Shafari and Minister for Home Affairs (Citizenship)

[2019] AATA 808

Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 (7 May 2019)

Division:GENERAL DIVISION

File Number:           2018/3549

Re:Sher Shafai

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:7 May 2019

Place:Melbourne

The decision under review is set aside and the matter is remitted to the Respondent with a direction that the Applicant satisfies section 24(3) of the Act.

....[sgd]..............................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – citizenship by conferral – delegate refused application for citizenship – not satisfied of identity of applicant – veracity of document provided – birthdate changed historically – other documents supportive of identity – Tribunal limited to review question before decision-maker – decision under review set aside and remitted with direction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37
Australian Citizenship Act 2007 (Cth), ss 10, 21, 24

Migration Act 1958 (Cth)

Cases

Ahmadi and Minister for Immigration and Border Protection, Re [2017] AATA 1086
Beyan and Minister for Immigration and Border Protection, Re [2015] AATA 256
Bramwell v Repatriation Commission (1998) 185 ALR 623
CDNB and Minister for Immigration and Border Protection, Re [2018] AATA 747
Dhayakpa and Minister for Immigration and Border Protection, Re [2015] AATA 310
Gjura and Minister for Home Affairs, Re [2018] AATA 4222

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 234

Secondary Materials

Australian Citizenship Policy, Department of Immigration and Border Protection (1 June 2016), Chapter 13 - Identity

REASONS FOR DECISION

Senior Member D. J. Morris

7 May 2019

1. On 15 January 2014 Mr Sher Shafai applied for Australian citizenship by conferral.  On 19 June 2018 a delegate of the Minister for Home Affairs (the Minister) refused to grant Mr Shafai citizenship because the delegate found that Mr Shafai failed to satisfy the provisions of section 24(3) of the Australian Citizenship Act 2007 (Cth)(the Act) and was not satisfied of Mr Shafai’s identity.

2. On 26 June 2018 Mr Shafai applied to the Tribunal for review of the delegate’s decision on the basis that the delegate erred in failing to be satisfied as to the Applicant’s identity.

3. The hearing was held on 22 February 2019.  Mr Shafai was represented by Mr Manfred Ewikowski of Visa Assist Australia, assisted by Mr Nathan Willis.  Mr Adam Cunynghame of Sparke Helmore represented the Respondent.  Mr Shafai gave evidence and was cross-examined.  The Tribunal was assisted by an interpreter in the Hazaragi language.

4. The Respondent lodged a volume of documents under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth)(‘T’-documents), which were entered into evidence. The Respondent also lodged a Statement of Facts, Issues and Contentions dated 22 October 2018. The Applicant lodged a Statement of Facts, Issues and Contentions dated 24 September 2018. The Applicant also lodged a letter from VicRoads to the Applicant’s legal representative (Mr Willis), dated 21 September 2018 (Exhibit A1); a statutory declaration of the Applicant dated 14 February 2019 (Exhibit A2); and three bundles of documents obtained under Freedom of Information (Exhibits A3, A4 and A5).

5. At the conclusion of the hearing, the Tribunal directed the Respondent to provide a copy of the Taskera (i.e. the Afghani official identity document) provided to the Department of Home Affairs by the Applicant, and for both parties to make written submissions, which they did.

   Background

6. Mr Shafai is from Afghanistan and is an Afghani citizen.  He first arrived in Australia on 7 May 2009 as an unauthorised maritime arrival.  On 16 September 2009 he was granted a Protection (Class XA) Subclass 866 visa (T6, p 52).  The Department accepted that Australia’s international obligations were engaged in relation to Mr Shafai.  A useful summary of the perilous situation for a Hazara Aghani (such as Mr Shafai) is set out by Deputy President Sosso in Ahmadi and Minister for Immigration and Border Protection [2017] AATA 1086 (Ahmadi), from [29] to [35].

7. On 18 August 2018 Mr Shafai was granted a Resident Return (subclass 155) visa, which he currently holds.  On 15 January 2014, Mr Shafai applied for Australian citizenship by conferral (T13, p 138). 

8. On 14 March 2018, an officer of the Department wrote to Mr Shafai (T9, p 111) seeking a range of additional information relating to Mr Shafai’s apparent former residence in Pakistan, documents relating to a Pakistani tourist visa, his Afghan driver licence, and “any other paperwork or documentation that evidences your life story prior to your arrival in Australia.”

9. By letter dated 16 April 2018, Mr Shafai’s legal representatives responded to the Department, provided a range of information and stated:

   To assist the Delegate in further verifying the Applicant’s identity attached copies of his travel documents and drivers licences have been supplied.  We submit these documents satisfy the ‘identifying information’ definition of the Act s 3 and satisfy the s 24(3) need to establish identity (Budilay v Minister for Immigration and Citizenship [2011] FCA 508 at [6]).

   We advise that copies of Passports of the Applicant’s family members and Taskera documents for the Applicant’s family members are attached, together with translations.

10. On 30 April 2018 an officer of the Department wrote to Mr Shafai (T7, p 42) and offered the opportunity for him to comment on adverse information that the officer said may lead to a decision to refuse his application to become an Australian citizen.

11. Specifically, the Department advised Mr Shafai that, in respect of the Taskera provided as evidence of his identity, the Department had contacted the Afghanistan Central Civil Registration Authority (ACCRA) National Identity Verification Centre in order to determine if the Taskera was genuine.  The ACCRA had advised that the information contained in the Taskera did not correspond with its records and that the Taskera was not issued by the Afghan Population Registration Directorate (APRD).

12. In addition, the Department advised that the copies of Taskeras relating to Mr Shafai’s wife (but see below) and eight children had also been referred to ACCRA which had provided a similar response, that the information contained in these documents did not correspond to ACCRA’s records and that they were not issued by the APRD.

13. Mr Shafai was also asked by the Department to provide details of the sponsor for visas he obtained for visits to Pakistan for ‘significant periods of time’ visiting family members.  The Department advised Mr Shafai that VicRoads had told them that the Applicant had submitted an Afghan driver licence when he obtained his Victorian driver licence and asked for a copy of that licence; noting that in a 2009 interview Mr Shafai told migration officers that his driver licence had been lost when his house was looted seventeen years earlier (i.e. in 1992) but VicRoads had advised that Mr Shafai provided an Afghan licence to them in July 2011.

14. On 28 May 2018 Mr Shafai’s legal representatives responded to the Department (T4, p 33).  In respect of the Taskeras, it was submitted that when Mr Shafai gave the Taskeras to the Department, he believed they were genuine.  Attached to this letter was a statutory declaration made by Mr Shafai (T4, p 37) which relevantly stated:

    The Taskeras I submitted to the Department were, at the time of my submission and to the best of my knowledge genuine.  They were organised by a migration agent by the name of Zahir whose phone number is [redacted].  I received his information from a group of friends who said that he had arranged their documents.  I communicated with Zahir over the phone and I paid for his services with a money order.  I do not have a receipt for the money order.  The Taskeras were delivered to me through a common friend once they were issued.  The first indication I had about the Taskeras not being genuine was when I heard from the Department that the issuing of the Taskeras required my physical presence.  If I had known the Taskeras were not genuine I would not have submitted them to the Department.

15. On 19 June 2018 the Minister’s delegate refused to grant Mr Shafai citizenship.  The delegate considered (T2, p 15) that it is ‘widely known’ that Taskeras are not issued outside Afghanistan and that the Applicant or a male family member must return to their family’s place of residence or to Kabul in order to apply for a Taskera.  The delegate further noted that, when Mr Shafai’s protection visa application was processed, he had said that he previously held a Taskera that was lost when his house was looted and:

    Since you have already been through the process for obtaining a Taskera I am disinclined to believe that you were unaware of how that process works.

    If I were to accept that you were unaware that the Taskeras were non-genuine the fact remains that the Taskeras are non-genuine and therefore do not support the identities of yourself or family members. Consequently I place no weight against these documents in support of your identity.

    Submissions of the Applicant

16. The Applicant submitted that 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, and cited Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (Dhayakpa) in support of this contention.  The Applicant submitted that the provision of the Taskera should be considered by the Tribunal as an attempt by Mr Shafai to avail himself of an opportunity to secure evidence of identity which he had been advised to secure.

17. Mr Ewikowski submitted that Mr Shafai is a man of limited literacy and was taken advantage of by an Afghani document dealer who promised him a Taskera; and that Mr Shafai trusted this dealer because he believed that, in a disturbed society such as Afghanistan, production of documents can occur through a variety of processes and not simply the process requiring him to collect the Taskera in Afghanistan.

18. Mr Ewikowski noted that Mr Shafai has provided two dates of birth since arriving in Australia, 1 January 1965 and 24 March 1961 and submitted that it was open to the Tribunal to consider the different birthdates to be of no consequence since either date would satisfy the age criterion in section 21(2)(a) of the Act for the purposes of citizenship.  The Applicant submitted that birthdates are often not recorded in Afghan culture and rounding of a birthdate to a specific year frequently occurs to accommodate the requirement to change dates from the Persian to the Western calendar.  Given that there was no dispute between the parties that Mr Shafai was over the age of 18 when he applied for citizenship by conferral, it was submitted that the Tribunal may ‘arbitrarily accept’ either date and that, in any event, birthdates are not specifically referred to in section 10(1) of the Act as being a personal identifier.  Mr Ewikowski argued that other documentation provided by Mr Shafai provides valid personal identifiers since they are based on more than the Applicant’s birthdate.

19. Mr Ewikowski submitted that consideration of Mr Shafai’s identity is not confined to the reasoning used in the original decision and that a merits review “must include a capacity to depart from the process of reasoning which led to the ultimate decision” (Bramwell v Repatriation Commission (1998) 185 ALR 623, at 631 and that it is open to the Tribunal to be satisfied of Mr Shafai’s identity through the application of the Act.

20. Mr Ewikowski submitted that the Applicant’s identity was satisfied to the standard of the so-called ‘three pillars test’ set out in the Policy – Refugee and Humanitarian (The Protection Visa Guidelines), at the time Mr Shafai was granted a protection visa; and that the personal identifiers contained in his protection visa and subsequent identification documents have been accepted by government agencies, such as VicRoads and the Queensland Department of Transport and Main Roads, as being determinative of Mr Shafai’s identity.

    Evidence of the Applicant

21. Mr Shafai was asked about the identity declaration included in his application for Australian citizenship (T15, p 148) and who had witnessed it.  He said the witness was a bank manager who he had known for around two years, having opened a business account at his branch.  He said in order to open the bank account he had provided a Queensland driver licence and a letter from a business. 

22. Mr Shafai was taken through testimonials he had provided to the Department.  He said that Mr Eid Mohammad Baqeri (T7, p 65) is a friend he had known for around seven years who assists him when he needs help writing documents in English. Mr Branko Levak (T7, p 66) is his landlord, whom he has known for between three and five years.  Ms Margaret Nagy (T7, p 68) is a lady to whom Mr Shafai had sold a car and who brings her vehicle in for services to his auto-mechanic business.  She states that she has known Mr Shafai for two and a half years.

23. Mr Shafai said, when he obtained his Victorian driver licence, he provided his Afghani driver licence to VicRoads.  He said that he had left his Afghani licence in Afghanistan when he left and that a friend had later brought it to Australia.  He told the Tribunal that he had since lost the Afghani driver licence.

24. In answer to a direct question from the Tribunal about what records were made of his birthdate at the time of his birth, Mr Shafai said that his date of birth was recorded in the family’s Holy Koran but that, later, their home was attacked by the Taliban and burnt.  Mr Shafai said that his late father had told him that his date of birth had been registered at the local Taskera office.

25. Mr Shafai said he could not remember what date he said he was born when he first arrived in Australia, but accepted that the Department had recorded it as 1 January 1965 at the time.  He said that his father subsequently told him that the date 1 January 1965 was not his date of birth; Mr Shafai told the Tribunal that this date had been his estimation at the time he was interviewed on arrival.  He said that when his father advised him that this was not his actual date of birth “we arranged for a person in Afghanistan to sort it out, and paid them by transferring the money” and obtained a Taskera.  He said that his father had since advised him that his date of birth is 24 March 1961.

26. Mr Shafai said that his father would read the Koran each morning and remembered his son’s date of birth recorded on the last page of the holy book.  Mr Shafai was asked whether he was ever issued a Taskera while in Afghanistan, and he said he was when he was very young; his father obtained it, but that specific Taskera was destroyed when their family house was burnt.

27. Mr Shafai said that he believed that the Taskera he obtained and submitted to the Department was “100 per cent genuine.  I was sure it was genuine, otherwise I wouldn’t have submitted it.”

28. Under cross-examination, Mr Shafai said that he provided a photograph of himself to the document dealer from whom he obtained the Taskera, together with his name and date of birth.  He was unsure whether his father had given the dealer additional information, such as his place of birth.  He said he spoke to the dealer ‘once or twice’ and discussed his date of birth and the spelling of his name.

29. In terms of the other Taskeras relating to his wife and children, Mr Shafai told the Tribunal they were not obtained from the same document dealer, and that his family had crossed from Pakistan, where they are currently living, to Afghanistan to obtain them personally.  When it was pointed out that he stated in a statutory declaration of 25 May 2018 (T4, p 37) that his family live in Pakistan as unregistered migrants “and are at risk of being deported back to Afghanistan”, Mr Shafai said they travelled illegally back to obtain the Taskeras.

    The Question of Character

30. The Respondent urged the Tribunal not to make character findings in relation to Mr Shafai.  Mr Cunynghame submitted that the Minister’s delegate had not considered whether Mr Shafai was of good character at the time of the decision to refuse his citizenship application (a requirement under section 21(2)(h) of the Act), because the Minister was not satisfied of the identity of the Applicant under section 24(3) of the Act.

31. In this respect, the Respondent drew the Tribunal’s attention to the decision of the Full Court of the Federal Court in Hospital Benefit Fund of Western Australia Inc. v Minister for Health, Housing and Community Services (1992) 39 FCR 225, at 234:

    It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence place before it.  It is not confined to the evidence which was before the primary decision-maker.  The Tribunal is, however, obliged to address the same question as was before the primary decision-maker.

32. The Tribunal agrees with the submissions that it would misdirect itself if it considered Mr Shafai’s character.  As the Tribunal said at the commencement of the hearing, because the Minister’s delegate had decided they were not satisfied of Mr Shafai’s identity, his application for citizenship by conferral fell at that hurdle.  The Tribunal notes that several of the provisions of section 21(2) of the Act were considered and were satisfied, such as the fact that Mr Shafai must be aged over 18 at the time of the application (section 21(2)(a)); the general residence requirement (section 21(2)(b)); that he had successfully completed the Australian Citizenship Course (section 21(2A)); and that the delegate was satisfied that Mr Shafai was likely to reside in Australia or maintain a close and continuing relationship with Australia if the application was approved (section 21(2)(g)).  However, the decision record (T2, p 13) shows that the delegate did not assess whether Mr Shafai was of good character at the time of the decision.

33. Accordingly, this consideration will be confined to whether the Tribunal is satisfied of Mr Shafai’s identity and, if so, the matter would be remitted to the Respondent with a direction to that effect. The Respondent would then consider the remaining requirements of the Act.

    CONSIDERATION

34. In regard to of Mr Shafai’s birthdate, the Tribunal is satisfied that the date he originally provided of 1 January 1965 was an ‘estimation’ based on his knowledge of his approximate age and based on the fact that Mr Shafai grew up using the Solar Hijiri calendar rather than the Gregorian calendar as used in Australia. 

35. The Tribunal notes that Mr Shafai provided his corrected date of birth (24 March 1961) in his Personal particulars for assessment form (T12, p 120) as well as the earlier, erroneous, date of 1 January 1965 (T12, p 121).  The Tribunal found the evidence of Mr Shafai that he corrected his date of birth to 24 March 1961 (in June 2010, T2, p 16) following a conversation with his late father, and his evidence that he based this date on what he, the Applicant’s father, recalled inscribing in the family Koran at the time of Mr Shafai’s birth, not only plausible but convincing.  The recording of family birthdates in a family Holy book is a common practice in many cultures.  The fact that Mr Shafai said that his father used to read from that copy of the Koran each morning added to the verisimilitude of this evidence.

36. The Tribunal finds that Mr Shafai’s birthdate is 24 March 1961.

37. In terms of the Taskera provided to the Department, the Tribunal finds that this is not an authentic document, based on the advice the Respondent received from the ACCRA that the document was not issued by the Afghani Government PRD.

38. The Respondent noted that the delegate found that Mr Shafai ought to have been aware of the process for obtaining a Taskera.  The Tribunal notes that the delegate wrote (T2, p 15) “Since you have already been through the process of obtaining a Taskera, I am disinclined to believe that you were unaware of how that process works.”

1. As it turned out from the oral evidence at the hearing, this assumption by the delegate was an incorrect assumption.  Mr Shafai had not, himself, previously obtained a Taskera.  On his evidence, which the Tribunal accepts, his original Taskera was obtained by his father when he was an infant, aged between 2 and 3.  The Tribunal considers that this would be reasonable practice for any parent to obtain a necessary identity document for a relatively new-born addition to the family.  The Respondent did not contest the evidence of Mr Shafai that the original Taskera was lost when his family home was destroyed by fire, initiated by the Taliban.  There was no evidence to support the assertion that Mr Shafai had obtained a Taskera as an adult when he was in Afghanistan, so therefore could be reasonably expected to know what the process was.

2. The Tribunal notes that the Respondent accepted in submissions that the provision of a genuine Taskera is not a prerequisite for the grant of citizenship, and that the Tribunal needs to come to a state of satisfaction, standing in the shoes of the Minister, as to Mr Shafai’s identity, in order to determine whether section 24(2) of the Act is met.

3. The Tribunal accepts that several of the documents that the Applicant points to as supporting his identity, such as his Queensland driver licence and his bank account have been obtained based on secondary material since his arrival in Australia.  While they may carry some weight in terms of consistency of the data submitted, they are not, of themselves, documents with an unbroken chain linking to a primary official identity document, unlike a driver licence issued to a person who has provided a birth certificate, for example.  His Victorian driver licence was apparently issued on his production of an Afghani driver licence but, while that is a primary document, it has now been lost or mislaid, so its existence, and data content, cannot be verified.

4. The Tribunal also notes that Mr Shafai had provided a number of testimonials which he says support his contentions of his identity.  The Tribunal notes that these testimonials do help paint a picture of Mr Shafai’s life in Australia.  They show that his bank manager knows him and accepts who he is; they also show he has a positive relationship with his landlord and with a customer to whom he has sold a car and for whom he continues to provide service as a mechanic.

5. The Tribunal also has regard to the provisions of section 10 of the Act, which set out what, for the purposes of the Act, is a ‘personal identifier’. At section 10(1)(c) of the Act a photograph of a person’s face and shoulders and, at section 10(1)(e) of the Act, a person’s signature, are each classified as personal identifiers. There were, in section 37 papers before the Tribunal, several photographs of Mr Shafai dating from his first arrival in Australia and several examples of his signature, all of which were consistent.

6. The Tribunal accepts Mr Shafai’s evidence that, had he known that the Taskera was not a genuine document, he would not have provided it to the Department because it has plainly been to his detriment, in terms of his application for citizenship.

7. The Respondent drew the Tribunal’s attention to the decision of Senior Member Walsh in Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan), wherein she stated, after questioning the relevant part of the Australian Citizenship Instructions (5.27.1):

   Identity (s 24(3))

   Section 24(3) requires that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity.

   Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. 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.

8. I distinguish this matter from the Applicant in Beyan.  In that matter, there were a number of inconsistencies in the historical accounts given by Mr Beyan to Department officers about his parents, siblings and half-siblings and other names by which the Applicant had been known, and historical account of shifting evidence by a witness who had previously declared that Mr Beyan was an ‘imposter’ but subsequently supported his citizenship application.  None of those ingredients are present in this case.

9. I have also examined other recent considerations of section 24(3) by the Tribunal.  In Gjura and Minister for Home Affairs [2018] AATA 4222, Member Grigg was not satisfied of the identity of an Applicant who had provided false documents for which he had an unsatisfactory explanation and had also changed his name. In CDNB and Minister for Immigration and Border Protection [2018] AATA 747, Member Kennedy was not satisfied of an applicant’s identity because of inconsistent evidence given at the hearing. Again, these factual circumstances may be distinguished.

10. In Mr Shafai’s case, all of the testimonial evidence, and the Department records, verify that he has always been known by the same name since first arriving in Australia in 2009.  The inconsistency in his birthdate was declared to the Department nine years ago and has been dealt with above. The Tribunal is satisfied that this stemmed from the difference in the calendars and in the fact that Mr Shafai is, on his own submissions, not broadly literate.

11. The matter of the driver licence is somewhat perplexing.  While the Tribunal may accept Mr Shafai’s evidence that he has now either lost or mislaid it, there was scant evidence as to how his friend originally located the licence in Afghanistan and brought it out to Mr Shafai.  In any event, on the evidence, it was accepted by the Victorian licence-issuing authority as a genuine licence.

12. The Respondent sought to suggest that the Taskera provided in relation to the Applicant’s wife was not genuine, but had to retract this position when the Tribunal pointed out that no evidence of that had been obtained from the Afghanistan authorities.  In regard to the Taskeras for Mr Shafai’s children, which were also provided by him to the Department, his evidence at the hearing was that his wife travelled back to Afghanistan and obtained them in person, and they were not obtained from the document dealer that he and his father dealt with.  However, this oral evidence is inconsistent with the statutory declaration of 25 May 2018 (T4, p 37) relevantly set out above, which clearly refers to Taskeras in the plural and declares that they were ‘organised by a migration agent by the name of Zahir’.  Both of these explanations of the origin of these (fake) documents cannot be right.  In this respect, the evidence before the Tribunal is unsatisfactory because it would appear that the Taskeras of the children do not correspond with the records of the PRD.  However, this is not relevant to my being satisfied of Mr Shafai’s identity.

13. In Ahmadi, the Tribunal referred to personal circumstances of the Applicant.  Although DP Sosso was doing so in the context of a consideration of character, much of what he said is apposite to Mr Shafai’s situation.  He said beginning at [176]:

    176. In this case the applicant is a poorly educated man with a limited grasp of the English language.  He comes from a cultural milieu of rural Afghanistan and the backstreets of Quetta.  His life experiences involved working on the land and in a shoe factory whilst overseas and in meat processing works while in Australia. 

    177. His record whilst he has lived here is unimpeachable. 

    178. He has no criminal record of any type, at least none was submitted to the Tribunal.

    179. He has been employed in manual work for a type that many Australians no longer wish to do.  By all accounts he has been a hard-working and honest man.

    180. Further, he has, apparently, been a good citizen, seeking to help others in times of crisis and hardships during recent floods.

14. The Tribunal is required to take all the circumstances into account in forming an opinion about satisfaction of Mr Shafai’s identity, including background such as these in Ahmadi which, mutatis mutandis, apply accurately to him.

15. Taking all the evidence into account, the Tribunal is comfortably satisfied that the Applicant has established his identity in terms of section 24(3) of the Act.  The Tribunal does not attach weight to the Taskera in coming to this conclusion, because it is plainly not genuinely issued by the competent authority.  However, the broad picture of Mr Shafai’s identity, coming from, to paraphrase Deputy President Nicholson in Dhayakpa, a disturbed society (where he lost his identity documents in horrific circumstances), leads me to be satisfied that he is who he says he is. 

16. The Tribunal finds the Applicant has not knowingly provided false information to the Department.  His birthdate was an estimation which he corrected to the Department when his father told him he was mistaken.  While he should not have relied on a migration agent or document dealer to obtain the Taskera (and thereby ultimately be provided with a fake document), he would appear to have undertaken this task in a genuine attempt to obtain a document that he was asked by the Department to provide.  I do not conclude there was an ulterior motive and I accept that he would not have provided the Taskera had he realised it was not officially-issued.

17. The Tribunal rejects Mr Ewitowski’s submissions that the Tribunal should accept Mr Shafai’s identity because migration officers did so in respect of issuing him a protection visa.  The steps taken to establish identity under the Migration Act 1958 (Cth) for visas are not the same as those under the Act and set out in the Citizenship Policy. This is necessarily a ‘higher bar’ to meet because of the privileges and responsibilities that flow from the grant of Australian citizenship.

18. However, on balance I am satisfied that, taking into account the whole of Mr Shafai’s history, conduct in Australia, the corroborative evidence of that conduct, and the consistency and credibility of his evidence at the hearing, that he satisfies the requirements of section 24(3) of the Act in terms of his identity.

    DECISION

19. The decision under review is set aside and the matter is remitted to the Respondent with a direction that the Applicant satisfies section 24(3) of the Act.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...[sgd]............................................

Associate

Dated: 7 May 2019

Date of hearing:	25 February 2019
Agents for the Applicant:	Mr Manfred Ewikowski Visa Assist Australia
Solicitors for the Respondent:	Mr Adam Cunynghame Sparke Helmore