Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 1729

Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 (12 June 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0549
Re:Javid Sakhi Zada
APPLICANT

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

DECISION
Tribunal:Deputy President Boyle
Date:12 June 2020
Place:Perth

The decision under review is affirmed.
..................................[SGD]...................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – citizenship by conferral – Citizenship Policy – identity – identity documents – obtaining documents through unlawful means – expanding scope of review by Tribunal – documents procured through third party – failure to obtain documents through proper process renders documents of no probative value to evidence identity – efforts to procure identity documents not exhausted – character implications where applicant would reasonably expect that documents have no probative value – protection visa – COVID-19 – Tribunal not satisfied of identity – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21, 21(2), 21(2)(h), 24(1), 24(1A), 24(3)
Migration Act 1958 (Cth)
CASES
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Hussain Hazara and Minister for Immigration and Border Protection [2018] AATA 159
JLKJ and Minister for Immigration and Border Protection [2019] AATA 716
RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Taradel and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 1255
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – chapters 2.1, 13
Convention relating to the Status of Refugees, opened for signature 4 October 1967, 606 UNTS 267 (entered into force 4 October 1967).
Protocol relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
REASONS FOR DECISION
Deputy President Boyle
12 June 2020
THE APPLICATION

The Applicant seeks review of a decision made by a delegate of the Respondent on
29 January 2019 to refuse to approve his application for Australian citizenship by conferral under s 21(2) of the Australian Citizenship Act 2007 (the Act).
The delegate refused the citizenship application on the basis that they were not satisfied of the Applicant’s identity.[1]
[1] T2/22.
BACKGROUND
The Applicant arrived in Australia on 6 June 2010 as an unauthorised maritime arrival.[2]
[2] ST1 and ST2/227.
In his entry interview, conducted while in immigration detention on Christmas Island on
[3] ST1/177.
[4] ST1/180.
16 July 2010, the Applicant stated that his name was Javid Sakhi Zada, born 22 April 1988, that he was a citizen of Afghanistan[3] and that he was a Shia Muslim Hazara.[4]
In that interview the Applicant said that he had an Afghan driver’s license and Tazkira,
[5] ST1/179.
but that he did not know where they were.[5]
On 6 November 2010 the Applicant lodged a request for Refugee Status Assessment.[6]
[6] ST2.
In that application he declared he had travelled to India lawfully but did not know whether the passport he used to travel was real as it was taken by the people smuggler.
In a statutory declaration dated 6 November 2010 made in support of his request for refugee status,[7] the Applicant declared that his driver’s licence, Tazkira and other documents, had been taken from him in April or early May 2010 when the truck that he was driving in Afghanistan was stopped by the Taliban.
[7] ST2/226.
The Applicant was assessed as being owed protection obligations on 28 February 2011[8] and was granted a subclass 866 (Class XA) Protection visa on 13 April 2011.[9]
[8] ST3/245.
[9] T6/83.
On 25 May 2015 the Applicant applied for Australian citizenship by conferral. In support of that application the Applicant provided several Australian issued identity documents being his visa confirmation,[10] his Medicare and health care cards,[11] his driver’s licence,[12]
[10] T6/83.
[11] T6/84.
[12] T6/84
[13] T6/84
[14] T6/86.
a Westpac Bank pay pass card[13] and a letter from the Applicant’s bank, Westpac Bank.[14]
In January 2017 the Department of Immigration and Border Protection (Department) sent a letter to the Applicant[15] seeking further documentary evidence of his identity.
[15] T7.
[16] T8.
[17] T8/92-109.
[18] T8/110-119.
On 20 February 2017 the Applicant provided an Afghan driving license with a NAATI translation[16] together with completed Department Forms 80[17] and 1399.[18]
In a statutory declaration dated 23 July 2018[19] the Applicant explained that his Afghan driving license had been confiscated by the Taliban before he left Afghanistan, and that:
In 2011 I sent money to my friend in Kabul with my details and requested him to get a replacement drivers license [sic] for me. He had informed me that he knew a “fixer” who had a contact inside the Traffic Management Department in Kabul who could provide me with a genuine replacement license [sic];
The replacement license [sic] was issued with the original details which were on the file in that department, so it was a true replacement of the original license [sic]…
I firmly believe that the license [sic] I provided is authentic and a true replacement of my original license [sic];
[19] T10/126-127.
On 20 September 2018 the Department sent the Applicant a “natural justice letter” by which the Department invited the Applicant to comment on adverse information.[20] The Applicant’s representative responded on 15 October 2018 with submissions, a statutory declaration from the Applicant dated 11 October 2018 and other documents.[21]
[20] T13.
[21] T14.
By letter dated 23 November 2018[22] the Department requested that the Applicant contact the Afghan Embassy in Canberra to obtain a replacement Tazkira. By email dated 18 December 2018 the Applicant’s representative responded as follows:
Thank you for your email requesting that Javid Sakhizada [sic] obtain a new Tazkira through the Afghan Embassy. Unfortunately this is not possible. I have personally inquired with the Afghan Consul and was informed that in this instance it is not possible to obtain a new Tazzkira [sic]. The circumstances are that he has neither his original Tazkira nor his father's Tazkira, therefore it is impossible. If you would like I could send you the email thread so that you can see the exact conversation,

if so please email me and advise me, then I will forward you a copy.
[22] T16.
By email dated 4 January 2019 an officer of the Department replied to the Applicant’s representative’s email requesting that the email thread be sent within 14 days. The email thread was not provided.
On 29 January 2019 a delegate of the Minister refused to approve the application on the basis that he was not satisfied of the Applicant’s identity, so that s 24(3) of the Act prohibited approval. It is of that decision that the Applicant seeks review.
THE HEARING
The application was heard on 15 May 2020. The Applicant was represented by Mr B Pike and the Respondent was represented by Mr A Gerrard. The parties appeared by telephone. The Applicant was the only witness. These arrangements for appearances and evidence by telephone were made necessary by the closure of the Tribunal premises to parties and the public due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation.
As noted above, the Applicant gave evidence and was cross-examined by Mr Gerrard.
The Tribunal had the following documents before it:
(a)
The Respondent’s statement of Facts, Issues and Contentions dated

30 August 2019 (RSFIC);
(b)The Applicant’s Statement of Facts and Contentions dated 24 October 2019 (ASFIC);
(c)Character Reference from Brayden Hay of Mirrabooka Mechanical and Tyres dated 14 May 2020;
(d)Driving License Verification information issued by Embassy of Islamic Republic of Afghanistan, Canberra;
(e)Statutory declaration of Barry Pike made 12 June 2019; and
(f)Documents produced by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T Documents).
THE ISSUE
The Respondent identifies[23] the issues before the Tribunal as:
(i)
whether the Tribunal should be satisfied of the Applicant’s identity, so that

s 24(3) of the Act does not apply to require refusal of the application; and
(ii)whether the Applicant is of good character, as required by s 21(2)(h) of the Act.
[23] RSFIC para. 14.
The Respondent submits that if either or both of these criteria are not met, then the Tribunal is required to affirm the decision under review.
At paragraph 14 of the ASFIC, the Applicant says:
Although the Decision was based solely on Identity, the Respondent now seeks to bring Character Grounds into this Application for Review and makes numerous submissions based on the Applicant’s character. This could precipitate a question of jurisdiction, or scope in this matter.
The Applicant does not, however, identify what he says the issues are nor does he in his SFIC (which came after the RSFIC) raise any argument relating to the Respondent’s ability to raise considerations which were not raised in the decision under review. The ASFIC does, however, address the allegation upon which the Respondent argues that the Applicant is not of good character and the Applicant gave evidence at the hearing relating to those allegations.
It is the case that the delegate in the decision under review did not make any assessment under s 21(2)(h) of the Act as to the Applicant’s character and did not, in making his decision, rely on the Applicant not being of good character (See [26] below). The Tribunal accepts that, notwithstanding that, the scope of the Tribunal proceeding can, and in the present case, should, be enlarged to include the issue of character as was done in Hussain Hazara and Minister for Immigration and Border Protection.[24] In that case Deputy President Forgie expanded the scope of the review to be undertaken by the Tribunal and observed:
[24] [2018] AATA 159.
[39]The power of the Tribunal to require the parties to put their present positions is consistent with the function of the Tribunal in reviewing an administrative decision. It extends to the parties’ putting their present positions with regard to legal contentions, the lodgement of further evidence or evidentiary material and the consideration of issues that arise in the context of the ultimate question or issue to be asked on merits review of an administrative decision. This approach is compatible with the statement of principles found in the following passage from Drake v Minister for Immigration and Ethnic Affairs (Drake):
“The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists ..., that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by the law ought to be taken into consideration’ must be ignored ...”
[40]I remain of the same view that I expressed in Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2) after considering the authorities and the AAT Act:
“It follows from the purpose of administrative review, as well as from the specific provisions of the AAT Act to which I have referred, that a decision maker may seek to support the decision on a basis completely different from that upon which it was originally made. Equally, a person applying for review of that decision may seek to have it set aside on a basis completely different from that which he, she or it originally put to the decision maker. As the purpose of the proceedings in the Tribunal is to reach the correct and [sic] preferable decision and not to decide any application by stealth or entrapment, all parties are, subject only to exceptions not relevant in this case, required to put their whole case on the table before the proceedings commence.”
(Footnotes omitted.)
The Tribunal is satisfied that the Applicant is not prejudiced by the scope of the review also covering the issue of the Applicant’s good character because, as noted above, although the ASFIC does not specifically say what the Applicant’s position is in relation to the inclusion of that issue, the ASFIC and the Applicant’s evidence and arguments at the hearing did address the arguments raised by the Respondent in that regard.
Accordingly, the Tribunal agrees that the issues for determination are those identified by the Respondent as set out in [18] above.
THE LEGAL FRAMEWORK
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Subsection 21(2)(h) provides that a person is eligible to become a citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister's decision on the application’.
Section 24(1) of the Act provides:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Act provides:
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Accordingly, under s 24(1A), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister's decision on the application’, that being the requirement of s 21(2)(h) (see [26] above).
Section 24(3) of the Act relevantly provides that:
The Minister must not approve the person becoming an Australian citizen unless the
Minister is satisfied of the identity of the person.
The Australian Citizenship Policy (the Policy) states, at chapter 13:
The Identity provisions prohibit the approval of a citizenship application in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
(a to the status of the Policy see RRML and XJFZ and Minister for Home Affairs[25] at [105])
[25] [2020] AATA 1654.
The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (Guidelines).[26] Chapter 2.1 of the Guidelines provides as follows:
A 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.
A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
[26] See >
The Respondent also refers to the Department’s policy in respect of Protection Visa processing which, relevantly extracted, provides:
4.10.1 Three pillars of identity
The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 4.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.
While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant's identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.
THE PARTIES’ CONTENTIONS
The Respondent
The Respondent contends as follows:
Identity
(a)A certificate of Australian citizenship is a legal document of extraordinary significance, the Tribunal should not accept an outcome which could lead to a certificate being issued in circumstances where the identity of the Applicant is far from clear (citing Beyan and Minister for Immigration and Border Protection[27] (Beyan) at [38] and referring to the Explanatory Memorandum, Australian Citizenship Bill 2005, which states “[t]here 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”).
[27] [2015] AATA 256.
(b)
The Applicant has been consistent in respect of his name and date of birth.

Likewise, his life story, including his claims for protection as a Hazara Shi’a, were accepted by the Refugee Status Assessment delegate and there is no reason for the Tribunal to doubt the veracity of those claims.
(c)
However, the absence of documentation together with the “dubious circumstances of obtaining the Afghan driver’s license” weigh heavily against the Applicant.

The Respondent concedes that whilst production of documentation to establish identity is not legally essential, where no documents are produced there will need to be a cogent and acceptable explanation as to why no documents are produced in order for the Tribunal to reach a state of positive satisfaction of the identity of the Applicant.
(d)The Applicant has not provided a plausible explanation for the lack of documents nor an explanation for his providing a document which was “obtained through non-legitimate means”.
(e)The Respondent summarises his case in relation to identity at paragraph 28 of the RSFIC as follows:
First, there is a lack of documentation which supports the applicant’s identity since birth, or at least before his arrival in Australia. Aside from the Afghan driver’s license (discussed below), the applicant has not provided any other identity documents predating his arrival in Australia.
Secondly, the Afghan driver’s license was not obtained through appropriate channels. Information from the Afghan Ministry of Interior Affairs states that before an Afghan driving license can be obtained, it is necessary to apply for a driving license permit from the police. Driving license permit applications are submitted in writing to the police department for the applicant's place of residence. Afghan driver's licenses can be obtained at the age of 18 years of age by providing a Tazkira identity document. Traffic Police Headquarters located in the capital of each Afghan province are the only authorised agency permitted to issue driver’s licenses. A person needs to be resident in Kabul to have an Afghan driver’s license issued from Kabul by Kabul police authorities.
Thirdly, the applicant has not provided any documentation from his family members who reside in Afghanistan. Whilst the applicant’s mother and father are deceased, 4 of his siblings reside in Afghanistan (and another sister resides in Iran). It could be expected that his siblings have Tazkiras, driver’s licenses or other evidence of their residence in Afghanistan, given that the DFAT country information report suggests that the Tazkira is the primary identification document for Afghan citizens and is necessary for a range of government services including education, employment and to acquire other forms of identification such as passports and drivers' licenses. The applicant has not provided any documentation from his wider family, or any explanation as to what steps he has taken to obtain such documentation.
Fourthly, the applicant has provided insufficient evidence about his contact with the Afghan Embassy in Canberra and it is not clear that this line of enquiry to obtain a replacement Tazkira has been exhausted. There is no direct evidence from the applicant before the Tribunal about the outcome of the telephone calls from the Embassy officials to the applicant (see emails from Embassy 10 December 2018 and 7 February 2019 annexed to declaration of Mr Pike sworn 12 June 2019). Further, it is unclear as to the source of the matters deposed at [3] of that declaration, i.e. whether those matters are the opinion evidence of Mr Pike, based on telephone conversations which he had with the Embassy, or based on information relayed by the applicant to Mr Pike. In the circumstances, this line of enquiry does not appear to be exhausted.
Fifthly, the applicant’s credibility is in doubt, which is intrinsically linked to identity. The applicant admits he engaged a fixer to obtain a driver’s license in 2011, and he provided that fake document to the Department in support of his citizenship application. The applicant maintained the deception that the document was genuine and obtained through proper means until the Department put his inconsistent declarations to him.
(Footnotes omitted.)
Character
(f)The Applicant paid a “fixer” to obtain his driver’s licence in Afghanistan and that he supplied that document to the Department as evidence of his identity.
(g)There are credibility concerns as regards the Applicant’s evidence. The Respondent refers to the fifth of the points set out in (e) above.
(h)The Applicant’s conduct is “undeniably serious”, citing the following passage from Taradel and Minister for Immigration, Local Government and Ethnic Affairs[28] (Taradel) at [23] in which the Tribunal observed:
Dishonesty in dealings with the department is a very serious matter… [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history…When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly…
(i)The Applicant only explained the circumstances in which the Afghan driver’s license was obtained when it was directly put to him[29] that he had previously declared he had no documents from prior to his arrival.
(j)The use of a fixer to obtain the driver’s licence “casts a shadow over his character” or is, at the least, an indication of a “willingness to bypass formal process” citing JLKJ and Minister for Immigration and Border Protection[30] (JLKJ).
(k)The Respondent submits that: “Honesty is a key element of a person’s character and significant weight should be given to the applicant’s preparedness to dishonestly provide false or misleading information to immigration officials in support of his citizenship application”
[28] [2005] AATA 1255.
[29] T9/123.
[30] [2019] AATA 716.
The Applicant

The Applicant responds to the Respondent’s contentions as follows:
(a)The Applicant believes that his Afghan driver’s licence is genuine.
(b)The Applicant was asked (by the Department) to provide further documents and was asked to explain why he provided a driver’s licence when he had said in his first interview when he arrived as an unauthorised arrival that his licence had been confiscated by the Taliban.
(c)In response to the request for an explanation the Applicant provided a statutory declaration on 23 July 2018[31] explaining how it was obtained and repeated his belief that it was genuine.
[31] T10/127.
(d)In response to the “natural justice letter” (see [12] above) the Applicant provided the 11 October 2018 statutory declaration[32] explaining that the it was normal for an Hazara to pay a “fixer” to procure a driver’s licence, which is what he did.
[32] T14c/153.
(e)By letter dated 23 November 2018[33] the Department advised the Applicant (through his representative) that he needed to make enquiries of the Afghan Embassy in relation to the Applicant obtaining a replacement Tazkira.
[33] T16.
(f)In response to the Respondent’s submission that the Applicant has not exhausted the line of enquiry to obtain a replacement Tazkira (see [34e], fourth point, the Applicant points to the Afghan Embassy website which advises that “The applicant will need a copy of one of her/his paternal relatives’ Tazkira”.
(g)The Applicant has consistently advised that he does not have his father’s Tazkira nor does he have access to any of his relatives’ Tazkiras which makes obtaining an absentee Tazkira impossible.
(h)Further, the Afghan Embassy advice is that “The applicant should send the original package to her/his representative or relative in Afghanistan, whose details are included in the application form, for further assessment and processing…” and that, in response to the natural justice letter, that the Applicant had advised the Department that “[e]ven his brothers there were not prepared to risk to try to apply for a replacement Tazkira for him because of questions that would be asked putting them in danger”.
(i)Based on the Applicant’s representative’s enquiries of the Afghan Embassy and what is contained in the Embassy website, it is not possible for the Applicant to obtain a replacement Tazkira.
(j)The Applicant has worked as a cultural adviser for the Salvation Army in the Manus Island and Naru immigration detention centres from April to October 2013, both of which have high scrutiny of people working in them. Prior to commencing in those roles he was vetted and cleared by police.
(k)
Insofar as the assertion is made by the Respondent that the Applicant behaved dishonestly in obtaining and providing the driver’s licence to the Department as evidence of identity, the Applicant advised exactly how he obtained the licence.

He has never tried to hide how he obtained the licence.
(l)The process that he had to go through to get the driver’s licence was the standard procedure that Hazaras have to follow and he has consistently asserted his belief that the driver’s licence obtained, as he has described, is valid.
(m)He admits that he used a fixer to obtain the licence and points out that it was he who told the Department that that was the case.
(n)The conclusions in the RSFIC that the Applicant had been dishonest or is someone willing to bypass formal processes is against the presumption of innocence.
(o)
The Applicant has not, as asserted by the Respondent, attempted to mislead the Department by providing the driver’s licence and maintaining that it is genuine as he has at all times disclosed the circumstances in which the licence was obtained,

in particular the use of a “fixer” and still maintains his view that the licence is genuine.
(p)It is inconsistent of the Department to be satisfied with the Applicant’s identity in granting him his visa and allowing him to work in the detention centres but not be satisfied when it comes to his application for citizenship.
(q)It is odd to refuse citizenship on the basis of identity when “identity” is not defined in the Act.
CONSIDERATION
Identity
Senior Member CR Walsh in Beyan at [38] noted:
…As submitted by the Minister, a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
(see also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[34] (Al-Hussaini) at [30]-[31])
[34] [2020] AATA 1267.
In Confidential and Minister for Immigration and Citizenship[35] (Confidential) the Tribunal found:
[34]I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.
[35] [2013] AATA 144.
Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection[36] (Dhayakpa), commenting on Confidential, observed:
[117]Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity.

I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
[118]I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
[36] [2015] AATA 310.
The approach taken in Dhayakpa has been followed by Tribunals in a number of cases (see YMPL and Minister for Immigration and Border Protection[37]; Al Temimi and Minister for Immigration and Border Protection[38]).
[37] [2017] AATA 1458.
[38] [2014] AATA 97.
In Sinnathamby and Minister for Immigration and Border Protection[39] the Tribunal accepted that the applicant had lost his identity documents in the capsizing of a boat en route to Australia, but found that the inconsistencies in his other evidence and the bogus nature of some documentation provided in support of the citizenship application gave rise to a conclusion that he was not a person of good character.
[39] [2018] AATA 2579.
The Tribunal also notes the comments of Senior Member Puplick in Al-Hussaini:[40]
[40] [2020] AATA 1267.
[41]In Nguyen I came to a conclusion, affirming a denial of citizenship, in the following terms:
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[42]Similarly, in Fang, I said, in relation to the use of false documents:
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.
Based on the evidence that has been presented, can the Tribunal be satisfied of the identity of the Applicant? If it cannot, the prohibition on the approval of the person becoming an Australia citizen under s 24(3) of the Act will apply and the decision under review must be affirmed.
Other than documents produced after the Applicant’s arrival in Australia (see [9] above), which were produced based on what the Applicant told authorities, the only document that the Applicant has produced to evidence his identity is the Afghan driver’s licence.

On the question of identity, the Respondent’s position on that document was summarised by the Respondent’s counsel in closing submissions as follows:[41]
…the tribunal should have regards to the highly dubious means by which the applicant acquired this document, and the applicant’s admission that he has done this before in respect of other documents. We say that the applicant’s evidence all has to be viewed through the prism that the one thing you can be sure about, is that there is a dubious document which was provided, and admissions as to how it was obtained. And the tribunal can have no confidence in the applicant’s explanation that this is the way which Hazaras find to be more expedient.
[41] Transcript at 35.
The Applicant concedes that the driver’s licence was obtained by a “fixer” and that the proper legal process was not followed. The Applicant says that he has been transparent about how the licence was obtained. That is not quite correct. The Applicant did not volunteer the information that the licence was “irregularly” obtained when he submitted the licence to the Department on 20 February 2017 (see [10] above). It was only when asked by the Department in April 2017 to explain how he had been able to produce the Afghan driver’s licence when he had advised the Department in 2010 that his driver’s licence had been confiscated by the Taliban,[42] that the Applicant provided a statutory declaration, and then not until July 2018,[43] in which he set the circumstances of his obtaining the driver’s licence (see [11] above).
[42] T9.
[43] T10/126.
While it is the case that the Applicant advised the Department how he obtained the driver’s licence, that advice was not provided at the time that the licence was put forward by him as evidence of identity and only after the Department had pointed out that he had, in 2010, advised the Department that his driver’s licence had been confiscated by the Taliban.

The Applicant had, in February 2017, provided the driver’s licence to the Department without advising that the licence had not been obtained through proper processes, but rather had been procured by a “fixer” making, what on any assessment, were illegal payments to relevant authorities.
While conclusions can be drawn as to the Applicant’s honesty and character from the circumstances of his obtaining the driver’s licence and his provision of the licence in support of his application for citizenship, and the Respondent certainly invites the Tribunal to do just that, insofar as the Afghan driver’s licence is put forward by the Applicant as evidence of his identity, no weight can be given to it.
Even if the Tribunal were to accept the Applicant’s evidence as to the “need” for Hazaras to go through the unlawful avenues that he describes to obtain a driver’s licence, a driver’s licence issued as a result of the procedure described by the Applicant can be of no value in establishing the identity of the Applicant. The reason that documents issued by responsible authorities, such as a driver’s licence, are nominated in the citizenship application form[44] as being documents verifying identity, is that they contain “photograph; signature; current address and date of birth”. The validity of such a document as evidencing identity is reliant on the document being issued in accordance with the relevant legal process applicable to the document. Obviously, a driver’s licence issued with a person’s photograph on it (such as the driver’s licence produced by the Applicant) is only evidence of the person’s identity if the issuing authority has seen the person to verify that the photograph on the licence is that of the person in whose name the licence is issued. A document that simply has a photograph of someone and a person’s name on it procured by a third party making unlawful payments is of no probative value in establishing that the name and the face on the licence belong to the same person. The process by which that would be assured has been subverted rendering the licence as issued of no value in determining the Applicant’s identity.
[44] T6/76 para 32.
In the end the Applicant has not produced a single document to establish his identity other than those which have been issued to the Applicant after his arrival in Australia. In effect, those documents are simply evidence of who the Applicant says he is, not of who he is.
The other document in relation to which much evidence was given and time devoted at the hearing was the Tazkira. The Tribunal has reservations about the Applicant’s evidence on this issue. In his first known statement, the record of his interview with immigration officials on 16 July 2010,[45] he is recorded as having said that he did not know where his driver’s licence and Tazkira were.[46] In the next known statement made by the Applicant, his statutory declaration made 6 November 2010 in support of his protection claim,[47] he declared that the Taliban “took my licence, Taskira and other documents”. That story was accepted by the Department in making the Refugee Status Assessment.[48]
[45] ST1.
[46] ST1/179.
[47] ST2/226-7.
[48] ST3/247.
Subsequently, however, the Applicant’s story changed. He was cross-examined on this issue as follows:
COUNSEL: And you say that that document and your registration documents were taken from you when the Taliban took you. Is that correct?
APPLICANT:    Yes. That’s right.
COUNSEL:And you gave evidence to Mr Pike that you never had a taskera?
APPLICANT:    Yes. I never had that. Yes, I had driver’s licence and registration paper work and it’s been taken from me, so there is, yes.
COUNSEL:But you did tell the department previously that you did have a taskera and that was one of the documents that was taken from you by the Taliban. So why would you say that?
APPLICANT:    To be honest, (indistinct), I can’t really remember I had a the taskera because I was very young person and in 10 years I had that anxiety and stress and I can’t remember every little detail that I’ve been through in 10 years.
COUNSEL:Well, you’d remember if you had a taskera or not. You gave fairly solid evidence to Mr Pike [in evidence in chief] saying that you never had a taskera, and that’s inconsistent with evidence that you’ve given to the department before saying that you did have a taskera and it was taken from you by the Taliban. So which is it?
APPLICANT:    Even if I had it, it’s been taken then at this point, I, the point is that I can’t it now. That’s the point. Even if I had it - - -
COUNSEL:At this point in time, Mr Sakhi Zada, I want to know whether or not you did or didn’t have a taskera?
APPLICANT:    I can’t remember. That’s why. It’s been 10 years. I can’t remember. To be honest, I can’t remember. (Indistinct) - - -
It does seem odd to the Tribunal that on such an important issue the Applicant’s story could have so fundamentally changed. The Tribunal does not accept that explanation that he was a “very young person and in 10 years I had that anxiety and stress and I can’t remember every little detail that I’ve been through in 10 years”. When he made the statutory declaration in November 2010[49] he was 22 years old[50] so he was not, as claimed, a very young person, and the events that he was talking about, namely the Taliban confiscating his Tazkira, had, according to the Applicant, occurred only 6 months earlier, in May 2010.[51]
[49] ST2/226-8.
[50] Paragraph 4 of the statutory declaration.
[51] Paragraph 9 of the statutory declaration.
Whatever the truth of that story, the fact is that the Applicant has not obtained a replacement, or new, Tazkira, depending on which of the Applicant’s versions of whether he ever had a Tazkira is accepted. Counsel for the Respondent in closing summarised the Respondent’s position as follows:[52]
As with all persons from Afghanistan, the taskera is the critical document for identity purposes. The applicant originally said to the department that he had a taskera but it was taken away from him by the Taliban, and that he has been unable to obtain an absentee taskera. In evidence today he said that he never had one. He gave quite unequivocal evidence that, ‘I never had a taskera,’ and that his brothers never had a taskera. That is evidence which should be of concern to the department that on occasion he has given — he has clearly given inconsistent evidence in respect of whether or not he held a taskera. The evidence, or the country evidence, would suggest that the most plausible likelihood is that he did hold a taskera when he was in Afghanistan, and that his brothers held a taskera and that they still do.
And the reason that he is not saying so, is because if he can get hold of a copy of his brothers’ taskeras, he would easily be able to apply for an absentee taskera. The country information on the embassy website indicates that a form can be completed for absentee taskeras, and it does require that that form is completed and an appointment made in person with the embassy, and that what he will need is a taskera of a male relative or a relative from his paternal line. He has four brothers living in Afghanistan, he is in touch with — or, he has three brothers living in Afghanistan and one living in Dubai. He has given evidence that he can get in touch with them, and as well as with the other people in Afghanistan when he wants to.
It is not plausible that he cannot — that his brothers don’t have a taskera. And if that is indeed the case, then that evidence should have been before the tribunal. The tribunal should equally reject the late claim, unsupported by any evidence, that he did ask one of his brothers to go to the embassy and obtain — to go to the relative authority in Kabul — and obtain a taskera on his behalf, and that the brother was asked for (indistinct) $1200 USD. It is inconceivable that an applicant who has been on notice for a very long time that he needs to provide evidence in respect of identity documents, only raises this now. Mr Sakhi Zada was well aware of the requirements necessary. He is represented. It is not credible that he only raises this now.
The applicant has provided some email exchanges between his agent and the embassy. But end vaguely with a request for the applicant’s telephone number.

We do not know what happened after that. Having regards to the information on the embassy’s website, it is likely he would have been advised that he needs to ask a paternal family member for their taskera, and to make an appointment with them.
[52] Transcript at 32.
While the Tribunal does not accept the Respondent’s speculation about whether the Applicant’s brothers have or had Tazkiras, the above summary by the Respondent does reflect a problem that the Tribunal has with the Applicant’s evidence. As counsel for the Respondent points out, it was only in his cross-examination at the hearing that the Applicant first claimed that his brother had attended the issuing authority in Kabul to seek the issue of a Tazkira for the Applicant. The Applicant’s evidence unfolded as follows:[53]
[53] Transcript at 22-23.
COUNSEL:Well, your brother’s in Dubai, why can’t he apply for an e-taskera?
APPLICANT:    No. I don’t — the reason why I’m trying to say is, because last time I fill out a paper from embassy — after an embassy (indistinct) they come in — I fill out a paper and try to get a taskera. Once my taskera — once the paper went there and then they asked me for a $1000 USD, not negotiating the price. It’s $1000 USD because you live in Australia, you’re making thousands of dollars. If you don’t send them, you won’t get a taskera. Simple as that. And then I said, I’m not willing to do that. Why should (indistinct) - - -
COUNSEL:(Indistinct) you can’t get a taskera from Australia is because you have contacted the embassy and they’ve told you that you would have to pay $1000 USD?
APPLICANT:    No, not embassy here, because I can’t ask (indistinct) but I fill up a paper from (indistinct) embassy and they said send him to Kabul and get somebody to go and get for you. So I tried to send one of my brother and they asked me for $1000 USD.
COUNSEL:Why is this the first time we’re hearing about this, Mr Sakhi Zada?—
APPLICANT:     Yes.
COUNSEL:You’ve been asked on a number of occasions to provide evidence in respect of the efforts you have made to attain a taskera, and for the first time today you are saying that you sent one of your brothers down to the embassy and they told him you need him to give them $1000 USD, and that’s why you didn’t get a taskera from them. Why have you not said that before?
APPLICANT:    No, it wasn’t in embassy. Embassy Afghan is in Canberra. There is no embassy in Kabul. Kabul - I fill out a paper, a form, which is, ‘I am in Australia, I need a taskera, this is my name and that’s my date of birth,’ to go to Kabul. And you have to have somebody to get that taskera for you, on behalf of you. So I send my - one of my brother - to go and get for me, and they ask for $1000 USD.
COUNSEL:Yes, and this is the first time we have heard of this. Why haven’t you told the department or the tribunal of this before?
APPLICANT:    I told the department, I think Barry, I’m trying with embassy a few times, and we’ve been told, you guys, the last time, I think, have you told them about it? That place I send a - - -
TRIBUNAL:Sorry, you can’t talk to Mr Pike while you’re being cross-examined?---
APPLICANT:    All right.
COUNSEL:You did not refer to this in your statements, and you have not put this evidence before the tribunal before, and there is no documentary evidence supporting this claim, so I want to know if you want the tribunal to believe that you filled out an application, you sent your brother down to the relevant authority in Kabul and he was told you had to pay $1000 USD and that’s why you don’t have a taskera, I want to know why you haven’t said anything before?
APPLICANT:    Well the reason why is cause that papers went to Afghanistan and I can’t get it back. It’s just - they took them away. I just said, just put it away, I don’t need it. And they don’t have the records here because that’s a general paper filled up and went through there. The embassy. And I told Barry, and Barry ring them up and then Barry got - they asked (indistinct) to talk to me, and then they ring me, I said, I told them this story, and I said, ‘Mate, they been asked for $1000 USD.’ And they said, ‘Maybe they take the (indistinct) money to, like, they want your money, or something. They shouldn’t have.’ And whatever, blah, blah, blah. So, basically I couldn’t get a taskera through the embassy. If you get them, I told them I complained, I make a complaint here, and they just like, ‘Oh, yes, maybe (indistinct) story tried to get money from me because they live here and thinking they can (indistinct) money and that’s what they said. And there’s nothing I can do because I can’t like, (indistinct), for instance, I can’t do anything. I guess - - -

The Applicant was not re-examined on this issue.
It is the case, as the Respondent submits, that the issue of the efforts that the Applicant and his representative have made to obtain a Tazkira was one that was known to the Applicant for a considerable time leading up to the hearing. Mr Pike had in fact supplied a statutory declaration made in June 2019 setting out his and the Applicant’s dealings with the Afghan Embassy and their efforts to have a Tazkira issued to the Applicant. That statutory declaration attached emails that had passed between Mr Pike and the Afghan Embassy some six to seven months prior to him making the declaration. No mention was made in that statutory declaration to the Applicant’s brother having attended or trying to attend the relevant issuing authority in Kabul.
The belated claim that the Applicant’s brother had attempted to obtain a Tazkira for the Applicant also seems to be at odds with the Applicant’s claim made in response to the natural justice letter that “Even his brothers there were not prepared to risk to try to apply for a replacement Tazkira for him because of questions that would be asked putting them in danger” (see [35h] above).
The Tribunal agrees with the Respondent’s submission that:[54]
It is inconceivable that an applicant who has been on notice for a very long time that he needs to provide evidence in respect of identity documents, only raises this now. Mr Sakhi Zada was well aware of the requirements necessary. He is represented. It is not credible that he only raises this now.
[54] Transcript at 32.
The Tribunal is not satisfied, on the evidence that has been presented, that the Applicant has exhausted all reasonable efforts to obtain a Tazkira.
Further, the Tribunal is not satisfied that the Applicant has made all reasonable efforts to obtain other documentary evidence from Afghanistan which might help establish his identity. As is noted in the delegate’s Decision Record,[55] on 3 April 2017 the Department sent the Applicant a letter[56] which asked the Applicant to provide further documentary evidence and, amongst other possible documentary evidence, identified schooling evidence (the Applicant says that he attended Hassan Daga School in Afghanistan from 2000 to 2006). In his statutory declaration in response dated 23 July 2018, which, as noted earlier (see [44] above) was over a year after the request for further information and documentary evidence was made, all that the Applicant said was:
I was informed and believe that the school which I attended was burned to the ground some years ago; I believe it was about 2011. Therefore there are no surviving records of my schooling available;
[55] T2/18.
[56] T9.
That, in the Tribunal’s view, does not demonstrate that the Applicant has made reasonable efforts to locate records which would confirm his attendance at the school he claims to have attended. In the end all that the Tribunal has is a statement from the Applicant that he has been told, by someone, not identified, that the school burned down. There is no evidence that the Applicant has made any effort to obtain schooling records from a relevant authority, or even seek confirmation from any authority or third party that the school actually burned down.
The Tribunal is mindful of the statement of Deputy President Nicholson in Dhayakpa cited at [38] above and the cases that have followed that approach, however, in the present case there is no documentary evidence prior to his arrival in Australia nor any other evidence, such as third party statements, to evidence the Applicant’s identity. In the case of Dhayakpa there was at least one witness other than the applicant (the applicant’s daughter) who gave a written declaration and oral evidence at the hearing (Dhayakpa [54]-[63]). That evidence was relied on by the Deputy President in making his finding on identity (Dhayapka [113], [115] and [121]). No such evidence was provided by the Applicant in this case nor was there any explanation as to why statements could not have been provided by his brothers or sister.[57]
[57] Transcript at 27.
The Applicant refers to the fact that he has been issued with a protection visa and has worked in detention centres which are “high security government facilities”[58] and “was carefully vetted and Police checked”.[59]
[58] ASFIC para. 12.
[59] ASFIC para. 13.
It is the case that the Applicant was assessed as being owed protection by Australia and was issued a protection visa[60] in February 2011. The Department officer who undertook the assessment of the Applicant’s application for protection found:[61]
I accept the information he has provided regarding name, date of birth, place of birth, citizenship, employment, residential history and his claims for protection because he has provided generally consistent information to the Department about these matters.
[60] T6/83.
[61] Refugee Status Assessment Record dated 28 February 2011; ST3/250.
The exercise undertaken in assessing whether an applicant is owed protection obligations by Australia is a different exercise to that which this Tribunal is to undertake to satisfy itself of an applicant’s identity for the purposes of s 24(3) of the Act. The primary consideration of a departmental officer undertaking an assessment on an application for protection under the Migration Act 1958 (Cth) is whether the applicant meets the definition of a refugee as set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol to determine whether the person is owed protection obligations by Australia.[62] While the departmental officer undertaking that assessment did accept the Applicant’s statements as to his name, place and date of birth (see [63] above) for that purpose, there is not even a specific finding in the Findings section of the Record[63] as to the Applicant’s identity.
[62] See Part 7 in Refugee Status Assessment Record ST3/254.
[63] ST3/254.
Further, this Tribunal must make its own decision as to the Applicant’s identity based on the evidence before it. A decision reached by a Department officer in relation to protection obligations that may be owed to the Applicant based on information that that officer had at the time is of minimal probative value in the exercise that this Tribunal is to undertake.
Similarly, the fact that the Applicant may have been employed at the Manus Island and Naru Immigration Detention Centres and may have been subject to some police vetting (of which there is no evidence), is of little or no probative value in the exercise that this Tribunal is to undertake.
Conclusion – identity
Based on the evidence before the Tribunal, the Tribunal is not satisfied of the identity of the Applicant. Accordingly, the prohibition under s 24(3) of the Act applies and the Applicant’s application for citizenship by conferral must not be approved. The decision under review must therefore be affirmed.
Because of the Tribunal’s finding that it is not satisfied of the identity of the Applicant and, consequently, the prohibition under s 24(3) applies, it is not necessary to consider the second issue identified in [18ii] above. However, for the sake of completeness, the Tribunal will briefly address that issue.
Character
There are two aspects to the Respondent’s argument. The first is that the Applicant used a “fixer” to obtain the driver’s licence and the second is that the Applicant put the driver’s licence forward as being evidence of his identity.
It would seem, not only from the Applicant’s somewhat anecdotal evidence, but also from other cases that have come before the Tribunal, most notably JLKJ which was cited by both parties, that the use of “fixers” to obtain driver’s licences in Afghanistan is not uncommon. The Applicant’s statutory declaration of 23 July 2018[64] and his evidence at the hearing explain why the driver’s licence was procured through the use of a “fixer”. The submission by the Respondent in this matter about the use of a “fixer” to procure the driver’s licence set out at [11] above, appears to be the same submission made to the tribunal in JLKJ (see [38] of JLKJ wherein paragraph 33 of the Respondent’s submissions on that issue are reproduced verbatim).
[64] T10.
The Tribunal finds, consistent with Member Edwardes’ findings on the same issue in JLKJ at [70], that the Applicant using a “fixer” to procure the driver’s licence in Afghanistan, in the circumstances that the Applicant found himself as an Hazara and given the prevalence of fraud in Afghanistan,[65] is not evidence of the Applicant not being of good character. In the Tribunal’s assessment, it is more an indication of the unfortunate state of things in Afghanistan rather than “indicative of a willingness to bypass formal processes where those processes are deemed inconvenient by the applicant”.[66] The Applicant also “bypass[ed] formal process” when he came to Australia through the services of people smugglers, however, that is not put forward, quite rightly, by the Respondent as being indicative of a broader “willingness to bypass formal processes” and, presumably, indicative of the Applicant not being of good character for the purposes of s 21(2)(h) of the Act.
[65] See DFAT Country Information Report Afghanistan, ST6/336.
[66] RSFIC para. 33.
Of concern to the Tribunal, however, is the fact that the Applicant submitted the Afghan driver’s licence as confirming his identity when the Applicant would have known that the circumstances by which the licence was procured would render it valueless as evidencing his identity. The Applicant may well have believed that it was a “genuine” licence, in the same sense that his passport and his brother’s passport, apparently obtained by similar means, were “real” passports because they enabled them to travel from Kabul.[67] However, the fact that the driver’s licence was issued without any confirmation of identity being carried out at the time of its issue clearly rendered it of no use as establishing his identity and the Tribunal finds that the Applicant would have appreciated that fact when he provided it to the Respondent in support of his citizenship application. That conduct, rather than the conduct associated with the procurement of the licence, speaks poorly of the Applicant’s character.
[67] Transcript at 22.
For the reasons identified in Taradel (see [34h] above), dishonesty in dealings with the department is a very serious matter. For the Applicant to have provided his Afghan driver’s licence, without explanation or qualification, as proof of his identity in circumstances where he can be reasonably taken to have known that it was of no probative value, falls short of the level of honesty that is to be expected of those dealing with the government on such an important issue as the grant of citizenship.
Whether the lack of honesty found in [73] would, of itself, be sufficient for the Tribunal to find that Applicant is not of good character for the purposes of s 21(2)(h) of the Act is a matter upon which the Tribunal does not have to make a decision because of the finding that the Tribunal is not satisfied of the Applicant’s identity.
DECISION
For the reasons set out in [36] to [66] above, the Tribunal is not satisfied of the Applicant’s identity. Accordingly, the decision under review is affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...................................[SGD]...................................
Associate
Dated: 12 June 2020

Date(s) of hearing: 15 May 2020

Counsel for the Applicant: Mr B Pike

Solicitors for the Applicant: Western Australian Migration Services

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	15 May 2020
Counsel for the Applicant:	Mr B Pike
Solicitors for the Applicant:	Western Australian Migration Services
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor