Rahimi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 2223
•7 July 2022
Rahimi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2223 (7 July 2022)
Division:GENERAL DIVISION
File Number(s): 2020/6310
Re:Khuda Bakhsh Rahimi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:07 July 2022
Place:Perth
The reviewable decision, being the decision of a delegate of the Respondent dated 21 September 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
...................[Sgd].....................................................
L M Gallagher, Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –– evidence of identity unsatisfactory – Applicant is an Afghan citizen – reviewable decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Shafai and Minister for Home Affairs [2019] AATA 808
RRML and Minister for Home Affairs [2020] AATA 1654
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (29 February 2016) – Parts 1 and 2
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – Chapter 10
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019, reissued 1 January 2022.) – CPI 16, items 11.1, 14.2
REASONS FOR DECISION
L M Gallagher, Member
07 July 2022
The Applicant seeks review of a decision made by a delegate of the Respondent on
21 September 2020[1] to refuse his application for Australian citizenship by conferral under
s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1]R1, T19, pp 187-199.
The basis of the refusal was that the delegate was not satisfied of the Applicant’s identity, applying s 24(3) of the Act.[2]
[2]R1, T2, p 15.
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
BACKGROUND
The Applicant claims to be a 39-year-old citizen of Afghanistan.[3] The Applicant arrived in Australia by boat on 22 February 2012,[4] without formal identity documentation.[5]
[3]R1, T5, p 21.
[4]A2 [15]; R1, T19, p 187; R3.
[5]R1, T5, p 22; T19, p 197.
On 19 March 2012 the Applicant participated in an entry interview,[6] in which he provided a copy of a passport[7] and a copy of a National Identity Card (NIC).[8] It appears that the passport and NIC were issued by Pakistan.[9]
[6]R1, T5.
[7]R1, T5, p 22; T20, p 200. The passport appears to have been issued on 16 October 2008.
[8]R1, T5, p 22; T20, p 203. The NIC appears to have been issued on 19 November 2001.
[9]R1, T5, p 22.
At his entry interview, the Applicant claimed that:
(a)he was born in Afghanistan in [year];[10]
(b)he was a citizen of Afghanistan;[11]
(c)he was not a citizen of any other countries;[12]
(d)he had resided in Pakistan from 1992 to 2011;[13]
(e)he had obtained a fraudulent Pakistani passport and NIC;[14] and
(f)he had travelled by plane from Karachi to Bangkok on the fraudulent Pakistani passport.[15]
[10]R1, T5 p 21. See also R1, T18, p167.
[11]R1, T5 p 21.
[12]Ibid.
[13]R1, T5, p 28.
[14]R1, T5 p 28. The Applicant also states in his SFIC and in his statutory declaration of 4 August 2020 that he 1) fraudulently obtained a Pakistani birth certificate which falsely stated that he was born in Pakistan (See R1, T20, p 206); and 2) fraudulently obtained a Pakistani NIC: A2 [9]; R1, T18 p168 [7], [8].
[15]R1, T5 p 29.
On 29 June 2012, the Applicant lodged a protection visa (subclass 866) application, which was granted on 7 September 2012 (the protection visa).[16] In this application:
(a)The Applicant made protection claims on the basis that he would be returned to Afghanistan if the visa was refused;[17]
(b)The delegate found that the Applicant was a citizen of Pakistan and assessed his claims against that country.[18]
[16]R1, T19 p 187.
[17]R2 [5]. See R1, T10 p 123.
[18]R2 [5]. See R1, T10 p 123.
On 21 December 2016, the Applicant applied for Australian citizenship by conferral under s21(1) of the Act.[19]
[19]R1, T6.
On 7 February 2019, the Department of Home Affairs (the Department) requested the Applicant provide a full birth certificate, passports, marriage certificate, Pakistan NIC and other identity documents.[20]
[20]R1, T7.
On 24 March 2019 the Applicant provided to the Department a copy of a number of additional documents, including:[21]
(a)a translated copy of a marriage certificate;[22]
(b)a translated copy of the Applicant’s Taskera,[23] purported to have been issued by the Afghanistan government on 20 June 2017;[24] and
(c)copies of three Titres De Voyage held by the Applicant and issued in 2013, 2015 and 2017, each stating his place of birth as Peshshang Jake Pashi and that he is of Afghan nationality.[25]
[21]R1, T8.
[22]R1, T8 p 69.
[23]A Taskera is an Afghan identity document issued after registration of a birth.
[24]R1, T8 p 72.
[25]R1, T8 pp 75-77.
On 6 May 2020, the Department wrote to the Applicant inviting him to comment on adverse information said to be relevant to “good character” as required under s 21(2)(h) of the Act as well as the identity prohibition under s 24(3) of the Act, namely:[26]
[26]R1, T10.
(a)Discrepancies and concerns that had been identified during the process of his citizenship application, in particular;[27]
[27]R1, T10 p 123.
Pakistani documentation
…
Your Pakistani identity documents have been referred to Pakistani authorities as part of the assessment of your citizenship application and they have confirmed that your Pakistani passport (and by association, your Pakistani national identity card) were genuinely issued documents. The Pakistani authorities have advised the Department that the passport details you provided to the Department belong to the second passport you were issued.You have never advised the Department that you possessed two Pakistani passports.
I note that from the time you arrived in Australia, you have always maintained that you are an Afghan citizen born in Afghanistan.
You are invited to comment in detail on the process you undertook to obtain a collection of genuinely issued Pakistani identity documents and why you did so, despite your claims to be an Afghan citizen born in Afghanistan.
Nationality
…
…Pakistani authorities have confirmed your Pakistani passport (and by association your Pakistani national identity card) to be genuine. This indicates that Pakistani authorities consider you to be a citizen of Pakistan.
You are invited to comment on the conflicting information surrounding your nationality.
…
Afghan documentation
During your Protection visa interview, you advised that you had no documentation that would confirm Afghanistan as your country of citizenship or country of birth. You had a copy of your father’s Taskera at the Protection interview however you stated that you personally did not have a Taskera because you had never returned to Afghanistan. You stated that you did not have any close relatives in Afghanistan who could assist you with this.
Despite the above claims, you have provided a Taskera for yourself in support of your citizenship application.
You are invited to comment on how you obtained your Taskera given your previous statements that you would be unable to do this.
…
Family composition
…
…[d]epartmental records indicate that you may have another sibling in Australia that you have failed to declare. In part, departmental records indicate that you have shared three addresses with a person by the name of Reza RAHIMI since your arrival in Australia…
…A review of Reza RAHIMI’s immigration history indicates that he has consistently declared to the Department a brother with a name almost identical to yours. It also shows that he has consistently declared his mother to be someone with a name almost identical to that of your mother.
You are invited to comment on the information outlined above and in particular, to outline your exact relationship with Reza RAHIMI.
(emphasis added).
(b)The lack of credible information or evidence to establish his identity as an Afghan citizen prior to his arrival in Australia
A DNA report by Sonic Genetics dated 3 July 2020[28] concluded that the Applicant and Mr Reza Rahimi are unlikely to share a full sibling or a half-sibling relationship.
[28]R1, T15. The Applicant provided the report to the Department on 3 July 2020. The cover email to the report states “Mr Rahimi is the Applicant’s wife’s brother-in-law, so he is not biologically related to the Applicant.”
On 14 August 2020, the Applicant provided the following additional documents in response to the Department’s request dated 6 May 2020:[29]
[29]R1, T17 and T18.
(a)copies of the Afghan Taskera and passports of the Applicant’s wife and children;[30]
(b)the Applicant’s written submission addressing the invitation to comment;[31]
(c)the Applicant’s statutory declaration, declared on 4 August 2020;[32]
(d)a family questionnaire in which the Applicant endeavoured to provide details of his extended family;[33]
(e)a character reference from Conor James Twohig declared on 30 July 2020;[34]
(f)character references from Sayeed Arif Hasheemi:
(i)dated 17 May 2020;[35] and
(ii)declared on 7 August 2020.[36]
[30]R1, T17 pp 144-153.
[31]R1, T18 pp 156-166.
[32]R1, T18 pp 167-173
[33]R1, T18 pp 174-179.
[34]R1, T18 pp 180-181.
[35]R1, T18 p 182.
[36]R1, T18 p 183-184.
On 21 September 2020, a delegate of the Respondent made the Reviewable Decision.[37]
[37]R1, T19.
On 12 October 2020, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[38]
[38]R1, T2.
In his application for review, the Applicant claimed the Reviewable Decision was wrong because he considered that, based on the information before it, the Department should have been satisfied at to the Applicant’s identity.[39]
[39]R1, T2 p 10.
LEGISLATION AND POLICY FRAMEWORK
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian Citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’
Further, s 24 of the Act provides:
(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).
Accordingly, under s 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, that being the requirement of
s 21(2)(h) of the Act (see [20] above).
Section 24(3) of the Act relevantly provides that:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
‘Identity’ is not defined in the Act; however, it is addressed in the Australian Citizenship Procedural Instructions (CPIs).[40] The CPIs provide guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, will generally apply policy such as that contained the Policy unless there are cogent reasons not to do so.[41]
[40]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth); the relevant CPI was reissued on 01 January 2022.
[41]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640 (Brennan J).
The Australian Citizenship Policy (the Policy) relevantly provides the following guidance.[42] The Policy states, at Chapter 13:
The identity provisions prohibit the approval of a citizenship application in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence if they are not satisfied of the person’s identity.
[42]As to the status of the Policy, see RRML and Minister for Home Affairs [2020] AATA 1654 [105].
The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines).[43] The Guidelines provide:
2.1.1A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
2.1.2 A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual-such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
[43]Attorney General’s Department, National Identity Proofing Guidelines (29 February 2016).
The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives. Those objectives are in part 1:
1. To confirm the uniqueness of the identity in the intended context to ensure that
individuals can be distinguished from one another.
2. To confirm the claimed identity is legitimate to ensure the identity has not been
fraudulently created through evidence of commencement of identity in
Australia.
3. Confirm the operation of the identity in the community over time to provide
additional confidence that an identity is legitimate in that it is being used in the
community.
4. Confirm the linkage between the identity and the person claiming the identity
to provide confidence that the identity confirmed through objectives 2 and 3 is
not only legitimate, but that the person claiming the identity is its legitimate
holder.
5. Confirm the identity is not known to be used fraudulently to provide additional
confidence that a fraudulent (either fictitious or stolen) identity is not being
used.
The Revised Citizenship Procedural Instruction[44] No 16 – Assessing Identity under the Citizenship Act (CPI 16) provides that:
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.
[44]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 explained in relation to s 24(3):
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.
The three pillars of identity
CPI 16 provides further guidance at [4.4]:
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
Table 3 – The three pillars of identity
Three pillars of identity
Individual characteristics
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.
Documents
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.Documents contain biodata, or personal information,
such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.Life story
A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events.
A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.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.
Case law on the identity requirement
As to the level of satisfaction required for a decision maker to be satisfied as to identity for the purposes of s42(3) of the Act, the Tribunal is guided by the authorities considered by Deputy President Boyle in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 (Sakhi Zada):
Identity
[36] Senior Member CR Walsh in Beyan at [38] noted:
…As submitted by 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 far from clear.
(see also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[45] (Al-Hussaini) at [30]-[31])
[45][2020] AATA 1267.
[37]In Confidential and Minister for Immigration and Citizenship[46] (Confidential) the Tribunal found:
[46][2013] AATA 144.
[34]I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.
[38]Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection[47] (Dhayakpa), commenting on Confidential, observed:
[47][2015] AATA 310.
[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.[118]I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
[39]The approach taken in Dhayakpa has been followed by Tribunals in a number of cases (see YMPL and Minister for Immigration and Border Protection[48]; [sic] Al Temimi and Minister for Immigration and Border Protection[49]).
[48][2017] AATA 1458.
[49][2014] AATA 97.
[40]In Sinnathamby and Minister for Immigration and Border Protection[50]
[50][2018] AATA 2579.
the Tribunal accepted that the applicant had lost his identity documents in the capsizing of a boat en route to Australia, but found that the inconsistencies in his other evidence and the bogus nature of some documentation provided in support of the citizenship application gave rise to a conclusion that he was not a person of good character.
[41]The Tribunal also notes the comments of Senior Member Puplick in
Al-Hussaini:[51]
[51][2020] AATA 1267.
[41]In Nguyen I came to a conclusion, affirming a denial of citizenship, in the following terms:
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[42] Similarly, in Fang, I said, in relation to the use of false documents:
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.
[42]Based on the evidence that has been presented, can the Tribunal be satisfied of the identity of the Applicant? If it cannot, the prohibition on the approval of the person becoming an Australia citizen under s 24(3) of the Act will apply and the decision under review must be affirmed.
(Original emphasis.)
ISSUE
The issue for review by the Tribunal is whether the Tribunal is satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Act.
EVIDENCE
The matter was heard in Perth on 25 November 2021. The Applicant was represented by Ms Claire Faulkner of Estrin Saul Lawyers. The Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. Both appeared in person.
The Tribunal received the following evidence:
(a)Applicant's Bundle of Documents filed on 2 July 2021 (A1);
(b)Applicant's Statement of Facts and Contentions dated 31 August 2021 (A2);
(c)Applicant's Second Bundle of Documents filed on 31 August 2021 (A3);
(d)Applicant’s translated documents filed on 25 November 2021, being;
(i)“A” – Copy of Afghan marriage registration certificate translated on 24 November 2020; and
(ii)“B” – Copy of Applicant’s father’s Taskera translated on 13 March 2019[52],
(together, A4).
(e)The T documents (228 pages) (T1-T22) filed on 3 November 2021 (R1); and
(f)Respondent's Statement of Facts, Issues and Contentions (SFIC) dated 27 September 2021 (R2); and
(g)Movement records from Department of Home Affairs dated 24 November 2021 (R3).
[52]Duplicated at R1, T8, p73.
The Tribunal heard oral evidence from the Applicant with the assistance of Mr Ali Reza Sadiqi, Hazaragi interpreter. The Applicant’s written statements consist of:
(a)the Applicant’s entry interview dated 19 March 2012;[53]
(b)the Applicant’s written submission dated 14 August 2020;[54]
(c)the Applicant’s statutory declaration, declared on 4 August 2020;[55] and
(d)a questionnaire in table form regarding the Applicant’s extended family.[56]
[53]R1, T5.
[54]R1, T18 pp 156-166.
[55]R1, T18 pp 167-173.
[56]R1, T18 pp 174-179.
The Applicant called the following witnesses who also provided documentary evidence:
(a)Mrs Bakhatawar Rahimi, the Applicant’s wife (by telephone) – (A3, document B1)
(b)Mr Zahir Mohsini, the Applicant’s friend (in person) – (A1, document A5)
(c)Mr Liaqat Hussein Rezaee, the Applicant’s friend (in person) – (A1, document A3)
(d)Mr Ghulam Hazrat Ahmadzada, the Applicant’s friend (in person) – (A1, document A4).
The Tribunal has also taken into account the letters of support and statutory declarations of the Applicant’s past employer and friends, community representatives and village elders[57] previously provided, including:
(a)a character reference from Conor James Twohig declared on 30 July 2020;[58]
(b)character references from Sayeed Arif Hasheemi dated 17 May 2020[59] and 7 August 2020.[60]
[57]A3, document B2.
[58]R1, T18 pp 180-181.
[59]R1, T18, p 182.
[60]R1, T18, p 183-184.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Applicant’s evidence
The Applicant gave the following relevant evidence, including at hearing and during cross-examination by Ms Jones-Bolla:
Background
(a)He was born in the village of Jaka Pashi, in the Malistan District of the Ghazni Province of Afghanistan.[61]
[61]R1, T18, p 167. Transcript p 15 [30]-[40]. The Applicant gave a lengthy description of the physical and geographical features, landmarks (including his family home, the market, the mosque and the local school), landscape, climate, population and location of Jaka Pashi (Transcript pp 15-19, 21, 24, 25-30).
(b)His wife and her family are from the same village as he is and their families knew each other from when they were children.[62]
[62]Transcript p 19 [40]-[45]; p20 [5]-[10]. See also R1, T18 p 168.
(c)He also knew Mr Rezaee from Jaka Pashi, and Mr Ahmadzada from Qandi[63], and their families, from when he was quite young.[64]
[63]Qandi is also in the Malistan district.
[64]Transcript, pp 20-21, 24-25.
(d)While he does not recall Mr Mohsini and his family being from Jaka Pashi[65], he recalls Mr Mohsini visiting him at his home when he was living in Pakistan.[66]
[65]The Tribunal notes Mr Mohsini claims to have been born and raised in Jaka Pashi (A1, document A5 [1],[2]).
[66]Transcript p 21 [25]-[30].
(e)He left Jaka Pashi when he was 10 or 11 years old.[67]
[67]Transcript p 32 [40]-[45].
(f)He does not recall much of his journey from Afghanistan to Pakistan.[68] He does, however, recall that he was in a large truck with his parents, his family and other families.[69] He said that his family rented a house once they arrived, a long time later his father managed to get a small shop and he would help him in the shop.[70]
[68]Transcript p 30 [40].
[69]Transcript p 30 [45] to p31 [5]-[25].
[70]Transcript p 31 [30]-[35]. See also R1, T5, p23 and T18, p167
(g)He said he did not go to school in Pakistan.[71]
[71]Transcript p 31 [35]-[40].
(h)He said that there was a small community from Jaka Pashi in Quetta when he first arrived there, and this community grew over time.[72]
[72]Transcript p 31 [40]-[45 to p31 [5]-[10].
Identity documents
(a)His Taskera issued in Afghanistan on 20 June 2017[73] was obtained by his wife.[74] He was not present when the Taskera was issued.[75] His wife travelled to Afghanistan, with a copy of his father’s Taskera.[76] He understands his wife showed his father’s Taskera to the authorities in order to obtain his own Taskera. His wife travelled with his uncle and other elders as witnesses.[77] He has not met these elders nor does he know their names.[78]
[73]R1, T8p 72.
[74]Transcript, p 33 [35]-[40]. See also R1, T18 p 170.
[75]Transcript, p 33 [40].
[76]R1, T8 p73. Transcript, p 34 [10].
[77]Transcript p 33 [5]-[20].
[78]Transcript p 34 [20]-[30].
(b)As to his Taskera issued in Afghanistan in December 2020,[79] he obtained this himself by sending a copy of his father’s Taskera to “the Pakistanis.”[80]
[79]A1, document A2.
[80]Transcript, p 36 [5].
(c)He accepts there are differences between the two Taskeras, which he puts down to their having been translated and also the way the information is processed:[81]
[81]Transcript, pp 36-39.
(i) the descriptions of his physical features;
(ii) his father’s name – [different spellings];
(iii) his place of birth – Jaka Pashi/Ghazni;
(iv) his occupation – labourer/worker;
(v) his family members – four persons/blank;
(vi) his native language – Dari/blank.
(d)He accepts that the Taskeras for his children contain incorrect information, including the place of birth for each of his three daughters[82] along with his eldest daughter’s date of birth on her passport.[83] He attributes these errors to the lack of accuracy of the officers responsible for recording this information.[84]
[82]Translated Taskeras located at R1, T17, pp145-147 and transcript, pp38-39. The Applicant’s fourth daughter was born in 2019 (transcript, p33 [15]). See also R1, T18, p171. The Applicant claims that his four daughters were born in Quetta (A2 [11],[12], [14] and [29]).
[83]R1, T17 p 50. Transcript, p 39 [25]-[40].
[84]Transcript p 39
(e)When he resided in Pakistan, he held himself out to be a person born in Pakistan, but this was to avoid harassment from police who would beat him and seek bribes if he was unable to produce documentation when asked.[85]
[85]Transcript p 39 [45] to p 40. See also R1, T18 p 167.
(f)The Pakistani passport he obtained in 2008 lists his nationality as Pakistani and his place of birth as Quetta.[86] This passport is the second passport that was issued to him in Pakistan, after he lost the first passport.[87]
[86]Transcript p 40 [20]-[30]. See R1, T20 p 200.
[87]Transcript p 40 [35]-[40]. See also R1, T18 p169.
(g)As to his NIC from Pakistan,[88] which he has prior to obtaining his Pakistani passport, he obtained this document so that he could pass freely in Pakistan.[89] He obtained the Pakistani passport in addition to the NIC because he believed he would be given a “hard time” when he travelled if he only had the NIC.[90]
(h)He used the Pakistani passport to travel:
(i)to Iran, and to obtain a visa for that travel.[91]
(ii)to the authorities in Karachi and in Bangkok for his travel to Australia in 2011, in both instances his passport was stamped and he boarded his flight with “no trouble.”[92]
(i)He accepts that:
(i)in doing so, he held himself out to be a person born in Pakistan and a citizen of Pakistan to the authorities in Iran[93] and in Bangkok;[94] and
(ii)he now says that he was born in Afghanistan and is a citizen of Afghanistan.[95]
[88]R1, T20 pp 203-204.
[89]Transcript p 41 [20].
[90]Transcript p 41 [25]. See also R1, T18, pp167-168.
[91]Transcript p 41 [30]-[40].
[92]Transcript p 42.
[93]Transcript p 41 [45].
[94]Transcript p 42 [45] and p43 [5].
[95]Transcript p 43 [10]-[15].
Applicant’s wife’s evidence
The Applicant’s wife gave evidence that she was born in Jaka Pashi[96] and lived there in the Ghundi sub-village until she was 17 years old.[97]
[96]Transcript p 52 [15]-[20]; A3, document B1 [1].
[97]Transcript p 53 [5]. The Applicant’s wife proceeded to describe the physical and geographical features, housing (including the Applicant’s house), market, mosque and climate of Jaka Pashi (Transcript, pp 53-55; 58
The Applicant’s wife knew her husband and his family from when she lived in Jaka Pashi as a child (where she states her husband was also born)[98] and again in Quetta where they married in about 2003.[99]
[98]A3, document B1 [4].
[99]Transcript p 54 and p 58 [15]-[20]. See also A2 [10] and A3, document B1 [3].
In relation to her having obtained the Applicant’s Taskera in 2017, the Applicant’s wife said she did this without the Applicant being present.[100] The Applicant’s wife said that the two people from her village she took with her as witnesses knew the Applicant from the village, although they had not met him as such and could not recall one of the person’s names.[101] The Applicant’s wife said that she was issued the Applicant’s Taskera on the basis of her having provided the Applicant’s father’s Taskera for sighting.[102]
[100]Transcript p 57 [25].
[101]Transcript p 57 [30]-[45] and p58 [5]. See also A3, document B1 [5]-[7].
[102]Transcript p 58 [5].
Mr Mohsini’s evidence
Mr Mohsini gave evidence that he was born in Jaka Pashi, on [date].[103]
[103]Transcript p 62 [5] –[15] and p66 [25]. See also A1, document A5 [1]-[2].
Mr Mohsini stated that he knows the Applicant because they are from the same village,[104] and his extended family knew his family,[105] although the first they time they met in person was when they were introduced in Quetta, Pakistan in around 2009.[106]
[104]Transcript p 62 [25]
[105]Transcript p 62 [45]. See also A1, document A5 [3].
[106]Transcript p 62 [30] and p 63 [25]-[40]. A1, document A5 [4].
Mr Mohsini stated he can confirm with complete certainty that the Applicant is from Jaka Pashi.[107]
[107]A1, document A5 [2].
Mr Rezaee’s evidence
Mr Rezaee gave evidence that he was born in Jaka Pashi on [date][108] and lived there until 2007 or 2008, when he moved to Quetta, Pakistan.[109]
[108]Transcript p 68 [5]. See also A1, document A3 [1]-[2].
[109]Transcript p 68 [10]-[15]. See also A1, document A5 [2], [4].
Mr Rezaee stated that he first met the Applicant in Quetta[110] in 2008[111], adding that he knew of (but had not met) the Applicant’s family and knew of the Applicant’s home in Jaka Pashi.[112]
[110]Transcript p 68 [25] and p 69 [40].
[111]Transcript p 70 [15].
[112]Transcript p 68 [25]-[45]. See also A1, document A5 [3].
Mr Rezaee states that his community members recognise the Applicant has coming from Jaka Pashi.[113]
[113]A1, document A5 [5].
Mr Ahmadzada’s evidence
Mr Ahmadzada gave evidence that he was born in Jaka Pashi in about 1976.[114]
[114]Transcript p 72 [5]-[15]. See also A1, document A4 [1].
Mr Ahmadzada said that he recalled seeing the Applicant during his childhood[115] when he would pass by his house in Jaka Pashi and they would sometimes play.[116] Mr Ahmadzada said that the Applicant’s parents and his parents knew each other, lived close by and the families would visit each other.[117]
[115]See A1, document A4 [2].
[116]Transcript p 72 [25]-[35]. See also A1, document A4 [3].
[117]Transcript p 73 [5]-[15].
Mr Ahmadzada said that he knows the Applicant was born in and is from Jaka Pashi[118], that he knows him very well[119] and when shown the Applicant’s Pakistani passport,[120] disagreed with the proposition that the Applicant was born in Quetta.[121]
[118]Transcript p 75 [5]. See also See A1, document A4 [5].
[119]Transcript p 74 [5], [30]-[35].
[120]R1, T20, p200,
[121]Transcript p 74 [45].
CONSIDERATION
The issue for review by the Tribunal is whether the Tribunal is satisfied, at the time of its decision,[122] as to the Applicant’s identity for the purposes of s 24(3) of the Act.
For the Tribunal to be so satisfied, it would need to reach an affirmative belief as to the Applicant’s identity, rather than apply an evidentiary burden of proof, such as on the balance of probabilities.[123] If it cannot, the prohibition on the Applicant becoming an Australian citizen under s 24(3) of the Act will apply and the Reviewable Decision must be affirmed.
[122]See VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.
[123]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54].
The Applicant contended that the Tribunal should be satisfied as to the Applicant’s identity.[124] The Applicant distinguished his circumstances from cases where an Applicant relies upon a bogus document and relies on it on the basis it is genuine.[125]
[124]Transcript p 8 [35]; p 78 [15]-[20].
[125]Transcript p 8 [40].
The Applicant contended that he had always maintained that he was born in Jaka Pashi and is a citizen of Afghanistan.[126] The Applicant contended that his Pakistan identity documents (which were not genuine)[127] were obtained in plausible circumstances[128] where he was being beaten, harassed and extorted and hence no adverse inference should be drawn[129] nor should these documents serve as a barrier to being satisfied as to his identity.[130]
[126]Transcript p 8 [45]; A2 [60], [62], [63].
[127]The Applicant submitted that given he does not originate from a country which issues identity documentation issued on the basis of ‘robust identity proofing processes’ (see table 3 at [30] above) he is unable to satisfy the document pillar of identity assessment (A2 [56]).
[128]A2 [63].
[129]In relation to the Applicant’s circumstances of having obtained a travelled on a bogus Pakistani passport, the Applicant relies on the case of Sakhi Zada where the Tribunal concluded that this was more of an indication of the unfortunate state of things in Pakistan that of a preparedness of a person to then make claims to avoid harm, now asserting them to be false, in order to get what he wants. The Applicant submits that he should be viewed in the same manner (Transcript p 79 [45] and p 80 [5]).
[130]Transcript, pp9-10, p79 [35-40].
The Applicant stressed that there is no requirement for the Applicant to produce documentation to evidence identity in order for the Tribunal to be satisfied of such.[131] The Applicant also emphasised that he had not relied on these bogus documents as evidence of his nationality or citizenship or otherwise rely on them once he reached a safe country.[132]
[131]The Applicant relies on the case of Dhayakpa v Minister for Border Protection [2015] AATA 310 (see A2 [58]), which is discussed further at [31].
[132]Transcript, p80 [5]-[10].
The Applicant contended that the fact there are no documents linking the Applicant’s birth to Afghanistan and there are large gaps in time where there are no documents establishing the Applicant’s identity is a problem that infects all Afghan and Pakistani documentation and therefore seeks to rely on the biometric data and the “life story pillar” in the Applicant’s case.[133]
[133]Transcript p 11; p 78 [35]-[45] and p 79 [5]. See also A2 [59], [61], [63].
Further, the Applicant submitted that the Tribunal ought to attach more weight to the “life story” pillar in circumstances where Afghanistan is not an undisturbed country, or a country with established and reliable government systems.[134] Further still, the Applicant asked the Tribunal to accept that given that documentation is not essential to be satisfied as to his identity, the fact that there are no documents linking back to the Applicant’s birth can essentially be remedied by relying on the “life story” pillar.[135]
[134]Transcript p 79 [15]-[20]. The Applicant relies on provisions in the CPI which states there may be cases where one pillar may be given more weight than others and gives the example of where the Applicant claims they are stateless and therefore undocumented (A2 [57]). However, the Tribunal notes this paragraph of the CPIs goes on to state that in these circumstances, there is also likely to be a heightened need to explore further material in order 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 (CPI 16 [4.15] (R1, T22, [224]. Further, the Tribunal notes that in any event, the Applicant cannot be said to be ‘stateless’ in circumstances where he has submitted documents issued by Australia, Afghanistan and Pakistan.
[135]Transcript p 80 [45]. The Respondent’s criticisms of this approach (given two of the four of the Applicant’s witnesses met him after he left Afghanistan) are addressed at [67]-[68].
In this context, the Applicant highlighted to the Tribunal that, however, the Tribunal should nevertheless be satisfied as to his identity.
The Respondent contended that the Tribunal cannot be satisfied of the Applicant’s identity because of the conflicting evidence in respect of the Applicant’s place of birth and his country of citizenship.[136] The Respondent recognised that the Applicant accepts the documentary evidence is insufficient to establish his identity.[137] The Respondent submitted that the Applicant’s life story should be given limited weight given the significant inconsistencies between this story[138] and the available documents.[139]
[136]Transcript p 12 [5] and p 82 [35].
[137]Transcript p 12 [10]. This stands in contrast to the significant weight that the Applicant contends the “life story” pillar should be given (transcript, p82 [10]). See also R2 [28].
[138]The Applicant contends that the Reviewable Decision “does not reveal any solid basis for doubting the Applicant’s account of his life story” (A2 [64]).
[139]Transcript p 12 [10]-[15].
Further, the Respondent submitted that even if the Tribunal was to give any weight to the documentary evidence and life story pillars of identity (which is not conceded), the Tribunal is left with a significant gap in time between the Applicant’s claimed date of birth and the earliest available document.[140]
[140]Transcript p 12 [20]-[25]; R2 [32], citing Re Shafai and Minister for Home Affairs [2019] AATA 808 [41]).
The Respondent noted that the earliest available document, other than the Pakistani documents which the Applicant claims are fraudulent, is the Titre de Voyage document issued on 21 May 2013, by Australia, when the Applicant was approximately 30 years old. The Respondent also noted that that this document, or any other Australian identification document is not, of itself a ‘feeder document’,[141] with an unbroken chain linking to a primary official identity document unlike, for example, a driver’s licence issued to a person who had provided a legitimate birth certificate.[142] The Respondent contended that therefore, in circumstances where there is no substantial ‘feeder’ document to ‘historically’ contextualise the Applicant’s identity in Australia, minimal if any weight should be given to the Applicant’s Australian identity documents.[143]
[141]See CPI 16, [4.14].
[142]R2 [32], citing Re Shafai and Minister for Home Affairs [2019] AATA 808 [41].
[143]R2 [32].
The Respondent submitted that the Taskeras issued to the Applicant in 2017 and 2020 and those issued to his children in 2017, along with the passport issued to him by Afghanistan on 25 March 2021, should be given limited weight, on the basis that:[144]
[144]Transcript, p82 [40]-[45] and p83 [5]-[10]. See R2 [33].
(a)the earliest available Taskera was issued to the Applicant in 2017, five years after his arrival in Australia and 34 years after the Applicant’s claimed date of birth.
(b)the Applicant was not present when the Taskera was issued.
(c)the Afghan authorities relied upon:
(i)the Applicant’s father’s Taskera, which does not identify the Applicant as his father’s son or in any way; and
(ii)reporting from people the Applicant said he had never met and who are unnamed.
(d)Country information indicates fraud is major issue in Afghanistan and is particularly problematic in the case of Taskeras, where the information is often incomplete.[145] This can be seen in the two Taskeras issued to the Applicant,[146] as well as the Taskeras issued to the Applicant’s children.[147]
(e)The passport issued to the Applicant on 25 March 2021 by Afghanistan was issued 38 years after the Applicant’s claimed date of birth and in circumstances where he also has passports issued by Pakistan, which have been found to be genuine.[148]
[145]See DFAT Country Information extracted at R2 [33(e)]). The Applicant’s contention regarding the available country information is however, that it indicates that the Applicant would have been unable to obtain Pakistani citizenship after having been born in Afghanistan (A2 [63]).
[146]R2 [33].
[147]R2 [33] and [34]. The Taskeras issued to the Applicant’s children list the Applicant as the father, however they were issued on 19 July 2017 (five years after the Applicant’s arrival in Australia and 34 years after his birth) and were based on the Applicant’s Taskera.
[148]R2 [35].
As to the Pakistani documents,[149] the Respondent contended that there is no evidence to corroborate the Applicant’s claims that those documents are fraudulent.[150] The Respondent contended that rather, the available evidence is to the contrary and indicates that the authorities in Pakistan have confirmed that the Applicant’s Pakistani passport was genuinely issued.[151] The Respondent emphasised that:
(a)the Applicant presented this passport when travelling to authorities in Pakistan, Iran and Bangkok;
(b)that he obtained a visa for travel to Iran based on that passport; and
(c)that he has held himself out to be a person born in Pakistan with Pakistan citizenship from around 2001 to 2012 (when he arrived in Australia), which is a significant period of time.[152] The Respondent also noted in this context that the Applicant was issued with not one but two Pakistani passports.[153]
[149]At R1, T20 (see also para [68(a)] below); Transcript p 83 [15]-[20] and p 89 [20]-[25].
[150]R2 [29], [37].
[151]R2 [30].
[152]Transcript, p 89 [30]; R2 [36].
[153]R2 [29].
Further, the Respondent contended that the Applicant’s claims that the Pakistani documents are fraudulent do not assist him, because this claim is evidence that he is willing to obtain fraudulent documents to support a false identity.[154] The Respondent contended that this in turn casts significant doubt over the documents that he now relies upon to support his current claimed identity.[155]
[154]See also R2 [36].
[155]R2 [31].
The Respondent contended that the Applicant’s evidence as to his life story should be given limited weight in circumstances where he has held himself out to authorities to be a person born in Pakistan, and a citizen of Pakistan for a significant period of time, despite now claiming that was false.[156]
[156]Transcript, p 84 [5]; R2 [36], [38].
The Respondent also contended that even if the Tribunal were to give weight to the Applicant’s claims regarding his life in Afghanistan,[157] then that evidence - which at its highest, is that the Applicant knows the Jaka Pashi area and that he might have lived there – does not resolve that conflict of him being born in Afghanistan, or being a citizen of Afghanistan.[158]
[157]This was not conceded by the Respondent: Transcript, p 84 [10].
[158]Transcript, p 84 [10]-[15].
As to the witnesses’ evidence, the Respondent submitted that no weight should be placed on the evidence from Mr Rezaee and Mr Mohsini, because:
(a)both were born in [year] (after the Applicant left Afghanistan);
(b)neither of them knew the Applicant in Afghanistan; and
(c)the first time they met him in Quetta[159] was a significant time after the Applicant’s claimed date of birth.[160]
The Respondent says that again, their evidence does not resolve the conflict surrounding the Applicant’s place of birth and country of citizenship.[161]
[159]In 2008 or 2009.
[160]Transcript, p 84 [20].
[161]Transcript, p 84 [25]-[30]; R3 [40].
As to the letter from the village elders,[162] the Respondent contends this letter does not outweigh the inconsistencies it has raised in respect of the Applicant’s identity.[163]
[162]A3, document B2.
[163]R2 [41].
The Respondent submitted that Mr Ahmadzada’s evidence at its highest, attests to the Applicant living in Jaka Pashi; again, this does not assist the Tribunal to resolve this conflict between the Applicant’s claimed date of birth and his claimed country of citizenship.[164]
[164]Transcript p 84 [30].
Finally, the Respondent submitted that given the significant gap in the documents, the Applicant’s claimed identity cannot be linked from birth.[165]
[165]Transcript p 84 [35].
As set out above, when assessing a person’s identity, the Department relies on the three pillars of identity, being biometrics, documents and life story.[166]
[166]See [30] above.
Biometrics
For completeness, the Applicant’s biometrics were previously found to be consistent[167] and there has been no suggestion or argument put forward to the contrary by either party, or any evidence of any deviation from that in the present matter.
[167]R1, T19 p 194.
Documents
The Applicant has provided the following documents in support of his claims as to his identity:
(a)In respect of his protection visa application dated 29 June 2012 – The NIC, the passport issued in Pakistan in 2008 and the document labelled “birth certificate.”[168]
(b)In respect of his application for citizenship by conferral dated 21 December 2016 – three Titre de Voyages[169], his marriage certificate issued in Pakistan,[170] the Taskeras issued in Afghanistan in 2017 and 2020, the passport issued to him by Afghanistan on 25 March 2021,[171] the Taskeras issued to the Applicant’s family[172] and a number of documents issued in Australia.[173]
[168]This document is untranslated (R1 T20 p 206).
[169]See [10(c)] above.
[170]See [10(a)] above.
[171]A1; document A1.
[172]R1, T17, pp 144-148.
[173]The documents (other than the documents issued in Australia) indicate the Applicant is either a person born in Pakistan and is a citizen of Pakistan or a person born in Afghanistan and is a citizen of Afghanistan. Having considered the available evidence, the Tribunal is of the opinion that there is no documentary evidence to corroborate the Applicant’s claim that his Pakistani passport is not genuine[174] or to link to the Applicant’s claims regarding having been born and raised in Afghanistan. Further, the Applicant’s claim that the Pakistan passport and NIC were fraudulently obtained came after a time he used to those documents to travel and hence held himself out to be a citizen of Pakistan until he reached Australia in 2010.
[174]Rather, the passport office in Islamabad has verified it as being genuine. See R2, Annexure A.
Further, while it is the case that the Applicant advised the Department how he obtained both of his Taskeras, this information was not provided at the time the Taskeras were put forward by him following the Department’s request for additional evidence of identity in support of his application for citizenship by conferral.
The documents issued in Australia were produced on the basis of what the Applicant told Australian authorities. Limited weight can be placed on these documents because[175]:
(a)they were issued well after the Applicant’s arrival in Australia, they are not ‘feeder documents’ linking back to the Applicant’s birth (or any other earlier point in time) and hence they provide little insight into his identity; and
(b)they are simply evidence of who the Applicant says he is, not of who he is.
[175]See Sakhi Zada at [48] and Abdi H A and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Abdi) [2022] AATA 85 [33].
In terms of documents, the evidence regarding the processes the Applicant and his wife used to obtain the Afghan documents themselves raise questions regarding the integrity of these documents. This stands alongside the Pakistan passport which Pakistani authorities have verified as genuine and which the Applicant relied upon to travel.
In these circumstances, it is very difficult for the Tribunal to be positively satisfied as to the Applicant’s identity on the basis of his identity documents.
Whether this difficulty can be remedied by the “life story” pillar (as the Applicant submitted it can, along with the “biometrics” pillar) will depend on the Tribunal findings regarding the story that was told.
Life story
The Applicant invites the Tribunal to rely, almost entirely, on the life story pillar, because the Applicant recognises that that there are issues with his identity documents.[176] Given the internal inconsistencies in the documents[177] that have not been resolved by any other documents evidencing linkage to birth and closing gaps in lengthy periods of time the Tribunal is left with the accounts given by the Applicant and other witnesses of the Applicant’s life story.
[176]The Applicant is also of the view that the Pakistani documents cannot be relied upon: See Transcript, p86 [10]).
[177]See above paras [73]–[78].
The Applicant says the Tribunal can and should rely on these witness accounts,[178] documentary evidence not being required[179] and the Respondent says the Tribunal cannot, as those accounts are inconsistent, in some cases given by persons who had not met the Applicant in Afghanistan and are therefore problematic in any event.
[178]In this context, the Tribunal acknowledges the letter from the village elders (A3, document B2). This letter is unsigned and the evidence within it is untested.
[179]The Applicant relies on the Dhayakpa decision in this regard.
The Tribunal has considered the various accounts given by the Applicant and his witnesses as to his life story. The Tribunal notes that at various points in time names have been written or translated with slightly different spellings and there have been variations in date of birth. The Tribunal accepts there are naming and birth conventions outside of Western culture and the Tribunal is not significantly troubled or impeded by these.
Rather, what does trouble the Tribunal is that the Applicant’s life story includes his having held himself out to authorities to be a person born in Pakistan and a citizen of Pakistan for a lengthy period of time and then claiming that was false in circumstances where the Tribunal has no reason or evidence to believe his Pakistan documents are not genuine. That is, the Applicant’s life story does not bring the Tribunal any closer to resolving the conflicting evidence of the Applicant either a person born in, and a citizen of Pakistan or born in, and a citizen of, Afghanistan.
At hearing, the Tribunal entered into the following exchange:
MEMBER:…the document we have[180] has been recognised as being genuinely issued at three different points of travel."
MS JONES‑BOLLA: And that's inconsistent with the applicant's claims. If I turn, now, to that life story. The applicant has given evidence today in respect of his life in Afghanistan. However, as set out in SFICs, we say that limited weight should be placed on that. This is in circumstances where he has, as I've mentioned, held himself out to be a person born in Pakistan, and a citizen of Pakistan, for a significant period of time, despite now claiming that that was actually false. He, as I've mentioned, has held himself out to be such a person to authorities in Pakistan, Iran and Bangkok. Again, which he now claims to be false.
Even if the [T]ribunal was to give weight to the applicant's claims of his life in Afghanistan which is not conceded by the Minister, then that evidence goes as high as to evidence that he knows the area, he might have lived there. It does not resolve that conflict of him being born in Afghanistan, or being a citizen of Afghanistan, and that flows onto the witnesses' evidence.
(emphasis added).
[180]Here referring to the Applicant’s Pakistan passport issued in 2008.
In the present circumstances, the Applicant’s life story comes with a degree of uncertainty that again makes it difficult for the Tribunal to be positively satisfied as to his identity. This uncertainty is not relieved any by the accounts given by the witnesses and elders who provides statements and/or gave evidence at hearing as, in the Tribunal’s view, it does not outweigh the inconsistencies between the Applicant’s life story and the available documents nor resolve the conflict before it regarding the Applicant’s birthplace and citizenship.
CONCLUSION
The Tribunal has found that the Applicant’s identity cannot be satisfactorily ascertained, rather it is far from clear.[181] Neither the primary documents nor the Applicant’s life story serve to resolve the conflict before the Tribunal.[182]
[181]See above para [31].
[182]See above para [83].
This leaves the Tribunal is a position where it is unclear on, or cannot satisfactorily ascertain the Applicant’s identity, such that it cannot approve the applicant becoming an Australian citizen.[183]
[183]See above para [29].
Based on the evidence before it, and for the reasons set out above, the Tribunal is not satisfied of the identity of the Applicant. Accordingly, the prohibition under s 24(3) of the Act applies and the Applicant’s application for citizenship by conferral must not be approved. The Reviewable Decision must therefore be affirmed.
DECISION
The reviewable decision, being the decision of a delegate of the Respondent dated
21 September 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of
L M Gallagher, Member..............[Sgd]........................................................
Associate
Dated: 07 July 2022
Date of hearing: 25 November 2021 Solicitor for the Applicant: Claire Faulkner, Estrin Saul Lawyers Solicitors for the Respondent: Ashley Burgess, Sparke Helmore Lawyers
Namely, the Applicant’s Western Australian driver’s licence, Medicare card and work licence.
See R1,T6, pp 58-59.
Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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Natural Justice
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