SHHV and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 3617
•20 October 2022
SHHV and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3617 (20 October 2022)
Division:GENERAL DIVISION
File Number: 2021/7437
Re:SHHV
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member C. J. Furnell
Date:20 October 2022
Place:Melbourne
The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant satisfies section 24(3) of the Australian Citizenship Act 2007 (Cth).
....................[SGD]....................................................
Senior Member C. J. Furnell
Catchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – Afghanistan – whether Minister can be satisfied of Applicant’s identity under s 24 of the Australian Citizenship Act 2007 (Cth) – where photo of Applicant and some similar life story information supplied in connection with visa application – application of the Australian Citizenship Policy Statement – biometrics – documents – life story – decision set aside and matter remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)Migration Act 1958 (Cth)
Cases
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567
Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
Bayat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1155
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw (1938) 60 CLR 336
Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514
Comcare Australia v Grimes (1994) 121 ALR 485
Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Filsell and Comcare, Re (2009) 109 ALD 198
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Gunawan and Minister for Immigration and Citizenship, Re (2008) 104 ALD 447
HSCK v Minister for Home Affairs [2019] AATA 4392
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jebb and Repatriation Commission, Re (2005) 86 ALD 182
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
KXDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 175
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Merzaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 221
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
Pescott v Inspector-General (in bankruptcy) [2013] AATA 680
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Rana and Military Rehabilitation and Compensation Commission, Re (2008) 104 ALD 595
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362
Secondary Materials
Collins Dictionary (online, 2021)
Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan (27 June 2019)
Department of Home Affairs, Revised Citizenship Procedural Instruction 16 – Assessing Identity Under the Citizenship Act (1 January 2022)
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
Macquarie Dictionary (online, 2021)
Oxford English Dictionary (online, 2021)
REASONS FOR DECISION
Senior Member C. J. Furnell
20 October 2022
The applicant has applied for Australian citizenship by conferral.[1]
[1] T3, pp.21-33; “T” being a reference to documents provided by the respondent under s 37 or s 38AA of the Tribunal’s constituent legislation (the Administrative Appeals Tribunal Act 1975), “ST” being a reference to supplementary documents so provided and “FT” being a reference to further supplementary documents so provided.
Under the Australian Citizenship Act 2007 (the Act) (s 24(1)), when a person makes such an application, the respondent becomes obliged to approve or to refuse to approve the application. That decision must, however, be to refuse to approve unless the respondent is satisfied of the identity of the applicant (s 24(3)).
On 15 September 2021, a delegate of the respondent decided to refuse to approve the applicant’s application because the delegate was not satisfied of the applicant’s identity.[2]
[2] T2, pp.10-20.
On 12 October 2021, the applicant applied to the Tribunal for review of that decision.[3]
[3] T1, pp.1-7.
In conducting that review, the Tribunal stands in the shoes of the respondent in order to “do over again” that which was done by the respondent’s delegate.[4]
[4] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
Standing in those shoes in this proceeding, the Tribunal needs to decide whether it is satisfied of the applicant’s identity.
On the material before me, I am so satisfied. As a result, the decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with a direction that the applicant satisfies section 24(3) of the Act.
Before outlining my reasons for being satisfied of the applicant’s identity, I should first outline the material that was before the Tribunal and certain aspects of the regulatory and policy context.
MATERIAL BEFORE TRIBUNAL
In arriving at a state of satisfaction as to the applicant’s identity I have had regard to the submissions made at and before,[5] and evidence adduced at, the hearing, and to certain documentary material lodged with the Tribunal prior to the hearing.
[5] As for submissions made before the hearing, reference is made to the respondent’s statement of facts issues and contentions of 4 May 2022 (the “R SFIC”) and to the applicant’s statement of facts issues and contentions of 20 April 2022 (the “A SFIC”).
As for evidence adduced at the hearing, the Tribunal heard from the applicant, the applicant’s spouse (“Ms RF”), a friend of the applicant (“Mr DAH”), a childhood friend of the applicant (“Mr AR”) and the applicant’s adoptive mother (“Ms SH”).
As for documentary material lodged with the Tribunal, it included:
(a)Three tranches of copy documents lodged by the respondent under ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975, being in order of lodgement, a tranche with pages numbered 1 to 515 (the “T” documents), a tranche with pages numbered 516 to 661 (the “ST” documents) and a tranche with pages numbered 662 to 695 (the “FT” documents).
(b)A bundle of copy documents lodged by the applicant of 316 pages (the “ATB” documents).
Additionally, the applicant lodged with the Tribunal an email of 23 August 2022 concerning Ms RF’s status as an Australian citizen.
ASPECTS OF Regulatory and Policy context
As already mentioned, an application for citizenship must be refused absent satisfaction as to the applicant’s identity.
This raises the issue of what it means for the Tribunal to be satisfied of something and the nature of the material necessary for it to arrive at a state of satisfaction.
To be satisfied of something requires only that the Tribunal be reasonably satisfied of that thing,[6] not, for example, comfortably satisfied of it.[7] What is required in order to arrive at that state may vary depending on the significance of the context.
[6] Minister for Immigration & Border Protection v Makasa [2021] HCA 1 at [38] where it is said that “Implicit in the statutory need for satisfaction or non-satisfaction is that the satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker.”
[7] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574. Cf Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [36] where it was said that a certificate of Australian citizenship is a document of such fundamental significance that a higher level of satisfaction of identity is required.
In particular, while the task of the Tribunal in this proceeding is evaluative[8] and it may be that principles of relevance to the application of rules of evidence have no role to play in it,[9] the weight of the material required by the Tribunal to support a finding that it is satisfied of something may be influenced by the gravity of the consequences of making the finding.
[8] Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635 at [52], where it was said that the “…process of a decision-maker being satisfied of identity is an evaluative one…”.
[9] See BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [66], where it was said to be correct to conclude that the principle derived from Briginshaw v Briginshaw (1938) 60 CLR 336 – a principle to the effect that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved – did not apply in the context of a Tribunal determination as to whether it was satisfied of a particular matter.
In this regard, in HZCP it was said (with my emphasis) that:
“…the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, his Honour captured its essence by saying ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’.”[10]
[10] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [186]. See also Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1567 at [24]-[25] and Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30], each of which applied Briginshaw. See also Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37] which was permissive of the application of the principle derived from Briginshaw in Tribunal proceedings. See also LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50] and Merzaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 221 at [28], each citing Briginshaw. See the discussion of these cases in HSCK v Minister for Home Affairs [2019] AATA 4392 at [141]-[147]. See also NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 at [41] where an assessment as to whether a crime was serious was said to be influenced by the consequences of a finding that it was.
Here, we are dealing with the issue of whether a person should become an Australian citizen, with all its attendant rights and responsibilities. It is a context of significance.[11] This suggests that, for the Tribunal to find that it is satisfied that the applicant is who he says he is, the material in support of the finding needs to be significantly probative of it.
[11] See Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579 at [56] and Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [36].
I turn now to consider the policy context.
In this proceeding, while not bound to do so,[12] I have sought to apply government policy where it is relevant and in the absence of cogent reasons to the contrary.[13] Applying government policy is particularly appropriate when, as here, the Tribunal is required to arrive at an opinion based on an evaluative judgment. [14]
[12] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506-7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25]. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767 it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case … Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”
[14] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [54], where it is said: “Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) , Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines.” Compare, however, KXDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 175 at [26].
As for the government policy I have sought to apply, reference is made to the Australian Citizenship Policy Statement reissued on 27 November 2020. This policy statement provides the context in which citizenship procedural instructions are used in making decisions under the Act, instructions characterised in the statement as related framework documents.[15]
[15] Policy statement [2.1].
Citizenship Procedural Instruction 16 reissued on 1 January 2022 outlines instructions for use in assessing matters to do with identity (CPI 16).
As already mentioned, an application for citizenship must be refused absent satisfaction as to the applicant’s identity. Hence (and as stated in the Explanatory Memorandum to the Australian Citizenship Bill 2005), where an applicant’s identity is unclear, his or her application must be refused.
The concept of “identity” is left undefined by the Act. Its ordinary, grammatical, meaning, however, extends to the “condition, character, or distinguishing features of a person,”[16] the individual characteristics of a person by which the person is recognised[17] or the set of characteristics of a person which distinguishes the person from others.[18]
[16] Macquarie Dictionary (online, 2021). Found at: align="left">[17] Collins Dictionary (online, 2021). Found at
[18] Oxford English Dictionary (online, 2021). Found at:
The meanings so given to the concept of “identity” are reflected in and elaborated on in CPI 16. A person’s identity is said to be “…defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.”[19] It is said not to be a point in time concept but, rather, one that needs to be considered historically and verified incrementally throughout a person’s life.[20]
[19] CPI 16 [4].
[20] CPI 16 [11].
Put shortly, an assessment of a person’s identity entails a consideration over time of a set of characteristics or attributes that enable the person to be distinguished from others.
CPI 16 offers guidance as to how such an assessment might be conducted. Regard ought to be had to information provided or obtained in relation to what are characterised as the three pillars of identity.[21]
[21] CPI 16 [5].
Those three pillars of identity are:
(a)Biometrics. These are expressed to involve a “measurable characteristic that is unique to a person such as fingerprints or face”.[22]
(b)Documents. While documents are said not to establish identity of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate pillar one (biometrics) and pillar three (life story) information. It is said that, when assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent and whether they support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells.[23]
(c)Life story. This “pillar” is described as an “account of the events that happened to a person during their lifetime”.[24] It can entail a consideration of key chronological events in a person’s life, using the other two pillars to piece together and corroborate information.[25]
[22] CPI 16 [5], see also [5.1].
[23] CPI 16 [11.1].
[24] CPI 16 [5].
[25] CPI 16 [11.2].
In having regard to information provided or obtained in relation to these three pillars, “the objective is to determine whether the information pursuant to the three pillars is consistent.”[26] In this regard (and with my emphasis):
“[t]he three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant… In that context, to be satisfied of an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.”[27]
[26] CPI 16 [11].
[27] MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576 at [75].
CONSISTENCY OF IDENTITY INFORMATION PROVIDED
Information provided by or obtained from the applicant in relation to the three pillars of identity mentioned earlier has largely been consistent.
Biometrics
As for biometric information, as submitted on behalf of the applicant,[28] various photographs of the applicant have been provided which are consistent with the identity he claims and with aspects of his life story.[29]
Life story and documents
[28] A SFIC [37].
[29] See A SFIC [45] and ATB1 (wedding photographs).
As for life story information provided by the applicant, the consistency of it is not in issue. The decision-maker in the decision under review noted that “… you have consistently provided the Department with the same identity, family composition and life story since your arrival to Australia.”[30] The respondent has acknowledged that the “… applicant has given a largely consistent account of his claimed life story … in various forums since his arrival…”.[31]
[30] T2, p.16.
[31] R SFIC [37].
It was not any internal inconsistency in information provided by the applicant which caused the decision-maker of the decision the subject of review to not be satisfied of the applicant’s identity. Instead, the essential reason for that state of non-satisfaction lay in inconsistencies between the life story information so provided and the life story information of a person identified as a dependent in a 2010 visa application.[32]
[32] T2, pp.16-17. Note that the 2010 visa application was ultimately refused in 2016: T10, p.114.
The reason for the relevance or, at least, potential relevance of the latter life story information is that the person identified in the 2010 visa application used the same surname as the applicant, the photograph of that person supplied in connection with the visa application was a photograph of the applicant[33] and the life story information of that person is similar, in some respects, to that of the applicant.[34]
[33] It is not in dispute that the photograph is of the applicant: T12, p.137- “The Applicant has reviewed the Department’s Biographical Comparison Report and accepts that the photograph noted on the 2010 visa application is his…”. See also FT24, pp.689-695 – statement of Phillip Muller, who claims specialised knowledge based on, amongst other things, experience in making biometric facial image comparisons.
[34] For example, like the applicant, the dependent identified in the 2010 visa application was said to be of the same nationality, ethnicity and religious faith as the applicant, and to have been born in the same town in Afghanistan, and resided on the same road in Quetta, Pakistan, as the applicant.
The problem from an identity perspective to which this gives rise results from the fact that the life story information included in the 2010 visa application differs in material respects from the life story information provided by, and consistently maintained by, the applicant (even though the two life story data sets share some similarities).
In the decision the subject of review, the decision-maker was uncertain as to which of the two life story data sets applied to the applicant.[35] Given this uncertainty, the decision-maker concluded that he or she could not be satisfied as to the applicant’s life story.
[35] T2, pp.15-16.
Unlike that decision-maker, I am satisfied on the material before me that the life story data set which the applicant has consistently maintained (the “applicant’s life story”) applies to him, not the life story data set of the person identified as a dependent in the 2010 visa application (the “dependent’s life story”).
As already mentioned, there are several material differences between the applicant’s life story and the dependent’s life story. For example, the two life stories differ as to the first name of the person concerned and as to that person’s date of birth, father’s name and brother’s name.[36]
[36] As for the applicant’s life story see, for example, ATB3-ATB5 and ATB14, p.238 concerning the name of the applicant’s brother and father and compare the corresponding information in the dependent’s life story in ST21, p.626.
In relation to all these differences, the version reflected in the applicant’s life story is not only one he has consistently maintained since his arrival in Australia, but it is also one which is substantially corroborated.
That corroboration is reflected in evidence adduced from third parties and in documents provided by, or on behalf of, the applicant.
In terms of evidence adduced, aspects of the applicant’s life story concerning his first name,[37] his date of birth,[38] the first name of his father[39] and the name of his brother[40] have been extensively corroborated in witness statements and declarations lodged with the Tribunal.
[37] Declaration of Mr DAH made in January 2022 (ATB16, pp.284-285); declaration of Mr DAH’s wife made in January 2022 (ATB16, pp.289-290); statement of Ms SH made in February 2022 (ATB17, p.294); statement of Ms RF made in April 2022 (ATB19, p.307-309); statement of Mr DAH of April 2022 (ATB20, pp.310-312); statement of Ms SH made in April 2022 (ATB21, pp.313-314); statement of Mr AR made in April 2022 (ATB22, pp.315-316); September 2017 affidavit, sworn in Pakistan, of a person who states in the affidavit that the applicant is known to him for more than 10 years (T8, p.108); undated statement of witness to wedding (ST19, p.583).
[38] Statement of Ms SH made in February 2022 (ATB17, p.294); statement of Ms RF made in April 2022 (ATB19, pp.307-309); statement of Mr DAH of April 2022 (ATB20, pp.310-312); statement of Ms SH made in April 2022 (ATB21, pp.313-314); undated statement of witness to wedding (T6, p.76; T19, p.583).
[39] Statement of Ms RF made in April 2022 (ATB19, pp.307-309); statement of Ms SH made in April 2022 (ATB21, pp.313-314).
[40] Statement of Ms RF made in April 2022 (ATB19, pp.307-309); statement of Ms SH made in April 2022 (ATB20, pp.313-314); statement of Mr AR made in April 2022 (ATB22, pp.315-316).
Similarly, aspects of the applicant’s life story that differ materially from the corresponding aspects of the dependent’s life story have been extensively corroborated in documents to which (unlike the respondent[41]) I attribute significant probative value. In this regard, reference is made to:
(a)A taskera issued in the name of the applicant in June 2019, together with an English translation thereof.[42] As recently stated in Hassanzada,[43] taskeras are a “primary form of identity documentation in Afghanistan”.[44] The taskera issued in the name of the applicant corroborates those aspects of his life story information concerning his first name, his date of birth and the first name of his father.
(b)A passport issued in February 2021 by the Islamic Republic of Afghanistan in the name of the applicant.[45] It corroborates those aspects of the applicant’s life story information concerning his first name and his date of birth
[41] At R SFIC [36], reference is made to what is said to be a “paucity of credible and genuine biometric and documentary evidence.” At [38], it is said that “…there is no, or very limited, reliable and corroborative documentary evidence.”
[42] T12, pp.168-172.
[43] Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 603 at [46].
[44] The primary form of identification for Afghan citizens is and was the taskera (sometimes spelled taskira or tazkera), a document required for employment and admission to schools and universities, to obtain approval to run a business and to buy, rent and sell property: T13, p.491 (DFAT Country Information Report of June 2019 [5.46] (DFAT Report)).
[45] T12, p.173.
The respondent does not submit that these documents are not genuine. Nevertheless, it was submitted that little weight ought to be attributed to them, essentially because there is now no ability to verify them with Afghan authorities[46] and because of the possibility that they were issued in reliance on fraudulent information.[47] In addition, in terms of the:
(a)taskera, it was said to have been issued in absentia and on the basis of the applicant’s own claims, Australian-issued identity documents (which can, said the respondent, be given no weight) and the endorsement of two witnesses at least one of which had only known the applicant since his arrival into Australia.[48]
(b)the passport, it was said to have been “issued complimentary” to the taskera and, as such, could only be given the weight afforded to the taskera.[49]
[46] T2, p.14. See R SFIC at [32] where it is said that as “…a result of the fall of Kabul, and the overthrowing of the Islamic Republic of Afghanistan in August 2021, the Minister’s Department has not been able to refer the Tazkira or the passport for verification.”
[47] R SFIC [34]-[35].
[48] R SFIC [34.1]-[35.2].
[49] R SFIC [34.6].
As mentioned earlier, however, I attribute significant probative value to the taskera. I am satisfied that it is a genuine document.
First, the Embassy of Islamic Republic of Afghanistan has certified that the taskera is “a verified and genuinely issued document”.[50]
[50] T12, p.179.
Second, the respondent’s description of the basis on which the taskera was issued ignores the applicant’s unchallenged evidence to the effect that the Afghan authorities conducted their own inquiries before issuing the taskera.[51]
[51] ATB18, p.300. In his April 2022 statement, the applicant, in describing the process involved in obtaining the taskera, said that “the consulate then does their checks,” then the approved application form was sent to “ACCRA in Afghanistan where the form first goes to the area/village where they check my family’s records” and lastly the “verification was conducted in Afghanistan to match my records in the village…”.
Thirdly, the issue of the passport suggests that the taskera was valid. In this regard, contrary to the respondent’s submission, the applicant’s passport was not issued simply on the basis of the taskera. Instead, it would only have been issued if the taskera had been “verified”, as asserted by the applicant.[52]
[52] ATB18, p.301 (Applicant’s April 2022 statement). See DFAT Report at [5.53] (T13, p.492) where it is said that the requirements for adult passport applicants are a “valid” taskira and a number of passport photographs.
As for the passport, like the taskera, I attribute significant probative value to it and am satisfied that it is a genuine document. It was issued on the basis of a genuine, verified, taskira.
The applicant’s taskera and passport are not the only documents that corroborate his life story.
Those aspects of the applicant’s life story concerning his first name, his date of birth and the first name of his father are corroborated in a letter of August 2020 of a consul of the Embassy of Islamic Republic of Afghanistan[53] and in a form of identity verification issued by the National Identity Verification Centre of the Afghanistan Central Civil Registration Authority in October 2018.[54]
[53] T12, p.179 – a letter which the Embassy later characterised as being the “same as birth certificate”: see ATB16, p.270 (email of 26 August 2020).
[54] ATB pp.248-258.
Those aspects of the applicant’s life story concerning his first name, the first name of his father and his brother’s name are corroborated in a copy of a certificate relating to the brother’s death and an associated police report.[55]
[55] ATB2-ATB3, pp.3-7.
Aspects of the applicant’s life story are also corroborated in a number of documents issued in Australia, by Australian institutions after his arrival in Australia, including a Titre De Voyage (travel document)[56] a Northern Territory driver licence,[57] a Victorian driver licence,[58] a student card,[59] a Victorian handgun licence[60] and birth certificates for the applicant’s children.[61] In terms of establishing identity, however, I do not attribute much probative value to these documents.
[56] T4, p.52; T12, p.174.
[57] T4, p.53.
[58] T12, pp.175-176.
[59] T12, p.177.
[60] T12, p.178.
[61] T12, pp.240-242.
Other than the Titre de Voyage, these Australian documents would either have been issued based on information supplied by the applicant or are secondary, in the sense of having been obtained in reliance on other documents. Their probative value very much turns on the probative value of information supplied by the applicant or on the probative value of the document(s) on the basis of which they were issued.[62] Indeed, documents issued by authorities in Australia are generally “…simply evidence of who the Applicant says he is, not of who he is”.[63]
[62] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [41] where reference was made to Australian documents being procured based on secondary documents.
[63] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [48], cited with approval in Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514 at [52].
As for the Titre de Voyage, while it lends some support to the applicant’s identity claim, that support is not significant. This is because the issuance of such a document occurs in a context that differs from citizenship. In the latter context, as mentioned earlier, the bar set by the steps necessary to establish identity may well be higher than that set in other contexts, such as under the Migration Act 1958.[64]
[64] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [55].
The respondent submits that I should doubt the applicant’s credibility. First, it is said that the applicant’s provision of a non-genuine marriage certificate means that, contrary to his evidence, he must have had valid identity documentation at the time of his marriage in 2010.[65] Second, it is suggested that the Tribunal should, contrary to the applicant’s evidence, infer that the dependent’s life story was provided by the applicant or, at least, with his approval.[66] It is said, in essence, that the applicant must have been involved in the 2010 visa application as, while the applicant’s life story bears “minimal resemblance” to the information provided in the 2010 visa application,[67] there are nevertheless a number of similarities[68] and “…the image provided in the 2010 visa application could not, realistically, have benefitted any person other than the applicant.”[69]
[65] R SFIC [40.3].
[66] R SFIC [38]-[40].
[67] R SFIC [40].
[68] R SFIC [40.2].
[69] R SFIC [40.1], echoing the comment in the decision the subject of review at T2, p.16 where it is said that “I am not satisfied that you were unaware of the Global Special Humanitarian visa application. Your claim that the photograph of you was used for another person, is implausible. The purpose of the photograph in a visa application is to link the biographical data with a facial image of an individual. Therefore, the facial image provided with the Global Special Humanitarian visa application would not benefit any person other than yourself.”
I do not accept that submission.
In the context of his application for a protection visa, the applicant provided a marriage certificate that was purportedly issued by the Consulate General of the Islamic Republic of Afghanistan in Quetta, registering the applicant’s marriage to Ms RF in July 2010.[70] In a November 2017 letter, however, the Consulate General advised that it had not issued the certificate.[71] There is no dispute that the certificate is not genuine. Moreover, there is no challenge to the applicant’s evidence to the effect that he had not known it was not genuine. What the respondent does challenge is the applicant’s evidence to the effect that he had no identity documents when the certificate was issued (July 2010). In this regard, the respondent notes that the procedure to obtain registration of a marriage required “verification of identity via possession of a valid identity document”.[72]
[70] T6, pp.62-75; ST19, pp.569-582.
[71] T9, pp.109-110.
[72] ATB6, p.48.
I reject the respondent’s challenge to that aspect of the applicant’s evidence. It is not implausible that the applicant had no identity documents when he was married. In particular, it is not implausible that the applicant was unable to produce an identity document in 2010 and thereby satisfy a requirement applicable to registration of his marriage when there is no evidence that his marriage was registered (noting that many Afghan “married couples refrain from registering their marriage…”[73]). I do note that the certificate purports to specify a “NIC No” in relation to the applicant, which I infer is a reference to a national identity card number. At the hearing, the applicant was unable to explain the inclusion in the certificate of such a number in relation to him. On balance, I do not find the specification of that number in a non-genuine certificate to be sufficient to justify rejection of the applicant’s evidence to the effect that he had no identity documents in 2010.
[73] Ibid.
I reject any inference that the dependent’s life story was provided by the applicant or, at least, with his approval. The applicant denied any involvement in the 2010 visa application. I accept that evidence. As the applicant submitted, it is unlikely that he would have been involved in the submission of that 2010 application given that it did not include his wife, Ms RF (noting Ms RF’s evidence to the effect that she and the applicant had been “together for our whole lives”[74]).
[74] ATB19, p.308: statement of Ms RF made in April 2022.
The respondent contends, in essence, that nobody other than the applicant could have benefitted from the inclusion in the 2010 visa application of a photograph of the applicant. This contention does not address the possibility that a third party might perceive there to be potential to deceive immigration authorities, even if, in fact, there was none. In any event, I do not accept the respondent’s contention. Its validity rests on the premise that a claim by someone other than the applicant to be the person photographed would not have been accepted by Australian immigration authorities. It suggests that the Tribunal ought to presume that the authorities would inevitably detect an inconsistency in an identity claim, based on photographic evidence. I am not satisfied that such a presumption is warranted. On the material before me, the detection of such an inconsistency would seem to depend on an officer of the respondent first observing a biometric mismatch between the person making the claim and the person the subject of the relevant photograph. It would only be after such a mismatch is observed that a photograph becomes the subject of forensic analysis.[75] As I see it, the likelihood of a mismatch being observed may well depend on a range of factors, including the extent to which the facial features revealed in a photograph are unique or distinct, and the temporal split between the date when the photograph is claimed to have been taken and the date when the claimant presents to Australian authorities.
[75] CPI 16 [5.1] (FT23, p.672).
Moreover, that the dependent’s life story shares some similarities to that of the applicant’s life story does not, of itself, leave reasonably open an inference that both life stories were provided by or with the approval of the applicant,[76] especially given:
(a)Some significant differences in the stories (such as there being an age differential of around eight years and the person the subject of the dependent life story being said to have never been married);
(b)That the stories reflect only a few direct matches in detail (being the photographs of the applicant, the same surname and the same Afghan district of birth); and
(c)The applicant’s evidence to the effect that he approached, and provided his photograph to, multiple persons in Quetta when seeking a way to emigrate.[77]
[76] See Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [124] as to the distinction between conjecture and an inference.
[77] ATB18, p.305 [47].
Even if, however, I was to doubt the applicant’s credibility and accept that, despite his evidence to the contrary, he was involved in the provision of the dependent’s life story as part of the 2010 visa application, I would still be satisfied as to his identity based on the applicant’s life story. That story would remain as one which is substantially corroborated in evidence adduced from third parties whose credibility is not challenged and in documents provided by or on behalf of the applicant. Doubts as to a witness’ credibility might result in hesitation to accept the witness’ uncorroborated evidence. They do not, however, detract from the force of the material that corroborates the witness’ evidence.
I note that a citizenship applicant’s provision of inconsistent identity information in the context of an earlier visa application has not, in the past, precluded the Tribunal from being satisfied as to the applicant’s identity.[78]
[78] Bayat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1155; KXDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 175. It is noted that, as here, in Bayat the Tribunal (at [35]) relied on what was found to be a genuine taskera and a genuine passport.
Before finalising these reasons, I should note that I have rejected a submission of the applicant to the effect that the respondent is now estopped or otherwise precluded from agitating (and that it is an abuse of process for the respondent to agitate) in this proceeding an issue as to the applicant’s identity, given acceptance by the respondent of the applicant’s identity when considering his claim under the Migration Act 1958 to a protection visa.[79]
[79] A SFIC [23]-[29].
I accept that the Tribunal might have power to not allow the re-litigation of matters finally determined by it.[80] Nevertheless, estoppel has no role to play in the context of Tribunal proceedings.[81] In any event, here we are not dealing with matters that have already been determined. Satisfaction as to a person’s identity under the Migration Act 1958 does not constitute satisfaction as to the person’s identity for all purposes. As mentioned earlier, in the context of citizenship, the bar set by the steps necessary to establish identity may well be higher than that set in other contexts, such as under the Migration Act 1958. [82]
[80] Comcare Australia v Grimes (1994) 121 ALR 485 at 592 and Re Filsell and Comcare (2009) 109 ALD 198.
[81] Re Gunawan and Minister for Immigration and Citizenship (2008) 104 ALD 447; Re Jebb and Repatriation Commission (2005) 86 ALD 182; Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595; Pescott v Inspector-General (in bankruptcy) [2013] AATA 680 at [70].
[82] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 where at [55] it was said that 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.”
Conclusion
The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with a direction that the applicant satisfies section 24(3) of the Act.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
......................[SGD]..................................................
Associate
Dated: 20 October 2022
Date of hearing: 18 May 2022 Advocate for the Applicant: Rabiah Khawaja Solicitors for the Applicant: WLW Migration Lawyers Advocate for the Respondent: Adrian Downie Solicitors for the Respondent: The Australian Government Solicitor
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