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

Qurbani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 1698 (16 June 2023)
Division:GENERAL DIVISION
File Number(s): 2018/4926
Re:Mr Qurbani
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO Member
Date:16 June 2023
Place:Melbourne

The Tribunal sets aside the decision of the delegate dated 3 August 2018, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
s 43(1)(c)(ii) of the Administrative Appeals TribunalAct 1975 (Cth), that it is satisfied of the Applicant’s identity.
.......................[sgd].................................................
Ms A E Burke AO Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – Afghan national – whether satisfied of identity of applicant –whether documentation was sufficient – whether made genuine attempt to verify documentation - consideration of DFAT Country Information Report – whether satisfied of life story - whether the application for citizenship should be approved – life story remained consistent – Tribunal satisfied of identity – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Secondary Materials
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
Attorney General’s Department National Identity Proofing Guidelines
Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (27 November 2020)
Department of Foreign Affairs and Trade Country Information Report Afghanistan 27 June 2019
DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022)
REASONS FOR DECISION
Ms A E Burke AO Member

The Applicant is a 68-year-old Afghan citizen, living in regional Victoria. On 8 February 2012, the Applicant sought asylum in Australia, on 30 October 2012 he was granted a Protection visa (subclass 866) and on the 11 April 2018 he was granted a Five-Year Resident Return (subclass 155).
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person’s capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant holds a protection visa, the Tribunal has decided it is appropriate to refer to the Applicant as “the Applicant” throughout this decision.
On 25 November 2016, the Applicant lodged an application for Australian citizenship by conferral, submitting the following documentation:
• English translation of identity card Taskira
• Medicare card
• Victorian driver licence
• Travel document Australia
• Bank card
• Statement of identity
On 19 September 2017, 28 December 2017, and 26 February 2018 the Department requested the following additional information.
• Form 80
• Certified copies of any original identity and other supporting documents issued to you prior to your arrival in Australia. The letter provided you with a list of documents that you may be able to provide in support of your identity prior to your arrival in Australia.
On 3 August 2018, a delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act), as the Department was prohibited from approving the application as the Delegate was unable to be satisfied of the Applicant’s identity. The delegate stated:
You were provided with 35 calendar days from the date of the letter to respond to this request. No response was received to this request within the specified timeframe.
A final request for this documentation was sent to you by post to your designated address on 26 February 2018. You were provided with 21 calendar days from the date of this letter to respond. To date, no response has been received in relation to these requests. There is no information before me to indicate that you have provided a response to these requests for further information, and the timeframe to respond has now passed.
You have been provided with multiple opportunities to submit the additional documentation requested in relation to your application. All requests for further documentation were sent to the email and postal addresses specified by you on your application form. This documentation was requested in order to confirm your identity from the time of your birth. To date you have not provided any information or historical documentation prior to your arrival in Australia that would facilitate an assessment of your identity since birth.
In the absence of any information or documentation to support your identity since your birth, at the time of this decision I am not satisfied of your identity.
On 27 August 2018, the Applicant lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal stating,
The decision to refuse my citizenship was on the basis that I could not satisfy the decision maker of my identity. I provided all I had to the decision maker to this effect. I believe that I have satisfied subsection 24(3) of the Citizenship Act 2007
The application was heard in person at the Melbourne Registry on 16 March 2023 and…the Applicant was represented by Ms Paghona Kerdo of Kerdo Legal and assisted by an interpreter in the Dari language. Mr Adam Cunningham of Sparke Helmore Legal, appeared on behalf of the Respondent. At the conclusion of the hearing, additional material was requested from the Applicant and the Respondent.
ISSUE FOR THE TRIBUNAL
The issue is whether the Tribunal is satisfied of the Applicant’s identity to fulfil the requirements of s 24(3) 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:
General eligibility
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.
…
(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).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)      the person has not become an Australian citizen under section 28;   and
(b)      either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a)      the person is covered by subsection 21(2), (3) or (4); and
(b)      the Minister is satisfied that, at the time the Minister proposes to                   cancel the approval, the person is:
(i)       not a permanent resident; or
(ii)       not likely to reside, or to continue to reside, in Australia or to               maintain a close and continuing association with Australia;   or
(iii)      not of good character.
The stated role of the Australian Citizenship Policy (the Policy) is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth). Additionally, the Citizenship Procedural Instruction 16 (CPI 16), published and used by the Department in relation to decision-making under the Citizenship Act, also contains relevant guidance about assessing an individual's identity, specifically for the purposes of determining whether the prohibition in section 24(3) of the Citizenship Act applies.
When considering whether a decision maker is satisfied of an Applicant's identity, the three pillars of identity are set out in CPI 16 at 4.4 namely:
(a) Biometrics - personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies;

(b) Documents - which may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. CPI 16 relevantly states that "only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features"; and

(c) Life story - being the narrative of the events that happened to them from birth to present, which may include "descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence".
The CPI further provides that:
Officers should not rely on a single pillar to establish a person’s identity.
Considering a single pillar in isolation is generally inadequate for providing a
reliable basis on which to establish a person’s identity. In order to comprehensively
test and evaluate a person’s claims with regard to their identity, decision-makers
should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity
assessment process. The citizenship applicant is likely to be well documented,
information provided to the Department will have remained consistent over a long
period of time, and no inconsistencies or concerns will have been identified.
Through their reliability and comprehensiveness, identity documents testify to
important events in the applicant’s life story. Through personal identifiers contained
in identity documents the applicant’s biometrics held on departmental records are
matched and confirmed.
…
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek
to establish a person’s identity from birth using an evidence-based approach. It is
not sufficient to be satisfied of a person’s identity at one point in time, as a person’s
identity is not a point in time concept; it must be verified incrementally throughout a
person’s life and considered historically.
The way in which officers should approach the concept of assessing a person’s
identity from birth is to create an identity timeline, thus creating a complete picture
of the person’s identity from birth to present. The objective is to link the applicant’s
identity at birth to the identity provided in their application for Australian citizenship
by considering key chronological events in the person’s life. The three pillars are
the methodology for establishing a person’s identity, and officers must turn their
mind to the individual characteristics in order to piece together a person’s identity
timeline and create an ‘identity picture’.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application,
officers should seek to create a complete identity ‘picture’ of the person from birth.
This is not done by asking a person to recite their life story in interview. Instead, a
practical way in which to begin an assessment of a person’s identity, while at the
same time considering their life story, is to consider their identity timeline.
…
There may be cases where one pillar may be given more weight than the others.
For example, cases where the applicant claims they are stateless and therefore
undocumented. In such cases, the available pillar (for example, life story) may
become more significant when assessing the person’s identity. There is also likely
to be a heightened need to explore further material. This may include, but is not
limited to researching credible open source country information. This research will
enable the officer to test and verify whether the applicant’s claims, relevant to
aspects of their life story, are consistent with the situation in a particular country.
Credible country information will support and add weight to a decision, and can be
cited in the decision record.
Example - undocumented arrival: potential avenues of research where one
pillar may be given more weight than the others.
A citizenship application is received from a person claiming: they are stateless,
undocumented, and are unable to provide any evidence of their identity prior to
arriving in Australia as an Illegal Maritime Arrival (IMA); they exited their country of
residence on a bogus travel document; and they previously held an identity card
issued to stateless people by the Government of the country they resided in. They
do not have the card now.
Issues
· No documentary evidence of the person’s identity from birth to arrival in
Australia
· No biometrics which can be used for comparison purposes.
Potential action
In order to test the veracity of the above claims and make an informed assessment,
it is necessary for the officer to research country information. This research will
provide an informed basis on which to assess whether the claims are factually
accurate or plausible, and align with country processes.
….
The officer must then consider, assess, and weigh the country information and
evidence provided by the applicant, ensure that natural justice requirements have
been met, and make a determination whether they are satisfied of the applicant’s
identity. The decision must show the link between the law, facts, clearly explain the
reasons they considered and the weight given to the evidence that ultimately led
them to reaching their decision.
EVIDENCE
The evidence before the Tribunal included documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), referred to as the “T documents” and additional country information. The Applicant lodged additional material as considered below.
The Applicant provided his Taskira as documentary evidence to establish his identity prior to his arrival in Australia and the following letter of support of his application:
In my capacity as community Elders and former GV Afghan Community leader for 6 years, 1 am writing to confirm that I have been knowing … for ages:
Firstly …. DOB …, of …for 2 years I work as qualified interpreter and voluntary worker in …and help new migrants with their language barrier and daily live bases, Therefor I can see ….in community gathering, Afghani Shops, Parks and Mosque very second day.
Secondly we used to live in Dahmardah Gulazar village, Jaghori distrect of Ghazni Province of Afghanistan Dahmardah is an isolated village of Jaghori district So we were born, grew up and used to live the same village our houses were not too far, so we could see each other in the village every couple of weeks in fact for the inserted above reason I have been known …for age.
During the hearing on 16 March 2023, the applicant gave the following evidence in respect of his identity:
a.He obtained his Taskira in his village when he was around 20 years old:
MS KERDO: Mr Qurbani, I am just going to show you a document. Will you be able to tell me what this document is, please? INTERPRETER: This is my national Afghan ID card.
MS KERDO: Mr Qurbani, how did you get this document? INTERPRETER: I have obtained this document in my village which is called Damurda Gulzar(?)when I was young.
MS KERDO: Mr Qurbani, how old were you when you got this, do you know? INTERPRETER: I was approximately twenty years of age when I obtained that.
MS KERDO: Thank you. Mr Qurbani, how did you get this document? At that time. INTERPRETER: At that time they were issuing national IDs for the villagers, so there was a official district, official Government which called all the villagers who didn’t have documents and then they were issued at the Government office there. I’m sorry, he said that also was the head of the village was there also.
b.He is Hazara from a sub-village called Dahmarda Gilzar, which borders the Pashtun (Taliban) area. He worked as a farmer supporting his family as his father had passed away. When the Taliban first came to power in 1997, he was forced to leave settling in Pakistan. He is married and has 4 sons and an adopted daughter.
KERDO: Okay. Thank you for that. Mr Qurbani, can you tell me - tell the tribunal about your village? INTERPRETER: This Damurda Gulzar is a like a - located in a - I’ll say like a valley. It’s surrounded mostly by the Pashtun or Taliban. Only on the northern part of my village, or basically Hazara residence. But it’s surrounded by the Pashtun speakers.
MS KERDO: Okay. And how long have your family been living in that village? INTERPRETER: All my ancestors have been living there up until I left. My father, grandfather, it goes all the way back to my ancestors living in there until they were forced to leave.
MS KERDO: And what did you farm? INTERPRETER: I was growing wheat and some alfalfa for the animals. Peas, you know, green peas, like chickpeas, corn, and legumes.
MS KERDO: Legumes, yes. INTERPRETER: Also, I have a few fruit trees, particularly almond and apricot.
MS KERDO: Okay. And did your children go to school? INTERPRETER: Yes, they did go to Mosque but not formal. Only Mosque at the village.
c.His photo appears on the Taskira
MS KERDO:Just at this page here, please. Mr Qurbani, is that your photo? INTERPRETER: Yes, definitely it’s my photo.
d. He described how he got his Taskira from Afghanistan to Australia:
MS KERDO: Okay. Thank you. Mr Qurbani, did you bring this document with you when you came to Australia? INTERPRETER: I did not have it when I came to Australia. When they asked later, I obtained that.
MS KERDO: Okay. And how did you obtain it? INTERPRETER: They sent an electronic photo of him by email or fax him.
MS KERDO: Who is they? INTERPRETER: My wife.
MS KERDO: Your wife. And where is your wife at the moment? INTERPRETER: My wife currently resides in Pakistan. MS KERDO: And when she sent this document, where was she? INTERPRETER: From Pakistan.
MS KERDO: Okay. So how did this document come from Afghanistan to Pakistan? INTERPRETER: There was a person - this was during the time of Taliban at the time. A person was travelling, a friend from - his name was Kambur, from the village to Pakistan. He brought it and gave it to my wife.
MS KERDO: Okay. And who was looking after that document before it was taken by Kambur in Afghanistan? INTERPRETER: Actually, it was Kambur who was a relative of mine, so he was the one that when he came he brought it with him.
MS KERDO: Okay. And was he looking after those documents?
INTERPRETER: Yes. It was important my ID documents to safe for it, they kept it there.

Under Cross examination the Applicant expanded on how he eventually provided the original physical document to the Respondent as part of his application for citizenship
MR CUNYNGHAME: Okay. You mentioned that an electronic photocopy of the National Identity card was sent to you, have you ever possessed the original copy whilst in Australia? INTERPRETER: Yes, I did receive the original and I submitted the Immigration Department has that now. It’s in your possession.
MR CUNYNGHAME: I understood your evidence that you received an electronic copy. What I am asking is whether or not you had the original physical copy of that document in Australia. Not a photocopy or an electronic copy, but the actual original hard copy of it whilst in Australia? INTERPRETER: Yes I did have the physical - the booklet itself, when I travelled once to Pakistan, I had brought that with me and I submitted that. It is to be with the Immigration Department. Yes, I’ve literally given the actual booklet, submitted to you.
The Tribunal heard from 2 witnesses who testified to knowing the Applicant to be who he claimed to be:
(i)one witness testified:
MS KERDO: Thank you. And where abouts where you born? INTERPRETER: I was born in Afghanistan, a village called Damurda. Actually, it’s called Damurda Gulzar.
MS KERDO: Thank you. And how long have you lived in that part of Afghanistan? INTERPRETER: I lived for a long time in my village, actually, to be exact it was from around - my birth until 1998, or 1999, when I was forced to leave the country.
MS KERDO: And how do you know the applicant? INTERPRETER: I have know him for a long time because although I lived in the next village, which is roughly about ten minutes away from his village
MS KERDO: Thank you. So did you know what Mr Qurbani did - what work he did in the village? INTERPRETER: Farming.
MS KERDO: And do you know what he used to farm? INTERPRETER: Wheat, corn and similar crops
(ii)the other witness who had only know the Applicant since his arrival in Australia stated:
MS KERDO Questions
And where were you born?---Damurda Gulzar, Gazni, Afghanistan.
Thank you. And how long have you been in Australia?---Over 22 years.
Thank you. Mr Gulzari, what is your association with Mr Qurbani?---He’s a friend and also with us from that village. So we have sort of Ethnic relationship and yes. I have known him for a while.
Okay. So do you come from the same area as Mr Qurbani?---Yes.
Okay. Did you have any - when did you meet him for the first time?---I can’t recall the exact date, just like some, seven years or over seven years now.
Okay. So does that - so you met him here in Australia?---That’s correct.
Okay. So you didn’t know him back in Afghanistan?---No. I was very young when I left, mostly I was minding the sheep and cattle and did not have much to do in the community I suppose.
MEMBER Questions:
Okay. So, how did you get to meet Mr Qurbani since he’s been in Australia?---Yes. I met him when I was just visiting some social gatherings and I came across Mr Qurbani and he said that he’s from my village and other people approved that he’s from that village and he seems to like know a lot of people in my village. That’s how I came to meet him.
So that’s your recollection of the farm and the village. And so can you just describe to me the area. Like there’s little sub-villages, it’s in a valley, so just give me a picture of where you are?---Sure. So there’s four mountains on both sides and there’s small village there and (indistinct) the street and this is in border line that goes with our Pashtun neighbours, which surrounded the area by Pashtuns. So there are four mountains on both sides, its sort of enclosed like, and we have little connection to the (indistinct) and Sang-e-Masha which is the capital of that area
COUNTRY INFORMATION
DFAT’s Country Information Report’s provide a general, rather than an exhaustive, country overview, they are prepared with regard to the current caseload for decision makers in Australia and do not contain policy guidance for decision makers. The DFAT Report Afghanistan 27 June 2019 provided the following in respect of national identity:
National Identity Cards (Taskira/ Tazkira)
The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras.
In May 2018, President Ghani announced the official launch of the electronic taskira (the e-taskira), becoming the first person to be issued with one. The new e-taskira cards contain a watermark security feature and microchip and comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. The card contains printed data in English, Dari, and Pashto, including the bearer’s full name, person identification number, place and date of birth, issuing authority, and dates of issue and expiry. The card is valid for either five or ten years and there is no lower age limit to issuance. It is unclear how many Afghans are in possession of e-taskiras, or what the timeline is for distribution.
Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.
The DFAT Report Afghanistan, August 2021 to January 2022 provided the following in respect of national identity:
IDENTIFICATION
4.1 The taskira is the primary form of identification for Afghan citizens. Taskiras act as the primary document necessary to obtain other forms of identification including passports. They are also required for employment and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property. According to the UK Home Office, from 2018 the Government of Afghanistan began to issue a new form of the paper taskira (printed in colour) as well a digital version. The new e-taskira cards were launched in May 2018 and contain a watermark security feature and microchip to comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. Earlier taskiras were printed on plain paper, either in black-and-white or colour, depending on the date of issue. Other than stamped seals, they do not include any security features. Issuing officers at district population registration offices completed paper-based taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.
4.2 It is not known what will become of either version of the taskira under the Taliban. Local sources say the Taliban has undertaken to continue issuing them, on paper only, but the level of integrity underlying the system is unclear. Furthermore, DFAT assesses it is unlikely the Taliban will be willing or able to maintain the digital e-taskira system. In September 2021, the Taliban announced it would be issuing its own taskiras and passports including the words ‘Islamic Emirate of Afghanistan’ but that it would continue to recognise taskiras and passports issued by the Islamic Republic of Afghanistan. As at December 2021, the Taliban was issuing passports using the old document format.
CONTENTIONS
Applicant
The Applicant’s representative in the beginning of this long-drawn-out process submitted that:
(a)Mr Qurbani provided to the Tribunal a completed Form 80, certified copies and NAATI accredited translations of his original Afghan identity documents that were issued when he was approximately 19 years old.
(b)Mr Qurbani did not provide these when asked by the Respondent as he did not understand what was requested. Mr Qurbani’s English is poor, and he is illiterate in his own language. He is also alone and sometimes isolated. He did not seek assistance when he received the requests from the Respondent to provide further documents. He has provided these now to the Tribunal.
The Applicant’s representative submitted the Applicant had provided, a document, his Taskira, which is authentic. The Applicant’s representative submitted that every effort had been exhausted to have the document verified. At the first instance they attempted to have the document verified by the Afghan embassy, to whom they sent the Applicant’s original documentation.
The Applicant’s representative submitted that given the situation with the Taliban takeover 18 months ago or so, it was risky to do this, but the Applicant choose to as he had been advised to verify the document, or it wouldn’t be accepted by the Respondent. The Applicant’s Representative then ran into numerous difficulties on her client’s behalf and to date have had no response from the embassy in respect of the document.
The Applicant’s representative submitted there were further issues as the original document had not been returned placing the applicant in a very difficult position. The Applicant’s representative submitted the Applicant went ahead to try to verify his Taskira as requested, at great cost as he no longer has his original document. The Applicant’s representative contented the Respondent had put the Applicant in this undesirable position by requesting that he seek to verify his Taskira.
The Applicant’s representative submitted as a consequence of this action at the behest of the Respondent the applicant has lost his original Taskira and hence he was required to be reliant on certified copies of the original documentation
The Applicant’s representative submitted that the applicant took all steps possible to establish his identity.
(iii)On 16 July 2019, Mr Qurbani presented a certified copy of his original Taskira (birth certificate) with a NAATI accredited translation to the Respondent via his lawyer’s office and invited the respondent to arrange a time to get the documents verified.
(iv)On 24 January 2020 this was also provided by email to the Tribunal.
(v)On 25 November 2020, the respondent notified that they were “…unable to have the applicant’s Taskira verified, due to delays in their verification processes (due in part to the COVID-19 pandemic)”
(vi)On 7 May 2021, the respondent notified that the organisation that the Department used to verify documents ceased verifying Taskiras and invited the applicant to “…seek to verify his Taskira through the Afghan Embassy in Canberra.”
(vii)The Afghan Embassy required the original Taskira to be sent to their Embassy in Canberra and this was done on 14 January 2022.
(viii)The Afghan Embassy did not verify the document and have not returned it despite several requests.
The Applicant’s representative contended that despite her client being illiterate and elderly, despite the passage of time, and a world pandemic, the Applicant gave cogent and consistent evidence about his life, his family history, his employment history, and his reasons for leaving Afghanistan more than 10 years after he made an application for a protection visa in early 2012.
The Applicant’s representative contended that all the evidence when taken together present strong grounds to establish the Applicant’s identity.
Respondent
The Respondent contended that the Tribunal could not be satisfied of the Applicant’s identity and therefore the delegate’s decision to refuse his application is the correct and preferable decision.
The Respondent submitted the level of satisfaction required for a decision maker to be satisfied of an Applicant’s identity has been considered in a small number of cases before the Tribunal. Whilst such cases are not of any precedential value, they provide useful guidance as to the approach likely to be adopted by the Tribunal. In particular, we note the matter of Dhayakpa & MIBP [2015] AATA 310 in which the Deputy President, the Hon R Nicholson, stated 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.”
Further, in Beyan v Minister for Immigration and Border Protection [2015] AATA 256, Senior Member Walsh stated at [38]:
“… 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 far from clear.”
The Respondent submitted that firstly, the completed Form 80 is of no probative value in establishing the Applicant’s identity prior to his arrival in Australia in 2012 and does nothing to alleviate the delegate’s concerns.
The Respondent submitted secondly; the Applicant’s Taskira had not been verified by any source including its own avenues through the Population Registration Directorate (PRD).
(ix)In any event, the respondent contends the Tribunal should place little weight on the document, given the lack of security features with earlier Taskiras, country information that indicates the prevalence of fraud and corruption in Afghanistan and the difficulty in confirming the genuineness of such documents.
(x)Since the most recent DFAT Country Report addressing this issue in detail in 2019, DFAT has published additional reports that the old system of paper Taskiras was replaced in 2018 with an “e-Taskira” system. While the efficacy of this system is questionable given the Taliban’s takeover of the country, it demonstrates that the paper Taskira provided by the Applicant can be considered to be both unreliable and now outdated
The Respondent contended it was otherwise noteworthy that the Applicant had been unable to verify his Taskira. The Respondent submitted the Applicant had confirmed that the only steps he has taken in Australia to verify his Taskira was to give it to his lawyer to assist with verification.
The Respondent submitted notwithstanding the difficulty faced by the Applicant in verifying the Taskira, which is understandable for the reasons advanced by the Applicant’s representative at the hearing, the Minister maintains the submission that the Tribunal should place little weight on the Taskira. It is unverified and DFAT country information indicates the prevalence of fraud and corruption in Afghanistan and that there is difficulty in confirming the genuineness of such documents.
The Respondent submitted this concern is exacerbated by the Applicant’s account of his possession of the Taskira in Pakistan. The Respondent submitted the Applicant’s evidence is that a “far relative” or “far distant cousin” called Kambur was entrusted by him with the Taskira to bring from Afghanistan to Pakistan and that he held the Taskira until giving it to the Applicant’s wife. The Respondent submitted the Applicant’s account was vague and lacking in plausibility. The Respondent submitted if the document was important as the applicant claimed the applicant could have kept the Taskira with him. Or his wife could have taken it with her to Pakistan.
The Respondent submitted thirdly, each of the other documents provided by the Applicant, to both the delegate and the Tribunal, were obtained after he arrived in Australia and the Applicant has not provided any other identity documents from the time of his claimed birth.
The Respondent contended the Guidelines describe a three-pillar methodology used to establish a person’s identity, being: documents; personal identifiers/biometrics; and life story.
The Respondent submitted it accepts that the Applicant has given an account of his life story at the hearing, including his family status in Afghanistan, employment history, and reasons for leaving Afghanistan and Pakistan. The Respondent submitted it accepts that the account is somewhat consistent with the account provided by the Applicant when he made his application for a Protection visa.
However, the Respondent submitted the witnesses called by the Applicant only had limited knowledge of the Applicant’s life in Afghanistan (beyond being familiar with what work the applicant did), and one witness confirmed he did not know the Applicant when he was in Afghanistan
Further, the Respondent submitted that in 2012 when applying for a Protection visa, the Applicant claimed to fear harm in returning to Pakistan. Yet, the Applicant’s evidence is that he returned to Pakistan the following year in 2013 after being granted a Protection visa, which casts doubt on the Applicant’s account of his life story.
The Respondent contented that the Applicant’s evidence falls short in addressing the concerns held by the delegate, that in the absence of any information or documentation to support the Applicant’s identity since birth, they were prohibited from granting the Applicant citizenship in circumstances where they were not satisfied of the Applicant’s identity pursuant to s 24(3) of the Act.
CONSIDERATION
The Tribunal notes the Policy indicates that assessment of the person's identity must be on an evidenced-based approach, which seeks to establish a person's identity from birth. Also, it cannot be satisfied of a person's identity at one point in time, as a person's identity is not a point in time concept but must be verified incrementally through a person's life and considered historically. When assessing a person's identity, the objective is to determine whether inconsistencies are identified with any aspect of a person's life story, biometric data and documentary information (i.e., an identity card).
Further, the Policy clearly identifies that an individual seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arriving in Australia. In this situation, the Policy articulates that an informed assessment is necessary, based on research of country of information and weighed against the evidence provided by an Applicant.
The Tribunal found the Applicant to be a credible and reliable witness who had provided a consistent life story. The Tribunal found that the Applicant had not deviated from the story he told on his arrival in Australia in 2012 until now some 11 years later, a point conceded by the Respondent.
Based on the evidence presented, the Tribunal found the Applicant had painted a complete identity ‘picture’ of himself from birth until now. The Tribunal found that the Applicant’s original statement of claim when seeking asylum on Christmas Island to his testimony at hearing was consistent and credible.
The Applicant’s statement of claim and testimony paint a picture of a difficult life, struggling to support his family whilst living in constant fear of persecution because of his ethnicity and religion. The statement of claim certifies that:
I am Shiite Muslim of Hazara ethnicity and an Afghan citizen. I have no other citizenships and I am not entitled to a citizenship nor have I right to reside in any other country.
I was born on ….1954 in …village, …. Afghanistan. I am married. My wife and children are living in Pakistan. I fled Afghanistan illegally in 1996 to live in Pakistan.
I fled Pakistan illegally to seek protection in Australia in January 2012. I travelled on a boat from Indonesia for 2 days before arriving in Australia..
The dominance of Pashtu people in that area and the uprising of the Taliban at that time had put Pashtu people in a position that they were frequently abusing Hazaras living and farming in ….
.. is surrounded by Pasthu people and Taliban militants. All road leading to our village were basically under the control of the Taliban. Harazar people consist of a small minority of the population in the area. For those reason, I fearful of losing my life. If that happened, .. would capture my land and my family would end up in absolute poverty.
My family fled .. four days after me. Our life was absolutely devastated.
We stayed illegally in Pakistan. We had a difficult life because as unlawful people, we did not have access to basic social rights.
….
I was living in constant fear. I could not risk going back to the mine because Taliban was trying to force Shiite Hazaras people out of mining jobs by conducting target killings and spreading fear. They were attacking and killing Shiite Hazaras people in other areas of Quetta and Pakistan at the same time. Ten days later, I quit my job of fourteen years of working in the mine. I had no choice but to save my life. I decided to seek protection in a safe country where I would not be living in danger of being targeted because of my ethnicity and religion, every day.

The Applicant’s testimony at hearing concurred with his original statement of claim where he testified:
KERDO: Okay. Thank you for that. Mr Qurbani, can you tell me - tell the tribunal about your village? INTERPRETER: This Damurda Gulzar is a like a - located in a - I’ll say like a valley. It’s surrounded mostly by the Pashtun or Taliban. Only on the northern part of my village, or basically Hazara residence. But it’s surrounded by the Pashtun speakers.
MS KERDO: Okay. And how long have your family been living in that village? INTERPRETER: All my ancestors have been living there up until I left. My father, grandfather, it goes all the way back to my ancestors living in there until they were forced to leave.
MEMBER: He’d already left Afghanistan and he was living in Pakistan, why did he leave Pakistan?
INTERPRETER: Actually during the time that I was forced to leave Pakistan there was a lot of suicide attacks and targeting Hazara people in Quetta particularly because of my ethnicity and religion
The Tribunal found that the Applicant was hindered in his citizenship application not because he denied being an Afghan citizen, but because he has at all times identified as an Afghan citizen and provided his original Taskira as evidence of this fact.
The Tribunal found that there had been an extraordinary amount of time taken by the Respondent in attempting to have the Applicant’s Taskira verified. The Respondent was in possession of the Applicant’s original Taskira for a lengthy period of time before the fall of Afghanistan and the re-emergence of the Taliban. The Respondent attempted, without success, to get an answer from the Afghan government about the veracity of the applicants Taskira. It was then suggested that the Applicant attempt to verify the document who like wise was unsuccessful in getting any responses from their repeated enquires. The Applicant’s representatives stated at hearing:
MS KERDO: So with respect to the original Taskira, we received it in I think 2020, but it went to the Minister. And what I’ve got here in my file notes is on 20/04/2021 we had a directions hearing and we agreed to three more months for the Minister to authenticate the Tszkira. So they had the Taskira at that stage, the original. They returned it to us in 2021 and they asked us to validate and authenticate the document, going through the Afghan embassy the way they wanted to verify and authenticate the documents, which was that I had to send the original Taskira, a copy - a certified copy of the Taszkira - and a copy of …’s driver’s licence, which I did on 13 December 2021. And then the Taliban took over, and then we didn’t - we had a few - anyway - and then we asked for the Taskira back. We never got it back. We don’t actually have the original now. It’s somewhere in the Afghan embassy. We don’t know that we’ll ever see it again.
MEMBER: Weren’t they suggesting at some stage you hand over some money to an individual to progress it?
MS KERDO: Well, we were worried about that. But it could have been that I was actually wrong about that. But we were actually contacted by one of the embassy officials by WhatsApp wanting a discussion between him and …on their own, and I was really anxious about that. That was post the fall of - - -
So it turns out that I may have got the wrong end of the stick with that one. But I was anxious because the Taliban had taken over and the Taliban haven’t been great with Hazara, so..
The Tribunal found that the Applicant had attempted every avenue available to him to verify his Taskira as an original document. The Tribunal found no evidence to support the Respondent contention that the Applicant’s Taskira was a fraudulent document or that he had failed to take all reasonable steps to procure documentary evidence of his identity prior to his arrival in Australia.
The Tribunal utilised the three pillars methodology for assessing the applicant’s identity in order to establish the veracity of his identity and to determine if it could reach the required level of satisfaction under the Act. The three pillars methodology being (1) documents (including biodata); (2) personal identifiers/biometrics and (3) life story, which can include amongst other things: any documented evidence of a person’s social footprint, family composition, ethnicity, nationality, place of residence, education, employment, marital status, travel history, social connections and financial history
The Tribunal considers that the Applicant’s primary identification documentation from his place of birth was genuine and should be accepted as proof of his identity.
Additionally, the Tribunal found the Applicant had provided a credible, detailed and consistent life story from his birth in Afghanistan, to his life in Pakistan, his arrival and life in Australia. The information was supported by consistent claims in respect of his date of birth, place of birth and family composition.
The Tribunal found on the evidence of the Applicant, his witnesses and country information, that the Applicant is an Afghan citizen. The Tribunal found there was no evidence to suggest the applicant’s Taskira, which he willing provided to the Respondent and the Afghan embassy for verification, was not an original document. On the basis of this evidence the Tribunal was satisfied of the Applicant’s identity.
The Tribunal, having considered all the evidence placed before it, is satisfied of the Applicant’s identity. As such, he should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the delegate dated 15 November 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to

section 43(1)(c)(ii) of the AAT Act, that it is satisfied of the Applicant’s identity.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

..............[sgd]..............................................
Associate
Dated:    16 June 2023
Date of hearing:  16 March 2023
Final Submission:  2 June 2023
Advocate for the Applicant:               Ms P Kerdo
Solicitors for the Applicant:                Kerdo Lawyers
Advocate for the Respondent:           Mr A Cunningham
Solicitors for the Respondent:           Sparke Helmore Lawyers

[2023] AATA 1698

16 June 2023

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