act.

2. The Applicant appeared by video link and was assisted by an interpreter. Both Counsel for the Applicant Mr Krohn and Counsel for the Respondent Mr Cummings also appeared by video link. The Tribunal received into evidence various documents identified in the exhibit list, held on the Tribunal file. The Tribunal also received evidence from two witnesses who provided statements and appeared by video link.

   BACKGROUND

3. The Applicant says he was born in Shashpar Village, Jaghori District, Ghazni Province, Afghanistan and that his ethnicity is Sayed Hazara and he is a Shi’a Muslim.

4. The Applicant arrived in Australia (Christmas Island) as an unauthorised maritime arrival on 11 February 2010. He was not the holder of a valid visa and had no formal identification documents in his possession. He provided various details about his personal circumstances including his family composition, personal history, and reason for travelling to Australia. His date of birth is said to be 31 December 1960. This birth date was given to the Applicant upon his arrival in Australia because he had no identification papers.

5. In the various documents prepared following his arrival in Australia, the Applicant provided inconsistent, misleading and incorrect information including details of his family members.  

6. On 9 February 2011, the Applicant was granted a Protection (subclass 866) visa.

7. Since his arrival, the Applicant has resided in Australia save for those occasions when he returned to Pakistan to visit his family. The international travel movements contained in the Applicant’s Form 80 dated 30 March 2017[1] suggest the Applicant travelled to Pakistan from 23 August 2014 to 14 November 2014, from 30 July 2016 to 8 December 2016 (page 35); from 24 January 2013 to 6 July 2013, and from 10 September 2011 to 6 December 2011 (page 49).

   [1] Exhibit A, T-documents, T6, pages 32-48 at pages 35 and 49.

8. On 12 February 2015, the Applicant lodged an application for citizenship by conferral together with attachments.[2] After the exchange of documents following requests for further information and invitations to comment on adverse information, on 7 April 2021, the application for citizenship was refused because the Respondent was not satisfied about the Applicant’s identity.[3]

   [2] Exhibit A, T-documents, T4, pages 11-26.

   [3] Exhibit A, Decision Record, pages 129-140.

   ISSUE TO BE DETERMINED BY THE TRIBUNAL

9. The only issue before the Tribunal is whether it can be satisfied of the Applicant’s identity pursuant to s 24(3) of the Act.

   LEGISLATIVE FRAMEWORK

10. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen.

11. Section 24(1) of the Act provides that if a person makes an application for citizenship under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian Citizen.

12. Section 24(3) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

13. The Act does not define the meaning of identity however the Australian Citizenship Procedural Instructions (CPIs) provides procedural instruction in assessing identity and gives guidance to decision makers on the exercise of powers conferred by the Act and including with respect to the question of identity of a person. The purpose of the of the CPIs is to identify the legal requirements and related policy and procedures that apply when undertaking an assessment of the person’s identity.

14. The Tribunal is not bound to apply the Policy but should give regard to and apply the Policy unless there are cogent reasons not to do so.[4] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case. 

    [4] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2.) (1979) 2 ALD 634 at 640 Brennan J.

15. The Respondent has helpfully summarised CPI 16 and the relevant considerations at paragraph 15 to 17 of the Statement of Facts Issues and Contentions (SoFICs) as follows:

    “15. CPI 16 provides that the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2004) (Guidelines). Relevantly, page 7 of the Guidelines describes “identity” as follows:

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context…

    For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.

    16. The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some or all of five identity proofing objectives. Those objectives are in part 1:

    1. To confirm the uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another.

    2. To confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created through evidence of commencement of identity in Australia.

    3. Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community.

    4. Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder.

    5. Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used.

    17. CPI 16 also states that it is not sufficient to be satisfied of a person’s identity at one point in time, rather, identity must be verified incrementally throughout a person’s life by from birth. The objective in undertaking such an assessment is to “link” the person’s identity from birth to present (at 4.12). A “three pillar” approach to determining identity is described at CPI 16. The pillars are:

    (a) Documents: Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. Only reliable identity documents can satisfy this pillar.

    (b) Biometrics: Personal identifiers, which include fingerprints, facial images, or a person’s signature.

    (c) Life story: A person’s life story is a narrative of the events that happened to them from birth to present. It includes events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.”

16. The Respondent correctly submitted that neither party bears a burden of proof of satisfying the Tribunal about the Applicant’s identity. In considering the general eligibility considerations in s 21(2) and in particular the requirement that the person be of good character as provided by s 21(2)(h) of the Act, the Federal Court in BOY19 V Minister for Immigration and Border Protection [2019] FCA 574 at [54] [54] and [57], O’Bryan J said:

    “54. Section 21 (2) (h) requires the Minister to form a judgement as to whether or not he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…… Second, the matter of which the Minister must be satisfied… Is not a fact to be proved but an opinion requiring an evaluative judgement. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion.

    55. The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reaching affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.

    57. … Evidentiary burdens of proof are inapposite to the administrative decision to be made by the Tribunal on review. The Member also concluded that the relevant level of satisfaction to be met was “reasonable satisfaction”. By that expression, the Member can be taken to mean that in determining whether the Tribunal is satisfied that the applicant is a person of good character, it must act reasonably in the legal sense. Again, that statement of the applicable legal standard is correct.”

17. Hence, when considering the question of the Applicant’s identity as required by s 24(3) of the Act, the Tribunal will have regard to the evidence and policy guidelines in deciding whether the Tribunal is satisfied of the identity of the Applicant.

    EVIDENCE BEFORE THE TRIBUNAL

18. The Applicant provided a number of statutory declarations and statements and gave oral evidence at the hearing. He also called two witnesses to give oral evidence namely Mr Sultani and Mr Anwari. Their respective statements were also received into evidence.

    THE APPLICANT’S EVIDENCE

    Arrival Forms and related evidence

    Biodata form

19. Upon entry into Australia, the Applicant was assisted in completing the Biodata interview form dated 11 February 2010[5]. He said he was 50 years of age; his Taskera was at home; his wife was Bibi Welayat aged 45 years and he listed his children as follows;

    (a)Mustafa - male aged 20 years

    (b)Hassan - male aged 18 years

    (c)Wahid – male aged 16 years

    (d)Norudin – male aged 14 years

    (e)Fatima – female aged 12 years

    (f)Shamsia – female aged 10 years, and

    (g)Rubina – female aged 8 years.

    [5] Exhibit B, Supplementary T-documents, ST1, pages 1-5 at page 3 to 4.

20. The Applicant later conceded that Mustafa was his brother and Norudin was his nephew.

21. The Applicant said his father Said Nadir who is aged 70 – 75 years of age, was missing, and his mother Bibi Hawa aged 65 years lived in Shashpar, Jaghori. He listed his siblings as follows;

    (h)Agha Reza (brother) aged 27 years; and

    (i)Bibi Safia (sister) aged 22 years.

22. In a subsequent statement dated 18 March 2021[6] to which I will refer later, and in evidence, the Applicant conceded that in addition to his named siblings above, he had a further 3 brothers and 3 sisters and named Sayed Mustafa as his brother. Until that statement including formal documents provided to the Respondent, the Applicant maintained the deception about his family members and lied when he said that Sayed Mustafa was his son. He said that the statement provided the correct details of his family members.

    [6] Exhibit A, T-documents, T17, pages 122-124.

    Entry Interview dated 26 February 2010

23. In the Applicant’s Immigration - in - Confidence form (Entry Interview) dated 26 February 2010[7], he listed the same children but added a further male child Sayed Jamil, aged 14 years.  He now said his mother was 70 -75 years of age. He changed his sibling details by omitting his brother Agha Reza and substituting a brother Sayed Jalal, male aged 30 years and said he had been missing for 5 months and was last seen in Afghanistan.

    [7] Exhibit B, Supplementary T-documents, ST2, pages 6-33.

24. He said that when travelling to Australia there was no-one on board his boat that he knew prior to boarding. However, the Applicant provided to the Tribunal a witness statement of Mr Anwari who also gave evidence before the Tribunal. The Applicant said in evidence that Mr Anwari was known to him, they came from the same village and were on the same boat travelling to Australia. Mr Anwari gave similar evidence.

25. In Part C of the Entry Interview, the Applicant said that he left Afghanistan because he was scared for his life, that his father had been missing for three years and his brother (Sayed Jalal) had been missing for five months. He said it was the Taliban who took his father and brother because they were Shi’a Hazara and that he did not know where they took his brother. He later said that the incident with his brother occurred eight to nine months ago. The Applicant described the incident. He was shot in the leg, stomach and back by the Taliban. He dropped to the ground and pretended to be dead with four other people. He said, “they took my brother and after this I don’t know”. The Applicant said that he was assisted by others and taken to hospital where he stayed for a couple of days. He went home, waited for his brother and when he did not return, he decided to leave. In his oral evidence, the Applicant said that he was shot twice, once to the chest and once to the leg, which left scars. He left Afghanistan 18 years ago. 

26. The DIAC Case Note (Christmas Island Entry Team)[8] of that same date contains an entry that the author asked if the Applicant would like to speak to a counsellor because he was distressed when talking about his brother and was crying.

    [8] Exhibit B, Supplementary T-documents, page 32.

    Statutory Declaration dated 23 April 2010

27. In the Statutory Declaration dated 23 April 2010,[9] the Applicant repeated that his father and brother were missing and that his sister-in-law and two children were living with the Applicant’s mother and his wife in Afghanistan. He said he was responsible for them.

    [9] Exhibit B, Supplementary T-documents, page 34.

28. He provided more detail about the circumstances surrounding his missing father and brother. The Applicant said his village was surrounded by a large population of Kochi. Approximately three years ago, he received a letter asking that he give up his faith and join the Kochi forces otherwise they would kill him. Shortly thereafter, his father went missing when travelling to Ghazni to buy groceries and was never heard of again.

29. Approximately one year ago, a Kochi person again came to the Applicant’s house, handed him a similar letter from their commander requesting the Applicant give up his faith and join their forces, but he refused. Following this incident, his brother was travelling from Ghazni to Haughani when he went missing. He did not know what happened to him and never heard from him again and has not been heard of since.

30. The incident involving his brother’s disappearance was strikingly different to his earlier statement that he and his brother were together when the Applicant was shot, and the Taliban offenders took his brother, that he waited for his brother and when he did not return, he fled Afghanistan.

    APPLICATION FOR CITIZENSHIP

31. In the application for citizenship[10] dated 10 February 2015, the Applicant provided no details of his children and only provided details of his parents.

    [10] Exhibit A, T-documents, T4, pages 11-26.

32. By letter dated 25 February 2017[11], the Department requested further information including a completed Form 80 – Personal Particulars (and enclosed a blank Form 80) and documents in support of his identity prior to arriving in Australia and identity documents of family members.

    [11] Exhibit A, T-documents, T5, pages 27-30.

33. By letter dated 30 March 2017 from A.U.M. Lawyers[12], the Applicant provided documents to the Respondent including; 

    a)Form 80 - Personal Particulars[13]

    b)Certified Copy of Applicant’s Taskera and Translation (the Quetta Taskera)[14];

    c)Attestation of Applicant’s identity from the Afghan Consulate;[15]

    d)School documents of two of the Applicant’s children from the Afghan School in Pakistan[16]; and

    e)The Applicant’s Fathers Proof of Refugee Status Card.

    [12] Exhibit A, T-documents, T6, pages 31-61.

    [13] Exhibit A, T-documents, T6, page 32-49.

    [14] Exhibit A, T-documents, T6, page 53.

    [15] Exhibit A, T-documents, T6, pages 54-55.

    [16] Exhibit A, T-documents, T6, pages 60-61.

34. In the Form 80, the Applicant now said he had three sons, (i) Sayed Mustafa Nowrozi born 31 December 1993, (ii) Sayed Jawid Nowrozi born 31 December 1994[17] and (iii) Sayed Wahid Nowrozi born 31 December 1995. He also said he had three daughters namely (i) Bibi Shmziya Nowrozi born 31 December 2000, (ii) Bibi Robina Nowrozi born 31 December 2005 and (iii) Bibi Fatima Nowrozi born 31 December 1998. He said he had one brother Sayed Jalal Nowrozi and one sister Bibi Safya Nowrozi.

    [17] Also known as Sayed Hassan; and also referred to as Mohammad Hassan.

35. The school documents refer to Shamsia Nawrozi born in 2003 and Rubina Nawrozi born in 2005 attending school. The surname was spelt differently from the Applicant, but I do not draw any adverse inference from what may be a clerical error.

36. By letter dated 24 October 2018,[18] the Respondent sent the Applicant an Invitation to Comment on Adverse Information. The letter included reference to the Applicant’s Quetta Taskera provided under covering letter of 30 March 2017 which it was said did not bear a registration number and was issued on 10 September 2008. I note the date of issue was before the Applicant arrived in Australia. Further, the Afghan Central Civil Registration Authority (ACCRA) advised that the Quetta Taskera was non-genuine and was fraudulently altered. The Population Registration Department (“PRD”) records the Applicant’s date of birth as 1966 (nine years old in 1975), however, on the Quetta Taskera the Applicant’s year of birth has been altered to 1960 (48 years old in 2008). I note this is the year of birth that was given to the Applicant when he arrived on Christmas Island in 2010.

    [18] Exhibit A, T-documents, T9, pages 71-74.

37. By letter dated 19 November 2018[19] the Applicant provided additional material, namely (i) the Applicant’s original Taskera and translation (the Jaghori Taskera), indicating his date of birth as 9 years old in 1975/1976 which suggests a year of birth in or about 1966[20], (ii) two character references from the Adelaide Shi’a Society dated 17 December 2018 and Australian Afghan Hassanian Youth Association dated 19 November 2018[21], (iii) Statutory Declaration of the Applicant dated 19 November 2018 explaining the various Taskeras[22], and (iv) certified copies of driver’s license and proof of age card both with date of birth of 31 December 1960 and Commonwealth Bank Mastercard and Medicare card.[23]

    [19] Exhibit A, T-documents, T10, pages 79-85.

    [20] Exhibit A, T-documents, page 81.

    [21] Exhibit A, T-documents, pages 82-83.

    [22] Exhibit A, T-documents, pages 84-85.

    [23] Exhibit A, T-documents, page 80.

1. Subsequently by letter dated 13 January 2021, the Applicant received a further Invitation to Comment on Adverse Information[24] which, under heading “Identity concerns” raised several issues including inconsistencies in the two Taskeras provided, including different years of birth and the apparent existence of a third Taskera not provided. Under heading ‘Life Story’, issues were raised with respect to the Applicant’s name and date of birth, inconsistencies with respect to his family composition, their true name and their place of residence.

   [24] Exhibit A, T-documents, T11, pages 86-96.

2. By letter dated 16 March 2021,[25] the Applicant’s solicitor provided a response to that 13 January 2021 Invitation to Comment on Adverse Information. Subsequently on 18 March 2021, the Applicant’s solicitor sent by email a statement of the Applicant dated 18 March 2021 and Statutory Declarations from Mr Seyed Reza Heydari who declared he has known the Applicant since 2013 and Mr Laalee Sayed Deawar, who declared he has known the Applicant since childhood and lived in the same place in Afghanistan.[26]

   Statement dated 18 March 2021[27]

   [25] Exhibit A, T-documents, T15, pages 111-119.

   [26] Exhibit A, T-documents, T17, pages 120-124.

   [27] Exhibit A, T-documents, pages 122-124.

3. The Applicant said, amongst other things;

   ·His original Taskera was issued when he was 5 – 6 years of age. It was a booklet. It was obtained by the Applicant’s father from the District Office.  It was hidden or destroyed when the Taliban came to power.

   ·He did not have a Taskera when he came to Australia. In 2011, he requested his family provide his Taskera, but they could not locate it. They obtained a Taskera from the Afghan Consulate in Quetta (the Quetta Taskera) which they sent to the Applicant. He cannot explain the date of issue of 2008.

   ·When he heard that the Quetta Taskera was not accepted, he searched for his original Taskera when he travelled to Pakistan in 2017. He found his Taskera which was issued to him in 2006. His 2006 Taskera (the Jaghori Taskera) and the Quetta Taskera bore the same serial number 318043.

   ·When the Applicant came to Australia, his father had been missing for three years. In 2011, the Applicant’s family fled Afghanistan and went to Quetta, Pakistan. In about 2012, the Applicant’s father reunited with his family in Quetta.

   ·The Applicant’s father died in late 2016 or early 2017 and his mother died 4 to 5 months later.

   ·He has two sons namely (i) Sayed Hassan Nowrozi (also known as Sayed Jawid) – the Applicant’s father changed his name as a child when he was sick to bring him better health which is a custom in Afghanistan; and (ii) Sayed Wahid Nowrozi. He has three daughters (i) Bibi Fatima, (ii) Bibi Shamshia and (iii) Bibi Rubina.

   ·In the Form 80, (provided to the Respondent in 2017) he named Sayed Mustafa as his son. He is in fact his youngest brother. The Applicant and his wife assisted in raising him and considered him as a son. He did not intend to mislead the Department. 

   ·He previously referred to Jamil and Nourdin as his children.[28] They are his nephews and he and his wife cared for them and was worried about them.

   ·When he arrived in Australia, smugglers advised him to provide details of only a couple of family members. He acted on that advise and did not detail all his siblings. Sayed Jalal (whom he named as a brother in his Entry Interview form but did not name in his Biodata form) who he said had been missing for about 5 months was in fact his nephew with whom he had a close relationship and considered him a brother.

   ·He then provided a list of his four brothers and four sisters.

   [28] See Exhibit B, Supplementary T-documents, Biodata Form, pages 1-5 at page 3.

4. By letter dated 7 April 2021, a delegate of the Respondent informed the Applicant of the decision pursuant to s 24(3) of the Act that the delegate was not satisfied as to the Applicant’s identity.[29] The delegate referred amongst other things, to issues with the Applicant’s Taskeras, different dates of birth, inconsistencies and inaccuracies with respect to his family composition including the maintaining of those discrepancies when completing the Form 80 for the purpose of his citizenship application.

   [29] Exhibit A, T-documents, T18, pages 127-146.

   Statutory Declaration dated 26 October 2021 – Exhibit C

5. The Applicant provided a statutory declaration dated 26 October 2021. He declared he suffered from chronic anxiety and depression which has increased since the Taliban took over Afghanistan. He referred to unsuccessful attempts made to obtain a Taskera through the Afghan Consulate in Canberra. The Applicant declared the Jaghori Taskera obtained in 2006 is a genuine document.

   Medical Evidence

6. The Tribunal received a letter from psychiatrist Dr Assadi dated 27 January 2015[30] who confirmed the Applicant suffered from major depressive disorder and has responded poorly to treatment. His illness has impaired his social and occupational function.

   [30] Exhibit A, T-documents, T4, page 26.

7. The Tribunal also receive a medical report from Dr Shyam Agarwal dated 20 January 2022. The report said that the Applicant had been a regular patient at his clinic since 2011. Dr Agarwal briefly summarised the Applicant’s various medical conditions including chronic lumbar pain due to disc problems, pain in both knees, depression and anxiety and communication difficulties due to language problems. Dr Agarwal reported that he could not say whether the Applicant’s health would affect his ability to recollect information or provide evidence. Poor English was another problem.

8. The Tribunal accepts the medical evidence.

   Statement dated 21 January 2022 – Exhibit G

9. The Applicant then provided a statement dated 21 January 2022.

   ·He confirmed that he arrived in Australia on 11 February 2010. He was unsure about his precise date of birth and the Department provided him with a birth date of 31 December 1960. He has no formal education and is illiterate.

   ·He referred to an incident in 2005 when travelling in a car with others. The car they were driving was shot at by a person in another vehicle whom they identified as belonging to the Taliban. The Taliban were known for attacking members of the community on the road they were travelling. The Applicant was shot in the chest and left leg and other passengers were killed. He was taken to a clinic in Ghazni City where he remained for over a month.[31]

   ·The Applicant and his family faced issues from the Kuchis who lived in a neighbouring area. In 2007, the Applicant’s father went missing when travelling to Ghazni.

   ·In 2009, the Applicant’s nephew Sayed Jalal who he previously referred to as his brother, went missing. At paragraph 25, he said that he considered Sayed Jalal as a brother and that he remains missing.

   ·The Applicant affirmed the contents of his earlier statement including the details of his four brothers and four sisters. He apologised for not providing full details of his family saying that he was scared and unfamiliar with the process, and that he had suffered a lot of trauma in Afghanistan which greatly affected his mental and physical health; and that he followed the advice given by smugglers about what to say when he first arrived in Australia.

   Applicant’s Oral Evidence

   [31] In his entry interview in Exhibit B page 26, he said he was shot in the leg, stomach, and back.

   Evidence in chief

10. The Applicant confirmed that he was illiterate, suffered from back pain, and poor memory. He recalled having made various statements and said that he was truthful when giving those statements. He confirmed that he left Afghanistan approximately 18 years ago as a result of a particular incident. He said on two occasions he was injured and once he received a threatening letter. He described an incident when he was travelling to the shops when he and others were recognised as Hazara. The Applicant said that they ran away and they were shot at. The Applicant was shot once in the chest and once in his leg. With difficulty, he went home and the next day, they were sent a letter and he left Afghanistan. He referred to being treated for approximately one week at a French clinic.

11. The Applicant said that after he was treated for his injuries, he went to Pakistan and whilst he was there, his father went missing. The Applicant said he did not see his father for about 4 to 5 years. He was not sure how long his father spent in prison, but his father and others escaped and went to Pakistan. They were sick and beaten and he later passed away.[32]

    [32] Counsel for the Applicant referred the Tribunal to Exhibit A, Statement dated 18 March 2021, pages 122-124 at page 123 [8].

12. The Applicant gave evidence which generally confirmed the contents of his previous statements in relation to the obtaining of the various Taskeras and that the Jaghori Taskera was legitimate and contained his correct date of birth. He said that birthdays were not important, and his father and brothers never knew their birthdays.

13. The Applicant said that he was married and had five children, namely, two sons (i) Sayed Jawid Nowrozi who was also known as Mohammad Hassan[33] and (ii) Sayed Wahid; and three daughters (i) Bibi Fatima, (ii) Bibi Shamshia and (iii) Bibi Rubina. He also said he had four brothers and four sisters and named them. The family members were consistent with those detailed in the Applicant’s statement dated 18 March 2021.[34]

    [33] When he became ill and consistent with custom and practice, the Applicant’s father changed his name.

    [34] See the Applicant’s Statement of Facts Issues and Contentions, paragraphs 6 – 11.

14. The Applicant said that in respect of his brother Sayed Mustafa, he lived with the Applicant and his children and so he was like a son. He said he lied when he said that he was his son, but he called the Applicant’s wife mother. He apologised for lying.

15. The Applicant was referred to Sayed Jalal who he originally said was his son. The Applicant said he was his nephew and that he lied when describing him as his son in hope that he could bring them to Australia. His father is the Applicant’s brother Sayed Iqbal. The Applicant also said that since childhood, Sayed Jalal also lived with the Applicant and his family including his children and he also called the Applicant’s wife his mother. The Applicant said that he really loved his nephew and so he lied because he wanted to bring him to Australia.

16. The Applicant said that when he lived in Afghanistan, he used to be a farmer and had a small shop in his village. He came to Australia by boat from Indonesia which was arranged by smugglers. He said that the smugglers did not give him any information or tell him what he should do or not do when he came to Australia.

17. The Applicant’s wife and children remain in Pakistan. He said his second child was injured in a bombing in 2012 that killed 100 people and injured 60 others. This bombing occurred in a place where all Hazaras live. He said it was very difficult for his children and if they got caught, they will be killed without reason.

18. With the Taliban having taken over Afghanistan, he has been unable to obtain another Taskera from the Afghan consulate authority in Australia. He tried to do so but without success.

19. Counsel referred the Applicant to the information provided by him upon his arrival in Australia as recorded in the Biodata form, and in particular, that he gave the name of only one brother and one sister. He said that he heard smugglers telling people on the boat what to say and what not to say.

20. In respect of an intended witnesses, Sayed Zia Anwari and Sayed Sharafat Sultani, the Applicant said they come from the same village and have known each other for 20 years.

21. Prior to cross examination, the Tribunal asked the Applicant about Sayed Jalal and his current whereabouts. Contrary to the Applicant’s statement dated 21 January 2022 at paragraph 25 in which he said Sayed Jalal remains missing, he now said that he is with his own father (the Applicant’s brother) in Quetta, Pakistan.

    Cross examination

22. The Applicant was asked about the incident when he was shot. He repeated that he was shot twice, once in the chest and once in the foot. He then said a threat letter was then sent to his home and he believed he was going to be jailed so he left. He said he received the threat letter about three months after he was injured. The Applicant said the shooting occurred about one year before he left Afghanistan.

23. Counsel referred the Applicant to his protection visa application made on 12 July 2010 following his arrival in Australia and the Merits Review Decision dated 20 December 2010. Counsel read a passage from the Statement of Reasons under heading ‘Claims And Evidence’[35] which reads:

    “He described how five years ago, he had been shot by the Taleban [sic] and pretended to be dead until another passing car picked him up.”

    [35] Exhibit B, Supplementary T-documents, page 149, paragraph 1.

24. When he was asked to explain why in 2010, he said he had been shot five years earlier, namely in 2005 but to the Tribunal he said he was shot one year prior to coming to Australia, namely in 2009. The Applicant said he could not remember in which year he was shot.

25. The Applicant was then asked about the threatening letter. He said he received it after he had been shot. He could not read it but gave it to a mosque leader who read it for him. The letter said that if he did not join them, they would come and kill him because he was Hazara. The Applicant then said could not remember if he received the threatening letter after he was shot. Counsel then asked if the Applicant recalled receiving any letters before he was shot and he answered yes; he took it to the mosque and it was read to him. His evidence became unclear about when he received the threatening letter.

26. Counsel referred the Applicant to the Statement of Reasons[36] which read:

    “After some discussion he insisted that he had received a threatening letter before the shooting incident.”

    [36] Exhibit B, Supplementary T-documents, page 150.

27. When asked about the inconsistent evidence, the Applicant said, “Maybe back then my memory was working better. So, maybe those are correct. Because at the moment my memory doesn’t work. I’m not sure exactly.”

28. The Applicant then gave conflicting evidence about the order of events that took place before he left Afghanistan namely:

    “So my father was missing, I shot, and then I got the threat letter, and then I left Afghanistan.” He said he didn’t know the whereabouts of his father. He then said, “So I was shot, I got treated. My father was missing and then I saw the threat letter, then I left Afghanistan.”

29. The Applicant said his memory was weak particularly after his son’s incident. He was referred to his evidence-in-chief in which he said that his father escaped prison. The Applicant could not remember giving that evidence and was unable to say whether his father was in fact in prison or that he escaped from prison.

30. Counsel then asked the Applicant if he knew of the person named Suleyman Shah. The Applicant said that he is his maternal uncle, and his father was not on good terms with him because he was a member of the “group”.

31. Counsel then referred to page 150 of the Statement of Reasons which said that the Applicant received a threatening letter from the Kuchi asking him to become a Muslim and take up arms and join them. He insisted he received a threatening letter before the shooting. His brother had been missing for a year and now two months ago his body was found in the market in Qarabagh. His father is still missing. This factual summary was not put to the Applicant, but Counsel then read a passage from the Statement of Reasons namely:

    “He [the Applicant] said that one Suleyman Shah has a daughter who married the claimant’s father, however, she was found not to be a virgin and divorced his father. This had set up animosity between his father and Suleyman Shah (who is also involved in the Wadat party). The claimant sees the events which have happened to him as being orchestrated as retribution by Suleyman Shah.”

32. The Applicant agreed that his father was married to Suleyman Shah’s daughter. Suleyman Shah was his father’s friend, however, his evidence changed. He said Suleyman Shah was not a friend of his father and then said that his father then married Suleyman Shah’s sister, namely the Applicant’s mother. The Applicant then denied that his father ever married Suleyman Shah’s daughter and only married his sister.

33. It was then put to the Applicant that he said to the decision maker in his protection visa application that his father was married to Suleyman Shah’s daughter, and they divorced which resulted in animosity between Suleyman Shah and his father. The Applicant said he could not now remember. The Applicant then agreed with the proposition that his maternal uncle, his mother’s brother, arranged for him to be shot. The Applicant said “yes, because we didn’t have a good relationship”. He then said he could not remember.

34. At this time, it was noted the Applicant appeared to be in discomfort and the matter was adjourned early for one hour for lunch. After the lunch break, Counsel returned to the topic of the shooting. The Applicant agreed that in the area in which he lived, the Taliban were mostly Kuchi members. Counsel then read from the passage under the heading ‘Findings’ at page 166 of the Statement of Reasons as follows:

    “The claimant, at his review interview, provided for the first time, details of the reason he believes his father has disappeared. This is related to the marriage to and subsequent divorce of his father from the daughter of a powerful personality in the area, one Suleyman Shah. This man was connected to the Wadat party.  The claimant says that he fears that it was retribution from this person that caused his father to disappear and his brother to be killed and is also the cause of the incident which happened to him. He connects this with the Kuchis, by indicating that they are the ones who do the killing.”

    The Applicant’s evidence then changed, and he volunteered the following:

    “I think being misinterpreted wrongly, or the name has been misinterpreted on there. I’m happy to explain everything from now. I remember slightly of it. … the name has been misinterpreted. …There is another person called Sayed Raza Shah, and my father had two wives - one from daughter of Sayed Raza Shah but that wife didn’t give any birth and that is why that person was - have an army or 400 soldiers with himself. And we had enemies - or, sort of, he was our enemies. But my father married [Suleyman Shah’s] sister, but we didn’t have any problem with that person. So the main issue is Sayed Raza Shah, not Suleyman Shah.”[37]

    [37] Evidence, page 39.

35. The Applicant then maintained that he had an ongoing relationship with Suleyman Shah, and that it was Sayed Raza Shah with whom he had a problem. He said that his father was married to Sayed Raza Shah’s daughter for approximately six months, that his father saw that she was not a virgin and that was the start of the fight. She was about 24 to 26 years of age. He said this occurred about 30 years ago and by reference to his father’s Taskera he would have been approximately 50 years of age. The Applicant maintained it was this dispute that gave rise to the incident in which he was shot.

36. The Applicant said that his father was the only member of his family to go missing. When then asked if Sayed Jalal ever went missing, he said yes and that his brother Mustafa was also missing but is now in France. He said Sayed Jalal was missing and is now with his father. The Applicant acknowledged that he lied when he said Sayed Jalal was his brother. He thought he could bring him to Australia “by faking it”.

37. Counsel took the Applicant to the Biodata interview,[38] in which it is recorded that the Applicant’s brother is Sayed Jalal, 30 years – missing for about 5 months – last seen in Afghanistan. The Applicant then responded, “Maybe it got misinterpreted. I never said this is my brother. I said this is my son. Yes, the same as the name Suleyman Shah, Raza Shah.” Counsel referred to page 37 of the IAAAS Interview dated 23 April 2010[39] which records, “Sayed Jalal, 30 years old when he went missing one year ago” and the relationship to the Applicant being his brother. The Applicant then said he was his nephew.

    [38] Exhibit B, Supplementary T-documents, page 12.

    [39] Exhibit B, Supplementary T-documents, page 37.

1. Counsel read from the Applicant’s statutory declaration dated 23 April 2010[40] which related to his brother going missing, namely:

   “Approximately one year ago, one Kochi come to my house and handed another letter to me. He told me that the letter was from their commander and left. In the letter, I was being asked again to give up on my faith and join their forces. I refused to respond to their requests. Following this incident, my brother was going from Ghazni to Turgan Haughani when he went missing. I do not know what happened to him and I have never heard from him again.”

   [40] Exhibit B, Supplementary T-documents, pages 34-35.

2. The Applicant said that this was correct and he “remembered it a little bit now”. He said it was the truth. When asked which brother went missing, the Applicant now said his older brother Sayed Iqbal. He subsequently said that both Sayed Jalal and Sayed Iqbal went missing, but because of his poor memory he could not remember now and apologised.

3. Counsel then read from the Statement of Reasons at page 150 as follows:

   “He [the Applicant] explained how his brother had been missing for a year, and how two months ago his body was found in the market in Qarabagh”.

   When asked to explain, the Applicant said he made a mistake. He said:

   “There was a body but maybe it was missing and I though it’s his body” namely Sayed Iqbal’s body.

4. The Applicant’s evidence then became very confusing. When it was put to him that the evidence about his missing brother and nephew was made up, he appeared to agree with that proposition, but then said maybe it happened. He then agreed that in respect of Sayed Jalal, he lied but then said it was correct. His evidence was wholly unsatisfactory.

5. The Applicant was asked questions about his missing father and whether he (the Applicant) had travelled back to Pakistan. He said he had not travelled to Pakistan which was inconsistent with his travel history. The Applicant appeared confused, and his evidence was adjourned until the following day.  Two witnesses for the Applicant were interposed to whom I will refer later.

6. When the Applicant resumed evidence, he said the Jaghori Taskera was the valid Taskera with his correct date of birth namely 1966. He said he was present when it was issued. The Applicant could not explain the circumstances in which he was given the birth year of 1960 when he arrived in Australia.

7. The Applicant was referred to the Quetta Taskera.[41] He said it was posted to him by his son. He could not satisfactorily explain the circumstances in which the Quetta Taskera came into existence and was then provided to the Department. The Applicant said it was issued in 2011 after he came to Australia. The Quetta Taskera translation records it was issued in 2008 before he came to Australia. The Applicant said that within a month of receiving the Taskera, he sent it to the Department. The Department records indicate it was received in 2017. He could not satisfactorily explain when he received it.

   [41] Exhibit A, T-documents, T6, page 53, translated Taskera.

8. The Applicant’s age in the Quetta Taskera gave a year of birth of 1960 which was the year of birth given to him when he arrived in Australia. The Applicant agreed that he fraudulently altered the date of birth on the Taskera from 1966 to 1960. He said he did this because he wanted to sponsor his nephews. He apologised for doing so. I note that in re-examination the Applicant confirmed he was illiterate in both his native language and English. He was not asked to clarify in what way he fraudulently altered the date of birth.

9. The Applicant again confirmed that the Jaghori Taskera is the legitimate Taskera that he obtained when he went to Pakistan in about 2017. He said he searched for a few days and he was very excited when he finally found his Taskera. However, he then said that family from Afghanistan brought the Taskera to him in Pakistan. He could not explain why that Jaghori Taskera was first provided to the Department in November 2018.

10. The Applicant was referred to the Embassy of the Islamic Republic of Afghanistan Canberra confirmation that the Applicant was a citizen of Afghanistan with a date of birth of 31 December 1960.[42] The Applicant explained that he went to Canberra to obtain that document taking with him two Taskeras including the Jaghori Taskera, both of which he provided to the Embassy. He could not explain why his incorrect date of birth appeared on the document.

    [42] Exhibit A, T-documents, T7, page 62.

11. The Applicant was asked about his brother Sayed Mustafa whom he said lived with his family and children and called his wife mum. He said when Sayed Mustafa grew up and was about eight years of age, he explained to him that they were brothers and told him who were his natural mother and father.

12. The Applicant said that he was married once. However, the Application for Offshore Humanitarian Visa dated 26 August 2011 in which the main Applicant is the Applicant’s wife[43],  reads “Sayed Mustafa is the biological son of my husband with his deceased first wife – Fatima Said Dawlad.” The Applicant said that entry was wrong. He knows Fatima Sala Dawlad. She is his uncle’s daughter. She is not part of the Applicant’s family. He never told his wife that he was married to that person.

    [43] Exhibit B, Supplementary T-documents, pages 175-200 at page 176.

13. The Applicant repeated his earlier evidence that Sayed Mustafa went missing. He said it was for 10 years or less; but he now lives in France. I understood him to mean that he went missing 10 or less years ago. The Applicant agreed that he lied to the Department, and he should have said that Sayed Mustafa was his brother and not his son.

14. The Applicant was referred to the translation of the National Identity Card of Sayed Mustafa.[44] The document says his father is Sayed Qadir (the Applicant) and grandfather is Sayed Nadir (the Applicant’s father). The Applicant could not explain why he was falsely named as the father, and the Applicant’s father was falsely named as grandfather in that document.

    [44] Exhibit B, Supplementary T-documents, ST16, page 224.

15. The Applicant was referred to the identity cards of his wife[45] together with other family members including Sayed Mustafa. They were chronologically numbered ‘Cover No 5 Qalam Andaz Page No 52 – 58  Reg No 172’. Mustafa was number 53. Counsel suggested that the Afghan Government regarded Mustafa as the Applicant’s son. The Applicant could not explain that incorrect record. He was not present when it was created.

    [45] Exhibit B, Supplementary T-documents, ST16, page 222 - 235

16. The Applicant agreed that he lied to the Department in his Entry Interview when he said that Sayed Jamil and Sayed Norudin were his sons. He said he did this because their lives were in danger and he wanted to bring them to Australia. His wife was not responsible for that lie.

17. In respect to Sayed Jalal, the Applicant said he was married and had children and that when the children were young and he was missing, his family lived with the Applicant and his family. The Applicant said that when Sayed Jalal was found after the Applicant was in Australia.

18. In response to the Tribunal, the Applicant confirmed that Sayed Jalal was the son of his eldest brother. He was found, 1 ½ to 2 years ago and now lives in Pakistan with his father. The Applicant was referred to paragraph 25 of his statement dated 21 January 2022 in which he said, “Sayed Jalal remains missing”. He was asked if at the start of 2022, he knew Sayed Jalal had been found. He said, “these things happened”, and then failed to provide any satisfactory answer to explain why he said in his statement that Sayed Jalal was still missing. He said he was not sure about times, dates and years. His answer was evasive and unconvincing. I am satisfied he lied when answering the Tribunal’s question and he was not truthful when he said in his statement that Sayed Jalal was still missing.

    Sayed Sharafat Sultani

19. Mr Sultani provided an undated statement[46] and gave oral evidence before the Tribunal. In evidence, he said his statement is true. He is now an Australian citizen.

    Mr Sultani’s Statement[47]

    [46] Mr Sultani was unable to have the statement signed and witnessed due to COVID-19 restrictions.

    [47] Exhibit E.

20. Mr Sultani’s parents came from a different village in the Jaghori District, Ghazni Province Afghanistan. After his birth in November 1988, he resided in his mother’s village namely Shashpar Village in the Jaghori District, Ghazni Province, Afghanistan where the Applicant also resided.

21. He left Afghanistan in 2000 and between 2000 and 2005 resided in Pakistan. He arrived in Australia in 2005.

22. Mr Sultani said he remembered the Applicant from his village and had always known him by the name Sayed Qadir. The village was small, and everyone knew each other and regarded each other as family even if they are not biologically related.

23. Mr Sultani resided in Melbourne. After the Applicant arrived in Australia, he too resided in Melbourne and they reconnected. They would share meals and catch up regularly. They also speak regularly by telephone and if the Applicant travelled to Melbourne, he would visit. The Applicant was very worried about his family and has health issues which makes life difficult.

    Oral Evidence

24. Mr Sultani said that the Applicant was around his father’s age. He had no doubt about the Applicant’s identity and that he was the person he knew from his village. He said he knew the Applicant’s wife who he thought was Bibi Welayat and he knew that he had children but did not recall all of their names. He remembered Jawed, Wahid and Fatima. He said the Applicant had brothers and sisters but could only recall their details.[48]  

    [48] Evidence, page 56.

25. The Applicant’s wife and children live in Pakistan and when he last went to Pakistan in 2019, he visited their house. He said there were a lot of people there and he could not be sure about each person’s identity because he did not get introduced to everyone.

26. Mr Sultani said he knew the name Sayed Jalal and that there was a relationship between him and the Applicant but could not say what that relationship was. Similarly, he knew the names Jamil and Norudin and that they were connected to the Applicant but was not sure how they were connected. He also knew the Applicant’s father’s name Sayed Nadir.

    Cross-Examination

27. Mr Sultani agreed that he was approximately 12 years old when he left Afghanistan. He was a young child and did not have an accurate recollection of names of the Applicant’s family. He said that he knew the Applicant from Afghanistan.

28. After Mr Sultani left Afghanistan, his next recollection of seeing the Applicant was in Australia in 2010. He could not say if he met the Applicant or any members of his family in the period he resided in Pakistan and before coming to Australia.

29. Mr Sultani said that he has not had any conversations with the Applicant about why he chose to leave Afghanistan and that had heard from his own father that they escaped Kuchi Taliban.

    Re-Examination

30. Mr Sultani said he couldn’t comment on whether or not he saw the Applicant or his family in Pakistan. He had other issues in his life and did not go and seek people. He said he reconnected with the Applicant in Australia because Mr Sultani’s father said that he was a relative from their region and because Mr Sultani worked as a social worker, he tried to help the Applicant and got in touch with him.

    Mr Sayed Zia Anwari

31. Mr Anwari provided an undated statement and gave oral evidence before the Tribunal. In evidence, he said his statement is true.

    Mr Anwari’s Statement[49]

    [49] Exhibit D.

32. Mr Anwari was born in Shashpar Village, Jaghori District Afghanistan in 1980. He resided there until he was approximately 15 years of age and he and his family moved to Quetta Pakistan where he lived between 1995 and 2010.

33. Mr Anwari travelled to Australia on the same boat as the Applicant. This was the first time he had seen the Applicant since leaving his village in Afghanistan. He recognised him when he saw him on the boat because the village was small, and everybody knew each other. He said he had always known him by the name Qadir and said he was a Hazara Shi’a.

34. Following their release from detention, they have kept in contact through telephone and the last time he saw the Applicant was at a funeral in Melbourne. He described the Applicant as very worried and stressed about the safety and well-being of his family and being separated from them which has affected his health.

35. Mr Anwari is now an Australian citizen.

    Examination-in-Chief

36. Mr Anwari said he was 17 to 20 years younger than the Applicant. When he saw him on the boat, he had no doubt he was the same person he knew from his village. He confirmed the statement that he and his family moved to Pakistan in 1995 and travelled to Australia in 2010.

37. Mr Anwari said the Applicant’s father’s name is Sayed Nadir and he named three of his children, albeit there may be more, he did not know. He had some knowledge of the Applicant’s brothers and sisters, namely Nafas, Aziz Gul and Safia, but not all of them.

    Cross Examination

38. Mr Anwari said that he and his family moved to Quetta, Pakistan in the year 2000 when he was approximately 20 years of age and that his statement was wrong.

39. He left Pakistan and travelled to Indonesia with the assistance of people smugglers, and he saw the Applicant on the boat when they left Indonesia. They never had a conversation about why the Applicant left Afghanistan. Everybody left because of fear and being in danger for their lives so there was no need to ask questions.

40. Mr Anwari said that when he arrived in Australia, he told government officials the truth about himself and his family. He confirmed that people smugglers did say things to people on the boat about what to say to government officials upon arrival in Australia, but he could not be specific about the conversations.

41. Mr Anwari said that he knew the Applicant’s father when he was in Afghanistan. He was an old man. He knew he had one wife and in re-examination, he said he did not hear anything about a second wife. He confirmed he had no doubts about the Applicant’s identity and that he was the person he knew from his village.

    Applicant’s Closing Submissions

42. Counsel confirmed the only issue for the Tribunal was a question of the identity of the Applicant. He submitted that having regard to the five considerations referred to in the National Identity Proofing Guidelines, the man who made the application for review is Sayed Qadir Nowrozi, a person whose father was Sayed Nadir from the consistently named village of Shashpar Afghanistan.

43. Counsel submitted that even if the Tribunal had concerns or serious concerns about the accuracy or reliability of some of the evidence, for example, the precise composition of the Applicant’s siblings, that by itself does not necessarily lead the Tribunal to a conclusion that the Tribunal ought not be satisfied about the Applicant’s identity.

44. The Tribunal was referred to the three pillars namely documents, biometrics and life story of the Applicant. It was submitted that the Tribunal needs to understand the limitations that may impact upon one or more of those pillars, for example, in the case of Hazaras from Afghanistan leaving the country under danger the Tribunal might consider the pillar of documents, is one which ought not be regarded as something which needs to be complete, seamless, and beyond any issue of doubt about some of its details. Counsel referred to the example of the Applicant’s childhood Taskera which was a booklet. It was not safe for the Applicant to keep that Taskera which is now lost or destroyed. That evidence was not challenged and ought to be accepted.

45. Counsel referred to the Quetta Taskera obtained by the Applicant’s family and the date of issue namely 2008. It was submitted that was a document obtained by family members in Quetta when the Applicant was not present. However, the Taskera obtained by the Applicant that was issued in Jaghori was the document the Applicant has consistently maintained was a genuine Taskera. Counsel acknowledged that there has been no certification as to the validity of that Jaghori Taskera but reminded the Tribunal of the Applicant’s recent attempt to obtain a Taskera through the embassy in Canberra which could not be achieved because of the recent fall of Afghanistan.

46. Further, it was submitted there is no evidence to suggest that the Jaghori Taskera or the Applicant’s father’s Taskera are not genuine. The Applicant is illiterate and having regard to the traumatic experiences of the Applicant and his family, his physical and mental health, the Tribunal ought to find it difficult to conclude that there was any clear or consistent intention to deceive the Department about the Applicant’s date of birth or his identity.

47. It was submitted the Applicant frankly, truthfully and early in his evidence acknowledged there were things said to the Department initially that were not true. He did this because he was desperate and wanted to get family members away from a terrible situation and to come to Australia. It was submitted the Applicant gave evidence that he understands the importance of telling the truth and that he was remorseful and sorry for the untruths he told the Department. 

48. Counsel submitted that the Applicant acted upon advice given to him by people smugglers to only name a couple of siblings and not a complete and accurate record of his family members. This was supported by the evidence of Mr Anwari. The inconsistent listing of family members did not give rise to the construction of a false identity of the Applicant and the names given by the Applicant albeit not always complete names of family members were consistent names of some family members. In doing so, part of the picture was revealed. Insofar as the Applicant referred to Mustafa as his son rather than his brother, it was still clear that he was part of the Applicant’s family and that they were members of a close-knit village society. It was not challenged that the Applicant and his wife looked after Mustafa as a young child and that only when he was aged about eight or nine years, was he told that the Applicant and his wife were not his biological parents.

49. There was nothing sinister in the Applicant referring to Mustafa as his son and there was evidence before the Tribunal that in many houses in Hazara Afghanistan, it was common for extended family members to all live in the same household.

50. Counsel submitted that the evidence of the two witnesses Mr Sultani and Mr Anwari were of critical importance and put to bed any issue with respect to the Applicant’s identity. They were two witnesses who independently gave evidence that they knew the Applicant from the time when they lived in the same village in Afghanistan. They recognised the Applicant. In the case of Mr Anwari, it was when they were on a small boat travelling to Australia. They both confirmed that in their minds, the Applicant Sayed Qadir Nowrozi is the same Sayed Qadir Nowrozi they knew in their village.

51. It was submitted that it was not for the Tribunal to require the Applicant to establish a clear and precise date of birth in order for the Tribunal to be satisfied about identity. Counsel referred to the National Identity Cards of the Applicant’s family members.[50] As can be seen in those documents, each family member was ascribed the same birth date namely 1st January for each year of birth. The Tribunal can infer that officials in Afghanistan gave an estimate of when somebody was born. Hence it is not unusual that the Applicant could not specify a precise date of birth. The Applicant was happy to accept that date of birth provided in his Jaghori Taskera.

    [50] Exhibit B, Supplementary T-documents, pages 224-235.

52. It is open to the Tribunal to rely on those two independent witnesses whose evidence was never challenge in being satisfied as to the identity of the Applicant. It was submitted that each of those independent witnesses were able to tell the Tribunal some of the names of the Applicant’s family members, albeit not all of them. That was a further indication of their credibility.

1. The decision under review is affirmed.

I certify that the preceding two hundred and forty-nine (249) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

..................[SGND]...............................

Associate

Dated: 12 August 2022

Dates of hearing:	21, 22, 23, and 24 February 2022
Advocate for the Applicant:	Anthony Krohn, Meldrum & Hyland List
Advocate for the Respondent:	Sam Cummings, Sparke Helmore Lawyers