Qasimi And Minister for Immigration and Border Protection
[2016] AATA 378
•16 June 2016
DECISION AND REASONS FOR DECISION [2016] AATA 378
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/2169
GENERAL DIVISION )
Re: Mehdi Qasimi
Applicant
And: Minister for Immigration and Border Protection
RespondentCORRIGENDUM TO DECISION NO [2016] AATA 378
TRIBUNAL: Senior Member R W Dunne
DATE: 16 June 2016
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by amending paragraph (b) on the first page and section (b) in paragraph 44 on page18 to read as follows:
(b)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant has established his identity and satisfied the requirement of s 24(3) of the Australian Citizenship Act 2007.
......................[Sgd]..............................
R W DUNNE
(Senior Member)
Qasimi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 378 (7 June 2016)
Division
GENERAL DIVISION
File Number
2015/2169
Re
Mehdi Qasimi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 7 June 2016 Place Adelaide The Tribunal:
(a) pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b) remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant satisfies the requirements of, and is eligible to become an Australian citizen pursuant to, s 21(2) of the Australian Citizenship Act 2007.
........................[Sgd]........................................
Senior Member R W Dunne
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – application refused as delegate not satisfied as to applicant's true identity or country of citizenship – DNA evidence further considered – decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21 and 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth) issued 1 July 2014
Explanatory Memorandum, Australian Citizenship Bill 2005
REASONS FOR DECISION
Senior Member R W Dunne
7 June 2016
INTRODUCTION
Mehdi Qasimi (“applicant”) applied for Australian citizenship by conferral on 4 August 2014.
A delegate of the Minister refused the application on 7 April 2015. This was on the basis that the delegate was not satisfied of the identity of the applicant as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) (“Act”).
The applicant has applied to this Tribunal for review of the delegate’s decision.
At the hearing, the applicant was represented by Mr Muhammad Ibrahim, Registered Migration Agent, and he was assisted by an interpreter. Ms V Greenslade (from the office of the Australian Government Solicitor) appeared on behalf of the respondent Minister. I received into evidence the T documents[1] and the supplementary T documents[2] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
[1] Exhibit R1
[2] Exhibit R2
ISSUES FOR THE TRIBUNAL
Having reviewed the facts of this case, I believe the issues for the Tribunal are as follows:
(a)Can the Tribunal be satisfied of the identity of the applicant pursuant to s 24(3) of the Act?
(b)If the Tribunal is so satisfied, is the applicant eligible to become an Australian Citizen pursuant to s 21(2) of the Act?
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. Section 21(2) reads:
“Application and eligibility for citizenship
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister's decision on the application.
Section 24 of the Act provides, in part:
“Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
…
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
…”
The Explanatory Memorandum to the Australian Citizenship Bill 2005 (which Bill was ultimately enacted as the Act) states:
“There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.”
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions (“Instructions”) have been adopted by the Minister to guide those making decisions under the Act. Chapter 5 of the Instructions sets out the relevant legislative requirements and policy guidelines for Australian citizenship by conferral. The Instructions reflect Government policy and are not binding on the Tribunal. However, the Tribunal should have regard to the Instructions unless there is good reason not to do so.[3]
[3] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2)(1979) 2 ALD 643 at 645.
The “Introduction” to the Instructions states [at 5.1]:
“An application must be refused if the decision maker is not satisfied of the person’s identity…”
The Instructions also state (at 5.6.1) that applicants for citizenship by conferral under general eligibility must meet the residence requirement. The general residence requirement is set out in s 22 of the Act. Further, the Instructions refer to the application for citizenship form which contains a declaration that refers to an intention to reside, or a continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. In relation to the present case, in particular, the Instructions state (at 5.27.1) under the heading “Minister’s decision (s 24)”, that:
“An application for citizenship by conferral must be approved or refused.
…
There are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to:
·identity
…
5.27.2 Identity (section 24(3))
Section 24(3) requires that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity.”
Presently, the Tribunal is faced with a situation where it cannot be certain of the applicant’s identity to the standard expected for the conferral of Australian citizenship. As was submitted by Ms Greenslade for the Minister, a certificate of Australian citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the applicant is not clear.
FACTUAL BACKGROUND AND EVIDENCE
The applicant claims to have been born in 1993 in Afghanistan. He arrived in Australia as an illegal maritime arrival on 4 October 2009 and was granted a permanent (Class XA), subclass 866 visa with effect from 16 December 2009.
Relevant to the issue of the applicant’s identity, on 4 March 2010 Ms Fatima Qasimi (who is claimed to be the applicant’s mother) made an application for a humanitarian sponsored visa (“Ms Qasimi’s application”). The applicant was listed as the sponsor and as Ms Qasimi’s biological son. The application also listed six secondary applicants, being the other claimed biological children of Ms Qasimi.
In assessing Ms Qasimi’s application, the Department prepared a ‘Dubai Integrity Unit Alert Notice 86/2013’[4] on 27 January 2013, which reported on family composition fraud in the Afghan caseload. This Notice provided detailed information about the applicant and his alleged family. On 28 July 2013, Ms Qasimi’s application was refused, as the Department was not satisfied of the identity of the persons listed in that application. Following DNA testing, Ms Qasimi was found not to be biologically related to three of the children listed in her application, including the applicant.
[4] Exhibit R2, T35 p 226-230.
After the applicant lodged his application for Australian citizenship, on 17 February 2015 an officer of the Department sent a letter to him in relation to adverse information, as the Department was not satisfied as to his true identity or country of citizenship. The letter stated, in part:[5]
“According to departmental records, none of the applicants on the XB202 application you sponsored/proposed provided Proof of Registration (PoR) cards. These cards are issued by Pakistani authorities to Afghans in Pakistan to regularise their residential status. Dubai post asked several times for your family to register in Quetta with the UNHCR or with the Pakistan authorities for a Proof of Residence Card. Given the timeframe for the family’s residence in Pakistan – it is unusual that they would not have registered with UNHCR or with the host government as unregistered Afghans are subject to deportation. Therefore, there are concerns as to the citizenship of your purported family members and, in turn, as to your true country of citizenship.
In order to verify the relationship claims on the XB202 application, your purported family members were requested to undergo DNA testing. The results determined that the person you claimed to be your biological mother on the application – Fatima Qasimi – was shown to not be your biological mother.
This information was put to you in November 2012 so that you could comment on the findings. At this time, you changed your story regarding the identity of your biological mother. You stated that your biological mother was named ‘Khatima’ and that she passed away when you were 7 years of age. It is noted that with all your interactions with the department, you have never referred to your mother as ‘Khatima’ or provided any reference to or evidence of her death.
When you were asked to identify photos of your siblings – you incorrectly identified the photos of two purported siblings. You incorrectly identified Talib Hussain Qasimi and Arif Hussain Quasimi.
…”
[5] Exhibit R1, T7 p 46-48.
On 20 March 2015,[6] the applicant provided the Department with a statutory declaration responding to issues raised by them. On 7 April 2015, an officer of the Department refused the applicant’s application for citizenship by conferral on the basis that the officer was not satisfied of the identity of the applicant and a letter notifying the applicant of the outcome was sent on the same day.
[6] Exhibit R1, T8 p 50-51.
It was the applicant’s evidence that, on 30 October 2012, a report had been obtained from DNA Solutions in Victoria. The report was obtained to avoid further delay in the processing of the visa application of the applicant’s family. In an email the applicant sent to DNA Solutions and DIAC on 30 August 2012 he said that his brother Arif Husain Qasimi had been missing for four weeks. In the meantime, he said his brother would not be available to provide a sample with the rest of the family in Pakistan. The applicant said there were two DNA reports, with the later report being provided by DNA Solutions on 7 October 2015.
The applicant said that he was seven years old when his biological mother, Khatima Qasimi, passed away. It was then that Fatima came into the picture. He said that it was a shock to him when the DNA results showed that Fatima was not his biological mother. In his statutory declaration he said he always declared Fatima to be his mother, even if she was his step-mother. Fatima always acted as though she was his mother and nobody questioned her legitimacy in this role, and no one told him otherwise. He said that when he declared Fatima was his mother, this was his belief to the best of his knowledge. After the DNA test, Fatima told him the truth. She said his mother was Khatima and she had died when he was a child. He said that Fatima believed it to be in the best interest not to tell him and his family. In his statutory declaration, the applicant said: [7]
“As I was genuinely not aware of the truth in relation to my actual relationship with my family especially with Fatima until after obtaining DNA results, I always declared her to be my mother in my applications to the Department.”
[7] Exhibit R1, T8 p 50.
Having become aware of the DNA reports, the applicant believed that Talib Hussain Qasimi and Masooma Qasimi were his biological siblings.
The applicant also referred to his cousin, Hussain Ali Qasimi. He told the applicant that he (the applicant) was his cousin and he would assist him to get out of detention. He said that Hussain Ali Qasimi and his family had never had any contact with him and his family in Pakistan. He also said that Hussain Ali Qasimi found out about him through another minor who was released into community detention. He contacted the Department and agreed to be the applicant’s carer.
Hussain Ali Qasimi gave evidence himself. He confirmed that the applicant was his cousin. His father and the applicant’s father were brothers. In his witness statement, Mr Qasimi said that his uncle’s name was Jan Ali Qasimi and that the applicant was his second son. The applicant was approximately two years old when his family left Afghanistan and migrated to Quetta city in Pakistan. Mr Qasimi said that he was not in contact with his uncle’s family himself, but his father would visit their home every year to greet the family. He said he could not remember when the applicant’s mother, Khatima had passed away. When he found out, he did not talk to the applicant. He also said that he knew that Fatima had made an application to come to Australia in 2010.
Mr Matthew Webb was the Nominated Reporter for the laboratory in the letter from DNA Solutions dated 7 October 2015. In his letter he refers to two reports and to the relationship-testing procedure carried out on the bodily samples contained in the sealed containers bearing the names of the following donors:
(a)Fatima Qasimi, mother to Barat Ali Qasimi, Atif Hussain Qasimi and Asnin Qasimi;
(b)Mehdi Qasimi;
(c)Talib Hussain Qasimi;
(d)Barat Ali Qasimi;
(e)Atif Hussain Qasimi;
(f)Asnin Qasimi; and
(g)Masooma Qasimi.
In the main, Mr Webb reached the following conclusions:
(i)Every individual inherits half their DNA from their mother and the other half from their father.
(ii)The applicant and Talib Hussain Qasimi are many times more likely to be related as full biological siblings compared to unrelated individuals.
(iii)The applicant and Talib Hussain Qasimi shared a common paternal haplotype.
(iv)The applicant and Barat Ali Qasimi are more likely to be related as biological half siblings compared to unrelated individuals.
(v)The applicant and Barat Ali Qasimi share a common paternal haplotype.
(vi)The applicant and Asnin Qasimi share a common paternal haplotype.
(vii)Fatima Qasimi is not to be excluded as the biological mother of:
·Barat Ali Qasimi;
·Atif Hussain Qasimi; and
·Asnin Qasimi.
(viii)Fatima Qasimi is to be excluded as the biological mother of:
·the applicant;
·Talib Hussain Qasimi; and
·Masooma Qasimi.
(ix)Based on maternity, there is strong support for the proposition that Barat Ali Qasimi, Atif Hussain Qasimi and Asnin Qasimi are related as full biological siblings.
(x)Seeing there was strong support for a full sibling relationship between the applicant and Talib Hussain Qasimi, and there is also strong support for a sibling relationship between Masooma Qasimi and Talib Hussain Qasimi, there can be an inference of a sibling relationship existing between Masooma Qasimi and the applicant.
CONSIDERATION
Can the Tribunal be satisfied of the identity of the applicant pursuant to s 24(3) of the Act?
On the material available the applicant arrived in Australia as an illegal maritime arrival on 4 October 2009 and was granted a visa with effect from 16 December 2009. In the supplementary T documents[8] there appears a statutory declaration signed by the applicant and declared at Christmas Island on 20 November 2009. Accompanying the declaration is a Form 80 “Personal particulars for character assessment” also dated 20 November 2009 and signed by the applicant. In the declaration, the applicant states, in part:
[8] Exhibit R2, T3 p 40-42
“1. I am a 16 year old Hazara from Afghanistan. My religion is Shi’a Muslim. I have never been married. I make this Statutory Declaration in support of my request for refugee protection under the Refugee Status Assessment process. I am [sic] also respectively request that the Minister for Immigration allows me to apply for a Protection Visa in Australia.
2. I am seeking the protection of the Australian Government as my life will be in danger if I am forced to return to Afghanistan. I will be targeted mainly because of my Shi’a religion and Hazara ethnicity. I am fearful that, if I am caught by the Taliban or Pashtuns, I will be killed. I hear people say that we, the Hazaras, should be killed.
3. I was born on 5 January 1993 in Baghaochal, Oruzgan, Afghanistan. My family fled Afghanistan when I was two years old. I do not have any memories of Afghanistan, but my parents told me that we left because our lives were are risk because we are Hazaras and Shi’a.
4. I have faced many troubles as a Hazara living in Pakistan. Life is very difficult and dangerous for us there. I find it difficult to remember dates, but I think it was around five years ago, that I witnesses the death of many Hazaras during the Emambarh in Quetta, Pakistan, on Aashoora Day. I was part of the gathering observing Shi’a Muslim religious ritual on this special day. During the ceremony, someone threw a granite bomb at us. I do not know who did this but I heard that it was the Taliban or the Pashtuns. Many Hazaras were killed on this occasion. After witnessing this incident, I stopped going to this kind of event as I was too scared. More and more Hazaras are being targeted and killed in Pakistan.
5. Around five years ago, my brother, Zakir, went missing. He was working in a car mechanical workshop in Quetta, Pakistan. He went to work one day and did not come back. No one knows what happened to him but we think it must have been something bad.
6. About three years ago, my father and brother-in-law together went back to Afghanistan. Since then, they have not returned. It was around the time when the situation in Pakistan started deteriorating. There were too many incidents of killings and suicide bombings. My father decided to return to Afghanistan to see if it was safe for our family to return there. He left one day for our hometown of Oruzgan, Afghanistan with my brother-in-law but they never came back.
7. One person from Oruzgan told us that the Taliban was there in Oruzgan when my father and brother-in-law went back. He told us that both my father and brother-in-law were killed by the Taliban. My family still do not know if they had been killed or gone missing. All I know is that we have not heard from them since they left Pakistan three years ago.
…
9. I fear that, if I had to return t Afghanistan, I will be killed or go missing like my father, brother and brother-in-law. I cannot return to Oruzgan because there are too many Taliban and Pushtuns. I cannot live in any other part of Afghanistan as I have not lived in Afghanistan since I was two years old. There is nowhere that I will be safe in Afghanistan and there is no one who can protect me from the threats that I face. The Pushtuns, Taliban and Balloch all do not like us, Hazaras.
…”
Also in the supplementary T documents is an undated ‘Refugee Status Assessment Record’ prepared by an officer of the Department. In the Record, the officer states, in part:[9]
[9] Exhibit R2, T4 p 52-59.
“2. CLIENT HISTORY/MIGRATION HISTORY
The claimant asserts to be a 16 year old Afghan national. He states his ethnicity as Hazara and his religion as Shi’a Muslim.
The claimant’s mother, five brothers and two sisters reside in Quetta, Pakistan. The claimant states that he has had no formal education. He states that he has worked as a shoe maker in Pakistan.
The claimant states his family departed Afghanistan for Pakistan in 1995. They crossed the border to Pakistan illegally and resided there without having residency rights. In 2009, the claimant travelled to Australia on a false passport organised by a people smuggler. He spent around three days in Malaysia and five to six months in Indonesia en route to Australia. From Indonesia he boarded a boat which was intercepted by the Australian Navy and taken to Christmas Island on 4th October 2009.
The claimant lodged a request for a Refugee Status Assessment (RSA) on 20th November 2009. He was interviewed on Christmas Island by an Australian Immigration Official with the assistance of a Dari/Hazaragi interpreter on 22nd November 2009.
3. CLAIMS FOR PROTECTION
The claimant states that he was born in the small village of Baghaochar in the province of Uruzgan in Afghanistan. He asserts that his family left Afghanistan in fear of being killed by the Taliban in 1995. This fear was based on their Shi’a Muslim faith and Hazara ethnicity.
The claimant’s father decided to leave Afghanistan for the safety of his family when the Taliban took control over the Uruzgan province. The claimant was at the age of two at the time of his departure. He has no memories of Afghanistan.
The claimant lived in Quetta, Pakistan illegally. He states that there were many incidents of persecution of Hazara in Pakistan. His brother went missing around five years ago. He went to work and did not return. No one knows what happened to him.
The claimant states that his father and brother-in-law went to Afghanistan about three years ago. They never came back. The family has been told that they were killed by the Taliban.
…”
In the Record, under the heading Identity concerns, the officer states, in particular:[10]
“The claimant possesses the typical physical features of the Hazara people, and he demonstrated fluency in the Dari language (Hazaragi dialect). The information provided at interviews with the Department is consistent with his claim of having been born in Afghanistan and having lived there until 1995. Based on his account of his life in the absence of any evidence to the contrary, I am satisfied that the claimant is an Afghan Hazara.”
[10] Exhibit R2, T4, p 52.
I note that the supplementary T documents also include the “Dubai Integrity Unit Alert Notice 86/2013”.[11] The Notice is expressed to refer to suspected people smuggling and to the Department’s concern about cases involving people who falsely declare non-family members as their children to facilitate their later entry to Australia. This particular Notice specifically relates to a proposal, sponsored by the applicant for entry to Australia by Fatima Qasimi and her family, comprising her six biological children. However, on 30 October 2012 the results of DNA testing showed that Fatima Qasimi was not the biological mother of the applicant and two other children, Masooma Qasimi and Talib Hussain Qasimi. She was found to be the biological mother of the three remaining children, Barat Ali Qasimi, Atif Hussain Qasimi and Asnin Qasimi.
[11] Exhibit R2, T35.
It became clear from the Notice that the Dubai office of the Department saw an increasing need to use DNA testing to verify biological relationships due to the existence of what was said to be a high rate of “family composition fraud”. In my view, on the information available at that time and having regard to the circumstances that followed, there could be no suggestion that the applicant was involved in any fraudulent conduct. Nevertheless, the Notice had referred to the applicant and, as the proposer, his family composition. Under the heading “Are the Qasimis Afghan citizens?”, the Notice stated:[12]
“The applicants and the proposer have claimed they are of Afghan origin and hold Afghan citizenship. However, there are indications that they may be Pakistani citizens and their genuine identity may be different. The Post has noted the following indicators of this concern:
The applicants’ Taskira identity documents were issued only in 2012, much later than their actual births. It raises concerns on the authenticity of these primary identity documents.
The primary applicant claims to have lived in Pakistan for 18 years and all children are stated to have been born in Pakistan. However, they have not provided a Pakistani Proof of Resident (PoR) card which is issued by Pakistani authorities to Afghans resident in Pakistan. Nor have they provided birth certificates issued by Pakistani National Database and Registration Authority (NADRA) to Afghan children born in Pakistan. It is generally accepted that one or all of these documents would be available to these Afghan citizens who are long-term residents of Pakistan and have registered with UNHCR.”
[12] Exhibit R2, T35 p 229.
The Notice also stated that nearly 90 percent of Tazkera documents provided by Quetta residents were not registered and therefore were not genuine when verified through Afghan authorities. The Tazkera documents of the applicant’s family were not verified by the Dubai office through the Afghan government. However, there is no indication that any of the Qasimis had travelled to Afghanistan to apply for their Tazkera identity certificates in person as is required by the Afghan Interior Ministry, the sole issuing authority.
In this regard, in Dhayakpa and Minister for Immigration and Border Protection [13] the Hon R Nicholson, Deputy President referred to Confidential and Minister for Immigration and Citizenship [14] and said at [117]:
“Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.”
[13] [2015] AATA 310 at [117].
[14] [2013] AATA 144.
In response Ms Greenslade submitted that, in the present case, the applicant had been asked and his family had been asked to try to obtain, or to register, and they didn’t. They failed to make attempts to obtain registration with UNHCR or with the Pakistan authorities. In these circumstances, the inference must be that they are not Afghanis as they claimed.
On 27 November 2012 the applicant took part in a phone interview with an officer from the Visa and Citizenship Section of the Australian Consulate-General in Dubai. The interview obviously related to his mother (Fatima) and his siblings (Masooma and Talib Hussain). In the discussion the applicant said that he also had step siblings: Barat Ali, Atif Hussain and Asnin – “from same father and different mother”. In saying this, the applicant then confirmed that he meant Masooma and Talib Hussain were his biological siblings – “same mother and same father”. The applicant said that his biological mother’s name was Khatima. He said she passed away when he was very young, maybe seven years old. He then said, after his biological mother died, his father married Fatima “because we needed someone to look after us”. When asked where his father was, the applicant said “My father is missing”. He could not remember when, but he said that his father returned to Afghanistan and disappeared.
On 7 November 2012, the applicant signed a further statutory declaration. In that declaration the applicant relevantly said:[15]
“1. I arrived in Australia in October 2009 and was granted a protection visa on 16 December 2009. In February 2010 I lodged a split family visa application for my mother (Fatima Qasimi) and her six dependent children (my siblings).
2. I am making this declaration in response to the DNA report issued by DNA Solutions Pty Ltd dated 30 October 2012.
3. I was very shocked and confused when I received and read the DNA report. Fatima Qasimi is the only mother I have ever known and had and I could not understand how the report could find that she was not my biological mother.
4. I telephoned my mother when I received the report to inform her about the report. My mother was very emotional and crying. She informed me that my biological mother died when I was young and my father married her. She brought us up and treated all of us as her children without differentiating in work or deed between her biological and non-biological children.
5. My mother informed me that my birth mother was called Khatima and she was also the birth mother of Talib and Masooma. She died in Quetta, Pakistan and was buried at Mehrabad cemetery. I have learnt that she has high blood pressure and died suddenly at home.
6. I never knew that my mother, Fatima Qasimi was not by biological mother until the DNA test. None of my siblings knew that we were not born by the same mother because we all grew up together as siblings with one mother. She refers to all of us as her children wherever she goes.
…”
[15] Exhibit R2, T31 p 216-217.
In his opening, the applicant’s representative (Mr Muhammad Ibrahim) submitted that Proof of Registration Cards (PoR cards) were issued to Afghan refugees who resided in Pakistan in early 2000. Historically, Afghans started to migrate and reside in Pakistan in the early 1980’s. Most of these Afghan refugees remained in Pakistan without any form of registration or identity documents. Mr Ibrahim referred to Afghan ID documents (Tazkeras). He submitted that Tazkera are issued by the Afghan interior ministry in Kabul, Afghanistan. However, he further submitted that the applicant’s family obtained these documents from the Afghan Consulate-General in Quetta, Pakistan. The Afghan consulate issued these cards based on the applicant’s father’s Tazkera details and these details are recorded in the supplementary T documents.[16] I note that each of these documents relating to Fatima’s six children (excluding the applicant) refer to their father’s name as Jan Ali, their grandfather’s name as Qasim and their place of birth as Quetta, Pakistan. Each document then refers to “Signature of Tazkara Holder” and to “According to His Father Id Card”, with the same references to “Vol No: 14”, “Page No: 154” and “Reg No: 767”. Although unclear and not complete, Mr Ibrahim referred me to a copy of a document described as an extract translation of a “National Identity Card” of Jan Ali, purported to be and referred to as the applicant’s father.
[16] Exhibit R2.
In her closing, Ms Greenslade challenged the authenticity of these PoR documents. She said the documents were not verified by the Dubai office of the Department through the Afghan government. Moreover, there is no indication of these children having travelled to Afghanistan to apply for their Tazkera identity certificate as is required by the Afghan interior ministry. It was Ms Greenslade’s submission that very little weight, if any, should be placed on these documents.
Ms Greenslade further submitted that the picture in the applicant’s case was murky. There were inconsistencies in the evidence. There were concerns expressed about the claimed biological children of Fatima Qasimi by Ms Nancy Tang at the Australian Consulate-General in Dubai. However, there were few questions raised about the applicant’s citizenship.
Having reviewed all the evidence, particularly the oral evidence of Hussain Ali Qasimi, his witness statement dated 5 July 2015, the witness statement of Fatima Qasimi dated 29 June 2015 and the evidence of DNA Solutions, I am satisfied of the identity of the applicant pursuant to s 24(3) of the Act. I am satisfied that the applicant is an Afghan Hazara. By his father, he was born a citizen of Afghanistan.
If the Tribunal is so satisfied, is the applicant eligible to become an Australian citizen pursuant to s 21(2) of the Act?
On the evidence, the applicant was born in Afghanistan in 1993. His parents migrated from Afghanistan to Pakistan when he was very young. His biological mother (Khatima) passed away in Pakistan when he was young. His father married Fatima when he was still a child. The applicant regarded Fatima as his mother and the results of DNA tests were his first knowledge that she was not his biological mother.
The applicant has never obtained an Afghan identity card (known as a Tazkera) and he has not lived in or returned to Afghanistan since his childhood. He has provided three separate statutory declarations telling his story. As said earlier, the applicant arrived in Australia by boat on 4 October 2009 and was granted a permanent visa with effect from 16 December 2009.
The applicant lodged his application for Australian citizenship on 4 August 2014, having signed a Form 1300t on 17 July 2014. His signature at questions 32 and 42 of the Form is the same as his signature in the statutory declaration he made on 20 March 2015. He also appears to have initialled the signature box in the Declaration appearing at question 43 of the Form.
In my view, on the evidence, the applicant:
(a)is an Afghan Hazara and is a citizen of Afghanistan, having completed, apparently initialled and signed an application Form 1300t; and
(b)satisfies the requirements of s 24(3) of the Act.
Also on the evidence, I am satisfied that the applicant is a person who is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were approved and, provided the applicant is able to satisfy the provisions of paragraphs 21(2)(d),(e),(f) and (h) and all other relevant provisions of the Act to be entitled to be granted Australian citizenship by conferral, I am satisfied that he is eligible to become an Australian citizen pursuant to s 21(2) of the Act.
DECISION
For the reasons outlined above, the Tribunal:
(a)pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) sets aside the decision under review; and
(b)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c))ii) of the AAT Act that the applicant satisfies the requirements of, and is eligible to become an Australian citizen pursuant to, s 21(2) of the Australian Citizenship Act 2007.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne .......................[Sgd]...........................................
Administrative Assistant
Dated 7 June 2016
Date of hearing 8 March 2016 Solicitor for the Applicant Mr M Ibrahim, Migration Agent
Migration Prospects.Solicitor for the Respondent Ms V Greenslade Solicitors for the Respondent Australian Government Solicitor
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