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

[2021] AATA 1145

Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1145 (5 May 2021)

Division:GENERAL DIVISION

File Number:          2019/5118

Re:Ali Reza Rezai

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M East

Date:05 May 2021

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 7 August 2017, on the basis that the delegate was not satisfied as to the Applicant’s identity as required by s 24(3) of the Citizenship Act, is affirmed.

.........[Sgd]...............................................................

Member M East  

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity and good character – no independent identification documents provided to the Tribunal – Applicant failed to corroborate life story – Tribunal unable to be reasonably satisfied as to the identity of the Applicant – reviewable decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 24(1), 24(3)

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

CASES

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Gjura and Minister for Home Affairs [2018] AATA 4222
LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4654
Mohsin and Minister for Home Affairs [2019] AATA 1999
Re Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shafari and Minister for Home Affairs [2019] AATA 808

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2014) – ch 2.1

Abdullah Athayi, Report on Citizenship Law: Afghanistan (Country Report 2017/09, March 2017)

Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)

Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – ch 13

REASONS FOR DECISION

Member M East  

05 May 2021

APPLICATION

1. The decision under review (the Reviewable Decision) is a decision made by a delegate of the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) on 7 August 2017 to refuse the Applicant citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).

   BACKGROUND

2. The Respondent has accurately summarised the relevant facts in his Statement of Facts, Issues and Contentions (SFIC) dated 25 January 2021 as follows:

   Arrival in Australia and protection visa application

   4.On 24 November 2009, the applicant arrived in Australia by sea at the Territory of Christmas Island on Suspected Illegal Entry Vessel 75 (codenamed the “Yarraville”), when he did not have a valid visa that was in effect. He was detained by officers of the Minister’s Department [the Department] under

   
   

   s 189(3) of the Migration Act 1958 (Cth) (Migration Act).

   5.Relevantly, the applicant did not have identity documentation with him when the Yarraville was intercepted by the Commonwealth.

   6.The following paragraphs represent a summary of the applicant’s claims made to the Immigration Department about his identity in December 2009 and January 2010. The applicant claimed that:

   6.1.he was known by a variation of “Ali Reza REZAI”, born in the District of Khas Uruzgan, Uruzghan Province, Afghanistan in January 1990.

   6.2.he was a citizen of Afghanistan, of Hazara ethnicity and the Shi’a Islamic faith.

   6.3.his uncle was captured and killed by the Taliban in 1998, and his brother went missing shortly thereafter.

   6.4.Consequently, he (and his remaining family members) emigrated to Quetta in Pakistan at some stage in 1998, with the assistance of a people smuggler.

   6.5.He moved from Quetta to Tehran in Iran, in order to obtain work, between 2003 and 2004. He did so with the assistance of a people smuggler. However, he indicated that he returned to Quetta after a year, due to fears that he would be detained by the Iranian authorities and returned to Afghanistan.

   6.6.He returned to his home village in Afghanistan with his father in August 2009. He claimed that persons of the Pashtun ethnicity had occupied their property and made threats that they (the applicant and his father) would be killed by the Taliban if they ever returned to the village or laid claims to their former property. Consequently, the applicant and his father returned to Quetta without reporting the matter to the Afghanistan authorities, due to fears about the authorities’ independence, in October 2009.

   6.7.A month following their return to Quetta, the applicant’s neighbour was killed by extremists in the local market. Consequently, the applicant’s father decided that he (the applicant) should leave Pakistan.

   6.8.The applicant’s father made arrangements with two people smugglers, “Talib” and “Haji”, who obtained an Afghan passport for the applicant (with his photograph but not his name). One of the smugglers then requested that the applicant travel to Lahore, and the applicant did so by train.

   6.9.He flew from Lahore to Jakarta in Indonesia with an agent of the smugglers on a Thai Airways flight in October 2009. The applicant was taken to a house in Jakarta for a little over 2 weeks, before flying domestically with the original escort.

   6.10.The applicant was then taken into the jungle by road before boarding the Yarraville.

   6.11.His counterfeit passport was confiscated before he boarded the vessel.

   7.The applicant’s protection claims were considered through one of the Immigration Department’s non-statutory processes, known as a “refugee status assessment”, on 20 January 2010. The Minister’s delegate was satisfied, for the purposes of that assessment, and “in the absence of any evidence to the contrary”, that the applicant was who he says he was.

   8.The delegate determined, having regard to the above claims, that the applicant was a refugee under Article 1A of the Refugee Convention.

   9.On 9 March 2010, the then Minister for Immigration and Citizenship determined, pursuant to s 46A(2) of the Migration Act, that the statutory bar to a visa application under s 46A(1) of that Act did not apply to an application for a protection visa made by the applicant. The applicant applied for a Class XA Subclass 866 Protection (permanent) visa (protection visa) on the same day.

   10.The delegate who conducted the refugee status assessment also dealt with the application for a protection visa. She was satisfied of the applicant’s identity for the purposes of her visa decision “in the absence of any further evidence”.

   11.The applicant was granted a protection visa on 10 March 2010, which remains in effect. The applicant is therefore a permanent resident within the meaning of s 5 of the Citizenship Act.

   International travel

   12.On 22 July 2011, the applicant was issued (upon his application) with a (Refugee) Convention Travel Document, known as a Titre de Voyage, by the Australian Passports Office.

   13.Using that travel document, the applicant left Australia by plane on Emirates Flight EK425 from Perth to Dubai, in the United Arab Emirates, on 22 October 2012. He returned to Australia on Emirates Flight EK424 from Dubai to Perth on 1 December 2012.

   14.The applicant has indicated that he relevantly travelled to Pakistan for a family visit between 25 October 2012 and 1 December 2012.

   Citizenship application

   15.On 17 March 2014, the applicant applied for conferral approval under s 21(1) of the Citizenship Act. The applicant provided the following documentary evidence in support:

   15.1.Commonwealth Bank of Australia, Certificate of Balance letter, dated 14 March 2014;

   15.2.Certified copies of his Proof of Age Card (WA), Learner’s Permit (WA) and Medicare Card; and

   15.3.Certified copy of the biodata and visa details pages of his Titre de Voyage.

   16.The citizenship application was also supported by 3 “identity declarations”. That is, declarations purportedly made by eligible persons, who are Australian citizens with personal knowledge of the citizenship applicant (of at least one year’s duration), a specified occupation and who were not related to the applicant by birth, marriage or de facto relationship. Relevantly, those declarations were made by:

   16.1.The applicant’s girlfriend’s father, Morgan Thomas Wirth, who is an Australian citizen, and declared that he had known the applicant for

   
   

   3 years in a declaration dated 14 March 2014;

   16.2.Abdul Basil, a medical practitioner but not an Australian citizen, who declared that he had known the applicant for 1 year in a declaration dated 12 June 2014; and

   16.3.Habib Rezayee, a nurse, who is an Australian citizen and declared that he had known the applicant for 2 years in a declaration dated 27 August 2014.

   17.On 24 October 2016, the Department wrote to the applicant by post and email, requesting that he provide documents that will help confirm his identity before he came to Australia. The letter relevantly noted the Department’s experience that many clients who arrived in similar circumstances have been able to source identity documents that were not available to them when they first arrived in Australia. The applicant was also requested to complete and return the following Departmental forms:

   17.1.Form 80: Personal particulars for assessment including character assessment; and

   17.2.Form 1399: Declaration of Service.

   18.That letter was re-sent to the applicant by email on 15 December 2016 and

   
   

   1 February 2017, seeking a response within 28 days.

   19.On 14 April 2017, the applicant wrote to the Department by email, relevantly indicating that he had informed the Department that he did not have any identity documents when he arrived in Australia, and that:

   When we left Afghanistan we didn’t get anything except cash, we weren’t going for a visit we were running for our lives and we left all our belongings to save our life. I am happy to help in any way I can as I have children in Perth.

   20.On 7 August 2017, a delegate of the Minister for Immigration and Border Protection refused the applicant conferral approval.

   21.The applicant was notified of the refusal decision by registered mail to the last known address given to the Department, in accordance with s 47 of the Citizenship Act (read with reg 18(b) of the Australian Citizenship Regulation 2016 (Cth)).

   22.However, it appears that the applicant was not aware of the refusal decision until 7 August 2019.

   Tribunal proceedings

   23.The Applicant sought review of the delegate’s refusal decision on 20 August 2019. He relevantly indicated that he could provide the Department with the requested information, but did not understand the Departmental request for further information at the time it was made.

   24.The Tribunal extended the time for the making of an application for review on 20 May 2020: Re Rezai and Minister for Citizenship [2020] AATA 1373 (Member East).

   25.On 2 November 2020, the applicant provided the Department with completed forms 80 and 1399 (through AGS). In the completed Form 80, the applicant relevantly alleged that he was stateless, as his parents never applied for citizenship for him. He claimed not to have a current passport or travel document, and that he had never had any previous passports or travel documents (excluding the Australian Titre de Voyage).

   26.The applicant relevantly identified that he has an Australian citizen partner, Rennae Nicole Wirth, and 2 Australian citizen children, Jude (5) and Dashae (3), born to their union.

   (Original emphasis and footnotes omitted.)

   ISSUE

3. The issue for determination before the Tribunal is whether it is satisfied of the Applicant’s identity, pursuant to s 24(3) of the Citizenship Act.

   MATERIAL BEFORE THE TRIBUNAL

4. The application was heard by the Tribunal on 10 March 2021. The Applicant was represented by Mr F Faris from Rebus Legal. The Respondent was represented by

   
   

   Mr J Papalia from the Australian Government Solicitor.

5. The Tribunal had the following material before it:

   ·Applicant’s Statement of Facts, Issues and Contentions, filed 9 December 2020 (Exhibit A1);

   ·section 37 T-Documents (T1–T15), consisting of pages 1–147 (Exhibit R1);

   ·supplementary section 37 T-Documents (ST1–ST15), consisting of pages 148–443 (Exhibit R2); and

   ·Respondent’s Statement of Facts, Issues and Contentions, filed 25/01/2021 (Exhibit R3).

   LEGISLATIVE FRAMEWORK

6. Section 21 of the Citizenship Act states:

   (1)A person may make an application to the Minister to become an Australian citizen. …

   General eligibility

   (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)     at the time the person made the application; and

   (ii)    at the time of the Minister’s decision on the application; and

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   (d)understands the nature of an application under subsection (1); and

   (e)possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   (h)is of good character at the time of the Minister’s decision on the application.

   (Notes omitted.)

   Identity

7. Section 24(3) of the Citizenship Act states:

   The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

8. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:

   Subclause 19D(4) states that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. 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.

9. The issue of identity is also addressed by ch 13 of the Australian Citizenship Policy

   
   

   (1 June 2016) (the Policy) at 148:

   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.

10. The Policy refers to the Attorney-General’s Department’s National Identity Proofing Guidelines (2014) (Guidelines). Chapter 2.1 of the Guidelines states in part:

    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.

    2.1.2A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of [an Australian Registry of Births Deaths and Marriages] 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 [Australian Government Department of Immigration and Border Protection] Australian immigration documents or records.

11. On 1 January 2019, the Department of Home Affairs published the Revised Citizenship Procedural Instructions (CPIs). ‘CPI 16 – Assessing Identity under the Citizenship Act’
    

    (CPI 16) of the CPIs at [4.4] identifies three pillars of identity: biometrics, documents and life story. CPI 16 further states that relying on a single pillar to establish a person’s identity is inadequate and that to comprehensively test and evaluate a person’s identity claim, a decision maker should consider each pillar of identity.

12. Guidance as to the meaning of being ‘satisfied of a person’s identity’ is provided for in

    
    

    CPI 16 at [4.16]:

    Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgment. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.

    Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

    Officers should not merely collect information and documents but consider the quality, plausibility, and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.

    Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction.  Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.

13. As established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645, the Tribunal will apply Ministerial policy, unless there are cogent reasons not to do so.

14. The issue of establishing a person’s identity in applications for citizenship by conferral has been considered by the Tribunal in a number of decisions.[1]

    [1] See, for example, Mohsin and Minister for Home Affairs [2019] AATA 1999; Shafari and Minister for Home Affairs [2019] AATA 808; Gjura and Minister for Home Affairs [2018] AATA 4222; CDNB and Minister for Immigration and Border Protection [2018] AATA 757; Beyan and Minister for Immigration and Border Protection [2015] AATA 256; Re Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162.

15. These cases demonstrate the very significant benefits conferred by Australian citizenship.  It can be referred to as a privilege and not a right.  Identity must be considered seriously and each case must be considered on its own individual merits whilst also taking into account the inherent difficulties that may be faced by some applicants who were born in or lived in countries where official documentation could be hampered by internal difficulties of that country.

1. The issue for review by the Tribunal is whether it is satisfied at the time of its decision[2] as to the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act. For the Tribunal to be so satisfied, it needs to reach an affirmative belief as to the Applicant’s identity, rather than apply an evidentiary burden of proof, such as the balance of probabilities.[3]

   [2] VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.

   [3] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [54].

   EVIDENCE OF IDENTITY

2. In his application for conferral of Australian citizenship, lodged on 16 July 2014, the Applicant provided the following documents:[4]

   [4] Exhibit R1, T8–T9.

   ·Medicare card;

   ·Western Australia Learner’s Permit;

   ·Western Australia Proof of Age card;

   ·Certificate of Balance from Commonwealth Bank, dated 14 March 2014;

   ·

   Identity Declaration Form 1195 by Abdul Basil, signed by Mr Basil on

   
   

   12 June 2014 and signed by the Applicant on 14 July 2014;

   ·Identity Declaration Form 1195 by Habib Rezayee, signed by Mr Rezayee on 27 August 2014 and signed by Applicant on 28 August 2014; and

   ·Titre de Voyage.

3. On 24 October 2016, the Department requested the Applicant provide any further documents issued outside of Australia that could help confirm his identity before he came to Australia. He was also asked to provide completed Forms 80 and 1399.[5]

   [5] Exhibit R1, T11, pages 137–8.

4. After several exchanges with the Department, the Applicant advised the Department on

   
   

   14 April 2017 that he did not have any further documents.[6] He did not complete nor return Forms 80 or 1399. In his email to the Department, the Applicant stated:[7]

   When i first arrived i told them that I do not have any documents.

   When we left Afghanistan we didn’t get anything except cash, we weren’t going for a visit we were running for our lives and we left all our belongings to save our life.  I’m happy to help in any way I can as I have children in Perth

   [6] Exhibit R1, T12, page 140.

   [7] Exhibit R1, T12, page 140.

5. A delegate of the Respondent made a decision based on the available evidence to refuse citizenship on 7 August 2017.[8]

   [8] Exhibit R1, T3, page 142.

6. The delegate’s reasoning for refusing the Applicant’s application for citizenship by conferral was that all documentation provided to the Department had been issued to the Applicant since he arrived in Australia at approximately 18 years of age. The delegate conceded that the documents were consistent with each other and that they covered a period of seven years, but in the absence of any earlier documentation the delegate was unable to be satisfied of the Applicant’s identity.

7. Completed Forms 1399 and 80 were subsequently provided to the Department by the Applicant, with both forms being signed by the Applicant on 9 October 2020.[9]

   CONSIDERATION

   [9] Exhibit R2, ST14 and ST15, pages 416–43.

   Statelessness

8. The Applicant in his SFIC stated that he ‘was born stateless in the mountain region in Uruzgan region in Afghanistan’.[10]

   [10] Exhibit A1, paragraph [9].

9. Furthermore, in his Form 80, dated 9 October 2020, the Applicant declared that he is stateless and does not hold citizenship from any country.[11]

   [11] Exhibit R2, ST15, page 425.

10. The Applicant in his oral evidence again stated that he was born in the province of Uruzgan in Afghanistan.[12]

    [12] Transcript, page 7.

11. In submissions at the hearing, Mr Papalia stated:[13]

    … if one accepts the applicant’s claim to have been born in the territory of Afghanistan to Afghani parents as a matter of Afghani law, namely article 9(1) of the Law on Citizenship of the Islamic Emirate of Afghanistan, the applicant is taken to have automatically acquired Afghani citizenship at birth.

    [13] Transcript, page 4.

12. The Respondent provided to the Tribunal a document titled Report on Citizenship Law: Afghanistan (March 2017), which states:[14]

    Afghanistan citizenship is currently acquired by descent, birth in the territory, naturalisation and on the basis of bilateral and international treaties if there is a conflict between the content of the law and treaties.

    [14] Exhibit R2, ST13, page 397.

13. Further, in the decision regarding the Applicant’s claim for protection,[15] the Department found that he is a citizen of Afghanistan.

    [15] Exhibit R2, ST9, page 260.

14. Indeed, in his Refugee Status Assessment Record, the Applicant identified himself as being a citizen of Afghanistan.[16]

    [16] Exhibit R2, ST8, page 254.

15. The Tribunal does not accept the Applicant’s claim that he is stateless as formulated in his SFIC, and instead finds that he is a citizen of Afghanistan.

    Biometrics

16. As mentioned at para [11] above, biometric information is the first of the three pillars of identity listed in CPI 16.

17. Biometric information relevant to establishing identity includes objective personal identifiers such as fingerprints, visual images, signatures, physical features, iris scans and DNA tests.  In this matter, no biometric information has been produced to the Tribunal which could assist in assessing the Applicant’s identity.

    Documentation

18. Documentation is the second of the three pillars of identity listed in CPI 16. The evidence before the Tribunal indicates that there are no documents in existence such as a birth certificate or an Afghani passport for the Applicant. He has made it clear that he had no documentation when he left Pakistan for Australia and that he travelled on a false passport that was confiscated by people smugglers.

19. The Applicant travelled from Lahore to Indonesia by plane and then travelled to Australia as an Irregular Maritime Arrival. En-route he was intercepted by authorities, detained and taken to Christmas Island. He was subsequently granted a Protection (Class XA) subclass 866 (Protection) visa.

20. As noted in para [17] above, the Applicant has produced several identity documents to the Tribunal that he has obtained in Australia. He also submitted the completed Forms 1399 and 80. No other documentation has been provided to the Tribunal.

21. The Tribunal places limited weight on the documents provided in support of the Applicant’s application for citizenship by conferral, as they were obtained after his arrival in Australia and provide little insight into his identity.

22. The Applicant gave oral evidence that he had returned to Quetta, Pakistan in 2012 travelling on his Titre de Voyage.[17] When questioned whether he could have obtained documentation from the Afghani government at the consulate in Quetta, the Applicant stated that the Afghani government would not approve his access to documents, as ‘Rezai’ and ‘Ali’ are very common names in Afghanistan.[18]

    [17] Transcript, page 12; R1, T14, page 146.

    [18] Transcript, page 14.

23. When questioned by Mr Papalia if his parents had obtained an Afghan Citizenship Card (ACC),[19] the Applicant said that they had not because they are too old and it was a big risk for them to travel more than 2 kms away from their home.[20]

    [19] The ACC is a temporary identity documents for Afghans who do not possess other forms of identification and who are not seeking refugee registration.

    [20] Transcript, page 14.

24. Under cross examination the Applicant confirmed that he had not obtained any documents from Afghanistan and furthermore that he had not contacted the embassy in Canberra because his friends had told him that he would not be successful in obtaining a Tazkira from Afghanistan.[21]

    [21] Transcript, page 17.

25. The Tribunal accepts that the circumstances of the Applicant’s birth and early life may have resulted in him not having any formal identification documents. The documentary and oral evidence demonstrated that the Applicant had also not made any attempts to obtain that information despite repeated requests by the Department to do so.

26. On this basis, the Tribunal is not satisfied that the Applicant has exhausted all reasonable efforts to obtain identity documents in support of his application for citizenship.

27. In the Tribunal’s opinion, the lack of documentation concerning the Applicant’s identity, his unwillingness to attempt to obtain further documents and his lack of a reasonable explanation for doing so raises an element of doubt regarding the Applicant’s identity. 

    Life Story

28. Turning to the third of the three pillars listed in CPI 16, the Tribunal accepts that the Applicant’s life story was sufficient for the purposes of being granted his protection visa.

29. With respect to his identity for the purposes of citizenship however, no evidence that would corroborate his story has been provided. When asked why he had not adduced any statements from relatives to corroborate his identity, the Applicant said that they were illiterate and could not write anything down. When asked why his relatives could not give oral evidence by telephone to corroborate his story, the Applicant responded with ‘[o]kay, what do you want to ask them?’[22]

    [22] Transcript page 15

30. The Applicant said that ‘migration have my story in writing’ and was unable to give an explanation as to why he did not provide any corroborative evidence to support his own story. Mr Papalia referred to other documentation such as photographs, bills and receipts that could have been obtained. The Applicant said that the department only asked for identity documents which he repeatedly said that he did not have. When referred to a letter from the Department requesting further material, which gave examples of the requested material, the Applicant again said that he did not have those documents.[23]

    [23] R1, T11, page 137; Transcript page 17.

31. The Tribunal acknowledges the identity declarations provided by the Applicant with his application for Australian citizenship, however, these documents only attest to his identity since his arrival in Australia. According to his own sworn evidence, he has a large family who should in the Tribunal’s opinion be able to give evidence. The Applicant also has a wife in Australia who presumably has her own family. None of these witnesses were called to give evidence at the hearing and none of them provided sworn statutory declarations to corroborate the Applicant’s identity. The Tribunal is left with a situation where the only evidence as to the Applicant’s life story is his own.

32. The Tribunal accepts that in some circumstances an applicant’s own life story may be sufficient and indeed it was for the purposes of his protection visa application. For the purposes of an application for citizenship by conferral however, the evidence before the Tribunal as to the Applicant’s identity is insufficient.

33. In circumstances such as these, where the Applicant needs to positively satisfy the Tribunal as to his identity and there is the option of corroboration from independent non-identity documents as well as from oral or sworn written evidence from other parties, the lack of that evidence raises concerns in the Tribunal’s mind as to the Applicant’s true identity.

    Other matters

34. In his SFIC, the Applicant made a submission that it was in the best interests of his children that he be granted citizenship because failure to do so would mean that he faces the risk of deportation and would be separated from his children. He has two Australian citizen children and their mother is also an Australian citizen.

35. The Tribunal questioned Mr Faris about this submission at the hearing, noting that the Applicant has a permanent residency visa and was not facing any possibility of being deported. Mr Faris advised they were not pursuing that argument.

36. The Applicant also referred to the matter of LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4654 (LHSM). Mr Papalia in closing submissions said that this decision was distinguishable from the Applicant’s circumstances.

37. The Tribunal has read the decision of Senior Member Puplick and agrees with the Respondent’s submission. LHSM concerned a stateless Faili Kurd who had no documentation to prove his identity. The Senior Member determined after reviewing the evidence in conjunction with the country information available that the applicant’s life story was credible and should be accepted as true. In this case, not only does the country information support a finding that obtaining identity documentation is possible, but there is also no corroborating evidence from family and friends of the Applicant’s life story.

    CONCLUSION

38. In applying the three pillars listed in CPI 16, the Tribunal notes the absence of any biometric indicators to confirm the Applicant’s identity. Apart from the identity declarations, there is also an absence of any documentary evidence to establish identity.

    
    

    Furthermore, by his own admission, the Applicant has made no attempts at all to try to obtain documents either from the Afghani embassy in Australia or the consulate in Pakistan. Finally, there is no evidence before the Tribunal to corroborate his life story. Whilst the Tribunal has no reason to disbelieve the Applicant’s life story, there is simply insufficient evidence to positively satisfy the Tribunal as to the Applicant’s identity.

39. Taking all of these matters into account and having regard to the seriousness of the matters to be determined and the significance of receiving a grant of citizenship, the Tribunal is unable to be reasonably satisfied as to the identity of the Applicant.

40. This decision is not determinative of and is not a bar to any future application for citizenship that the Applicant may lodge. The Applicant is entitled to apply again for citizenship; however, it is hoped that the Applicant supports any future application with the appropriate evidence and comprehensively addresses the issue of his identity.

    DECISION

41. The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 7 August 2017, on the basis that the delegate was not satisfied as to the Applicant’s identity as required by s 24(3) of the Citizenship Act, is affirmed.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Member M East

..........[Sgd]..............................................................

Associate

Dated: 05 May 2021

Date of hearing:	10 March 2021
Solicitors for the Applicant:	Mr F Faris, Rebus Legal
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor