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

Tahery and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1725 (12 June 2020)
Division:GENERAL DIVISION
File Number: 2018/1437
Re:Basera Tahery
APPLICANT

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

DECISION
Tribunal:Member K. Parker
Date:12 June 2020
Place:Melbourne

The Tribunal sets aside the Decision Under Review and in substitution, decides that the Tribunal is satisfied as to the Applicant’s identity. The Tribunal remits this matter for reconsideration of the Applicant’s citizenship application with a direction that no prohibition applies in respect of conferral of citizenship on the Applicant by reason of s 24(3) of the Australian Citizenship Act 2007 (Cth).
............................[sgd]............................................
Member K. Parker
Catchwords – CITIZENSHIP – refusal of application for conferral of citizenship – whether Tribunal satisfied as to Applicant’s identity – inconsistent information provided in previous visa and citizenship applications and during interview – credibility issues – new photographic and documentary evidence provided as proof of identity – decision set aside and substituted with decision that Tribunal satisfied as to Applicant’s identity – matter remitted for reconsideration of citizenship application with direction that no prohibition applies in respect of conferral of citizenship on the Applicant by reason of s 24(3) of the Australian Citizenship Act 2007 (Cth)
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 29 FCR 225
Secondary Materials
Citizenship Policy, issued 1 June 2016.
Attorney-General’s National Identity Proofing Guidelines, 2016.
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007
REASONS FOR DECISION
Member K. Parker
12 June 2020
INTRODUCTION

The Applicant, Ms Basera Tahery, seeks review of a decision made on 15 January 2018 to refuse her application to become an Australian citizen.[1] This decision was made on the basis that the relevant delegate was not satisfied as to Ms Tahery’s identity and that conferral of citizenship on Ms Tahery was prohibited by reason of s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act).
[1] Refer T-Documents T2 (see paragraph [7] of these Reasons for Decision).
In 2002 and twice in 2005, Ms Tahery applied for a global special humanitarian visa to enter and remain in Australia. Those applications were unsuccessful. Ms Tahery submitted a further application for a remaining relative visa in 2006, which was also unsuccessful.[2] Ms Tahery made a further application for a family visitor visa. This visa was granted subject to a “No Further Stay” condition. Ms Tahery arrived in Australia on 25 March 2008 on this visa. Shortly after her arrival, Ms Tahery applied for a Protection (Class XA) visa under the name of “Basera Tahery” born on “11 February 1980” in “Kabul, Afghanistan”. This visa was granted in July 2008 and Ms Tahery has remained in Australia on this visa.
[2] The visa application form was not before the Tribunal.
On 3 or 12 February 2014,[3] Ms Tahery submitted an application for conferral of citizenship under the name of “Basera Tahery” born on “6 March 1981” in “Kabul, Afghanistan” (Citizenship Application Form).[4]
[3] The application form shows two different “received” date stamps showing both dates, but nothing turns on this discrepancy.
[4] Refer T-Documents T15/114.
The relevant Department, now known as the Department of Home Affairs, interviewed Ms Tahery on 11 January 2016 about her citizenship application (Interview). After the Interview, the Department wrote to Ms Tahery on 25 January 2016 to provide her with an opportunity to address certain “adverse and inconsistent information about her identity”.[5] On 8 February 2016, Ms Tahery appeared to have completed and signed a form entitled “Personal particulars for assessment including character assessment” (Form 80).[6]
[5] Ibid at T8.
[6] Ibid at T6.
The issue about Ms Tahery’s identity has arisen in the context of her citizenship application because documentation provided by Ms Tahery as part of her citizenship application and in support of the earlier visa applications, contained inconsistent information about:
(a)her date of birth;
(b)her travel history and residential history;
(c)her family composition; and
(d)her education and employment history.
The Tribunal has before it a detailed written statement (undated) by Ms Tahery providing an account of her life story and information about her identity (Ms Tahery’s First Statement).[7] Ms Tahery’s date of birth is shown at the top of this statement as 11 February 1985. A further statement by Mr Hemayetullah Tahery[8] (purportedly Ms Tahery’s brother) was signed on 17 February 2016 in Carlton, Victoria, before a Justice of the Peace, and received by the Department on 22 February 2016, confirming his family composition of which Ms Tahery was stated to be a member (Hemayetullah Tahery’s First Statement).[9]
[7] Refer Supplementary T-Documents ST19/102.
[8] The Tribunal will refer to Hemayetullah Tahery in these Reasons for Decision as Mr Tahery.
[9] Refer T-Documents T3.
The Minister lodged several sets of documents pursuant to its obligations under the Administrative Appeals Act 1975 (Cth) (AAT Act). The parties requested that the Tribunal consider the following sets of documents:
(a)the “Section 37 – Amended T documents” lodged by the Minister on 19 November 2018 (which the Tribunal will refer to as the T-Documents);
(b)the “Section 37 – Amended Supplementary T documents” lodged by the Minister on 10 January 2019 (which for brevity the Tribunal will refer to as the Supplementary T-Documents); and
(c)the “Character and Identity Documents” lodged by Ms Tahery on 2 April 2019 (which for brevity the Tribunal will refer to as the C&I Documents).
Both parties were legally represented.
On 29 October 2018 Ms Tahery lodged with the Tribunal a Statement of Facts and Contentions (Ms Tahery’s Submissions). It was contended that Ms Tahery will never be entirely certain of her date of birth. It was contended that this was consistent with country information about Afghanistan and “supports her identity as a woman born in Afghanistan in about 1981 which was a time of protracted conflict when births were rarely registered”.
In Ms Tahery’s Submissions, it was acknowledged that there were a number of discrepancies in the information provided in the different applications. The explanation provided for those discrepancies was that they came about as the result of:
(a)the earlier applications being filled out by Mr Tahery;
(b)Ms Tahery did not know her precise date of birth and did not place importance on having one;
(c)English was a second language for Ms Tahery and Mr Tahery;
(d)“the difficulty in contact” between Mr Tahery when he was living in Australia and his family overseas, including Ms Tahery, when the earlier visa applications were being prepared; and
(e)the visa applications were completed at a time of significant upheaval with Ms Tahery living in very difficult conditions (being present illegally in Iran and Pakistan) and living as a Shia woman under Taliban rule in Afghanistan.[10]
[10] Refer paragraphs [16] to [18] of Ms Tahery’s Submissions.
Ms Tahery contended that those discrepancies were not indicative of Ms Tahery or her brother “trying to create a false identity”.
A further witness statement by Ms Tahery signed on 29 October 2018 was lodged with the Tribunal providing another account of her life story and information about her identity (Ms Tahery’s Second Statement).[11] A further witness statement by Mr Tahery signed on 29 October 2018 was lodged with the Tribunal (Hemayetullah Tahery’s Second Statement). On 30 October 2018, further documents (12 in total) were lodged by Ms Tahery seeking to establish her identity.
[11] Refer pages 116 to 121 of C&I Documents.
The Minister lodged a Statement of Facts and Contentions on 9 November 2018 (Minister’s Submissions). The Minister contended that in addition to the basis upon which Mr Tahery’s citizenship application was refused, i.e. on the basis that the delegate was not satisfied as to her identity, the Tribunal should also find that Ms Tahery did not meet the “good character” requirement under s 21(2)(h) of the Act, as she had actively misled the Department to obtain an Australian visa. The Minister informed Ms Tahery’s legal representative that supplementary documents would be lodged with the Tribunal. Ms Tahery objected and contended that the only issue before the Tribunal was the issue of identity.
On 25 March 2019 Ms Tahery lodged a further Statement of Issues, Facts and Contentions dated 20 March 2019 (Ms Tahery’s Further Submissions) and further witness statements including a witness statement signed by Ms Tahery on 12 March 2019 (Ms Tahery’s Third Statement) and supporting documentation.
The first day of the hearing took place on 8 April 2019 during which Ms Tahery gave evidence and was cross-examined. At the commencement of the hearing, Ms Tahery’s counsel provided updated submissions (Ms Tahery’s Further Submissions). The Minister tendered a publication issued by the Department of Foreign Affairs and Trade (DFAT) entitled “DFAT Country Information Report Afghanistan” dated 18 September 2017 (2017 DFAT Report).[12] The hearing was not able to be concluded within the allocated time and was adjourned to a date to be fixed.
[12] Refer Exhibit “R1”.
On 3 May 2019 a transcript of the Interview referred to in paragraph [4] was lodged with the Tribunal.
The hearing resumed on 16 May 2019. At the commencement of the hearing, the Minister indicated to the Tribunal that the issue of “good character” was no longer pressed by the Minister, based on the authority in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 29 FCR 225 (at page 234).
At the resumed hearing, Mr Tahery gave evidence and was cross-examined. Ms Tahery tendered as further evidence of proof of her identity, two photographs taken of her and purportedly other family members.[13]
[13] Refer Exhibit “A1”.
On 7 June 2019, Ms Tahery lodged written closing submissions (Ms Tahery’s Closing Submissions) and a Departmental protection assessment guidance note (PAGN) providing advice on assessing claims relating to membership of the Hazara ethnic group, as well as association with the Afghan government or international forces, companies or non-government organisations, issued on 21 August 2016.
The Minister lodged his written closing submissions on 3 July 2019 (Minister’s Closing Submissions) and Ms Tahery lodged a reply on 29 July 2019 (Ms Tahery’s Reply Closing Submissions).
For the reasons set out below, the Tribunal decides to set aside the Decision Under Review and in substitution, decides that the Tribunal is satisfied as to Ms Tahery’s identity and to remit this matter for reconsideration of her citizenship application with a direction that no prohibition applies in respect of conferral of citizenship on Ms Tahery by reason of s 24(3) of the Act.
ISSUES
By the end of the hearing, it was not in dispute between the parties that the only issue for determination in this application is whether the Tribunal is satisfied as to Ms Tahery’s identity, in order to establish whether the prohibition in s 24(3) of the Act applies to Ms Tahery in respect of her citizenship application.
LEGISLATIVE FRAMEWORK
Section 24 of the Act provides, as relevant:
24 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.
Note: The Minister may cancel an approval: see section 25.
…
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
DEPARTMENTAL POLICY
On 1 June 2016, the Department issued policy guidance entitled “Citizenship Policy” to provide guidance on the interpretation of, and the exercise of powers under, the Act and corresponding regulations (Policy). In the Introduction of the Policy, it states that the Policy cannot constrain the exercise of delegated powers under the Act or the regulations.[14]
[14] Refer T-Documents T21/155.
Chapter 13 of the Policy deals with “Identity”.[15] The Policy states:
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
[15] Ibid at T21/157-162.
The Policy also provides that the concept of identity is as described in the Attorney-General’s “National Identity Proofing Guidelines” (NIPG). The Policy refers to the NIPG issued in 2004. A new NIPG was issued in 2016.[16]
[16] Refer page 141 of C&I Documents..
The Policy provides that an application must be made in the most recent name that the applicant has been known by, according to acceptable identity documents.[17] The Policy provides that if the applicant has changed their name, date of birth, sex or gender, they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.[18]
MS TAHERY’S CONTENTIONS
[17] Ibid at page 158.
[18] Ibid at page 159.
New evidence of proof of identity provided by Ms Tahery that was not before the delegate
At the hearing, Ms Tahery contended that she had obtained significant new information as to her identity that was not before the delegate who made the Decision Under Review, including a current Afghani passport which she obtained from the Afghani Embassy in Canberra. Ms Tahery contended that this passport had been obtained based on a Taskira (sometimes spelt Taskera, Tazkira or Tazkera), which is an Afghani identity document, and that Ms Tahery’s Taskira had been confirmed as genuine by the Ministry of Interior of the Islamic Republic of Afghanistan.[19]
[19] Refer T-Documents T36 (with a translated version of this document at T37 except for the last sentence on the Taskira – Transcript 08/04/19 P-9).
Ms Tahery contended that copies of passports of four of Ms Tahery’s siblings were now before the Tribunal.[20] They are in the C&I Documents at:
(a)page 127 (copy of passport issued by Islamic Republic of Afghanistan to Maryam Sadat);
(b)page 128 (copy of passport issued by Islamic Republic of Afghanistan to Nazera Tahery);
(c)page 129 (copy of Canadian passport of Sidiqua Tahiri); and
(d)page130 (copy of passport issued by Islamic Republic of Afghanistan to Hidaiatullah Tahery.
[20] Refer pages 127 to 130 of the C&I Documents.
Those documents were not before the delegate who made the Decision Under Review. The Tribunal was invited to compare the “family likeness” between the persons shown in those passports and Ms Tahery and to note that the place of origin of her older and younger siblings as recorded in those passports as being “Afghanistan”.
Ms Tahery contended that this new information also included documents which pre-dated Ms Tahery’s arrival in Australia, including:
(a)Ms Tahery’s high school certificate that she obtained from a school in Iran (described as a school for Afghani refugees and Afghani people living in Iran);[21] and
(b)some photographs purportedly from Mr Tahery’s wedding said to have taken place in Islamabad, Pakistan, in 1996.[22]
[21] Refer page 131 of C&I Documents.
[22] Refer pages 132 and 133 of C&I Documents.
The Minister confirmed that those new documents did not change the position of the Minister in relation to not being satisfied as to Mr Tahery’s identity.[23]
[23] Refer Transcript 08/04/19 P-13.
Ms Tahery also relied on some news articles which explained that dates of birth were not used regularly in Afghanistan and that most Afghani people do not know their dates of births and birthdays are not celebrated. The Minister did not dispute this contention.[24]
[24] Refer Transcript 08/04/19 P-14.
Evidence of Ms Susan Carey, clinical neuropsychologist
Ms Tahery sought to rely upon a report by a clinical neuropsychologist, Ms Susan Carey, who examined her on 12 March 2019.[25] Ms Carey has a Master of Psychology (Clinical Neuropsychology) degree conferred by The University of Melbourne. She is a registered general psychologist and endorsed clinical neuropsychologist with the Australian Health Practitioner Regulation Agency and Psychology Board of Australia. Ms Carey is a member of the Australian Psychological Society and Fellow of the College of Clinical Neuropsychologists.[26]
[25] Refer pages 15-21 of C&I Documents.
[26] Refer Ms Carey’s curriculum vitae at Exhibit “T1”.
While Ms Carey opined that Ms Tahery was not suffering from any mental health conditions, she stated that the explanation provided by Ms Tahery for the discrepancies in the information given to the Department was consistent with the published literature about cognitive disturbance (such as memory function) that can occur in “trauma-exposed populations” and persons “when under acute stress”. Ms Carey stated that the literature suggested that psychologically vulnerable refugee applicants were more likely to demonstrate “memory and other cognitive disturbance”.
Ms Carey also stated that Ms Tahery reported that she had experienced multiple head injuries in the context of being an alleged victim of spousal violence. Ms Carey noted in her report that Ms Tahery had not reportedly lost consciousness or attended hospital because of those alleged attacks and this suggested there was a low risk that she had sustained any brain injuries significant enough to cause long-term cognitive impairment.[27] Nevertheless, Ms Carey concluded in her report that, “In summary, it is clear that memory function asylum-seeking/refugee populations can be unreliable, which may contribute to discrepancies in the applicants’ provision of details over time”.[28]
[27] Refer page 17 of C&I Documents.
[28] Ibid at page 20 of C&I Documents.
The Tribunal notes the following account reportedly provided by Ms Tahery to Ms Carey during the assessment:[29]
Ms Tahery explained that the night prior to an immigration interview in approximately December 2015, she suffered a number of significant psychosocial stressors. These psychosocial stressors included: (a) her two children were very sick; (2) she received a phone call that her mother was extremely ill, which distressed her greatly as she “loved her mother dearly”; (3) she had had little sleep the night before the interview; and (4) she had suffered from family violence at the hands of her husband around the time of the interview. On balance, Ms Tahery felt that her thinking abilities were diminished at the time of the December 2015 immigration interview, secondary to her very elevated distress. She states, “I was not absolutely ready to go to the interview”.
[29] Ibid at page 19.
Ms Carey further concluded as follows:[30]
Furthermore, the ability to accurately recall information can be compromised when an individual is acutely and severely stressed. Therefore, I am of the opinion that Ms Tahery’s explanation for the discrepancies in her provision of information during her refugee/immigration applications is reasonable, as it is consistent with the scientific literature regarding the fallibility of memory in the above-described contexts.
[30] Ibid at page 20.

During cross-examination Ms Carey conceded that she had not been provided with details of the inconsistent information provided by Mr Tahery to the Department. Ms Carey explained that she did not understood her role as needing to judge the veracity of that information. Ms Carey said the main point she had made in her conclusions was regarding Ms Tahery’s ability to provide a coherent and accurate information during the Interview in the context of those psychosocial stressors.[31]
[31] Refer Transcript 08/04/2019 P-47.
Ms Carey was asked whether it would be “out of keeping with the literature” if the discrepancies had involved positively false information. Ms Carey said that due to high levels of stress at the time of the incident or when trying to remember later on, occasionally “you can create false memories” unintentionally, where things are recalled incorrectly or a false memory might be implanted by others through suggestion, such as leading questions, which become “part of a narrative down the track”.
When asked whether it would have been reasonable if Ms Tahery had put forward some positively false information, Ms Carey said she did not think this was unreasonable given the evidence on witness memory recall, especially with memories created in traumatic situations.[32] However, Ms Carey conceded that in respect of a person exposed to trauma, “it’s less, much less likely to create completely new events, rather than filing in the gaps of a more traumatic situation that they’ve been in”.
Ms Tahery’s witness statements and information provided to the Department
[32] Refer Transcript 08/04/2019 P-49.
2002 Visa Application
On 19 November 2002, an application was signed in the name of Ms Tahery for an offshore Refugee and Humanitarian (Class XB) visa (2002 Visa Application).[33] Ms Tahery’s date of birth was listed on the application form as 1 March 1979. The address that was provided as the address that the Department should write to Ms Tahery about the application was written in Arabic, but the city and country were listed as being “Iran-Mashad-E-Muq”. Ms Tahery’s parents, Abdul Raouf and Aziza, were listed on the form but it was not disclosed that Abdul Raouf was deceased. He was recorded on the form as living in Afghanistan.[34]
[33] Refer Supplementary T-Documents ST3.
[34] Ibid at ST3/9.
Mr Tahery signed a “refugee and special humanitarian proposal” application as the sponsor for a visa for Ms Tahery.[35] On the application form, Ms Tahery’s date of birth was stated to be 1 March 1979. Ms Tahery’s residential address was written in Arabic and was identical to the address on the 2002 Visa Application form, being an address in Iran. Mr Tahery indicated on the sponsorship form that Ms Tahery had arrived in Iran on 1 January 1999.
[35] Ibid at ST1.
On the 2002 Visa Application form, Ms Tahery’s brothers and sisters were listed as follows:
(a)Nazira (DOB 18 January 1964) born in and living in Afghanistan;
(b)Sedequa (DOB 5 September 1966) born in and living in Afghanistan;
(c)Hedayetullah (DOB 15 February 1968) born in and living in Afghanistan;
(d)Hemayetullah (DOB 28 July 1970) born in Australia and living in Australia;
(e)Hafizullah (DOB 24 April 1972) born in and living in Afghanistan;
(f)Marium (DOB 10 December 1974) born in and living in Afghanistan.
When prompted at question 20 to provide details of valid travel documents (i.e. passports) and identity cards held by Ms Tahery, no details were provided and instead, an entry of “N/A” was entered in the spaces provided for the details of such documents.[36]
[36] Refer Supplementary T-Documents at ST3/12.
At question 22, Ms Tahery was prompted to list all the addresses of where she had lived in the previous 15 years. The list of addresses provided were as follows:[37]
(a)from 1 March 2002 until 1 January 1999, an address written in Arabic in Mashad.M. in Iran as a temporary resident stated to be Ms Tahery’s current address at that time (the answer to question 25 of the form stated that Ms Tahery had left Afghanistan on 20 December 1998);
(b)an address written in Arabic in Mashad-E-Muq in Iran stated to be a previous address for an unstated period; and
(c)an address written in Arabic in Kabul Afghanistan, stated to be a previous address for an unstated period.
[37] Ibid at ST3/13.
In answer to question 26 which asked ‘why did you leave that country?’, it was stated that Ms Tahery’s family decided to leave Afghanistan for Pakistan, and then to Iran, due to the persecution of her family which started just after the Taliban entered Kabul City.[38] It was disclosed in answer to question 27 that Ms Tahery’s family had left Afghanistan illegally by leaving Kabul City for Jalalabad (Eastern Province) and then “through the mountains” until they arrived in Peshawar, Pakistan. They moved to Iran after 10 days due to “too many problems”.
[38] Ibid at ST3/15.
In answer to question 28 it was stated that when Ms Tahery and her family arrived in Iran in 1996, she was 17 years of age. The answer also provides an account of the situation involving a marriage proposal to Ms Tahery by a 42-year-old man with three children from his previous marriage and who had a hand disability from an explosion in Afghanistan. The account provided stated that the marriage was proposed by a “neighbour from Afghanistan” who visited to talk to Ms Tahery’s parents about her marriage. The account provided stated that Ms Tahery’s parents were ready to say okay and that it was acceptable, but that Ms Tahery refused the marriage proposal. The account provided stated that this had caused anger in Ms Tahery’s family. The account provided that at this time, the Taliban stepped down from power so Ms Tahery’s family and the family of the man proposing marriage to Ms Tahery, had decided to return to Afghanistan and to “do my marriage in Afghanistan”. The account provided then described the following:
So I had two options either to go back in country and do the marriag (sic) or stay in Iran with an unkow (sic) future. Finally I decided to stay in Iran and all my family and the family who want to marry me went back to Afghanistan.
On this form, when asked to identify who Ms Tahery thought may harm or mistreat her if she went back to Afghanistan, the following account was given:
As I mentioned in above question in case of going back to my country they (my family and the family who wants to marry me) will force me to do the marriage, which I can never accept a such arrange marriage. And in case of going back to my country I do not feel safe in any time and any where they can harm me and I will be mistreated.
When asked on the form to provide a list of all jobs Ms Tahery has had in the last 15 years, no details were provided and “N/A” was listed in each box. In Part G of the form, it was stated that Ms Tahery had attended six years of primary school; three years of secondary school and nil years of “post-secondary education (trade/university)”.[39]
[39] Refer Supplementary T-Documents at ST3/19.
Accompanying this visa application was a form entitled “Authorisation of person to act and receive communication” indicating that it had been completed and signed by Mr Tahery on 27 October 2002 (and showing that the visa applicant, Ms Tahery, had signed it on 19 November 2002).[40]
[40] Refer Supplementary T-Documents at ST4/23.
First 2005 Visa Application
The Tribunal was informed that a further visa application for Ms Tahery was submitted in April 2005.
It appears that a facsimile message was sent by Mr Tahery to the Australian Embassy in Iran to advise that Ms Tahery had changed her address in “Mashad-E-Muqudu”, Iran. On 19 September 2005, the Australian Embassy wrote to Ms Tahery to advise that unsuccessfully, they had tried to contact Ms Tahery to obtain further information in relation to her visa application.[41]
[41] Ibid at ST6.
On 15 September 2005, Mr Tahery signed a “refugee and special humanitarian proposal” application as the sponsor for a visa for Ms Tahery.[42] On the application form, Ms Tahery’s date of birth was stated to be 11 March 1980. No residential address was provided for Ms Tahery on this form.
[42] Ibid at ST8/36.
On 3 November 2005, a further letter was sent to Ms Tahery to notify her that her visa application had been refused, as the delegate was not satisfied that there were compelling reasons for giving special consideration to granting the visa.[43]
[43] Ibid at ST7.
Second 2005 Visa Application
On 25 October 2005, a further application was signed in the name of Ms Tahery for an offshore Refugee and Humanitarian (Class XB) visa (Second 2005 Visa Application).[44] Ms Tahery’s date of birth was listed on the application form as 11 March 1980.
[44] Ibid at ST3.
In the answer to question 2 on this form it was stated that Ms Tahery had arrived in Afghanistan on 1 September 2005 as a temporary resident. However, it also stated that Ms Tahery was a citizen of Afghanistan. On this form, Ms Tahery’s current residential address was listed as “Pakistan, Peshawar, Hayatabad, Phase-II, J-5, Street-2, H.No.36”. In the answer to question 22 it was stated that Ms Tahery had started living at this address on 2 September 2005. It was also stated that from May 2005 to September 2005 Ms Tahery had lived at Chilsatoon, Kabul, Afghanistan; and from September 1996 to May 2005 that Ms Tahery had lived in “Mashade” in Iran.[45]
[45] Refer Supplementary T-Documents at ST9.
Ms Tahery’s parents, Abdul Raouf and Aziza, were listed on the form and it was disclosed that Abdul Raouf was deceased. Aziza Tahery was recorded on the form as living in Afghanistan.[46] On this form, the list provided of Ms Tahery’s brothers and sisters were similar, but not identical, to the list of siblings provided on the 2002 Visa Application.
[46] Ibid at ST9.
On the Second 2005 Visa Application Ms Tahery’s siblings were listed as follows (the information in bold is different from the information provided in the 2002 Visa Application):
(d)Nazira (DOB 15 November 1963) born in and living in Afghanistan;
(e)Sediba (DOB 10 March 1965) born in and living in Afghanistan;
(f)Hedayetullah (DOB 17 January 1968) born in Afghanistan and living as a temporary resident in Iran;
(g)Hemayetullah (DOB 27 August 1970) born in Afghanistan and living in Australia;
(h)Hafizullah (DOB 29 August 1972) born in Afghanistan and living in “unknown”;
(i)Rahmatullah (DOB 10 April 1974) born in Afghanistan and living in Pakistan; nad;[47]
(j)Marium (DOB 6 May 1975) born in and living in Afghanistan.
[47] This person was not listed at all as a sibling of Ms Tahery in her 2002 Visa Application.
On this form an account was provided asserting that when Ms Tahery was living in Kabul, Chilsatoon, as a hygiene educator for the Danish Committee for Aid to Afghan Refugees, she had refused to leave this job when told to do so by an Al-Qaeda loyalist; they attacked her home (while Ms Tahery was out at a wedding); and had hit her mother. It was asserted that a threat was made that they intended to kill Ms Tahery, so she went to stay with a relative for three days and then left Kabul for Pakistan.[48] The employment history of Ms Tahery provided on this form was that from 2000 to 2003 she worked as an apprentice in design at a hairstylist and from February to August 2005, she worked as hygiene educator.[49]
[48] Refer Supplementary T-Documents at ST9/52.
[49] Ibid at ST9/55.
On this form, in terms of Ms Tahery’s education, it was asserted that she had attended primary school from 1986 to 1992; secondary school from 1992 to 1996 and post-secondary education from 1998 to 2002 and that her highest educational qualification was “Grade 12”.[50]
[50] Ibid at ST9/57.
At question 40 on this form, Ms Tahery was asked whether she had received assistance in completing the form. It was indicated that she had received assistance from “Waheed Rahimi”, and his address was “Peshawar, Pakistan”.[51]
[51] Ibid at ST9/59.
In support of the Second 2005 Visa Application, a typed letter in English was attached dated 15 September 2005 bearing the name (typed only) of “Hemayetullah Tahery, Estimator in Certained(sic) Windows” at the Scott Street address in Dandenong. This letter confirmed that he wished to sponsor Ms Tahery to come to Australia and reiterated that she wished to do so after the alleged attack that was made by the Al-Qaeda loyalist on her mother and the threat that had been directed at Ms Tahery.[52]
[52] Ibid at ST10/63.
A passport photograph submitted with the 2005 Visa Application was before the Tribunal.[53] The Tribunal identified that the person in the photograph as being Ms Tahery who was present at the hearing.
[53] Ibid at ST11/64.
In a letter dated 28 November 2005, Ms Tahery was notified that the Second 2005 Visa Application was refused as the delegate was not satisfied there was a compelling reason for giving special consideration to granting the application.
2006 Carer Visa
Ms Tahery made a further visa application in 2006 which was intended to provide for her to care for a relative in Australia who had autism but was reportedly processed instead as remaining relative visa.
2007 Family Visitor Visa
On 5 November 2007, an application was lodged in the name of Ms Tahery for a sponsored family visitor visa.[54] Ms Tahery’s date of birth on this application form was stated to be 11 February 1980. Details of her passport issued on 9 October 2006 with the number XXX20 were provided and it was stated that her current residential address at that time was “Karte-Parwan. Bagh Rais St #X, House #X, Zone-X, Kabul” (numbers omitted).
[54] Refer Supplementary T-Documents at ST13.
On this form Ms Tahery’s list of brothers and sisters was similar, but not identical, to the list of siblings provided on the 2002 or 2005 Visa Application forms. In this application, Ms Tahery’s siblings were listed as follows (the information in bold is different from the information provided in the 2002 or 2005 Visa Applications):
(a)Nazira (DOB 10 March 1965) with a home address in Afghanistan;
(b)Hidaiyetullah (DOB 15 November 1967) with a home address in Afghanistan;
(c)Hemayetullah (DOB 27 August 1970) with a home address in Australia; and
(d)Marium (DOB 6 May 1975) with a home address in Afghanistan.
Ms Tahery’s employment status on this form was listed as being employed as an accountant at “International Developmen(sic) Company” and that she had been employed there for two years and three months.[55] The answer provided to question 41 stated that Mr Tahery had provided Ms Tahery with assistance to fill in the form and that all written communications should be sent to him. He was the sponsor for this visa application. A letter was provided by his employer, CertainTeed PVC Windows Pty Ltd to attest to Mr Tahery’s character.[56] Another (undated) letter in support of the visa application was provided purportedly by “A. Rashid khadimi, Administration Department” of International Development Co. Ptd.[57]
[55] Ibid at ST13/74.
[56] Refer Supplementary T-Documents at ST15.
[57] Ibid at ST15/84.
On 19 February 2008, this visa was granted for a period of three months, requiring entry by 19 May 2008. As mentioned above, a “No Further Stay – 8503” condition was imposed on the visa. The effect of this condition was stated that it would not be possible for Ms Tahery to apply to remain in Australia beyond the authorised period of stay shown on the visa.
2008 Visa Application
Ms Tahery’s First Statement was given to the Department in support of a Protection (Class XA) visa application signed on 23 April 2008 and with a date stamp indicating it was received on 28 April 2008 (2008 Visa Application).
In the 2008 Visa Application, Ms Tahery’s date of birth was listed as 11 February 1985 and that she was 23 years old. Her place of birth was listed as Kabul, Afghanistan, that she belonged to the Tajik ethnic group and that her religion was Shia. Her address was listed as a unit in Dandenong. In the form, Ms Tahery’s citizenship at birth was listed as Afghani. When asked on the form to name the countries of former habitual residence or transit before arrival in Australia, they were listed as follows:
(a)Dubai – departure date 24 March 2008 (in transit); and
(b)Singapore – departure date 24 March 2008 (in transit).
On the 2008 Visa Application form, it was stated that Ms Tahery arrived in Australia on 24 March 2008 on an Afghan passport (numbered XXX41) issued on 25 February 2008. A copy of this passport was attached, and it shows Ms Tahery’s date of birth as 6 March 1981. Details were also provided on the form of a Taskira from Afghanistan numbered XXXX91. A translation of the Taskira (described as a birth certificate) was also attached to the 2008 Visa Application, showing Ms Tahery’s date of birth to be 11 February 1985. The last number “5” is written by hand as a correction to a typed number lying beneath it, which appears to be a “0”. A certificate for the two-year program she completed in English at a teacher’s training college was attached and it states that Ms Tahery is the daughter of “Abdul Rahouf” and that she was born in “1985” in “Kabul”.[58]
[58] Refer Supplementary T-Documents at ST19/145.
On the form, Ms Tahery was asked whether she had ever travelled outside of her home country or country of residence before her current journey to Australia. This question was answered “No” and then details were provided to indicate that she went to Pakistan about five years previously for 10 days for a Shia pilgrimage. Ms Tahery stated that over the previous ten years from April 1988 to March 2008 she had lived in two different addresses in Kabul city and at one address at “Mazaree Sharif”.
In the section of the form providing details of Ms Tahery’s education, it stated that she had attended school in Kabul from March 1991 to August 1996; was “home schooled” from August 1996 to March 2005; and attended S Jamaludin Training College in Kabul City from March 2005 to November 2006. The form provided details that Ms Tahery had attained a qualification as a teacher in 2006.
In the section of the form providing details of Ms Tahery’s past employment, it stated that she had been employed from December 2006 to March 2008 by International Development Cpy. (Hidaiatullah Tahery’s company) in the position of “accounting” and from August 2005 to March 2008 she had been self-employed, teaching children at home.
Ms Tahery’s close relatives were listed in the form as being:
(a)Abdul Raof Tahery, deceased father who was an Afghan citizen;
(b)Aziza Tahery, mother, who is an Afghan citizen residing in Pakistan;
(c)Hediaitullah Tahery, brother who is an Afghan citizen residing in Afghanistan but more often overseas;
(d)Hemayetullah Tahery, brother residing in Australia;
(e)Nazera Tahery, sister who is an Afghan citizen residing in Pakistan;
(f)Maryem Tahery, sister who is an Afghan citizen residing in Pakistan.
Ms Tahery’s First Statement – April 2008
Ms Tahery’s First Statement was undated. It was submitted by her migration agent to the Department on about 24 April 2008[59]. In this statement, Ms Tahery stated as follows:
[59] Refer Supplementary T-Documents at ST19/101.
(a)Ms Tahery is an Afghan female of Tajik ethnicity and Shia religion and that she is 22 years old;
(b)Ms Tahery had “no other citizenship apart from Afghan”;
(c)Ms Tahery claimed that the authorities who had issued her Afghani Passport had “made a mistake on my date of birth”. It was listed as 6 March 1981. Ms Tahery stated this was incorrect and that her date of birth was 11 February 1985 which was evidenced by her Taskira and her diploma which showed that she was born in 1985;
(d)since Ms Tahery had arrived in Australia, she had found out that her mother was forced to flee Kabul to Pakistan after being beaten by her Pashtun relatives who had tried to force Ms Tahery to marry her cousin. Ms Tahery stated that Mr Tahery had received a telephone call from Ms Tahery’s neighbours in Kabul who told him her uncle had come to the house to ask for Ms Tahery, and that Ms Tahery’s mother had told her uncle that Ms Tahery had gone to Australia. It was reported that her uncle became angry and “beat” Ms Tahery’s mother. As a result, Ms Tahery’s mother became fearful for her safety and arranged with her neighbour to go to Peshawar and stay with her neighbour’s son;
(e)Ms Tahery’s father died of old age four years before she made this statement. She said she had been living with her mother in their home in Kabul. She stated that she had two sisters who were married and had lived in Pakistan since before 1996 and that she has had very little contact with them because she explained that in Afghanistan when a woman marries, she becomes part of her husband’s family;
(f)Ms Tahery stated that Hidaiatullah Tahery ran an importing company and that his role was to travel to other countries to source goods to import to Afghanistan and that most of the time he was not present in Afghanistan. Ms Tahery stated that she worked in the office of this company and was in charge of accounting, paperwork and worked as the receptionist;
(g)about three months before making this statement, Ms Tahery was informed about a plan by her uncle to kidnap her to force her to marry her cousin (as this had not been agreed), so she stopped work, did not leave the house and was guarded by a group of girls;
(h)Ms Tahery stated that her only other living relative (apart from her sisters and Hidaiatullah) was Mr Tahery who was living in Australia;
(i)after the fall of the Taliban, Ms Tahery stated she went to a teacher’s training college in S. Jamatudin and completed a two-year training course to teach English; and
(j)while Ms Tahery had studied English in Afghanistan, for the two years she had been in Australia, she stated she had trouble understanding “the Australian way of speaking”.
Protection visa granted in July 2008

On 18 July 2008, Ms Tahery was granted the Protection (Class XA) visa.[60]
[60] Refer Supplementary T-Documents at ST23.
The Tribunal notes that Ms Tahery qualified for a Certificate I in spoken and written English from AMES on 23 December 2008.
Ms Tahery’s Citizenship Application – February 2014
As mentioned above, Ms Tahery applied for Australian citizenship in February 2014.[61] The proof of identity submitted with the application included:
(a)a Victorian driver’s licence with an expiry date 11 February 2016;
(b)Medicare card naming Basera Tahery and her two children, which was valid to June 2017;
(c)Health care concession card which expired on 5 April 2014;
(d)Australian visa (subclass 866);
(e)Afghan passport issued on 25 December 2008; and
(f)in the name of “Bassira” daughter of “Abdul Rahouf”, a certificate of completion of program in 2006 at Teacher Training College in Kabul, Afghanistan; and
(g)the Taskira appearing at T-Documents T16/127.
[61] Refer T-Documents T15.
Ms Tahery was called to the Department for the Interview referred to above. A transcript of the Interview was before the Tribunal.
When Ms Tahery was asked at the hearing what was going on at the time of the Interview, she gave evidence that she was living with her husband; was subjected to family violence at that time; she was abused; and had some news that her mother in Kabul was unwell. Ms Tahery said she was under a lot of stress and anxiety and that her mother was admitted to hospital. Ms Tahery said her mother was overweight and had leg pain, dizziness and problems with her blood pressure and her heart. Ms Tahery said her children were sick at that time (with a “cold and flu”) and were crying, so she did not sleep the night before the Interview. Ms Tahery said she did not mention this to the people who interviewed her.
At the Interview, through an interpreter Ms Tahery informed the Department that she was born on 6 March 1981 in Kabul and that her nationality was Afghan. She said she spoke Dari and only a little bit of English. She said that in the Islamic calendar, she was “26 years and 1385”. She said that when she arrived in Australia, they had converted from the Islamic calendar. When asked who she meant by “they”, Ms Tahery said that her Taskira and passport, “that date was written and then translated, and it was converted” by the translator to the Christian calendar. When asked what date of birth she gave to get her passport, Ms Tahery said she did not say anything. She said she gave her Taskira and that they looked at that and converted it.
At the Interview, Ms Tahery said she was about 26 or 27 when she went to get her Taskira in Afghanistan. She said her ethnicity is Tajik and that she was born in Karte Parwan. She said her father’s name was Abdul Rauf and that he was around 85 to 90 years old when he passed away. She said her mother was Aziza Tahery. Ms Tahery said she did not know her mother’s date of birth, but she would be between 67 and 75 years old as an estimation. She said her mother was living in Kabul in the house where Ms Tahery used to live.
At the Interview, Ms Tahery said her family comprised of three sisters (including herself) and two brothers. Ms Tahery provided the following further information during the interview about her siblings:
(a)Ms Tahery said her eldest sibling was Nazira Basera and that she “could be about 50 years old”. She said Nazira was living in Kabul and that she was married with four children;
(b)Ms Tahery said that she had a brother, “Hetiatula” (perhaps intended as a reference to Hidaiatullah) Tahery. She said he was about 47 years old, was born in and is living in Kabul. She said he is married and has six children (three sons and three daughters) and had a private business (restaurant) in Kabul. She said she did not know the name of this restaurant; she had not been there before and that her brother bought it when she was in Australia. When asked what he did before he bought the restaurant, Ms Tahery said he had a business in Afghanistan with his friends, but she did not know what that business was because, by that time, she had been in Australia for quite a long time;
(c)Ms Tahery said that Mr Tahery was living in Australia and that his age was “around 40, up and down, I don’t know”. She said he was about 10 or 12 years older than her. In the Interview, Ms Tahery subsequently said there could be between eight- or nine-years difference between Mr Tahery and herself. When the discrepancy was raised with her during the Interview, she said she did not know and did not know his date of birth. She said he had three children and was working at a company which manufactured doors and windows. She said she did not know the name of the company or where it was located. She said he lived in Lynbrook which was about a 10-minute drive from Dandenong, where Ms Tahery was living. She said she saw Mr Tahery once every two or three weeks because he was “very busy, working all the time” and busy with his children. She said she also spoke to him on the telephone once a fortnight;
(d)Ms Tahery said that Maryam was living in Kabul and she was two years older but that she did not know exactly, (“maybe 38,39”) and that she was born and living in Kabul. She said that Maryam had three children.
Ms Tahery said she was in contact with all her siblings and they were all older than her. Ms Tahery said that she contacted her mother once every two to three months by telephone and her siblings once a year by telephone. Ms Tahery said she did not communicate with them by Facebook or email because she did not have Facebook or email, fearing her children would “break everything”.
Ms Tahery provided information at the Interview about the countries she had been in before arriving in Australia that conflicted with her evidence to the Tribunal at the hearing and the information contained in the various visa applications. The Tribunal notes the following information provided at the Interview:[62]
[62] Refer page 24 & 25 of the Transcript of the Interview.
Q160.            Do you know how old you were when you first left Afghanistan?
A.    26 or 27 years.
Q161.            And where did you go?
A.    I came to Australia.
Q162.             That’s the first time you ever left Afghanistan?
A.    I came directly here (indistinct)
Q163.But had you travelled to any other countries before coming to Australia in your life?
A.    You mean when I came to Australia transit, that I stopped over there, or - - -
Q164.             Yeah, tell us about where you stopped in transit.
A.    From Kabul I went to Dubai, there was stopover there, and then I went to Singapore. From Singapore, Melbourne.
Q165.             From Singapore to Melbourne.
A.    Yeah.
Q166.             Okay. Before that trip had you been to any other countries?
A.    No.
Q167.So you were 26 or 27 years old when you left Afghanistan to come to Australia. Was that the first time that you ever left Afghanistan?
A.    Yes.
Q168.Where did you travel before? Before coming to Australia, where did you travel?
A.    I didn’t have any trip anywhere.
Q169.             You just said yes, sorry.
A.    So that was the first time that you left Afghanistan, was when you were 26.
THE INTERPRETER: I think she said the first.
MS V:[63]                 I thought you said when – you question was: before that trip did you travel to other countries? And you said yes.
[63] Full surname omitted – Departmental staff member who conducted the Interview.
MS W:[64]                No. I said, “Is that the first time that you ever left Afghanistan?” She said yes.
[64] Full surname omitted – Departmental staff member who conducted the Interview.
Q (cont’d)So you left Afghanistan when you were about 26 or 27. That was when you came to Australia. Yeah. Had you travelled outside of Afghanistan at any time before you left for Australia?
A.    Nowhere before coming to Australia. After came to Australia – before that, nowhere. That’s what she means.
Q170.So you have never been on any holidays or a visit to see anybody at any time in any other country?
A.    No.
Q171.             Not to study or to work anywhere else?
A.    No.
Q172.Or if the security situation was bad you didn’t leave and come back – leave Afghanistan?
A.    All the time in Kabul.
Q173.             Up until 26 approximately?
A.    Yes.
Ms Tahery told the Department during the Interview that after her arrival in Australia, she was introduced to her ex-husband by her sister-in-law, who knew her ex-husband’s sister. At that time, her ex-husband lived alone in England. She told the Department she was married in about February 2010 being about two months after she met her ex-husband.[65]
[65] Refer pages 26 and 27 of the Transcript of the Interview.
In terms of education, Ms Tahery told the Department at the 2016 Interview that she had completed Year 12 at Shirino Lycee which was a school for girls and went from Grade 1 to Grade 12. She said she had started “from the beginning” at this school. She said the school was in Karte Parwan and was a half hour walk from her house. She said that her sisters also went to this school and her brothers went to a school for boys, Omar Shahid. She said her brothers completed school, but her sisters did not, because it was “cut short” and that “maybe” they completed up to Grade 9 or 10. Ms Tahery said she had completed her schooling and that at this time, she was about 25 years old.[66]
[66] Refer pages 33 and 34 of the Transcript of Interview.
Ms Tahery also told the Department that she completed about five or six months of “teacher training”, but she did not complete the certificate because she came to Australia.[67] She said the course was meant to be for two years. She said she started it at the end of 2006, and it continued into 2007.
[67] Ibid at page 30.
Ms Tahery told the Department that in the year between finishing Grade 12 and starting the teacher’s course, she worked for her brother, Hidaiatullah, in Afghanistan in his office for a period of about one month. She said the business was in relation to materials used for construction and building. When asked whether she had any other jobs, she said “No” and she confirmed that in Afghanistan, she had only ever worked for her brother for one month. Ms Tahery said that in Australia, she had completed a Certificate III in Child Care and had undertaken a volunteer placement but had not worked, despite looking for a job.
At the Interview, Ms Tahery was asked whether she had ever applied for any other visas prior to being granted her visitor visa. The Tribunal notes the following exchange:[68]
[68] Ibid at pages 45 to 52.
MS V:
Q298.Before coming to Australia on the visitor visa had you applied for another visa to come to Australia before then?
A.    No.
Q299.So the first time that you filled in any forms to apply for a visa to come to Australia was the time with your brother, the first time you came to Australia?
A.    Yes, my brother, actually (indistinct) yes.
MS W:
Q300. How many times did he apply to sponsor you to come to Australia?
A.    That was the first time.
MS V:
Q301. And the first time for you as well?
A.    Yes.
Q302. So I’m just going to caution you again that you need to tell us the truth and provide all the information and answer the questions truthfully. Do you understand?
A.    Yes.
Q303.We just want to discuss with you now some inconsistencies between the information you’ve given us to today and the information that’s on your departmental files. Departmental records indicate that since you first interaction with the department in 2002 you have provided at least five variations of your date of birth.
THE INTERPRETER: 2002 you said, yes?
Q (cont’d) I will just continue, and I will give you an opportunity to respond at the end. Okay. Departmental records indicate that you applied in 2002 for a XB202 visa in Iran; in 2005 you lodged an application in Pakistan for an XB202 visa; in 2006 you lodged an application for a BO115 visa in Pakistan; and in 2008, for your visitor visa as well. So you have had multiple applications to come to Australia before you came on your visitor visa.
THE INTERPRETER: 2A visa, she wants to know what is the subclass of this visa and what is that for, XP2A visa.
MS V: XB202 is a global special humanitarian visa.
THE INTERPRETER: She’s saying that:
A.All these applications were lodged from here, from Australia (indistinct) and all from Pakistan, because I had never been in Pakistan to apply for these types of visa.
THE INTERPRETER: That’s what she said.
Q304.You haven’t actually declared that you had applied for them before, when we just asked you.
A.    Actually I was never in Pakistan in order to apply for these visas.
THE INTERPRETER: That’s what she said.
Q305. Have you applied for a visa before you came to Australia on your visitor visa?
A If from here my brother has applied for me and lodged application form, that could be, but I don’t know. But I was never in Pakistan in order to fill out a form and send it.
MS W:
Q306.So you would have no idea if your brother applied for visas to come to Australia for you?
A.    I was never in Pakistan in order to apply for these visas. And actually if my brother has lodged an application form on my behalf, I don’t know about that.
MS V:
Q307. So to your knowledge have you applied for a visa to come to Australia before your visitor visa?
A.    I said that I was not in Pakistan to apply for that, but if my brother has applied for me and I don’t know, could be, but I have not.
Q308.We have applications showing that you also lodged an application while you were living in Iran in 2002.
A.    How I was in Iran and how I was there? For which (indistinct) that application?
Q309. On 21 November 2002 an application was lodged for a global special humanitarian visa in Tehran, showing your residence as Iran.
THE INTERPRETER: You mean through UNHCR?
MS V:It was through the Australian embassy in Tehran, but the UNHCR office in Masshad also provided information for the application.
THE INTERPRETER: That’s what I wanted. United Nationals High Commissioner for Refugees. I interpreted that, to know exactly - - -
MS W:
Q(cont’d)And in these applications you provide your – it was provided a residential address in Iran or Pakistan.
A.    I was never there. Maybe my brother has lodged that application. I don’t know in Iran. My eldest brother could have gone to Iran for some times. I don’t know.
Q310. Why would your brother do that, if that was the case?
A.    Which?
MS V:
Q311: Why would he lodge an application for you and not tell you?
A.    I don’t know, because he was going sometimes for his business or – yeah, I don’t know. This was the first time that I hear that.
Q312.We are able to confirm with Pakistan authorities with regards to your identity and fingerprints, to confirm if you’ve been in the country or not.
A.    Yes, that’s right. Okay. I’m sorry you don’t accept what I’m saying.
Q313. We have signed form for you applying for other visas. Confusing.
A.    I was never – maybe my brother has lodged an application form and send it on my behalf there, but I was not in Pakistan.
Q314.This is the application form here that was lodged in 2006. It is an application for a remaining relative visa. It lists Basera Tahery, 11 February 1980, and your address is listed as house number X STX, JX Phase X, Hayatabad, Peshawar, Pakistan (numbers omitted).
MS W:
Q(cont’d) So you’re claiming that you don’t know anything about this?
MS V:
Q(cont’d) The application is signed. Is this your signature?
A.    Yes, that’s my signature. (indistinct) my brother upload this.
Q315.But the application is signed by you on 15 October 2006. So departmental records show that you’ve lodged four applications before the sponsored family visitor visa that you arrived in Australia on. Each of those applications have a different date of birth and a different family composition. Each application also provides a different travel history, provides different information about the education you’ve completed, and also your employment history is different. The languages that are listed in your applications are also different and inconsistent.
A.    For example, which languages is mentioned there which is not actually inconsistent?
Q316.Okay, we will go through this systematically, then, I think. So in your application – so departmental records indicate you have provided contradictory information regarding the countries that you’ve travelled to and resided in prior to arriving in Australia. You’ve previously claimed that due to the Taliban you and your family fled to Pakistan and then to Iran in 1996, and never returned to Afghanistan.
THE INTERPRETER: Never returned?
MS W: At the time of the application.
MS V: At the time of the application.
Q(cont’d)At various stages throughout your immigration process, which started in 2002, you have stated that you’ve lived in three countries; and yet on other instances you’ve claimed to have only ever lived in Afghanistan prior to arriving in Australia.
A.I don’t know. Maybe these forms are wrong.
Q317.The form there has your signature on it. It includes photos and documents. Is that your photograph?
A.    These may be lodged by my brother. That’s possible.
Q318.Okay. So to your knowledge have you applied for a visa to come to Australia before your visitor visa?
A.    I didn’t know about these. Maybe my brother has lodged them.
Q319. Have you and your brother discussed these applications?
A.    My brother was asking me, “Are you happy if you come to Australia? If your work is done here”
Q320. When was he asking you that?
A.    Long time back?
Q321. Long time. When did you first hear about the visitor visa application?
THE INTERPRETER: Again (indistinct) do you want me to say it?
Q(cont’d)        When? What was the first time?
A.    In 2008 I was aware of that.
…
Q324.Did he tell you – so you had to sign the application. So did he give you the papers, or did he talk to you about the visa application, or did he tell you he had a visa for you already?
A.    It was done here. It was sent from Australia, because everything was organised here.
Q325. Did you sign anything?
A.    Yes.
Q326.It seems that all the inconsistencies the department has is based on the four previous applications that have been lodged with us. Inconsistencies with your date of birth, the countries you’ve travelled to, your education, employment, and family composition. The response that you’ve give today is that you did not know about these applications, that maybe your brother lodged them.
A.    Yes.
Q327. Is there anything else you would like to say today?
A.    No.
Ms Tahery’s Second Statement – October 2018
In Ms Tahery’s Second Statement, she sought to explain why different dates had been provided for her date of birth previously, as follows:
1. My name is Basera Tahery and I believe I was born in or around 1980 in Kabul, Afghanistan. I do not know the precise date of my birth but growing up, my mother told me that I was born in the Afghan spring time around March. In Afghanistan dates of birth are not important nor are they culturally significant. When I was growing up I had no really thought about my exact date of birth. It was not very important to me and my family. In my culture, age does not really form part of your identity. The most important thing about my identity was that I knew who my parents were and my siblings; that I was a Shia Muslim and that I was born in Kabul.
In Ms Tahery’s Second Statement, she states that she has two primary school-aged children who were born in and are citizens of Australia. She said her mother is Aziza Tahery and that she passed away on 29 August 2017 and that her father is Abdul Raouf Tahery and that he passed away on 6 August 2004. Ms Tahery listed her parent’s children in this statement as follows:
(a)Nazera Taheri, DOB 10 October 1962 residing in Afghanistan;
(b)Sidiqua Tahiri, DOB 15 July 1963 residing in Canada;
(c)Hidaiatullah Tahery DOB 15 November 1967 residing in Afghanistan;
(d)Hemayetullah Tahery DOB 27 August 1970 residing in Australia;
(e)Hafizullah Tahery DOB 1972 who is missing (presumed deceased);
(f)Maryam Sadat DOB 11 December 1974 residing in Afghanistan; and
(g)Basera Tahery DOB 6 March 1981 residing in Australia.

Ms Tahery states that the dates of birth of her siblings were taken from their passports and that she had been provided with a photocopy of those passports. She stated that Sidiqua’s family name is spelt differently in her passport, so she had used the spelling from her official passport. She stated that Maryam’s surname was different (to Tahery) because she married and has taken her husband’s surname. She said that Hafizullah Tahery went missing with the rise of the Taliban in 1996, so she does not have any documents that give his exact date of birth. She stated Hafizullah was about two years younger than Mr Tahery.[69]
[69] Refer page 117 of C&I Documents.
Ms Tahery stated that she attended school in Kabul, Afghanistan from 1987 to 1993 and then sporadically from 1994 to 1996 due to the internal conflict and civil war in Afghanistan. She stated that in 1996 the Taliban took power; schools were closed; and children were banned from attending any sort of education.
Ms Tahery stated that in 1998, Mr Tahery and his wife and daughter left Afghanistan and went to Pakistan and from there they were granted visas to go to Australia. She stated that in 1999, Ms Tahery, her parents and Hidaiatullah, left Afghanistan, went to Pakistan for about 10 days and then entered Iran illegally without a passport or visa and commenced living in Mashhad where she lived from early 1999 to late 2003. While she was in Iran, Ms Tahery stated that in or around 2000 she attended at Shaheed Sayed Ismail Balkhy High School which was not an official Iranian school, but a school for Afghani refugees.
Ms Tahery provided an explanation as to how her year of birth was recorded as 1985 on the certificate issued by this high school, as follows:[70]
…I am now aware that I was approximately 19 years old at the time but because I had missed a lot of schooling in Afghanistan I entered their schooling system to obtain a high school level qualification. Whilst living in Iran it was also very difficult, I had no visa or any form of identity document. I now believe that due to the lack of evidence in regard to my identity, the school registered my year of birth as 1985 to match other regular students. However, at the time all I knew is that I wanted to study. I did not turn my mind to the fact that the schooling records stated I was born in 1985.
[70] Refer page 117 of C&I Documents.
Ms Tahery referred to the 2002 Visa Application which was made while she was living in Iran. She said that Mr Tahery had sent her the documents. She said the application was just for her and that while she was not certain, she thought that her brother probably filled out most of the forms for her. She said her English was quite basic at that time, that she could speak basic sentences and had learnt it in school but did not have much opportunity to speak English.[71]
[71] Ibid at page 118.
Ms Tahery stated that the Taliban was overthrown by 2003, so in late 2003 her parents and brother returned to Afghanistan and that she lived in Kabul. In 2005, she stated that she commenced a teacher’s training course at Sayed Jamaludin Training College in Kabul to become an English teacher.[72]
[72] Ibid.
Ms Tahery stated that in or around 2005, she travelled to Pakistan with her mother and Hidaiatullah Tahery for two or three weeks. She stated that her mother was seeking medical treatment in Pakistan. Ms Tahery stated that she applied for an Australian visa again in April 2005 and that Mr (Hemayetullah) Tahery had sent her the application forms and had helped to fill them out.[73]
[73] Ibid.
Ms Tahery stated that she went back to Pakistan again in late-2005 for a couple of weeks to seek treatment for her mother’s health issues. She said she made another special humanitarian (subclass 202) visa application. She stated that in 2005 she was desperate to get out of Afghanistan, because she did not consider it safe. She stated she had lived illegally in Iran previously, and did not want to do that again.[74]
[74] Refer page 119 of C&I Documents.
Ms Tahery stated that she applied for a Taskira in Kabul, Afghanistan in 2006, which she stated was the first document she had ever obtained related to her identity. Ms Tahery stated that the Kabul registry stated on the Taskira that her year of birth was 1981 based on her appearance. She stated she was aware that her school documents had stated that she was born in 1985.
Ms Tahery stated that she started working for the International Development Company in late-2006, until she travelled to Australia in 2008. She stated that she worked for this company for one year and a few months. She stated that at this time she was also tutoring Afghan children in her home in “basic English”. Mr Tahery stated that in late-2006, she travelled again to Pakistan to seek further medical treatment for her mother.
Ms Tahery gave the following account of her mother being beaten while she was in Pakistan:
35.By the time I arrived in Australia, I had not experienced any sort of stability in my life. I feared living in Afghanistan and I did not want to live illegally in Iran or Pakistan. Whilst visiting Australia, I became aware that my mother had fled to Pakistan after she was beaten by her Pashtun relatives. My mother told me that they were pressuring my mother to force me to marry one of my cousins. I applied for an onshore Protection visa. This was granted on 18 July 2008.
Seeking to explain the confusion that had arisen in relation to Ms Tahery’s date of birth, she stated as follows:
36. When I applied for the Protection visa in 2008, I recall being quite confused about how old I was but the documents had from school and training college said that it was 1985. My taskera recorded my age based on my appearance of being 26 years of age. I now think that I was most likely born in 1981 but at the time I was not orientated as to the importance of a person’s date of birth and I had conflicting documents as to my date of birth. I recall being quite scattered, life in Afghanistan was really tough and then suddenly I was in Australia, and had learnt that my mother had been attacked in Afghanistan.
37.I also understand that the English translations that were provided for my Taskera inserted dates of birth which were not present on my Taskera. When providing documents to translators, I also provided them with other documents to support my identity such as my schooling certificates and passport. I assume this is the reason for the differences in the translations but I’m not sure.
In Ms Tahery’s Second Statement, she explained the process of obtaining her “new Afghani Passport”. She stated that in order to get it, she went to Canberra with her brother and applied for it at the Afghani embassy. She stated that she took her “old passport” which she had obtained in Kabul, Afghanistan, and Taskira with her and that they sent her the passport when it was ready. This passport appears at page 126 of the C&I Documents and shows that it was issued on 12 October 2018 and is due to expire on 12 October 2023.
Ms Tahery’s evidence at the hearing
At the hearing, Ms Tahery identified to the Tribunal several people in photographs appearing in the C&I Documents. Specifically, Ms Tahery gave evidence as follows:
(a)in the photograph at the top of page 132:
(i)the woman on the far right (when facing the photograph) wearing the white scarf is Ms Tahery’s mother;
(ii)the man standing to her left is her brother, Hemayetullah Tahery;
(iii)the woman standing to his left is Hemayetullah Tahery’s wife;
(iv)the women standing to her left is Hidaiatullah Tahery’s (purportedly Ms Tahery’s eldest brother) wife; and
(v)the woman standing side on, to her left is the stepsister of Hemayetullah Tahery’s wife.
(b)in the photograph at the bottom of page 132:
(i)the man on the far right (when facing the photograph) is Hemayetullah Tahery;
(ii)the woman to his left is Hemayetullah Tahery’s wife;
(iii)the woman to her left is Hemayetullah Tahery’s wife’s sister;
(iv)the woman to her left is Hidaiatullah Tahery’s wife;
(v)the woman to her left in the white scarf is Hemayetullah Tahery’s wife’s mother;
(vi)the woman standing behind Hemayetullah Tahery’s wife’s mother is “stepsister-in-law” of Hemayetullah Tahery’s wife;
(vii)the woman wearing the white dress (standing to the left of woman with the white scarf) is Ms Tahery; and
(viii)the woman to the left of Ms Tahery is the stepsister of Hemayetullah Tahery’s wife.
(c)in the photograph at the top of page 133:
(i)the man standing on the far right is Hidaiatullah Tahery;
(ii)the woman sitting on the far right is Hidaiatullah Tahery’s wife;
(iii)the woman to the left of her is Ms Tahery;
(iv)the man to the left of her is Hemayetullah Tahery;
(v)the woman to the left of him is Hemayetullah Tahery’s wife;
(d)in the photograph at the bottom of page 133;
(i)on the far right (when facing the photograph), out of frame, is Ms Tahery’s mother;
(ii)the man to her left is Hemayetullah Tahery;
(iii)the woman to his left is Hemayetullah Tahery’s wife;
(iv)the woman to her left is Ms Tahery;
(v)the woman to her left is a distant relative on the father’s side.
Ms Tahery was taken to a visa application form signed on 25 October 2005 and asked whether she recognised the handwriting in the answer appearing at Question 40. Ms Tahery gave evidence that she did not recognise the handwriting and did not know who completed it. The answer provided at Question 40 was “Waheed Rahimi” at the address of “Peshawar, Pakistan”.[75] Ms Tahery said that she did know who this person was.
[75] Refer Supplementary T-Documents ST9/59.
The form stated at Question 22 that Ms Tahery lived at Chilsatoon in Kabul.[76] Ms Tahery she gave evidence that she had not ever lived in Chilsatoon. Ms Tahery was asked whether she had ever worked for the Danish Committee for Aid to Afghan Refugees as indicated at Question 26 on this form.[77] Ms Tahery gave evidence that she had not done so. Ms Tahery was asked with the information on this form stating that “one night, Al-Qaeda loyalist who were unknown people in our village attack on our house. Fortunately I was out of my house I was in a wedding party just mother was at home”. Ms Tahery indicated she did not know about this.
[76] Ibid at ST9/50.
[77] Ibid at ST9/52.
When Ms Tahery was asked whether she had received assistance in completing the forms, her response was, “Like very limited help, and most of the forms were filled out by my brothers and was sent to me”.[78]
[78] Refer Transcript 08/04/19 P-34.
Ms Tahery gave evidence that when her brother filled in the forms for her that she only understood basic sentences in English, and it was difficult for her to fill in forms and to understand “hard words”.[79] Ms Tahery gave evidence that she had completed a Certificate II in English; was currently completing a Certificate III in English; and undertaking further study at Dandenong Chisholm Institute three days per week.
[79] Ibid at P-36.
During cross-examination, Ms Tahery gave evidence that she had first applied for an Australian visa in 2002 when she was living in Iran. She confirmed that her brother had prepared the visa forms and had sent them to Ms Tahery in Iran. Ms Tahery said she did not communicate with her brother before she received the forms and that it was hard to do so, because she said talking over the telephone was expensive.[80]
[80] Ibid at P-38.
Ms Tahery’s evidence at the hearing about how much of the form she completed was unclear. Ms Tahery indicated she could not remember exactly, and she was seeking help from others who had a better understanding of English. Ms Tahery said when “some bit was needed”, she would write on the form. Subsequently, she said that she could not remember if another person had helped her complete the form, where additional information was required.
Ms Tahery was taken to her 2002 Visa Application form signed on 19 November 2002 and was asked whether she was living in Mashhad-E-Muq, Iran in 2002, to which she answered “Yes, maybe”.[81] Ms Tahery confirmed that the details of her relatives given at Question 13 were correct.
[81] Refer Supplementary T-Documents ST3 and Transcript 08/04/19 P-39.
When taken to the visa applicant’s signature section on the 2002 Visa Application form, at first Ms Tahery gave evidence at the hearing that the signature showing on the form was not her signature. When asked about this again, Ms Tahery said she could not remember, as “it happened long ago”. Ms Tahery said it “might be” her signature because, “my signature is different at the moment, yes, currently”. Ms Tahery said she could not remember if her signature had ever looked like the signature appearing on the form.
Ms Tahery was asked whether a year before arriving in Australia in 2008, her mother had been approached by her mother’s brother about Ms Tahery marrying her cousin. Ms Tahery said this was correct. When asked when Ms Tahery had first heard about this, she said it was at about the same time that it happened, that is, about one year before Ms Tahery arrived in Australia. Ms Tahery said she was being forced into the marriage but “none of them” (which included Ms Tahery and her mother) were happy about it. When asked during examination-in-chief, Ms Tahery stated, definitively, that her mother would never force her into a marriage.
Ms Tahery gave evidence that when she returned from Iran to Afghanistan, she did so with her parents and her brothers.
During cross-examination, Ms Tahery was asked whether the statement appearing in her 2002 Visa Application that her parents had agreed for her to enter into a forced marriage was incorrect, based on Ms Tahery’s evidence that the first she knew about this was one year before coming to Australia (which was in 2007). Ms Tahery said she was not told that story while she was in Iran and that her parents had not let her know that “they had asked for her”. Ms Tahery suggested that she was studying at the time and perhaps she was not informed about it in case it disturbed her studies. She suggested that perhaps Mr Tahery knew about it. She said she was initially told about it by her mother one year before coming to Australia, but her evidence was unclear about when the proposal to her family had been made.[82]
[82] Refer Transcript 08/04/19 P-55.
Ms Tahery gave evidence that she could not remember if she had seen the 2002 Visa Application form before it was submitted to the Department. She said she had “faced a lot of trauma and issue, problems and the like”.[83]
[83] Ibid at P-56.
Ms Tahery said that her brother had sent the form to her at “that time” but she had not seen it since then. Ms Tahery was asked whether she or someone else had filled in the 2002 form and she said that most of them were “written by me – but my brothers and some part I wrote and some part I sought help from others”.[84] Ms Tahery said that sometimes other people who assisted her with the forms, would write on the form. Ms Tahery confirmed that it was her brother’s handwriting for the answers provided to questions 28, 29 and 30[85] of the 2002 Visa Application Form.[86]
[84] Ibid at P-57.
[85] Refer Supplementary T-Documents ST3/11.
[86] Refer Transcript 08/04/19 P-59.
Ms Tahery said that it was not her handwriting for the answers to questions 26 and 27 of the 2005 Visa Application form.[87] Ms Tahery said that the writing appearing the front page of the 2005 Visa Application form at page 40 on Supplementary T-Document ST9, “might be” her handwriting, but she could not remember exactly. Ms Tahery said that her handwriting and signature appeared on T-Document T12 at page 109.[88] The Tribunal notes Ms Tahery’s handwriting on this document is unlike most of the handwriting that appears on the various other visa applications made in her name.
[87] Refer Supplementary T-Documents ST9/13.
[88] Refer Transcript 08/04/19 P-59.
Ms Tahery was asked by the Tribunal whether she had always signed the visa application forms which were submitted on her behalf and she said, “Yes, I do see and sign. Maybe I did not have better understanding because I limited English, I didn’t know much about English”.[89] Ms Tahery was asked during cross-examination whether the person who had helped her with the forms had translated to her the parts of the forms that were written in English. Ms Tahery said she could not remember whether she had asked for an explanation or not, and that there were “a lot of issues and problems”.
[89] Refer Transcript 08/04/19 P-59.
Ms Tahery was asked whether she was aware in 2002 whether she needed to be truthful when submitting visa applications. Ms Tahery said that she did not remember but she did not know about Australian laws at that time and her brother had written most of the forms for her.[90] Ms Tahery was asked what her brother had requested that she do with the forms once he had sent them to her. She responded as follows:
Yes, so whenever there was any part needed to be signed, so I signed that one, and whenever there was needed that kind of piece of writing, so I was doing that. That’s it. He’s my brother, so he only wanted to help his sister, like just to need any support and help, that’s it, because we were in a kind of situation, just he wanted to support and help me.
[90] Ibid at P-60.
Ms Tahery was asked whether the signatures appearing on the document were the result of Ms Tahery signing and returning the document to which she confirmed that it was.[91]
[91] Ibid at P-61.
Ms Tahery was taken to parts of the account of her life story that was provided in the 2002 Visa Application. Ms Tahery made several corrections based on her memory of those events, as follows:
(a)she said that she and her family arrived in Iran in early 1999, and not in 1996, as stated on the form;[92]
(b)at this time, she was 18 years old at this time, and not 17 years old, as stated on the form;[93]
(c)she said that the account about the neighbour from Afghanistan coming to their house to talk to her parents about her marriage was not correct and that her family were not happy about the proposal. She said that maybe her brother had understood differently or that this was a mistake. She said that she did not remember this in 2002;[94] and
(d)she said that the account given, that her parents were ready to say okay to the proposed marriage and that she had refused and decided to stay in Iran, never happened. She said, “that is wrong and I was not aware of that”.[95]
[92] Ibid at P-63.
[93] Ibid.
[94] Refer Transcript 08/04/19 at P-64.
[95] Ibid at P-65.
Ms Tahery provided a further explanation as follows:[96]
Maybe my brother didn’t understand the explanation how he was told it, because was in Australia and I don’t know what was his understanding. Maybe he understood like in a different way and a misunderstanding happened.
[96] Ibid.
Ms Tahery was asked at the hearing whether she had registered with the United Nations as a refugee in Iran. She said that there was “a kind of card or piece of paper” but that no one had told them about the United Nations High Commissioner for Refugees (UNHCR) and that they should register. She confirmed that the piece of paper was issued through the Iran Government and it showed that “someone should not deport you from Mashhad”. She said she did not have a copy of this document because when she arrived in Kabul all the papers were taken from them. Subsequently, she gave evidence that the papers were taken back when they were at the border.[97]
[97] Ibid at P-66.
Ms Tahery was taken to the answer at question 3 in her 2002 Visa Application form which indicated that the visa applicant had been registered with the UNHCR and a registration number had been entered in the space provided. Ms Tahery was asked at the hearing whether this answer was incorrect. Her initial response was as follows:[98]
I was not aware of that paper that was belong to the UNHCR. Because I had that piece of paper I ticked the part “Yes”, because I had that pass from Iran that we should not get deported.
[98] Ibid at P-67.

In respect of paragraph [189(b)], all the evidence presented indicated that the Applicant was consistently known by the name “Basera Tahery”. On some, but not many, documents the spelling was slightly different, for instance, Basera was spelt “Basira” or Tahery was spelt “Taheri”. However, the Tribunal considers that those occasional typographic differences are explicable due to the translation of Dari alphabet and writing to the English alphabet and writing, for the purpose of creating some of the certificates and documents in Ms Tahery’s name.
Ms Tahery’s family composition
The Tribunal also notes at the end of the hearing, Mr Tahery’s evidence that he had offered to the Department for him and Ms Tahery to undergo a DNA test to establish their relationship. The Tribunal considers that it is likely that Mr Tahery would not have offered to undergo that test if he was not a biological brother to Ms Tahery. However, it remains that no such DNA test was performed and that it was open to Ms Tahery and Mr Tahery to have organised for such a test to take place independently, but they did not do so. For those reasons, Mr Tahery’s offer to undergo such a test was treated by the Tribunal as inconclusive and bore no weight.
The Tribunal had before it several new “family” photographs, that were not provided to the delegate who made the Decision Under Review, which the Tribunal was able to compare to the physical appearance of both Ms Tahery and Mr Tahery while they were in attendance in person at the hearing.[143] Those photographs showed two persons together (with several others), at what appeared from the clothes worn and the setting, to be a wedding ceremony. Those two persons clearly appeared to the Tribunal to be photographic images of Ms Tahery and Mr Tahery when they were much younger. There was also a photograph of Hidaiatullah Tahery at the wedding when he was much younger. At the hearing, Ms Tahery was able to identify the other stated family members in the photographs and her evidence was consistent with similar evidence given by Mr Tahery on the second day of the hearing. There was no outward appearance that those photographs had been “photo-shopped” and the Tribunal is satisfied on the balance of probability that those photographs were genuine and unaltered from when they were taken. Nor was there any suggestion by the Minister that those photographs were other than genuine and unaltered.
[143] These photographs appear at pages 132 and 133 of the C&I Documents.
The Tribunal also had before it, which the delegate did not, photocopies of several Afghan passports stated to be those held by Mr Tahery’s other siblings.
The Tribunal compared the facial image on the photocopy of Ms Tahery’s Afghan passport issued on 12 October 2018[144] to the appearance of Ms Tahery at the hearing and the Tribunal was able to identify the person in the passport photograph as being the same person as Ms Tahery.
[144] Refer page 126 of C&I Documents.
The Tribunal compared this passport photograph of Ms Tahery to the facial images of each of the passport photographs appearing in:
(a)the copy of an Afghan passport for Ms Maryam Sadat issued on 6 April 2016;[145]
(b)the copy of the Afghan passport for Ms Nazera Tahery issued on 14 August 2016;[146] and
(c)the copy of the Afghan passport for Mr Sidiqua Tahiri issued on 23 September 2014.[147]
[145] Ibid at page 127.
[146] Ibid at page 128.
[147] Ibid at page 129.
The Tribunal observed that there were similarities between all those facial images; which suggests that Ms Tahery is related to the persons listed above and that they are siblings. The Tribunal was unable to confidently reach the same view in relation to the facial images of Mr Tahery (as showing in his wedding photographs and as observed directly by the Tribunal at the hearing), or Mr Hidaiatullah Tahery (as showing in his Afghan passport issued on 17 March 2014).[148] A positive semblance when comparing facial images in the present context, is more probative than the absence of any such semblance because, at the risk of stating the obvious, not all family members with the same parentage necessarily have similar facial features. It must be borne in mind that the Tribunal does not possess any specialist skills in visual biometric assessments. Unfortunately, there was no expert evidence before the Tribunal given by a specialist who possessed such skills. However, the observation referred to in the first sentence was reasonably obvious to the untrained eye.
[148] Refer page 130 of C&I Documents.
The Tribunal notes that a witness statement was provided purportedly by Mr Tahery’s wife, Moira Tahery, dated 3 March 2019 stating that Ms Tahery attended their wedding in 1996. Moira Tahery stated that she usually caught up with Ms Tahery and her family for a family get-together once a fortnight. Three other witness statements were provided by two relatives based in Australia and a friend of Mr Tahery attesting to Ms Tahery’s identity. Given the Tribunal’s observations about Mr Tahery’s and Ms Tahery’s previous conduct, which included the provision of inaccurate and fabricated information to the Department, the Tribunal is cautious about accepting unverified evidence from Ms Moira Tahery (or that may have been facilitated through Mr Tahery), as the Tribunal lacks confidence about the authenticity of such evidence. The persons who made those statements were not called as witnesses at the hearing to verify this evidence.
Next, in respect of paragraph [189(c)], the Tribunal has considered whether the operation of Ms Tahery’s identity in the community over time could be demonstrated, to increase the Tribunal’s confidence that her identity was legitimate.
Firstly, the Tribunal notes the following documentary evidence indicating the operation of Ms Tahery under the identity of “Basera Tahery” before the date of her arrival in Australia (i.e. 23 March 2008):
(a)copy of Diploma Certification issued by the Allamah Shaheed Sayed Ismaeil Balkhi High School certifying that “Baseri-Taheri d/o A-Riaof DoB 1985 PoB Kabul” had passed the final secondary exam in the 2002 – 2003 educational year. The registration date on the certificate was “2003/10/7”;[149]
(b)Afghan Taskira No.XXX91 issued on 5 October 2006 in the name of “Basera” (Father’s name “Abdul Raouf”; Grandfather’s Name “Abdul Razaq”);[150]
(c)Afghan passport No. ORXXXX20 in the name of “Basera Tahery” that was issued on 9 October 2006;[151]
(d)Teacher Training College graduation certificate issued by the Islamic Republic of Afghanistan Ministry of Education Teacher Education Department, showing a graduation year of 2006. The name written in English on this certificate was Ms “Bassira” daughter of “Abdul Rahouf” born in “1985” in “Kabul”; and
(e)Afghan passport No. ORXXXX41 in the name of “Basera Tahery” issued at the “Kabul Police Department” on 25 February 2008.[152]
[149] Ibid at page 131.
[150] Refer T-Documents T5/32-35.
[151] Ibid at T22/163.
[152] Ibid at T10/88-98.
Each of the documents referred to in subparagraphs (b) to (e) above had on them a photograph of a facial image. Based on the direct observations made of Ms Tahery at the hearing, the Tribunal identifies the person in the photographs on each of the four documents referred to in those subparagraphs to be the same person as the Applicant.
Secondly, the Tribunal notes other documents evidencing the operation of Ms Tahery under the identity of “Basera Tahery” albeit after the date of her arrival in Australia, including (in chronological order):
(a)Australian Government Health Care Card issued on 5 August 2008 in the name of “Basera Tahery”; Australian Medicare card in the name of “Basera Tahery”; and two others; and a Victorian Driver Licence in the name of “Basera Tahery”;[153]
[153] Ibid at T10/99.
(b)certified copy of Certificate I in Spoken and Written English issued by AMES to “Basera Tahery” on 23 December 2008;[154]
[154] Ibid at T7/67&68.
(c)certified copy of Statement of Attainment in partial completion of Certificate I in Vocational Preparation issued by AMES to “Basera Tahery” on 6 March 2009;[155]
(d)certified copy of letter from Australian Taxation Office dated 21 July 2008 providing tax file number advice for “Miss Basera Tahery”;[156]
(e)certified copy of Quest Dandenong workplace training certificate for completion of housekeeper training issued to “Basera Tahery” on 6 March 2009;[157]
(f)certified copy of Certificate of Marriage issued by a marriage celebrant on 18 February 2010 at Dandenong of “Basera Tahery” to her ex-husband, witnessed by Mr Tahery and another person;[158]
(g)certified copy of Certificate III in Children’s Services dated 2 March 2010 issued to “Basera Tahery” by Chisholm Institute; student confirmation sheet for Certificate III in EAL course showing a photograph of the Applicant; and letter from EAL teacher dated 15 March 2019;[159]
(h)certified copy of first page of Commonwealth Bank of Australia bank statement for period December 2014 to May 2015 in the name of “Basera Tahery”;[160]
(i)certified copy of Origin electricity bill dated 29 June 2015 in the name of “Basera Tahery”;[161]
(j)certified copy of rental tenancy agreement with Housing Choices Australia Limited made on 15 February 2012 with “Basera Tahery” and her ex-husband; and copy of letter on Housing Choices Australia Limited letterhead dated 13 March 2019 stating that “Basera Tahery” had been a tenant through this organisation;[162]
(k)copy of letter by registered medical practitioner, Dr Anna Kucminska, dated 22 January 2019 stating that she had known “Mrs. Basera Tahery, age 37 years” (and her children) in her professional capacity as a family doctor for seven years;[163] and
(l)copy of undated letter by Principal, Beverley Hansen, of a Melbourne suburban primary school confirming the enrolment of Basera Tahery’s two sons and that she had undertaken voluntary work at the school.[164]
[155] Refer T-Documents T765&66.
[156] Ibid at T12/103.
[157] Ibid at T7/63.
[158] Ibid at T11/101&102.
[159] Ibid at T8/61-62 and pages 2 & 14 of C&I Documents.
[160] Ibid at T12/108.
[161] Ibid at T12/104.
[162] Ibid at T12/105&106 and page 13 of C&I Documents.
[163] Refer page 3 of the C&I Documents.
[164] Ibid at page 27.
The Tribunal acknowledges that these more recent documents do not hold as much probative value as the earlier documents referred to in paragraph [200]. Nevertheless, they demonstrate a solid history over the last 12 years of the Applicant using the identity of “Basera Tahery” during her life in Australia. This much was accepted by the Minister. Paragraph [36] of the Minister’s Closing Submissions stated as follows:
The Minister otherwise accepts that the applicant’s Australian identity documents track a consistent identity since arrival in Australia. The Minister does not make submissions as to whether the applicant’s biodata – her likeness and signature – are consistent, and submits that is a matter for the Tribunal.
Ms Tahery also tendered two new photographs which were not available to the delegate who made the Decision Under Review (Exhibit “A2”). The first photographs (at the top of this Exhibit) was stated to have been taken in about 1989 and the bottom photograph was stated to have been taken in about 2001. Both of those photographs showed a group of persons of different ages sitting on the floor together in a social setting. The Tribunal recognises the person on the far left of both photographs (when facing those photographs) to be an image of Ms Tahery at a younger age. In the top photograph, Ms Tahery appears to be a teenager. Importantly, the Tribunal notes in both photographs that there is an elderly person with a grey beard who has a striking resemblance to Mr Tahery. He is the middle person on the bottom photograph. The Tribunal is satisfied, on the balance of probabilities, that this person is Mr Tahery’s father. The Tribunal considers that this photographic evidence showing Ms Tahery in the presence of a person who appears to be Mr Tahery’s father, further supports a conclusion that the relationship between Ms Tahery and Mr Tahery is that of brother and sister.
The Tribunal acknowledges:
(a)that the family composition for the Applicant recorded in past applications to the Department have included an alleged sibling who Mr Tahery and Ms Tahery now acknowledge is non-existent;
(b)that various dates of birth were provided for Ms Tahery across the different applications; and
(c)the life story that was provided for the Applicant at various times since 2002 has varied significantly.
In relation to the discrepancies in the date of birth provided by Ms Tahery at various times, for and on her behalf, the Tribunal accepts the explanation given for this being that a person’s date of birth in Afghanistan does not hold the same significance as it does in Australia and other Western countries. That much is evident from the format of the Taskira which, until recent years, did not provide any prompt to record a person’s date of birth when describing their identity. Instead, significance is placed on identifying the person’s claimed father and grandfather and by checking those names against a central register recording the (paternal only) parental information. The Tribunal accepts that the different dates of birth recorded for the Applicant on the forms and documentary evidence came about through estimations made by Mr Tahery and others, including an independent translator, but these circumstances support a conclusion by the Tribunal that this discrepancy does not prevent the Tribunal from being satisfied as to the Applicant’s identity.
The year of birth provided in the Iranian school certificate was four or five years later than the year of birth shown elsewhere (i.e. 1985 cf. 1980/1981). In this regard, the Tribunal considers that the explanation provided that the school itself, had allocated the “1985” year to Ms Tahery on her certificate, to align with the age of the other students, seems plausible noting that it was a school in Iran established to help Afghan refugees during a period of conflict. This discrepancy does not prevent the Tribunal from being satisfied as to the Applicant’s identity.
The Tribunal considers that the reference to a sibling, which Ms Tahery and Ms Tahery now deny exists within their siblingship, may be explained by the evidence given during the hearing that Mr Tahery had facilitated and paid for other people to be involved in the preparation and submission of the visa application forms for Ms Tahery and his evidence was that someone must have added the reference to this non-existent sibling to the form. Mr Tahery also showed insight that a possible reason they may have done so was to rely on that record at a later point in time for their own purposes. The Tribunal considers that Mr Tahery is likely to be correct about this, and this explains why there was a reference to a non-existent sibling in Ms Tahery’s Second 2005 Visa Application. The Tribunal has stated its concerns above as to the role that Ms Tahery and Mr Tahery have played in allowing this to occur. While this should never have been allowed to occur and may go to the issue of the “good character” requirement, this inconsistency does not cause the Tribunal to doubt the identity of Ms Tahery.
The life story that has been provided to the Department since 2002 has varied as to the places that Ms Tahery was said to have lived over her life; the accounts given in relation to marriage proposals and whether she was being forced by her family to marry a particular person or persons; and her occupation and how long she had held different employment positions. The Tribunal considers that a lot of those variations in Ms Tahery’s life story came about because she had allowed Mr Tahery and others to prepare her visa application forms for her and she has allowed them to dictate what was finally submitted to the Department on her behalf. Separately, Ms Tahery played her own part in perpetuating the inaccurate and false information provided to the Department by failing to disclose at the Interview that she had lived in countries other than Afghanistan, before arriving in Australia, as outlined in paragraphs 159 and 160 above.
As mentioned above, the Tribunal does not accept that this can be explained by the difficult personal circumstances that Ms Tahery found herself in at the time of the Interview. At the hearing, Ms Tahery eventually conceded that the reason she did not mention that she had lived in Iran and Pakistan was because she thought she would be asked to produce documentation to prove it, in circumstances where she was unable to do so. The Tribunal infers from this that Ms Tahery elected not to mention that she had lived in those countries because she was under the belief it might cause a problem for her in the assessment of her visa application. While acknowledging that the Tribunal has concerns about this conduct, the Tribunal concludes that these inconsistencies are not enough to prevent the Tribunal from being satisfied as to Ms Tahery’s identity.
The Tribunal notes that the information given to the Department at different times about the proposals of marriage in respect of Ms Tahery and whether she was being forced by her family to marry, were also inconsistent. The Tribunal is satisfied that this can be explained by the involvement of Mr Tahery and others who were providing that conflicting information to the Department. The Tribunal considers that those persons were crafting a story about those marriage proposals (perhaps partially true, based on Ms Tahery’s evidence at the hearing), that they considered would serve Ms Tahery’s interests in securing an Australian visa, irrespective of whether those accounts of what happened were accurate. Based on the evidence given by Ms Tahery at the hearing, the Tribunal is satisfied that a marriage proposal was made to Ms Tahery while she was studying; initially, she was not told about it but she had a sense that it was happening; and that about one year before leaving for Australia Ms Tahery was told about the marriage proposal (however, she was not forced by her family to accept the proposal). The Tribunal concludes that the inconsistencies about this history elsewhere in the information provided at different times to the Department, does not prevent the Tribunal from being satisfied as to Ms Tahery’s identity.
There were some other inconsistencies in the history given of Ms Tahery’s education and employment. The Tribunal considers that those inconsistencies can be explained because Mr Tahery and others were filling in many of the application forms on her behalf without having sufficient knowledge of such matters to be able to provide an accurate account, in conjunction with those persons wanting to present such information that would increase Ms Tahery’s prospects of being granted a visa. Taking all the evidence together, the Tribunal is satisfied that Ms Tahery’s primary and secondary education was disrupted by the instability in Afghanistan and that she had completed her secondary schooling in Iran in a school for Afghan refugees. Ms Tahery then returned to Afghanistan and completed some studies at a teacher’s training college. There are consistent references in the evidence to Ms Tahery teaching children English in their homes. There is also a common thread in relation to Ms Tahery having worked for her brother construction supplies company for a short period, albeit some reports stating that this was for one month or one year; and others stating that it was for a few years. Overall, the discrepancy in the accounts given as to Ms Tahery’s education and employment does not prevent the Tribunal from being satisfied as to her identity.
CONCLUSION

The Tribunal is satisfied as to Ms Tahery’s identity based on the following evidence:
(a)the documentary evidence listed in paragraph [200] indicating the operation of the Applicant under the identity of “Basera Tahery” before the date of her arrival in Australia. The Minister’s position is that the Tribunal should be circumspect as to the authenticity of documents said to be issued in Afghanistan. The Tribunal certainly understands this submission. However, the documentary evidence said to be issued in Afghanistan has not been considered in isolation and has been considered in the context of the further supporting evidence as to identity, as referred to below;
(b)other documents evidencing a solid history over the last 12 years of the operation of the Applicant under the identity of “Basera Tahery” after the date of her arrival in Australia as referred to in paragraph [202];
(c)the absence of any evidence indicating that other persons in Australia or elsewhere, were claiming an identity under the name “Basera Tahery”;
(d)the comparisons that were able to be made of the photographs of facial images in the passports of Ms Tahery and her purported siblings, with some of them showing resemblances between them, Ms Tahery and each other;
(e)the inference drawn by the Tribunal that Ms Tahery is Mr Tahery’s sister from the comparison that was made between the elderly man in the middle of the bottom photograph said to be taken in about 2001 at Exhibit “A2” (and shown again, on the far right of the photograph said to be taken in about 1989 at the top of Exhibit “A2”), who bore a close resemblance to Mr Tahery and the fact that the Applicant, at a younger age, was pictured in those two photographs; and
(f)while there are significant inconsistencies in the information provided to the Department about the Applicant’s life story, after taking into account the way in which the visa application forms were prepared and submitted on behalf of Ms Tahery, the Tribunal does not consider those discrepancies prevent the Tribunal from being satisfied as to the Applicant’s identity.
Accordingly, the Tribunal sets aside the Decision Under Review and in substitution, decides that the Tribunal is satisfied as to Ms Tahery’s identity and remits this matter for reconsideration of her citizenship application with a direction that no prohibition applies in respect of conferral of citizenship on Ms Tahery by reason of s 24(3) of the Act.

I certify that the preceding 214 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

Date of hearing: 8 April 2019 & 16 May 2019

Date final submissions received: 29 July 2019

Counsel for the Applicant: Ms Krystyna Grinberg

Solicitors for the Applicant: Clothier Anderson

Counsel for the Respondent: Mr Jamie Grant

Solicitors for the Respondent: Sparke Helmore

[2020] AATA 1725

12 June 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	8 April 2019 & 16 May 2019
Date final submissions received:	29 July 2019
Counsel for the Applicant:	Ms Krystyna Grinberg
Solicitors for the Applicant:	Clothier Anderson
Counsel for the Respondent:	Mr Jamie Grant
Solicitors for the Respondent:	Sparke Helmore