PNMP and JWTZ and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 4451

PNMP and JWTZ and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4451 (23 December 2022)

Division:GENERAL DIVISION

File Number:          2020/8579

Re:PNMP

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

File Number:          2020/8580

Re:JWTZ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:23 December 2022

Place:Melbourne

Application 2020/8579

The decision dated 10 December 2020 to refuse the Applicant PNMP citizenship is set aside. The matter is remitted to the Respondent under s 43(1)(c)(ii) of the AdministrativeAppeals Tribunal Act 1975 with a direction that PNMP’s identity is satisfied in terms of s 24(3) of the Australian Citizenship Act 2007.

Application 2020/8580

The decision dated 10 December 2020 to refuse the Applicant JWTZ citizenship is set aside. The matter is remitted to the Respondent under s 43(1)(c)(ii) of the Administrative AppealsTribunal Act 1975 with a direction that JWTZ’s identity is satisfied in terms of s 24(3) of the Australian Citizenship Act 2007.

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Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applications for citizenship by conferral – applicants are citizens of Afghanistan – applications heard concurrently by agreement between parties and the tribunal – applicants are brothers – applicants met certain requirements – delegate of minister not satisfied of identities of applicants – review by tribunal – consideration of citizenship policy – certain documents from Pakistan do not provide chain of provenance supportive of identity – suggestion by Department that a document is a bogus document but that document not provided to tribunal – taskeras and passports carry significant weight as to identity – state of satisfaction – decisions under review each set aside and remitted with directions

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss, 35, 37, 43, 62A
Australian Citizenship Act 2007 (Cth), ss 3, 21, 24, 48B, 52

Migration Act 1958 (Cth), s 5(1)

Cases

Briginshaw v Briginshaw (1938) 60 CLR 336
Drake and Minister for Immigration and Ethnic Affairs (No 2); Re: (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) FCR 569
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66

Secondary Materials
Department of Home Affairs – Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act (Reissued 1 January 2022)

Vienna Convention on Diplomatic Relations (1968) ATS 3

REASONS FOR DECISION

Senior Member D. J. Morris

23 December 2022

1. These reasons relate to two separate applications brought to the Tribunal by two brothers who were born in Afghanistan and who separately arrived in Australia. Each has been accepted as being owed protection by Australia and is the holder of a protection visa. Their applications were heard concurrently by the Tribunal on 3 October 2022.

2. The Tribunal made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) prohibiting the publication of the names of each of the Applicants or information that might tend to identify them. The older brother will be referred to as ‘PNMP’ and his younger sibling as ‘JWTZ’.

   CONCURRENT HEARING

3. The hearing was held of each application concurrently, as requested by their representatives and not objected to by the Minister. PNMP and JWTZ each gave evidence at the hearing. The Tribunal records that PNMP gave oral evidence first, not in the presence of JWTZ. They were jointly represented by Mr Muhammad Raza Ali, solicitor, of Legal Concerns Lawyers and Consultants and Mr Ahmad Wali Mohseni, a migration agent, of Sukhdev & Ahmad Migration. The applicants were each cross-examined, in turn, by Mr Christopher Orchard of Sparke Helmore Lawyers, representing the Respondent.

4. The Tribunal took into evidence two sets of exhibits relating to each Applicant, which are listed in the annexure to these reasons. Statements of Facts, Issues and Contentions were lodged in relation to each Applicant by their representatives (ASFIC-1 and ASFIC-2), and by the Respondent (RSFIC-1 and RSFIC-2).

5. At the conclusion of the hearing the Tribunal reserved its decision and the parties agreed to provide submissions on the desirability of the Tribunal issuing orders under s 35 of the AAT Act relating to the identity of the applicants and, from the Respondent, on when Citizenship Procedural Instruction 16 – Assessing identity under the Citizenship Act (‘CPI 16) had last been updated. The Respondent provided a note on 4 October 2022, and the Tribunal issued relevant orders under s 35 on 7 October 2022.

   THE LEGISLATIVE AND POLICY FRAMEWORK

6. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that the Minister must approve or refuse to approve the person becoming an Australian citizen.

7. The decision record shows that the Minister’s delegate found that PNMP and JWTZ both satisfied certain requirements under the Act. It was found that they were each aged 18 years or over at the time of the application (s 21(2)(a)). It was found that they were each a permanent resident of Australia at the time of the application and the decision (s 21(2)(b)). It was further found that they satisfied the general residence requirement (s 21(2)(g)).

8. Another requirement for citizenship is that the person has demonstrated is he or she understands the nature of the application, possessed a basic knowledge of the English language, and has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship (ss 21(2)(d), (e), and (f)). This is satisfied through the person completing a citizenship test approved by the Minister (s 21(2A)). This was also satisfied by both PNMP and JWTZ. The delegate in each case did not assess whether or not the applicants were of good character at the time of the decision (s 21(2)(h) of the Act) because the delegate in each case halted consideration because they were not satisfied of either applicants’ identity. 

9. Section 24(3) of the Act relates to identity:

   Identity

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

10. Division 5 of Part 2 of the Act sets out in detail the identity provisions.

11. The delegate decided that they could not be certain of the applicants’ identities to the standard expected for the conferral of Australian citizenship, so the delegate found that they were prohibited from approving the application under s 24(3) of the Act. That stopped further consideration of the applications, and the delegate then refused the applications on 10 December 2020. The applicants have each brought these refusal decisions to the Tribunal for review, as they can do under s 52 of the Act.

12. What is, therefore, before the Tribunal is whether, standing in the shoes of the Minister, it is satisfied of the identity of either or both of PNMP and JWTZ such that the prohibition in s 24(3) does not apply. If the Tribunal is so satisfied in either case, then his matter should be remitted to the Minister’s Department for consideration of the other requirements for citizenship by conferral which are still outstanding. The Tribunal must make separate decisions in relation to each applicant.

13. In considering the application for Australian citizenship, the Minister’s delegate consulted CPI 16, which is one of the Citizenship Procedural Instructions to Department officers issued by the Department and periodically updated. It relevantly states, under the heading ‘Purpose’:

    Establishing a person’s identity before the approval of a citizenship application requires the delegate to be satisfied of the person’s identity. The identity provisions under the Act prohibit the approval of a citizenship application in cases where the delegate is not satisfied of the person’s identity. 

    Delegates are required to understand and apply the relevant law as set out in the Act. Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for delegates. To the extent that the Act allows for discretion, delegates must give due consideration to the Department’s approved policy and procedures where relevant and appropriate in decision-making. Consideration of policy ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided. 

    However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, officers are to give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.

14. The Tribunal, unlike Department officers, is not bound to follow policy. But it has long been the practice of Tribunal Members, where a policy is promulgated which has been applied in making a decision that is under review, to have due regard for the policy unless there are cogent reasons to depart from it. That is to encourage consistency in decision-making. Cogent reasons to depart from the policy may include where the policy is inconsistent with the law or where rigid application of the policy would have an unfair or perverse outcome in a particular case.

15. This well-accepted general approach was enunciated by the Tribunal’s eminent first President, the late Sir Gerard Brennan. What he said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645, relevantly set out below, has been successively endorsed by judicial opinion:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

16. The CPIs are only policy guidelines, not delegated legislation. Their status was considered by the Full Court of the Federal Court of Australia in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ). Their Honours observed, at [18]:

    There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.

17. And at [58]-[62]:

    58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created …

    59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision- maker] will make in the circumstances of a given case”; Drake (No 2) at 641.

    60. However, as Brennan J stated in Drake (No 2) at 641, “[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies” ...

    62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations ...

18. CPI 16 refers to the ‘three pillars’ of identity. They are set out in (the current) CPI 16 at paragraph 5:

    Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

    Documents – reliable and secure documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Life story – an account of the events that happened to a person during their lifetime.

19. CPI 16 was reissued by the Department on 1 January 2022, after the reviewable decision was made on 18 January 2021. However, the updated CPI 16 is the one that should be applied because the Tribunal must make a contemporary assessment as to whether, standing in the shoes of the Minister, it is satisfied (now) of the Applicant’s identity.

    Submissions of the Applicant - PNMP

20. PNMP arrived in Australia in October 2009 without a valid visa. At the entry interview, he identified himself by name and cited his date of birth in February 1989. He said he was of Hazara ethnicity and Shi’a Muslim.

21. PNMP said he was born in Oruzgan Province, Afghanistan, and had lived in Pakistan from 1999, when he was aged 10. 

22. In 2010, PNMP was granted a protection visa. Later that year, he proposed a refugee visa for his mother, WBJ, and siblings: a sister, ZJ; his brother JWTZ and another brother, AJ.  These visas were refused in October 2010.

23. In December 2012, PNMP sponsored his fiancé, FNMP, a Pakistani national, for a prospective marriage visa. That visa was granted in May 2013, and she arrived in Australia in July 2013. In October 2016, FNMP was granted a partner visa, and she became an Australian citizen in September 2019.

24. In December 2014, PNMP applied for Australian citizenship by conferral. He attended the Melbourne office of the Department of Home Affairs (‘the Department’) and completed the citizenship test. In September 2016, an officer of the Department wrote to PNMP requesting further information. In response, PNMP provided the following documents:

    (a)Completed Form 80 – Personal particulars for assessment including character assessment;

    (b)Signed VicRoads search form;

    (c)Copy of Afghanistan driver’s licence with English translation;

    (d)Copy of Titres de Voyages; and

    (e)Copy of PNMP’s marriage certificate.

25. The Department had the Afghanistan driver’s licence examined and then sent PNMP a notice saying that it had been seized as a bogus document. PNMP provided a statutory declaration of 5 September 2018 stating he was unaware that his Afghanistan driver’s licence was bogus.

26. There were further exchanges of correspondence, including an updated Form 80 and an invitation from the Department for PNMP to respond to adverse information. The document provided further documents as evidence of identity and character. These were:

    (a)Birth certificate of PNMP from the Consulate-General of Afghanistan in Quetta dated 26 May 2010 (Exhibit 1R1, p 222);

    (b)Birth certificate of JTWZ from the Consulate-General of Afghanistan in Quetta dated 26 May 2010 (Exhibit 1R1, p 223);

    (c)Birth certificate of WBJ from the Consulate-General of Afghanistan in Quetta dated 26 May 2010 (Exhibit 1R1, p 224);

    (d)Birth certificate of ZJ from the Consulate-General of Afghanistan in Quetta dated 26 May 2010 (Exhibit 1R1, p 225);

    (e)State of Victoria driver licence for PNMP, expiry 20 September 2023 (Exhibit 1R1, p 226);

    (f)Marriage Act 1962 – Certificate of marriage of PNMP and FNMP dated 15 August 2013 (Exhibit 1R1, p 227);

    (g)Australian Titre de Voyage for PNMP issued 26 February 2019 (Exhibit 1R1, p 229);

    (h)Australian passport for PNMP’s son, ANMP issued 26 May 2017 (Exhibit 1R1, p 230);

    (i)State of Victoria birth certificate for ANMP dated 6 March 2017 (Exhibit 1R1, p 231);

    (j)Australian citizenship certificate for ANMP declaring he acquired citizenship at birth (Exhibit 1R1, p 232);

    (k)Australian citizenship certificate for FNMP declaring she acquired citizenship by conferral on 18 September 2019 (Exhibit 1R1, p 233);

    (l)Credit card in the name of PNMP with expiry in 2023 (Exhibit 1R1, p 234);

    (m)Australian passport for FNMP with expiry 30 September 2029 (Exhibit 1R1, p 235);

    (n)Afghanistan ID document for JWTZ with translation attested 23 August 2020 (Exhibit 1R1, p 236);

    (o)Afghanistan ID document for PNMP with translation attested 23 August 2020 (Exhibit 1R1, p 238);

    (p)Letter from Secretary of Hazara Community West Melbourne Association (Exhibit 1R1, p 240);

    (q)Rate notice for PNMP and FNMP’s residence from a Victorian council (Exhibit 1R1, p 241);

    (r)Statutory declaration from a friend attesting to knowing PNMP since January 2010 (Exhibit 1R1, pp 260-261); and

    (s)Statutory declaration from a friend attesting to knowing PNMP as a sub-contractor and friend for seven years (Exhibit 1R1, pp 262-263);

27. The ASFIC for PNMP then addressed CPI 16, relating to assessing identity, and, in particular, the three factors (sometimes called the ‘three pillars’) provided: Biometrics; Documents; and Life Story.

28. In terms of the Biometrics pillar, the Applicant noted that a facial image had been provided by the Applicant, and one was captured at the time of his entry interview and noted that the delegate of the Minister was satisfied that they were consistent.

    Afghanistan-issued documents

29. In respect of the Documents pillar, the Applicant submitted that PNMP has provided a national identity card with translation and has provided an Afghanistan passport to support his identity. The ASFIC-1 submitted that the Applicant had provided all the documents he submitted to the Afghanistan Embassy in Canberra for the purposes of obtaining a Taskera and passport, including his grandfather’s national ID card.

30. The ASFIC-1 submitted that PNMP’s representative attended the relevant government department in Afghanistan in company with his uncle, and the Taskera was issued based on the evidence of the uncle’s ID card. The ASFIC-1 further submitted that this uncle has been missing since the Taliban gained power in Afghanistan, and the representative has not responded to calls.

31. The ASFIC-1 submitted that PNMP has attempted to verify his Taskera and passport from the Embassy in Canberra, but they have advised that the verification office in Afghanistan is closed owing to the situation in that country.

1. The ASFIC-1 submitted that the Tribunal should accept the documents because PNMP has obtained them in accordance with the procedures established by the Afghanistan Embassy and that they record his name, date of birth, district, province, father’s name, and grandfather’s name, and are stamped by the issuing bodies.

2. In terms of the Life Story pillar, the ASFIC-1 submitted that PNMP said his date of birth was written in the back of the Holy Qur’an, a common practice in Afghanistan, and that PNMP has used this date consistently through all his dealings with the Department, from his entry interview on.

3. In respect of his family composition, it was submitted that PNMP provided approximate dates to the Department about the birth dates of his family members at a time when he was traumatised after arrival in Australia, and that he had subsequently provided accurate information. It was submitted that Afghan nationals often lack an awareness of their exact dates of birth.

4. In relation to his time living in Pakistan, it was submitted that PNMP was a minor when his family moved there and, due to fear of deportation, his family did not acquire registration cards. The ASFIC referred to the statutory declaration from the Hazara community association and a friend of PNMP and noted that PNMP has been living in Australia since 2009 and has never claimed another identity. It was further submitted that PNMP does not have a criminal history and has never been convicted of a crime. It was noted that PNMP’s wife and child are both Australian citizens and his brother, JWTZ, holds a permanent visa.

   Submissions of the Applicant – JWTZ

5. It was submitted that, in 2010, WBJ, the mother of JWTZ, lodged an application for a refugee visa, including JWTZ and his two siblings as dependant applicants, proposed by PNMP.  These visas were refused.

6. JWTZ arrived in Australia in early January 2012 as an unaccompanied minor without a valid visa. He identified himself by name, said he was a citizen of Afghanistan and, aged 17, was of Hazara ethnicity and Shi’a Muslim by faith. JWTZ stated that he was born in Oruzgan Province, in Afghanistan and that he resided in Pakistan from around 1996 or 1997 until he departed for Australia at the end of 2011.

7. In 2012, JWTZ applied for a protection visa and provided a birth certificate document issued by the Afghanistan Consulate-General in Quetta stating his date of birth as a named date in March 1995. In 2012 he was granted a protection visa. Later in 2012, he proposed his mother and younger brother for refugee visas. These visas were refused in November 2014.

8. In August 2016, JWTZ applied for Australian citizenship by conferral. In October 2017, a Department officer asked him for further information. In November 2017, JWTZ provided the following:

   (a)A signed Form 80 – Personal particulars for assessment including character assessment;

   (b)Statutory declaration dated 2 November 2017;

   (c)Certificate of Achievement from Western English Language School in Braybrook, Victoria, dated June 2013; and

   (d)Copy of birth certificate issued by the Afghanistan Consulate-General in Quetta and dated 26 May 2020.

9. In September 2019, JWTZ lodged an application to sponsor his spouse, FWTZ, on a partner visa. The Tribunal was advised that application is still pending.

10. In May 2020, JWTZ was sent a letter by the Department inviting him to comment on adverse information and in September 2020, he responded and provided the following additional documents:

    (a)Australian Titre de voyage for JWTZ with an expiry date of 18 April 2021 (Exhibit 2R1, p 139);

    (b)Pakistan marriage certificate for JWTZ and FWTZ, dated 3 June 2016 (Exhibit 2R1, p 141);

    (c)Birth certificate for JWTZ’s younger brother, issued by the Afghanistan Consulate-General in Quetta on 26 May 2010 (Exhibit 2R1, p 142);

    (d)Birth certificate for JWTZ, issued by the Afghanistan Consulate-General in Quetta on 26 May 2010 (Exhibit 2R1, p 143);

    (e)Birth certificate for WBJ, issued by the Afghanistan Consulate-General in Quetta on 26 May 2010 (Exhibit 2R1, p 144);

    (f)Birth certificate for ZJ, issued by the Afghanistan Consulate-General in Quetta on 26 May 2010 (Exhibit 2R1, p 145);

    (g)State of Victoria driver’s licence of JWTZ with expiry in September 2022 (Exhibit 2R1, p 149);

    (h)Afghanistan ID document of JWTZ, attested 23 August 2020 (Exhibit 2R1, p 152);

    (i)Australian Titre de voyage for JWTZ with an expiry date of 11 October 2019 (Exhibit 2R1, p 156);

    (j)Copy of Pakistan visas of various dates in 2018 (Exhibit 2R1, p 157);

    (k)Relationship document, not translated (Exhibit 2R1, p 158);

    (l)Statutory declaration from a friend and former housemate dated 21 July 2020 attesting that he has known JWTZ since 2014 (Exhibit 2R1, p 166); and

    (m)Form 80 – Personal particulars for assessment including character assessment (Exhibit 2R1, pp 167-184).

11. In terms of the Biometrics pillar of identity, the ASFIC-2 submitted that JTWZ provided a photograph as part of his citizenship application and that the Department also captured a facial image of him during his entry interview. The Applicant noted that the Minister’s delegate was satisfied that the images were consistent.

12. In terms of the Documents pillar, the ASFIC-2 repeated the contentions set out above in relation to PNMP. JWTZ’s legal representatives also submitted that his brother, PNMP, supports his brother’s identity and that he had maintained the same identity in the more than 12 years he has been in Australia, including the same name and date of birth.

13. In terms of the Life Story pillar, the ASFIC-2 made the same submissions as are summarised above in relation to the JWTZ’s older brother and added that he was a minor when the family moved to Pakistan.

    RESPONDENT’S SUBMISSIONS

14. The Respondent said it had no contentions about the familial relationship between the two Applicants but submitted that the documents they have provided are insufficient to establish identity.

15. Mr Orchard submitted that the main point of the Minister’s case is about the veracity of the documents from Pakistan and that the main questions are for PNMP. He said that if the Tribunal accepts the Taskera and passport from PNMP, it follows that those provided by JWTZ would also be acceptable.

    ORAL EVIDENCE

    PNMP

16. In his oral evidence, PNMP said he was born on a date in January 1989 in Afghanistan and that he was about 10 years of age when the family migrated to Pakistan. His family consisted of his parents, his sister ZJ, his brother JWTZ and another brother, AJ. His father died in 2003 in Pakistan, of natural causes and is buried there. PNMP is the oldest child. After his father’s death, his mother worked doing housework for others.

17. PNMP said when he applied for a protection visa, he spoke to his mother. “She knew someone back home. They were working in the Consulate. They got the documents.”

18. PNMP was asked whether the family provided any documents to the Consulate to obtain the birth certificates. He responded: “The person my mother knew asked for dates of birth. Our father had written the dates down on the back page of the Qur’an; that’s how she knew the dates”. PNMP said that his mother produced the Qur’an to the person at the Consulate.

19. PNMP agreed he had not provided evidence of that page of the Qur’an in any proceedings with the Department, nor had his brother JWTZ: “Unfortunately, now, because I wasn’t aware. Never asked.”

20. PNMP said JWTZ came to Australia in 2012 and has lived with him ever since. In terms of his family, PNMP said his mother and youngest brother, AJ, are in Pakistan, and his sister, ZJ, got married and is in Iran.

21. PNMP said that ZJ moved to Iran in 2014 or 2015; she is married to a man from Afghanistan and is living as a refugee in Iran.

22. In respect of documents that he provided when he applied for Australian citizenship, PNMP said he provided a driver’s licence and a copy of a travel document.  He said once he passed the citizenship test, he was asked by the Department to provide further documents, and he provided a driver’s licence from Afghanistan. He said he obtained his Afghanistan driver’s licence through a person in Pakistan who asked him to provide two passport-size photographs and his date of birth.

23. PNMP said, in order to obtain his Afghanistan passport, he travelled to the Embassy of Afghanistan in Canberra. He took with him a driver’s licence, protection visa approval; his Taskera and his grandfather’s Taskera. 

24. PNMP agreed that he relied on his grandfather’s Taskera to obtain his own taskera. He said he obtained his grandfather’s Taskera through an uncle in Kabul, but he has had no contact from the uncle since the fall of Kabul in 2020. When asked whether he knew the process for obtaining a Taskera from the registration authority, PNMP said: “Yes, the person has to be present. My uncle went to obtain it on my behalf.”

25. PNMP said he went to the Afghanistan Embassy in Canberra, and then his uncle went to the government office in Kabul. In response to a direct question from the Tribunal, PNMP said he had sent the grandfather’s Taskera to his uncle in Kabul. He understood the Embassy sent a communication to the Taskera registration authority in Kabul.

26. PNMP said he provided to the Embassy a copy of his protection visa, his Taskera, two photographs, a copy of his driver’s licence and underwent an interview by ‘Skype’ video (because of the pandemic restrictions). He sent payment to the Embassy together with a pre-paid envelope.

27. PNMP said that, when the passport was ready, it was sent to his home address from the Embassy in Canberra. He said that his brother, JWTZ, went through the same process at the same time, and a passport was issued to him with the same issue date. PNMP said neither his mother nor his younger brother, AJ, have Afghanistan passports.

28. PNMP said that he was married in 2013 in Melbourne, to a woman who was a Pakistani citizen and who is now an Australian citizen. He said that he has returned to Pakistan on three occasions to visit his mother, the last time being in 2018. He said that his wife visits Pakistan annually and takes their son to visit his grandmother.

29. Under cross-examination, PNMP was asked about a visa on his Titre de voyage to visit Iran. He said he undertook a pilgrimage and wanted to visit his sister, ZJ. He said he stayed with her for around 25 days.

30. PNMP was asked about the location of the family Qur’an. He agreed that it would be important to his citizenship application. When asked about the location of the Qur’an now, PNMP said: “Once it is worn out, we don’t throw it away. We keep it somewhere safe and bury it somewhere safe. I’m not sure if my mother has it or has buried it.”

31. He said that the Qur’an is very old and worn out, and his mother might have given it to a Mosque. In answer to a direct question from the Tribunal about whether his mother might still have it, PNMP said: “I asked once, and I think she mentioned she gave it away to the Mosque because it was very old.”

32. In response to a direct question from the Tribunal about whether his mother might have retained the page in the Qur’an which set out the dates of birth of the family, PNMP said: “You can’t tear out one of the pages of the Qur’an.”

33. PNMP said he did not know if the Qur’an had been buried; all he knew was that his mother no longer had it. He said if it was given to the Mosque and subsequently buried, it would not be retrievable because it had no distinctive marks.

34. PNMP was asked whether, when he produced his Afghanistan driver’s licence to VicRoads in order to obtain a Victorian driver’s licence, he was exempted from a provisional licence. He responded: “No. I started on a learner’s permit. Passed that and then got a probationary licence for three years.”

35. PNMP said he did not attend the Consulate in Quetta because he was already in Australia.  He said JWTZ also did not attend because he was underage. He agreed that a third party obtained the documents from the Consulate on behalf of all the family. He said his mother told him that she had given the person who was obtaining the documents the birthdates written down in the family Qur’an.

36. He said the driver’s licence proof he provided to the Embassy in Canberra was a copy of his Victorian one. He also provided proof of his home address, his grandfather’s Taskera and his protection visa. PNMP agreed he did not provide any Pakistan-source documents.

37. PNMP said he did not attend school in Pakistan because they needed an immigration card or some other form of identification. He did go to the Mosque to learn about the Qur’an. He said he was aged 19 when he came to Australia.

    JWTZ

38. JWTZ estimated he was aged four or five when they went from Afghanistan to live in Pakistan. He said he remembered his father dying in 2003 but, as a young person, did not appreciate the impact and that he was gone forever.

39. JWTZ said that after his father’s death, he was looked after by his mother and older brother, PNMP. He said that he sustained a foot injury in 2005. He said he remembers his maternal uncle asking him to go to Afghanistan and next remembers waking up in a Pakistan hospital. He said he asked his mother what happened, and she said his uncle had died after an attack on his car. He said that he lost the heel of his foot, and it still causes difficulties. He was not sure if the attack happened in Pakistan or in Afghanistan. JWTZ said he had never travelled to Afghanistan after that.

40. JWTZ said he knew his mother knew somebody who was a friend of his late father, and she approached this person to help her obtain documents from the Afghanistan Consulate in Quetta.

41. JWTZ said his mother told him that the date of birth his mother provided was “according to my age at the back of the Qur’an.”

42. JWTZ said he did not have formal education in Pakistan, only ‘basic’ instruction at the Mosque, which he said comprised “principles, the alphabet and the ability to read the Qur’an.”

43. JWTZ gave consistent evidence to PNMP about the process they went through to attend the Afghanistan Embassy in Canberra and the documents they provided to the Embassy staff.

44. In answer to direct questions from the Tribunal, JWTZ said he and his brother went to the Afghanistan Embassy in Canberra together and were interviewed together. He said: “We provided the relevant documents, driver’s licence, birth certificate and grandfather’s taskera. We got a form and filled it in. We had to send it to Afghanistan, where with the help of our uncle, he did the rest of the process. Then Covid happened”. He said that the Embassy officer took a copy of the identity documents they presented.

45. In respect of the subsequent applications for Afghanistan passports, JWTZ said: “Because of Covid, we couldn’t go in person. We filled in the form and had a telephone appointment. We then had a meeting by Skype and provided photos and deposited the fee into the account.”

46. JWTZ said he married in 2016 in an on-line Nikah ceremony (i.e., where families agree to a marriage contract) and in 2018, when he went to Pakistan in person, he signed the relevant documents to formalise the union. He said his spouse, FWTZ, was born in 1993. JWTZ said he applied for a partner visa for FWTZ. JWTZ said he had travelled twice out of Australia since settling here, once for his wedding and the second time to reunite with his wife.

47. JWTZ said he was helped in filling in forms and, when asked why he ticked ‘no’ in the marital status box, responded: “It might have happened. We are all human. My friend who was helping me might have made a mistake.”

48. When asked about the family Qur’an and whether he could produce a copy of the page mentioning the dates of birth of family members, JWTZ said: “No. The reason is that we can’t tear pages from the Qur’an. That Qur’an was old. My mother said she’d given it away to the Mosque”. The Tribunal asked JWZT whether he was annoyed because the Qur’an had been given away. He responded: “Yes, because it was very important.”

49. JWTZ said that he was not sure his mother appreciated the importance of the Qur’an. When asked if they had tried to retrieve it, he said: “We couldn’t. Once, we sent our youngest brother, but he couldn’t get it.”

50. Mr Orchard, in cross-examination, put to JWTZ that it was implausible that his mother would ‘absent mindedly’ give away the Qur’an containing the dates of birth. He replied: “She might not have known the importance of the situation. Maybe it was inappropriate religiously to keep it.”

51. When pressed on whether his younger brother did try and retrieve the Qur’an, JWTZ said: “Yes. We were at that time in difficulties. We asked him if he could find it. Who knows if it was buried? I asked him myself. Maybe my brother”. He thought this happened around 2017.

52. The Tribunal noted to JWTZ that this was not the evidence PNMP had given and asked him how old AJ was in 2017. He responded: “Thirteen. He said someone in the Mosque said they don’t keep old Qur’ans here.”

    Applicant’s closing submissions

53. Mr Ali submitted that the Department has not previously disputed the birth dates when considering grants of visas but conceded that the requirements in the citizenship legislation are different.

54. He said that there was no evidence of any bogus documents being put forward by the two applicants, only about the consistency of the documents. He said there was no significant inconsistency in the evidence each has given about family composition and that the dates of birth were not made up. They have always been maintained since PNMP and JWTZ arrived in Australia, rather than quoting notional dates such as ‘1 January’.

55. Mr Ali noted that each applicant was able to correctly recite the names of their father, grandfather and great-grandfather as set out on the Taskeras.  He said that each applicant has given consistent evidence about the disposal by their mother of the family Qur’an.

    Respondent’s closing submissions

56. Mr Orchard conceded that no ‘bogus’ documents had been proffered, apart from the Afghanistan driver’s licence. He said that none of the documents before the Tribunal had been authenticated, noting that the pandemic and the fall of Kabul have affected the ability to authenticate documents.

57. Mr Orchard said the Respondent does not make points about minor inconsistencies in the evidence of the two applicants. He said the root of the tree is the Qur’an. He said that the Minister’s submission is that no Qur’an existed or, if it did, it contained different information. He said that it must have been known in the family to be a critical document when their mother applied for the birth certificates in Quetta.

58. Mr Orchard noted the oral evidence of JWTZ that the youngest brother, AJ, tried to retrieve the Qur’an back was different from what PNMP said, and submitted that the Tribunal should reject both accounts.

59. Mr Orchard said that the Respondent does not dispute that the passports are genuine. He said that there is no evidence of the lives of the applicants in Pakistan, apart from the Nikah for JWTZ, which provided ‘some’ evidence of his historical identity.

60. The Respondent accepted that Afghanistan is a particularly disturbed society and that it was hard to obtain government documents. In respect of the Afghanistan driver’s licence, the Respondent submitted that PNMP should have known it was a bogus document.

    CONSIDERATION

    Australia and Pakistan sourced documents

61. PNMP has provided an Australian debit card (Exhibit 1R1, p 234), a rates notice from a Victorian local council (Exhibit 1R1, p 241); an Australian marriage certificate dated August 2013 (Exhibit 1R1, p 40); a State of Victoria driver licence and Medicare card (Exhibit 1R1, p 22); and an Australian Titre de voyage (Exhibit 1R1, p 23). He has also produced several Australian Taxation Offices notices of assessment. These documents carry some weight because they illustrate a consistent identity in Australia, but the weight is limited in terms of proof of identity because they were not issued on the basis of a primary foreign-produced official document of identity (except on the evidence of PNMP the driver’s licence), so without that chain, their value is limited to attesting to PNMP’s life story in Australia.

1. In terms of Pakistan source documents, PNMP has provided an enrolment certificate from the Department of English Language and Applied Linguistics of the Pearl Institute in Quetta, Pakistan, dated March 2011 (Exhibit 2R2, p 238). There was a letter (Exhibit 2R2, p 232) referring to him undertaking a one month of a two-month long course when he was visiting Quetta at that time.

2. JWTZ has provided a probationary driver licence issued by the State of Victoria (Exhibit 2R1, p 32); a Medicare card (Exhibit 2R1, p 32) and an Australian Titre de Voyage (Exhibit 2R1, p 35).

3. JWTZ has provided a notarised document from the Consulate-General of Afghanistan in Quetta headed ‘Birth Certificate’, which certifies that he was born in Oruzgan Province in Afghanistan on a named date in March 1995. This document is dated 26 May 2010.

4. Both PNMP and JWTZ have provided extensive Pakistan-source documents relating to their respective partners, FNMP and FWTZ, and the Tribunal is satisfied of the identities of these two women and their respective relationships with PNMP and JWTZ.

   Afghanistan sourced documents

5. PNMP has provided a Taskera issued on 29 July 2020 with translation (Exhibit 1R1, p 238).

   The Afghanistan driver’s licence – a ‘bogus document’?

6. PNMP provided a document referred to as ‘Afghan Driver’s licence – No: 9775’ (Exhibit 1R1, p 155) in a June 2018 letter sent to him by the Department stating that it had been seized under s 45B(1) of the Act, on the basis that the officer reasonably suspected it was a ‘bogus document’ under s 5(1) of the Migration Act 1958, being a document that has been fraudulently altered. The Department stated that the licence was issued by the Ghazni Traffic Department, apparently in ‘2008’. The Respondent did not produce this driver’s licence or a copy of it, so that the Tribunal could decide for itself whether it had been altered.

7. PNMP provided a statutory declaration to the Department dated September 2018 in which he declared:

   Regarding my Afghan Driving Licence – No. 9775 I am not aware if the Document is bogus. I obtained that document from Afghan consulate located in Quetta city of Pakistan. The document was very easy obtained from Afghan consulate Quetta, if the consulate officer believes the person is Afghan.

8. However, he further clarified, in a statutory declaration dated February 2022 (Exhibit 1A1):

   Afghan Driver's Licence

   13. The applicant submits that it was not safe for him to visit the Consulate, therefore, he asked someone to obtain the document for him.

   14. A third party introduced someone to him and told him that he could obtain the document in a genuine way. The applicant provided his photo, name, date of birth for obtaining the document.

   15. The applicant states that he sought help from a third party because it was unsafe to visit the Consulate. He did not seek help to get a fake document.

   16. The applicant claims that he thought his driving license was genuine, and he did not doubt that it was a bogus document.

   17. The applicant submits that he was not aware that the issuing office was stated as Ghazni Traffic Department. The person he asked to obtain the document was in Pakistan, and therefore, he believed it was issued in the Afghan Consulate, Quetta.

9. The term ‘bogus document’ has a particular meaning in the Act (s 3) as having the same meaning as that term in s 5(1) of the Migration Act 1958. The Migration Act defines a ‘bogus document’ as follows:

   “Bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that

   (a)  Purports to have been, but was not, issued in respect of the person; or

   (b)  Is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)   Was obtained because of a false or misleading statement, whether or not made knowingly.

10. Given that the driver’s licence was not provided by the Respondent, the Tribunal is hampered in making its own assessment as to whether it fulfils the category of a ‘bogus document’ under the Act. It appears from the officer’s letter that the Department believes the licence may be genuine but has been ‘fraudulently altered’. If the Department believed it was ‘fraudulently altered’, it should have presented evidence about that. If the Department doubted it was properly issued, that is something different. If it was indeed issued in 2008, that would be strong evidence that it was not properly issued to PNMP.

11. PNMP’s initial evidence to the Department was that he had obtained the licence from the Consulate. He then clarified that he obtained it from a third party who he presumed had obtained it from the Consulate. However, this casts doubt on the veracity of the document because PNMP did not obtain it from the Consulate himself, even if he genuinely believed that is where it came from.

12. The evidence of PNMP in how he obtained it means that it attaches the lightest of weight in supporting PNMP’s identity. It was not issued to him by a road traffic licensing authority in Afghanistan but, he said in oral evidence, in Quetta on the basis only of PNMP providing his name and two passport-size photographs to this third party. It may or may not have some status as an Afghanistan Government driver’s licence; the details are too sketchy to draw any conclusion, except for me to say the contention that it is a bogus document in terms of the Act has not been made out. If the Respondent had some evidence about this driver’s licence that may have reflected on PNMP’s character, that could also be relevant to conclusions about his identity, but apart from contentions in the RSFIC-1, none was proffered.

13. The Department states (Exhibit 1R1, p 273) that ‘a departmental investigation’ indicates that PNMP provided the Afghanistan driver’s licence to VicRoads and thereby by-passed the probationary licensing period. This is squarely at odds with PNMP’s oral evidence to this hearing, which was that he did not present this Afghanistan licence to VicRoads, and that he, in fact, obtained a Victorian learner’s permit and then a Victorian probationary licence, which he held for three years. This inconsistency was not pressed in cross-examination. It is not clear what the ‘departmental investigation’ was, but should it turn out to be the case that PNMP has given untrue evidence to this hearing in relation to that matter, it would reflect on his character. It could also be an offence under s 62A of the AAT Act. Because of the lack of information, the Tribunal makes clear it makes no finding about that.

    The Taskeras and passports

14. The Tribunal accepts that the robustness of many documents issued by the Afghanistan does not equate to the standard of veracity of similar documents issued by many other governments. Part of this is no doubt due to the decades of war and upheaval that country has experienced, including regime changes, which has necessarily affected the undisrupted delivery of civil service and the keeping of records.

15. In terms of the Taskeras issued to PNMP and JWTZ, the Tribunal accepts that they have been validly issued by the Afghanistan registration authorities. The evidence given in separate accounts by both applicants of the process they underwent at the Afghanistan Embassy in Canberra were consistent, and also consistent with similar accounts the Tribunal has heard from other Afghanistan-born persons in Australia making the same applications and going through identical processes.

16. What carried great weight in the Tribunal’s consideration is the passports issued by the Embassy of the [then] Islamic Republic of Afghanistan Embassy on 10 March 2021 to each of the applicants. There was no suggestion by the Respondent that these passports were other than authentic documents issued by that Embassy. The Afghanistan Embassy represents the Afghanistan State in Australia (see Article 3 of the Vienna Convention on Diplomatic Relations). As such, the Tribunal interprets the Afghanistan passports it issues as being in the category of Afghanistan sourced documents. The separate accounts given by PNMP and JWTZ about the interview process they went through, having first obtained their Taskeras through each applying to the Embassy and then their uncle attending the registration offices in Kabul, were consistent and are accepted by the Tribunal.

    Decision-maker must be satisfied of identity

17. As mentioned above, s 24(3) of the Act says that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity. It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied regarding this requirement.

18. The Courts have frequently considered what is meant by the statutory phrase that a person is ‘satisfied’ of a requirement. Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’) is the leading authority; and that it is still good law has been frequently re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66, by Toohey J for the Court, at [2]). In Briginshaw, Dixon J said, at 361-2:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

19. The Tribunal, therefore, must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

    Assessing the evidence against the ‘three pillars’ of identity

20. In terms of the Biometrics pillar, the Tribunal is generally satisfied that the several photographs provided by each of PNMP and JWTZ show them at various ages and reveal no apparent inconsistencies.

21. In terms of the Documents pillar, the Tribunal places very little weight on the ‘birth certificate’ documents given to PNMP and JWTZ by the Afghanistan Consulate-General in Quetta, Pakistan.  I am prepared to accept the evidence of each applicant that their mother obtained these documents for each member of the family through someone she and her late husband knew who worked at the Consulate. The documents are what they are: a certification from the Consulate that a named person was born in a particular place in Afghanistan on a particular date. But because they themselves rely on a bare declaration, while they might reasonably be expected that Consulate staff would not issue them to persons who the staff were not satisfied were Afghanistan Nationals, they carry very little weight in terms of name, place of birth and date of birth. That is because these certificates were not issued on the strength of primary documents such as Taskeras or national identity documents. This is so, even if the Tribunal accepts the evidence that the dates of birth were provided by the applicants’ mother from the handwritten notation by her late husband in the family Qur’an.

22. However, the Taskeras PNMP and JWTZ obtained, based on their grandfather’s Taskera, do carry weight. They were obtained through personal application by their uncle to the relevant agency in Kabul. And they were accepted by the Afghanistan Embassy as the primary identity authority for the Embassy to be satisfied to issue passports to PNMP and JWTZ, together with what other verification procedures the Embassy has. As referred to above, the passports themselves carry significant weight as authentic Afghanistan Government-issued documents. There is a difficulty for the Respondent here, because he argues that there is no question that they are not authentic passports. They, in turn, are strong evidence that the issuing State is satisfied of the identity of the persons to whom they are issued.

23. There is a paucity of other documents from Pakistan for either application, but the Tribunal notes the education certificate for PNMP and the Nikah for JWTZ, both of which are some attestation of their identity, and support their life stories.

24. The oral evidence about the family’s Qur’an is accepted by the Tribunal. The Tribunal is aware that it is customary in many cultures (including in Australia, historically) for the dates of births of children to be recorded in a holy book held by a family. The separate accounts that PNMP and JWTZ gave about this were generally consistent, although PNMP did not say anything about their youngest brother, AJ, going to the Mosque to see if the Qur’an their mother had surrendered might be retrievable. This was an inconsistency in their evidence, but not one that amounted to a contradiction.

25. The Tribunal finds that it is satisfied of the identity of PNMP and JWTZ to the standard as enunciated in Briginshaw. Apart from the Taskeras and passports, which are important primary documents issued by competent Afghanistan authorities, the other documentary material and life stories of each applicant about the composition of their families and their lives growing up, first in Afghanistan and then in Pakistan, were consistent, and I am satisfied they are brothers. To borrow the words of Sir Owen Dixon, the Tribunal feels an actual persuasion about the identity of each applicant. Having decided it is satisfied of the identities of PNMP and JWTZ, the Tribunal returns their applications for Australian citizenship with a direction that they each satisfy the requirements of s 24(3) of the Act. The Department can then continue the task of processing their applications.

    DECISIONS

26. The decision dated 10 December 2020 to refuse the applicant PNMP citizenship is set aside. The matter is remitted to the Respondent under s 43(1)(c)(ii) of the AAT Act with a direction that PNMP’s identity is satisfied in terms of s 24(3) of the Act.

27. The decision dated 10 December 2020 to refuse the applicant JWTZ citizenship is set aside. The matter is remitted to the Respondent under s 43(1)(c)(ii) of the AAT Act with a direction that JWTZ’s identity is satisfied in terms of s 24(3) of the Act.

120.    I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 23 December 2022

Date of hearing:	3 October 2022
Advocate for the Applicants:	Mr Muhammad Raza Ali
Solicitors for the Applicants:	Sukhdev & Ahmad Migration Pty Ltd
Counsel for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers

Annexure

Exhibits for Application 2020/8579 – PNMP and Minister for Immigration, Citizenship and Multicultural Affairs

Section 37 documents lodged on 25 January 2021  Exhibit 1R1

Supplementary documents lodged 30 March 2022  Exhibit 1R2

Statutory declaration of PNMP, 20 February 2022  Exhibit 1A1

Extract of passport of PNMP (expiry date 10 March 2026)              Exhibit 1A2

National Identity Verification Form, PNMP  Exhibit 1A3

Applicants’ grandfather’s Taskera, translation 9 February 2022      Exhibit 1A4

Applicants’ evidence of appointments with Afghanistan Consulate   Exhibit 1A5

Applicants’ evidence of received Taskera, 22 February 2022          Exhibit 1A6

Exhibits for Applicant 2020/8580 – JWTZ and Minister for Immigration, Citizenship and Multicultural Affairs

Section 37 documents lodged on 25 January 2021  Exhibit 2R1

Supplementary documents lodged 30 March 2022  Exhibit 2R2

Statutory declaration of JWTZ, 18 February 2022  Exhibit 2A1

Extract of passport of JWTZ (expiry date 10 March 2026)               Exhibit 2A2

National Identity Verification Form, JWTZ  Exhibit 2A3

Original Nikah (marriage certificate) of JWTZ, 3 June 2016             Exhibit 2A4