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

Rezaee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5606 (24 December 2019)
Filenumber: 2018/0156 and 2018/0157
Division:GENERAL DIVISION
File Number(s): 2018/0156
Re:Zia Rezaee
APPLICANT

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

File Number(s): 2018/0157
Re:Zabie Rezaee
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth
Date:24 December 2019
Place:Adelaide

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decisions under review and remits the matters for reconsideration with the direction that the Applicants satisfy the requirements of ss 24(3) and 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
............[Sgnd].................................................
Senior Member B J Illingworth
CATCHWORDS
CITIZENSHIP – applications for citizenship by conferral – applications for citizenship refused – whether Tribunal is satisfied as to identity – inconsistency in evidence – different dates of birth – credibility – identity - whether Applicants of good character – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Beyan and Minister for Immigration and Citizenship [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34
Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
SECONDARY MATERIALS
Australian Citizenship Bill 2005, Explanatory Memorandum
Australian Citizenship Policy
Attorney-General’s Department, National Identity Proofing Guidelines
REASONS FOR DECISION
Senior Member B J Illingworth
24 December 2019
INTRODUCTION

On 29 March 2016, Mr Zia Rezaee (“the First Applicant”) and Mr Zabie Rezaee (“the Second Applicant”) (collectively “the Applicants”) applied for Australian citizenship by conferral. On 21 December 2017, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused to grant the Applicants Australian citizenship because the delegate found that they failed to satisfy the provisions of ss 24(3) and 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”).
On 15 January 2018, the Applicants applied to this Tribunal for review of the delegate’s decision on the basis that the delegate erred in failing to be satisfied as to the Applicants’ identity and good character.
At the hearing before the Tribunal, the Applicants were represented by Mr Shaukat Ali Akbari of Beena Rezaee Legal and Migration. Ms Laura Butler, Australian Government Solicitor, represented the Respondent. The Tribunal was assisted by an interpreter in the Hazaragi language.
BACKGROUND
The Applicants are citizens of Afghanistan, and are Shi’a Muslims of Hazara ethnicity. The First Applicant was born in 1992 and the Second Applicant was born in 1995. The Applicants are brothers.
In 1999, the Applicants’ father died as a result of a Taliban attack. Consequently, the Applicants went to live with their aunt and her family. The Applicants’ mother abandoned them. They did not see her again. She subsequently remarried. After a period of time, and when their aunt could no longer look after the Applicants, the Applicants moved to Pakistan. Their uncle, AKR, lived in Australia but had family in Pakistan. The Applicants resided with AKR’s family before coming to Australia under the sponsorship of, and to live with, AKR.
On 5 January 2006, AKR lodged an application for Orphan Relative visas on behalf of the Applicants. These visas were granted on 8 May 2007 and the Applicants subsequently lived with AKR in Australia. After arriving in Australia, the Applicants learnt that their natural mother had died approximately one year after their father, due to an illness.
Both Applicants went to school in Australia. In 2008, and at the request of their school, the Applicants underwent a bone density test. The results of those tests revealed that the First Applicant was approximately two years older than originally believed, and the Second Applicant was approximately three years and three months older than originally believed. A suggested age was given for each Applicant as provided on the bone density test reports. As a result, the First Applicant’s year of birth was changed from 1994 to 1992; and the Second Applicant’s year of birth was changed from 1997 to 1995. The day and month of birth for the Applicants remained the same.
The Applicants subsequently lodged Freedom of Information (“FOI”) requests at different times with the Department to amend their birth dates to the corrected dates on their Australian identity documents. The Applicants did not change their dates of birth on their foreign identity documents, namely their taskeras or passports.
In 2013, the Applicants obtained Resident Return visas and new passports from the Afghan Embassy in Canberra for the purposes of travelling to Afghanistan for the First Applicant’s arranged marriage. Despite producing to the Afghan Embassy their Australian identity documents, they were unable to change their dates of birth on their new passports to the corrected dates because their respective taskeras still had the original dates of birth. The Embassy would not recognise the Australian dates of birth and relied on the Applicants’ taskeras. They were both issued passports, valid for one year. Their Australian travel documents, including their visas, contained the corrected dates of birth.
The Applicants have previously applied for Australian citizenship on two occasions, having been refused both times as the delegate was not satisfied of the Applicants’ identity as their applications included identity documents with different birth dates, namely the different dates on their Afghan identity documents as compared with their Australian identity documents. The Tribunal also notes that the Applicants have also been issued with two Notices of Intention to Consider Cancellation (“NOICCs”) of their visas which they responded to. On both occasions, the delegate decided not to cancel their visas.
On 28 November 2015, the Applicants obtained new taskeras containing their correct dates of birth. Their passports used to travel to Afghanistan in 2013 could not be amended because they were only valid for one year and had expired.
On 29 March 2016, the Applicants lodged their present applications for Australian citizenship by conferral. The Applicants provided supporting documentation in accordance with the Department’s request.
On 21 December 2017, the Applicants’ applications were refused on the basis that the delegate was not satisfied of the Applicants’ identities or that they were persons of good character.
On 15 January 2018, the Applicants lodged with this Tribunal applications for review of the delegate’s decisions.
THE ISSUES BEFORE THE TRIBUNAL
The issues to be determined by this Tribunal are:
(a)Whether the Tribunal is satisfied as to the Applicants’ identities pursuant to s 24(3) of the Act; and
(b)Whether the Tribunal is satisfied the Applicants are of good character pursuant to s 21(2)(h) of the Act.
THE LEGISLATIVE FRAMEWORK
Identity requirement
Section 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Explanatory Memorandum to the Australian Citizenship Bill 2005 states:
[The Act] makes clear that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Further, Chapter 13 of the Australian Citizenship Policy (“the Policy”) under heading “Overview of the identity provisions” states that:
The identity provisions prohibit the approval of a citizenship applicant 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 of citizenship if they are not satisfied of the person’s identity.
The Attorney-General’s Department’s National Identity Proofing Guidelines (“the Guidelines”) refers to the concept of identity as “not a fixed concept; it is highly dependent on context.”[1]
[1] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1.
In Ahamod and Minister for Immigration and Border Protection,[2] the Tribunal examined the standard of proof contemplated in Briginshaw v Briginshaw[3] and found a higher level of satisfaction is required in the granting of citizenship:
A certificate of Australian Citizenship is a legal document of considerable significance.[4] Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.[5]
[2] [2019] AATA 7.
[3] [1938] HCA 34.
[4] Beyan and Minister for Immigration and Citizenship [2015] AATA 256.
[5] Above n 23 at [30].
It follows that in particular cases that are of a serious or grave nature, to act on “inexact proofs, indefinite testimony or indirect references” may not be reasonable.[6]
[6] See Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33.
Good character requirement
Section 21(2) of the Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, s 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 that the decision is being made.
The term ‘good character’ is not defined in the Act, however there is guidance on the application of the good character requirement in the Department’s Citizenship Policy (“the Policy”). The Tribunal is not bound to apply the Policy, however should give regard to and apply the Policy unless there are cogent reasons not to do so.[7] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case.
[7] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship where good character is involved. It states:
Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs[8] Justice Lee said at [431] - [432]:
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[8] (1996) 68 FCR 422.
The phrase “enduring moral qualities” which encompasses the following concepts:
(a)That these characteristics have been demonstrated over a long period of time;
(b)Distinguishing right from wrong; and
(c)Behaving in an ethical manner, conforming to the rules and values of Australian society.
The Policy outlines the characteristics of good character as:
·     respect and abide by the law in Australia and other countries
·     be honest and financially responsible (…)
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
§ providing false personal information (…) or other material deception during visa and citizenship applications
§ involvement in bogus marriage
§ concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
§ involvement in Centrelink or Australian Tax Office fraud
§ giving false names and/or addresses to police
·     not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (…)
·     not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·     not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·     not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·     not be the subject of any extradition order or other international arrest warrant
·     not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·     not be the subject of any verifiable information causing character doubts.
The assessment about whether an Applicant is of good character requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences. A decision maker needs to look holistically at an Applicant’s behaviour over a lasting or enduring period of time.
THE DEPARTMENT’S FINDINGS
In the delegate’s decisions[9] to refuse the Applicants’ respective applications for Australian citizenship by conferral, the delegate stated:
In summary, the main issues in contention relate to inconsistent and misleading information provided to the Department as per below:
·Information regarding the deaths of your parents that formed the basis for your claims for the Orphan Relative visa you applied for in 2006
·Documents provided to the Department as evidence of your parents’ deaths
·Documents you provided to the Department with three dates of birth recorded. This includes you being issued with an updated Afghanistan passport in 2013 and travelling overseas using that document with the date of birth listed as [respective birth dates]
·Your family composition and the conflicting/inconsistent information provided over the course of your interactions with the Department.
[9] Exhibit A, pages 8 – 18; Exhibit F, pages 9 -19.
THE EVIDENCE BEFORE THE TRIBUNAL
The Applicants’ evidence was consistent with each other and the Tribunal will deal with the evidence in respect of the issues before the Tribunal. They were both impressive young men whom the Tribunal found were witnesses of truth.
The Applicants’ inconsistent dates of birth on identity documents
The Applicants obtained their taskeras when they were young boys. Their uncle took them to get their taskeras. Their uncle had their father’s taskera when this was done. The Applicants were provided with a year of birth when obtaining their taskeras. As there were no registrations of birth in Afghanistan, their year of birth was determined by the authorities and based upon their general appearance. The First Applicant was estimated to be born in 1994; the Second Applicant was estimated to be born in 1997. Their nominated day and month of birth was the same. These were the dates that were recorded in the Applicants’ taskeras and subsequently recorded in the passports that they obtained so that they could travel to Australia.
The Applicants’ uncle, AKR, gave evidence before the Tribunal and confirmed he sponsored them to come to Australia. Following their arrival, they lived with AKR and his family. The Applicants referred to AKR’s wife as “mum”, his eldest child as “uncle”, and his younger children by name.
When the Applicants were in school in Australia, their teachers thought they appeared older than other students in their classes, and so they were directed to undertake a bone density test. The First and Second Applicants did so on 9 January 2008 and 4 August 2008, respectively. The results of those tests indicated that the First Applicant was born in 1992[10] and the Second Applicant was born in 1995.[11]
[10] Exhibit A, page 130.
[11] Exhibit F, page 142.
On 13 July 2009, the First Applicant lodged an FOI request to amend his date of birth on Departmental records. The Second Applicant made a similar request on 17 September 2009.
The Applicants said that they did not see a need at this time to amend their Afghan identity documents as they had Australian documentation and did not think they would leave Australia.
In 2013, the Applicants needed to leave Australia and travel to Afghanistan for the purposes of the First Applicant’s arranged marriage. In order to do this, the Applicants say they were issued new passports which were each valid for one year, with their old dates of birth. These passports were issued relying on their taskeras. They had travelled to the Afghan Embassy in Canberra to see if their dates of birth could be changed, and their new dates of birth recorded on their passports. They took with them all their Australian documents and bone density test results. They were told that, because their passports were issued based on the information contained in their taskeras, they would first need to amend their taskeras. Their taskeras could only be amended in Afghanistan. Hence, their passports were issued depicting their old dates of birth (The Tribunal notes the passport given to the Second Applicant initially had an incorrect day and month of birth of 3 December. This administrative error was immediately corrected at the Second Applicant’s request). The Tribunal accepts the Applicants’ evidence.
The Applicants travelled on those new passports. When in Afghanistan, they did not return to their home town of Jaghori for the purposes of amending their dates of birth on their taskeras because it was unsafe for them to do so, particularly as they were travelling on Australian visas.
Albeit the Applicants’ passports and visa documents contained different dates of birth, no issue was taken with their travel documents by Australian customs or Afghan authorities at the time of departure or arrival in each country.
When the Applicants returned to Australia, they did not address the inconsistency in their dates of birth between the Australian and Afghan records. It was only after two unsuccessful applications for citizenship that the Applicants were motivated to follow up on this issue.
The First Applicant said that he contacted his uncle in Afghanistan, who engaged a lawyer, to obtain their mother’s death certificate and change the dates of birth on their taskeras to match their Australian identity documents. The Applicants did not try to change their dates of birth on their passports because they had expired. They obtained their mother’s death certificate[12] and amended taskeras.[13]
[12] Exhibit O.
[13] Exhibit N.

The Respondent submits that the delay in the Applicants altering their identity documents after receiving the results of the bone density test suggests that they were each using two different identities. The Respondent submitted that the Applicants were teenagers at the time they underwent the bone density testing and could have altered their Australian documentation sooner, and had opportunities to alter their Afghan documents but chose not to do so.
The Tribunal notes that the First and Second Applicants, by their corrected ages, were 15 and 12 years old respectively at the time of the bone density tests. The Applicants lodged FOI requests approximately one year later to have their Australian identity documents changed and explained that they had little assistance, particularly when trying to correct their Afghan identity documents. The First and Second Applicant were aged 20 and 17 years respectively when they obtained new passports and travelled to Afghanistan in 2013 for the First Applicant’s wedding.
The Tribunal finds each Applicant to be a truthful and reliable witness and accepts their evidence in relation to the circumstances in which they had different dates of birth. The Tribunal also accepts their evidence in relation to the change each made to their Australian identity records and their engagement with the Afghan Embassy relying on their Australian identity records in an attempt to have their dates of birth consistently recorded.
The Tribunal rejects the Respondent’s submission that the Applicants were deliberately maintaining two identity records. They were children or young teenagers, and then young men, trying to deal with the administrative bureaucracies of two governments, both of which imposed upon them a nominated date of birth; and neither government being prepared to recognise and accept the other’s record. The approach of each government is understandable, but that does not translate to the Applicants each deliberately maintaining two identities.
The Applicants’ biological mother’s death
The Applicants’ father was killed by the Taliban in 1999. Following his death, the Applicants went to live with their father’s family and their mother left their village, remarried, and they never saw her again. The Applicants have no recollection of their birth mother. The Applicants claim that their mother died in around the year 2000, approximately one year after their father died. They only discovered this sometime later and when they were in Australia.
As part of their most recent applications for citizenship, the Applicants asked their uncle in Afghanistan, AD, to obtain their mother’s death certificate from the authorities in Afghanistan. A death certificate was produced in 2017. The translated death certificate records next to “Date of Birth and Age” of their mother the following – “Five (5) years old in 1989/1990 [1368].” The year 1368 translates to 1989 in the Gregorian calendar.
The Respondent submits that the death certificate is a bogus document and is wholly implausible. If the Applicants’ mother was five years old in 1989/1990, she could not have given birth to the Applicants in 1992 and 1995 when aged approximately between 7 and 10 years.
The Applicants submit that this may have been an administrative error in preparing the death certificate, but they believed it to be genuine. They engaged, through AD, a lawyer to obtain the document.
The Tribunal accepts the Applicants’ evidence as to the manner in which they obtained the death certificate, but that does not mean that it was a valid or accurate document that truly and accurately attested to their mother’s death.
In a series of interviews of the family with the Department, the Applicants’ mother is referred to as having been remarried in 2005 and present at the First Applicant’s wedding in Afghanistan in 2013.
The Respondent submits that from these interviews it can be concluded that the Applicants’ biological mother was alive up until at least 2013.
The Applicants submit that this was either a misunderstanding or error in the translation. As referred to under the next heading of this decision, when the Applicants lived with their aunt and uncle in Afghanistan, they called their aunt “mum” and their cousins “brother” and “sister”. This explains why the First Applicant’s wife in particular believed the person she saw at the wedding was the Applicants’ natural mother, when in fact she was their aunt.
The Applicants’ family composition
In addition to the Applicants, AKR gave evidence before the Tribunal. He was an impressive witness. He was born in 1943. He arrived in Australia in about 2001 and he and his immediate family are all Australian citizens. His late brother was the Applicants’ father, and their mother was SR. He said they had two children, being the First and Second Applicant.
In examination in chief and cross-examination, AKR explained that in Afghanistan following the death of a husband, the wife may elect to stay with her children, particularly if she had enough resources, or alternatively return to the home of her father, in which case the children of the marriage would stay with the deceased father’s extended family.
In cross-examination, AKR said that 40 days after his brother passed away, the Applicants’ mother left the Applicants behind and returned to her father who lived in a different village about 3 – 4 hours walk away. She subsequently remarried but he did not know when. There was no contact with the Applicants’ mother after she left the Applicants behind. There was no reason to do so.
The Applicants thereafter lived with his brother and his wife and their children in Afghanistan. When they could no longer look after the Applicants, the Applicants moved to Pakistan and lived with AKR’s eldest son.
AKR said he found out about the Applicants’ mother’s death in 2003. AKR was then living in Australia and the Applicants were living with him. He said the Applicants were young, and they decided not to tell them of her death at that time.
AKR was referred in cross-examination to conversations in 2005 between his family and the Department in which it was said that the Applicants’ mother was remarried. AKR said this was probably a misunderstanding. They did not say she was then remarried. They probably told the officer that, after his brother died, she remarried and then died. She was not alive in 2005.
The Tribunal accepts the evidence of AKR.
The Applicants gave evidence that, after the death of their father, their mother remarried and moved away to be with her new husband, leaving them behind. As a result, they were taken into the care of their uncle and his wife and children, and lived with them for a number of years.
The Applicants said that they called their aunt “abai”, meaning mother, as their cousins did, and referred to their cousins as brothers/sisters.
It was the Applicants’ aunt who arranged for the First Applicant’s wedding with his wife, HR. This aunt was at the wedding in 2013.
The Applicants gave evidence which was corroborated by their witnesses that it is rude in Afghan culture to refer to ones elders by their first name; they must be referred to by their title.
The First Applicant’s wife HR gave evidence. She confirmed they were married in 2013. She has known the First Applicant since childhood. Their villages were 20 – 30 minutes’ walk from each other. However, when she was young she moved to another village that was about 1 days drive away. The Applicants were still living in their village when she moved away.
HR corroborated the Applicants’ evidence that, in their culture, they do not call elders by their name but by their title. She knew the Applicants’ mother’s name was SR. She explained that she did not know the name of the Applicants’ aunt, and assumed that she was the Applicants’ natural mother, because the Applicants referred to her as “abai”. HR also called her “abai”. It was not until she came to Australia in August 2018, and when she spoke to a lady from the government, that she learnt the name of the person they called “abai” was not their natural mother. HR said that she has never fully discussed the death of the Applicants’ mother with them. She only found out about their mother’s death after her interview and through the community. She said when he [the First Applicant] referred to the woman as mother, “I thought she was [natural mother]”.
From the date of their marriage and until her arrival in Australia, HR and the First Applicant have not been together. HR came to Australia on a partner visa arriving in September 2018. She said she and the First Applicant are happily married and are now expecting their first child.
The Respondent submits that it is implausible that HR did not know that the Applicants’ aunt was not the Applicants’ biological mother.
The Tribunal found HR to be an honest and reliable witness. She did not come from a sophisticated background. During her life in Afghanistan, HR lived initially in a neighbouring village to that of the Applicants and then moved some distance away when still a young child. For most of her life she had no contact with the Applicants. There is no evidence about her contact with the Applicants’ family. The First Applicant and HR did not see each other until he travelled to Afghanistan in 2013 for their arranged marriage. Before formalising their marriage, they met, and spent a brief period of time together after which the First Applicant formally proposed and she accepted. That, she said, was the practice in their country. They then married and the Applicants returned to Australia.
The Tribunal accepts that the Applicants’ father died and then their natural mother abandoned them when they were both young. They have no memory of their natural mother. Hence, from a young age they lived with their father’s immediate family and called their aunt mother. In those circumstances, it is very plausible that HR, who spent most of her life living away from the Applicants family, mistook the Applicants’ aunt for their natural mother.
The Applicants’ Employment
The First Applicant is employed in his own business installing and servicing air conditioners. He has worked for himself for six years. He employs five others in his business. He resides with his wife and the Second Applicant.
The Second Applicant is a manager in the First Applicant’s business. He has been working there for about one year and is a painter running the painting side of the business. He had previously studied to pursue a career in the police force and for a period of time was a qualified real estate agent.
Summary of Closing Submissions
The Applicants submitted that, in light of the evidence, the Tribunal can be satisfied as to the identity of each of the Applicants. They have given consistent life stories which were corroborated by their uncle.
As for the inconsistencies in their dates of birth, counsel for the Applicants invites the Tribunal to be mindful that each Applicant was subject to two distinct cultural practices. When they received their bone density reports and were given new dates of birth, they went to the Department and changed their records. They complied with Australian law. They were very young at the time and they did not attempt to deceive.
When the Applicants applied for a Resident Return Visa, relying on their new Afghan passport, the visas were granted without issue, and no problem was raised. They travelled without incident.
The Applicants submit that they have not provided deceptive information.
Counsel submitted that, in every respect, the Applicants have always done the right thing in the way they conducted themselves. They went to the Afghan Embassy armed with their Australian identity documents and bone density tests. The Embassy denied them a change in date of birth. They were subject to the laws of two different countries.
The Respondent submits that the Applicants’ provision of incorrect and inconsistent information to the Department as described above weighs against the Applicants being of good character. The Tribunal should not be satisfied as to the Applicants’ identities and that they are of good character.
Counsel submitted that both Applicants presented identification documents with different ages; namely the First Applicant, two different ages, and the Second Applicant, three different ages.
Counsel was critical of the Applicants for not updating their identity records, including their Afghan records, in a timely manner. As to the circumstances involving the Afghan Embassy’s refusal to issue a passport with a new date of birth, counsel for the Respondent said that there was no independent evidence from that Embassy.
Counsel for the Respondent submitted that after the new passports were issued in 2013, it was agreed that the visa labels have different dates of birth and that both Applicants knew there was incorrect information contained within those documents.
As to the family information, the Respondent referred to aspects of that evidence which should cause the Tribunal concern. It was argued that the Applicants’ mother was not deceased and they were not properly described as orphan relatives. There was evidence that the Applicants’ mother was still alive and present at the wedding. It was submitted that HR’s father was a close friend of the Applicants’ family and so it was implausible that HR did not know the Applicants’ mother had passed away.
Counsel submitted there were too many inconsistencies in the Applicants’ life story to be a misunderstanding and, as to the Applicants’ mother, the Respondent did not accept she was deceased.
As for the mother’s death certificate, the record was first generated in 2017 and her alleged death was in about 2000. The death certificate was created based on information provided by AD. It was not a contemporaneous document created at or about the time of death and, because of the inconsistencies, it was open for the Tribunal to find it was false. The Respondent said that little or no weight should be attributed to the death certificate.
Accordingly, the Respondent submits that the Applicants are not of good character.
CONSIDERATION
In this application, the Tribunal is required to be satisfied of the Applicants’ identities and character within the meaning and for the purposes of s 21(2)(h) and s 24(3) of the Act.
With regards to the effective determination of ‘identity’, the Tribunal is informed by the Guidelines which are in turn reflected in the Policy. At section 2.1.1, the Guidelines observe that a person’s identity is not a fixed concept and is highly dependent on context.
The Tribunal notes the Respondent’s concern that the Applicants have not acted as promptly as they could have in making their Afghan and Australian identity documents consistent with each other, and they should not have travelled overseas using documents containing two different dates of birth. However, this needs to be balanced with the circumstances that were impacting upon the Applicants and others at that time.
The criticism of the Applicants’ delay in failing to immediately, or in a timely manner, ensure their dates of birth on their Australian and Afghan identity documents were consistent lacks merit. They were young teenagers, not long in a new country. They had imposed upon them by the relevant government the requirement to undertake a bone density test because their respective ages and dates of birth, given to them by Afghan authorities, was not accepted. They were then required to change classes in school so their ages were consistent with other students.
They made all reasonable attempts to change the Australian identity records a year after being given new birth dates. The Tribunal does not regard, in the circumstances of the Applicants, that this delay was unreasonable. There was nothing to suggest any urgency in the need to change the record. They were, at the time, children and from a different country where record keeping did not hold the same level of importance as it does in Australia.
There was no apparent need for them to immediately pursue the change of birth date on both the Australian and Afghan records for the purpose of consistency. They had no intention of leaving Australia and all their Australian records were in order.
The Applicants were 20 and 17 years of age at the time they needed to travel to Afghanistan in 2013 for the purposes of the First Applicant’s wedding, and therefore needed to contact the Afghan Embassy. Their original passports had expired. They had not otherwise expected to be travelling outside of Australia.
In 2013, they went to the Afghan Consulate in Canberra to obtain new passports. They took with them their Australian identity documents including their bone density tests. Because the Afghan government did not recognise the changes the Australian authorities made to the birth dates, and relied solely on the Applicants’ taskeras, being their government’s record, their passports were issued with their original dates of birth. None of that evidence, which the Tribunal accepts, is remarkable.
The Applicants were to travel to Afghanistan for the First Applicant’s wedding. The Tribunal accepts that the only way to change their date of birth on their Afghan identity documents was to get a new taskera. This, the Applicants said, needed to be done in Afghanistan but they did not do so because of the danger associated with going to their place of birth to do so. The Tribunal accepts that evidence.
The Applicants obtained visas which contained their Australian corrected birth date. There is no evidence before the Tribunal that they acted in any way to deceive the Australian Government. There is no evidence before the Tribunal to suggest they sought to deceive the Afghan Embassy. The Tribunal rejects the Respondent’s submission that the Applicants were being dishonest in maintaining two distinct dates of birth. They were young men who were dealing with the processes and procedures of two governments which, in respect of their nominated dates of birth which were determined separately, and differently, by each government.
As for the suggestion that the Second Applicant had three dates of birth, that too is a submission that the Tribunal rejects as evidence adverse to the Second Applicant. Insofar as his passport issued in 2013 had a different date of birth, the Second Applicant immediately acted to address the error. This difference was not of his making.
The Tribunal finds that the Applicants’ actions in travelling overseas with documents displaying inconsistent dates of birth, at its highest might demonstrate an error in judgment, particularly as they may have been stopped or questioned at the port of exit or entry. However, that does not mean that they were dishonest and not of good character.
As for the Applicants’ mother’s death certificate, it contains information that seriously undermines the authenticity of that certificate and consequently the proof of their mother’s death. Her date of birth on the certificate must plainly be wrong. The Tribunal does not accept the contents of that death certificate in proof of her death. However, the Tribunal accepts the Applicants and their family pursued what they honestly believed where correct legal avenues to obtain that certificate. Nonetheless, the Tribunal finds that it is not a correct and valid record of her death.
The Tribunal is unable to accept on the available evidence that the Applicants’ mother is deceased. AKR heard of her death from his son but that report of her death is unreliable in the absence of corroborating evidence. Indeed on the evidence the fact of the mother’s death was not recorded until someone attended and registered the fact of that death with the appropriate authority in or about 2017. On the evidence, this may happen without first producing proof of such death and was solely reliant on the report of death. Hence, the consequent death certificate appears, on the evidence before the Tribunal, to be created relying solely on the reporting procedure and the truth or accuracy of that report is untested.

Hence, the Tribunal is not satisfied that the death certificate is an authentic document and accordingly the death of the Applicants’ mother has not been proved.
However, the Tribunal is satisfied the Applicants were orphans as, after their father’s death, their mother abandoned them leaving them in the care of their father’s relatives from an early age. The evidence in this regard was corroborated by AKR who the Tribunal accepts was a credible and reliable witness.
The Tribunal accepts that the Applicants are hardworking young men who have pursued a business, including the employment of five others. They have endeavoured to address the requirements of each government to whom they have been responsible in informing each about their personal details. They have at all times produced to each government all their records of identity and have not withheld documents. Neither Applicant has used, or attempted to use, different dates of birth for an insidious purpose or to maintain two identities.
The Tribunal is not satisfied that their mother’s death certificate is a valid document proving her death. Nonetheless, the Tribunal accepts that the Applicants relied on their uncle to acquire the certificate and genuinely believed it to be a true and valid document. The Tribunal has been very conscious that a false document has been presented by the Applicants and that great care should be taken before finding that the Applicants are nonetheless of good character. However, taking into account the whole of the evidence, the Tribunal finds they are each of good character.
The Tribunal finds proved the identities of the First and Second Applicant and further that each of them are of good character.
DECISION
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decisions under review and remits the matters for reconsideration with the direction that the Applicants satisfy the requirements of ss 24(3) and 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

105. I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.......[Sgnd]......................................
Associate
Dated: 24 December 2019

Dates of hearing: 25 – 26 July 2019

Advocate for the Applicants: Mr Shaukat Ali Akbari, Beena Rezaee Legal and Migration

Advocate for the Respondent: Ms Laura Butler, Australian Government Solicitor

[2019] AATA 5606

24 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Dates of hearing:	25 – 26 July 2019
Advocate for the Applicants:	Mr Shaukat Ali Akbari, Beena Rezaee Legal and Migration
Advocate for the Respondent:	Ms Laura Butler, Australian Government Solicitor