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

[2022] AATA 1336

Razaee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1336 (25 May 2022)

Division:GENERAL DIVISION

File Number(s):      2020/8142

Re:Ali Razaee

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:25 May 2022

Place:Melbourne

The Tribunal sets aside the decision of 17 November 2020 and decides that the matter be remitted to the Respondent for reconsideration with a direction that the Tribunal is satisfied of the Applicant’s identity.

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Dr Stewart Fenwick, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – identity – inconsistencies in documentation provided – taskera issued in absentia by Afghanistan authorities – limited details of life story – decision set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act

National Identity Proofing Guidelines

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

BACKGROUND

1. Mr Razaee applied to the Tribunal on 7 December 2020 for the review of a decision of a delegate of the Minister (‘the Respondent’) dated 17 November 2020 refusing Mr Razaee’s application for citizenship by conferral.

2. Mr Razaee was born in 1994 in Ghazni Province, Afghanistan. His family consists of his father and a sibling, who reside in Australia, his mother and three other siblings, who reside in Pakistan, and a further sibling, who resides in Norway. The Applicant himself was resident in Pakistan with members of his family from 2000.

3. The Applicant is currently the holder of a Five-Year Resident Return (subclass 155) visa and had previously been granted a Protection (subclass 866) visa. He arrived in Australia as an illegal maritime arrival in early 2010 as a minor.  He is of Hazara ethnicity.

4. Mr Razaee originally lodged his application for citizenship in 2014. In 2016 he was asked to provide further information, and he responded by providing a number of documents, including national identity documents (taskeras) for his mother and three siblings. These identity documents were ultimately found to be not genuine.

5. Mr Razaee lodged further material including a statement and a range of additional documents in 2019. Subsequently, the Applicant was asked again, on several occasions in 2020, to provide further information. He provided some further documents in early 2020.

6. Mr Razaee was represented before the Tribunal and he lodged a Statement of Facts, Issues and Contentions (‘SFIC’) with ten attachments. Two documents were admitted into evidence in the hearing:

   (a)a report titled ‘Afghanistan: Tazkera, passports and other ID documents’, Landinfo Country of Origin Information Centre, 22 May 2019 (Exhibit A1); and

   (b)a translation of a Verification Form issued by the Afghanistan Central Civil Registration Authority, dated 7 December 2021 (Exhibit A2).

7. The Respondent lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘T documents’), and a SFIC. The Application for a Safe Haven Enterprise (subclass 790) visa dated 21 July 2016, lodged by the Applicant’s father, was admitted into evidence (Exhibit R1).

8. Evidence was given at the hearing by Mr Razaee and his father, Mr Mohammad Musa Rezaie.

   LEGISLATION

9. Pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (‘the Act’), the Minister, and therefore upon review, a decision maker must not approve a person becoming a citizen unless satisfied of their identity.

10. The Respondent’s SFIC draws attention to Chapter 16 of a document known as the Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (‘CPI 16’). While not apparently lodged with the materials in this matter, the Tribunal is aware of the document which provides guidance to departmental decision makers when assessing identify under the Act.

11. The Respondent’s SFIC also draws attention to another document not lodged in this matter, but referred to in CPI 16, being the National Identity Proofing Guidelines (‘the Identity Guidelines’) prepared by the Attorney-General’s Department.

12. References to these documents is buttressed, appropriately, by citing the decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 640. CPI 16 (at [1] Purpose) provides a summary of, essentially, the critical point. This point is that policy and procedure do not have the force of law. While they should be given due weight, decision makers should not apply them inflexibly as they must give consideration to the merits of individual cases, departing from policy if necessary.

13. I note that the Identity Guidelines state (at [1.2.2]) that they provide a set of recommended processes and procedures, and that identity proofing is rarely done in absolute terms.

14. Relevantly, CPI 16 states (at [4.2] What is Identity):

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

15. CPI 16 goes on (at [4.4]) to refer to three pillars of identity used in assessing identity, adopted from the Identity Guidelines, being: biometrics; documents; and life story.

16. CPI 16 also encourages an evidenced-based approach to assessing identity (at [4.12]). Thus, decision makers are told that the objective is to determine whether information arising under the three pillars is consistent.

17. When dealing with the state of satisfaction and whether a decision maker is persuaded of a person’s identity, CPI 16 notes (at [4.16]) that ‘… a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity’.

    ISSUES

18. The sole issue in this matter is whether I can be satisfied of Mr Razaee’s identity pursuant to s 24(3) of the Act.

19. In addressing this issue, the material submitted by the parties and the evidence at the hearing focused on the pillars of identity. The critical considerations in this matter are the nature of the documentation provided by Mr Razaee, and the way these relate to his life story.

    EVIDENCE AT HEARING

    Applicant

20. In his oral evidence Mr Razaee agreed that the birth date in 1994 recorded in the decision under review was correct. He then expressed uncertainty about this date, stating that it had been given to him when he arrived in Australia.

21. Mr Rezaee stated that he attended school in Afghanistan for six years, and that he attended high school in Brisbane. Mr Razaee stated that he is a qualified electrician, and currently employs two apprentices and looks forward to expanding his business.

22. When asked how he obtained his taskera, Mr Razaee responded that he had attended the Embassy of Afghanistan in Canberra. Prior to this he booked an appointment online, filling out a form for an absentee taskera. He then attended an interview with a counsellor at the Embassy for over half an hour. Mr Razaee took his father’s taskera with him to the interview.

23. Mr Razaee stated that he was then advised to send the application to Afghanistan to someone who could assist with the process. Mr Razaee sent the document to a gentleman (who the Applicant named) who ‘took it to the office where taskera are issued’. This gentleman sent the taskera back to Mr Razaee, and the Embassy assisted further with the verification process.

24. When asked about his birth certificate, Mr Razaee confirmed that this had been obtained based upon his taskera.

25. Mr Razaee stated that he had obtained no documentation when living in Quetta, Pakistan, as an illegal immigrant.

26. With respect to the identity documents of family members, Mr Razaee stated that these had also been issued based upon his father’s taskera.

27. In cross-examination, Mr Razaee stated he was unable to recall when he obtained his Afghanistan driver licence, but it had been obtained through a friend. He acknowledged that it bears a year of birth of 1995.

28. When asked a number of follow-up questions about this document, Mr Razaee was unable to add greatly to the description of the circumstances in which it was obtained.

29. Mr Razaee stated that he worked when living in Pakistan, and that the jobs were in and around ‘H’town’, where his family still live. He was unable to provide any evidence adding detail to the location or circumstances of his employment.

30. When asked about his family’s taskeras, Mr Razaee stated that he did not know they were not considered genuine, and he would not have submitted them had he known.

31. With respect to his father’s taskera, Mr Razaee appeared to acknowledge discrepancies, including a difference in page number references compared to source documents. Mr Razaee stated that he had asked his mother to check the records with the authorities.

32. After further questions as to what took place during the visit undertaken by his mother, Mr Razaee confirmed that he did not have evidence demonstrating that some form of verification had been given for his father’s taskera.

33. Mr Razaee acknowledged that he had, in the past, provided information to the effect that his father was missing after been captured by the Taliban. He said that he regretted having done this as he was very young at the time, and it was how he had been instructed to do this by the people smugglers. He accepted that he had also repeated this story in a declaration made in 2019.

34. Mr Razaee acknowledged that he knew his sister had lived in Australia since 2005 and accepted that she was not included in lists of family members that he provided. Mr Razaee stated that neither he nor his father have any contact with his sister.

    Applicant’s father

35. Mohammed Musa (as he is referred to in the Applicant’s SFIC) stated that his year of birth is 1953, based on what he was told by his parents. He stated that when he was four or five years old his father had arranged his original taskera (‘like a small book’) and that was the source of the date.

36. He further stated that he was born in Ghazni Province, and he named several neighbouring villages when asked to describe the surroundings. Mohammed Musa stated that he was a farmer and moved to Pakistan in approximately 2000, when the Taliban took over.

37. Mohammed Musa stated that on departure, he left his original taskera with a neighbour as it would have caused him difficulties in Pakistan. He returned to Afghanistan in 2008 but was unable to locate that person. At this time, he sought to obtain a new taskera.

38. When asked about his date of birth as recorded in the new taskera, and whether he knew it was incorrect, Mohammed Musa stated that he told the official he was 53 years old, but they did not record this.

39. I asked the Applicant’s representative to confirm Mohammad Musa’s level of literacy. The witness stated that he had no formal education, and that he had attended religious studies on and off for just two years. He stated that he has some basic Arabic language skills, and that his understanding of dates had improved since living in Australia.

40. Mohammed Musa stated that when living in ‘H’town’ most of the inhabitants were refugees without documentation. He stated that it was not safe to have documents, and that there was a lot of violence in Quetta back then. At this time, he was a day labourer and so had no employment records.

41. When asked to identify his family members, Mohammed Musa referred to his daughter Mariam as Zakia. He stated this was her birth name, and that names are sometimes changed for good luck after a child has an illness.

42. Mohammed Musa stated that he became aware that his taskera referenced an incorrect page number when the Applicant sought his taskera, and said that the Applicant’s taskera references the correct page number. He stated further that he then sent his wife to Afghanistan to clarify the mistake.

43. The witness was referred to his statutory declaration accompanying his own protection visa application (Exhibit R1), which is dated in 2016. The questions here sought to clarify how Mohammed Musa could (as stated at [15]) claim that he was aware of the date problem with his taskera in 2016, when he had previously stated in evidence that he became aware of the problem when the Applicant’s taskera was issued, which occurred in 2019.

44. The responses were inconclusive, and Mohammad Musa stated that ‘he can’t remember exactly’, and ‘it was six-to-eight years ago’.

45. Mohammed Musa stated that he had some contact with the Applicant from Pakistan prior to arriving in Australia in 2012. When asked if his son would have any reason to believe he was missing, Mohammed Musa stated that at the time his son was very young, and he may have done what he was told to by the people smugglers.

46. He stated that he is aware that his daughter lives in Australia. However, Mohammed Musa explained that her sister-in-law ‘doesn’t like us’ and does not wish them to have any contact. He stated that he last had regular contact with his daughter when she lived at home. Following her marriage, his daughter went to live with her husband, and there has been no contact since.

    SUBMISSIONS

47. In his SFIC, the Applicant submitted that identity is not only established by the production of documents appropriate to an established or undisturbed society (citing Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310).

48. The Applicant further submitted in his SFIC that his taskera has been validated as genuine, and that his father’s own taskera has been verified with the assistance of his mother. He stated that there was an error in the translation provided, and that this was confirmed by an inspection of documents in Afghanistan.

49. Mr Razaee also submitted that inconsistencies in his life story arise from dates, and that he has been honest in acknowledging these as estimates.

50. These submissions were broadly reiterated at the hearing by Mr Razaee’s representative.

51. In the Respondent’s SFIC, it contended that:

    (a)the Tribunal should put little weight on Australian supporting documents provided; and

    (b)little or no weight should be placed on Mr Rezaee’s driver licence and the family taskeras, which incorrectly cite his father’s taskera and have been found to be not genuine.

52. The Respondent acknowledged that Mr Razaee’s own taskera was verified through Afghanistan Government processes. However, it was issued on the basis of his father’s taskera, which carries discrepancies suggesting that it is itself not genuine. The efforts said to have been made by family members to confirm the father’s taskera should be considered assertions only, as they have not been substantiated.

53. The Respondent further contended that Mr Razaee’s purported birth certificate was issued in 2020, having previously declared his birth was not registered. This document should therefore be afforded minimal weight.

54. Accordingly, the Respondent contended there is minimal reliable documentary information about the Applicant’s life prior to his arrival in Australia, and none provided as to the family’s time in Pakistan.

55. The Respondent also contended that limited information has been provided by Mr Razaee about his life story. He has admitted to fabricating a story about his father’s whereabouts, who he originally said had been captured by the Taliban and was missing. He has also failed to provide information about his sister who is resident in Australia.

56. At the hearing, the Respondent’s representative submitted that the evidence had provided some explanation for issues identified with the father’s taskera. However, questions remained over this document, and all other documents rely upon this taskera. It was acknowledged that circumstances in Afghanistan now preclude further efforts that might be taken at verification.

57. The Respondent conceded that Mr Razaee’s own taskera had been verified as genuine by Afghan authorities. However, stressed that such a finding is contingent upon his father’s taskera which remains unverified.

58. The Respondent also submitted that there is a paucity of evidence from Mr Razaee’s family, including his sister in Australia, and his life story contains a substantial time gap between his birth and his arrival in Australia. Due to the issues with documentation in this matter, the Respondent contended that life story was particularly crucial.

    CONSIDERATION

59. Mr Razaee has produced a range of documentation. There is no doubt that in this material there are documents that appear to disclose patent errors or inconsistencies, or otherwise are of questionable weight.

60. I accept, however, that Mr Razaee has produced this material in order to address a fundamental concern arising in his situation. That is, the value that documents which pre-date his arrival in Australia might bring to the task of establishing his identity. Mr Razaee’s history as an unaccompanied minor and an unauthorised maritime arrival would appear to be a relevant factor, among others, in this context.

61. The oldest such document is Mr Razaee’s driving licence (T8A) which appears to have been first produced, together with a letter certifying his Afghan citizenship (T8B), under cover of a Statutory Declaration in 2016 (T8).

62. On its face, this licence appears to have been generated in or about 2008, and it bears a photograph that appears to show a young Mr Razaee. I take from his evidence that this document was obtained while he was living in Pakistan, at which time Mr Razaee would have been aged approximately 13. It records his birth date with the year 1995.

63. While I have little evidence about the circumstances in which it was produced, and no evidence about the status of such a document, I consider it inherently implausible that this might have proper standing as an official document. I find that it can be afforded extremely limited weight; that is, it is no more than a document bearing Mr Razaee’s name (about which there is no dispute in this matter).

64. Notwithstanding that Mr Razaee has stated in the past that he did not have a birth certificate, Mr Razaee has provided a document from the Embassy of Islamic Republic of Afghanistan (T25B) bearing wording describing it as a birth certificate.

65. However, I do not consider that this correspondence could realistically be read as a birth certificate. It contains little information ordinarily associated with such a document; and was issued to the Applicant aged in his 20’s. I find that it can be afforded virtually no weight, other than being a document bearing his name.

66. Mr Razaee has obtained a national identity document in absentia (T8E). I accept that this taskera was issued under the auspices of the lawful government representatives in Australia in 2019. This document appears to have been issued by the National Statistics and Information Authority in Afghanistan, by the Directorate of Tazkera Registration in Absentia, and that it is to be understood as an official identity document.

67. There are a number of documents at T8, including a translation of the taskera (T8, p 137) and what appears to be a verification letter (T8, p 139). Both bear the same date in October 2019 and the same document reference number for Mr Razaee’s taskera, and registration number. The taskera cites Mohammad Musa’s taskera as Volume X, p X3, registration 2XX.

68. Mr Razaee also provided another verification document (Exhibit A2), said to be issued by the Afghanistan Central Civil Registration Authority, National Identity Verification Centre. This document appears to refer to Mr Razaee’s taskera as issued on a date in September 2019, and it cites Mohammed Musa’s taskera as Volume X, p X2, registration 2XX. This document does not appear to refer to Mr Razaee’s taskera by number, nor to his registration data.

1. The translation of Mohammed Musa’s taskera (T19E) includes the same registration data recorded in the verification document for Mr Razaee’s taskera (Exhibit A2); that is, with the page number X2.

2. The taskeras of other family members (T8F) carry a different registration number to that recorded in Mohammad Musa’s taskera (T19E). That is, these documents bear a different volume number for Mohammad Musa’s identity registration to that recorded in all other documents.

3. As raised in evidence at the hearing, the taskera of Mohammad Musa identifies him as having been born in 1963, when his date of birth is said to be ten years earlier, in 1953. I note that the Respondent in its SFIC submits (at [26]) that due to issues related to COVID it has been unable to conduct a formal verification process for this taskera.

4. No direct evidence was provided to address the status of taskera in absentia, but I understand the Respondent to have acknowledged the document as having official status. The report provided by Mr Razaee’s representative (Exhibit A1) describes the practice of issuing taskera in absentia, with particular reference to the experience of Afghan citizens living in Norway (at p 17).

5. That said, the variations across all of the family identity documents raise serious questions. There appears, from the translated documents lodged in this matter, to be two obvious variations in the volume and page number references for Mohammad Musa’s taskera. In the case of the page references, the variation is by one digit.

6. I note the evidence of Mohammad Musa that the number recorded on his son’s taskera is the correct one, and that he gave evidence about efforts at verification undertaken by his family. I note, equally, the implication that arises from the material before me, that his evidence may conflict with an earlier written statement as to when he became aware of the problem of the date on his taskera.

7. Mr Razaee’s representative has conceded in correspondence that the taskeras of the Applicant’s mother and siblings have been found to be not genuine (T19A, p 180). I note that this concession was made in response to advice in 2018 about the results of a verification process (see for example T13A).

8. It does not appear that the Tribunal has been provided with the source of that advice, nor has it been directed explicitly to evidence as to the nature of that verification process. However, on the basis of the parties’ submissions I accept that these documents are not genuine.

9. On the basis of the inconsistencies discussed, I must also accept the Respondent’s submission that there is good reason to place limited weight on Mr Razaee’s various identity and identity verification documents.

10. Beyond these key documents, Mr Razaee has presented an extremely limited life story. Other than the bare facts relating to his time living in Pakistan and his arrival in Australia, there is scant information before the Tribunal as to Mr Razaee’s past.

11. In this context, again, I note the fact that the Applicant travelled to Australia as a minor and an illegal maritime arrival. I also note that the material indicates that Mr Razaee conducted a successful appeal in the course of seeking to obtain a humanitarian visa (T2B, p 16). I note that the Tribunal has not been provided with either his application and file, nor the decision in question. I consider that this material would ordinarily contain information or evidence of value in assessing the fundamental elements of the Applicant’s life story.

12. I consider that the oral evidence demonstrates that neither Mr Razaee nor his father have an ongoing relationship with the Applicant’s sister in Australia. It would appear from the Respondent’s SFIC (at [15]-[16]), that the queries that have been raised with Mr Razaee in respect to his sister’s identity may relate to the different names by which she is known in the family. Mohammad Musa provided an explanation for this in his evidence.

13. While there are what would appear to be unresolved and concerning inconsistencies across the few key identity documents in this matter, consideration needs to be given as to what relevant information they do provide in support of Mr Razaee’s identity. This is because, as noted in CPI 16 (at [4.14] Assessing pillar two – documents), the crucial element of a document – ‘whether genuine or not’ – is the story it tells.

14. Furthermore, CPI 16 goes on to note the standards of assurance for documents vary across authorities, jurisdictions and countries. It is an inherent feature of identity matters arising in relation to nationals of Afghanistan, that questions about the reliability of documentation arise.

15. In this matter there are no variations in the use of the Applicant’s name. Further, I do not consider that any variation in reference to a name, specifically to that of his sister, is of great import.

16. Furthermore, there is no inconsistency in the use of names that are relevant, and moreover significant, in Afghan culture. That is, Mr Razaee’s male lineage appears to be recorded consistently across multiple documents.

17. I accept that there are variations in the date of birth attributed to Mr Razaee (a date in 1994 versus ‘1995’ for example). However, account should be taken of the limited importance of this data point in the local context of Afghan culture (see, for example, Exhibit A1, p 9).

18. Finally, it cannot go without observation that in August 2021 the Taliban took control of Kabul. This effectively ended any prospect of either party taking further steps to resolve any outstanding questions about key identity data.

19. Taking all of the evidence into account, including the particular circumstances of Mr Razaee, I am satisfied of his identity, and I consider that the correct and preferable decision is to set aside the decision under review.

    DECISION

20. For the reasons given above, the Tribunal sets aside the decision of 17 November 2020 and decides that the matter be remitted to the Respondent for reconsideration with a direction that the Tribunal is satisfied of the Applicant’s identity.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decisions herein of Dr Stewart Fenwick

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Associate

Date: 25 May 2022

Date of hearing:

7 December 2021

Advocate for the Applicant:

Solicitors for the Applicant:

Shaukat Ali Akbari

Beena Rezaee Legal & Migration

Advocate for the Respondent:

Matthew Daly

Solicitors for the Respondent:

Mills Oakley Lawyers