TDTW and Minister for Immigration and Citizenship (Citizenship)
[2025] ARTA 863
•30 June 2025
TDTW and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 863 (30 June 2025)
Applicant:TDTW
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/4800
Tribunal:General Member K Thornton
Place:Melbourne
Date:30 June 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that the Applicant satisfies s 24(3) of the Australian Citizenship Act 2007 (Cth).
Statement made on 30 June 2025 at 9:42am
Catchwords
CITIZENSHIP – s 24(3) of the Australian Citizenship Act – refusal to approve the Applicant becoming an Australian citizen – delegate not satisfied of the Applicant’s identity – prohibition on approval of citizenship – Applicant claims to have been born in Afghanistan – Citizenship Procedural Instructions applied – Three Pillars of Identity – Tribunal satisfied of the Applicant’s identity – reviewable decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (reissued 27 November 2020)
Department of Immigration and Border Protection, Citizenship Procedural Instructions, CPI 16 – Assessing Identity under the Citizenship Act (reissued 1 January 2022)
Statement of Reasons
INTRODUCTION
The Applicant seeks review of a decision by a delegate of the Respondent to refuse his application for Australian citizenship by conferral on 2 July 2024 (‘the decision under review’).
The delegate refused the Applicant’s citizenship application on the basis they could not be satisfied of the Applicant’s identity pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
The Tribunal has applied a confidentiality order to the decision because the Applicant was previously granted a Protection visa. He will be referred to as TDTW in these proceedings.
For the following reasons, the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that the Applicant satisfies s 24(3) of the Act.
CHRONOLOGY
The Applicant first arrived in Australia by boat on 11 August 2011.[1] Upon arrival, he identified himself to immigration officials as an Afghan citizen. He provided his name, date of birth, and said he was of Hazara ethnicity, a Shia Muslim, and was born in Uruzgan, Afghanistan. The Applicant took place in a ‘biodata’ interview with the Department on 13 August 2011.[2]
[1] Exhibit R1, 18.
[2] Ibid 226-31.
On 25 November 2011, the Applicant applied for a protection visa.[3] This application was granted on 18 April 2012.[4] On 6 November 2014, he sponsored his spouse and two dependent children for a Combined Partner (subclass 309100) visa which was granted on 18 October 2023.[5]
[3] Ibid 246-79.
[4] Ibid 242-5.
[5] Ibid 18.
On 4 May 2016, the Applicant applied for Australian citizenship by conferral.[6] He identified himself as an Afghan national, who was born on 20 November 1978. He said he was born in Shahrestan, Afghanistan.[7] He said his parents were also born in Afghanistan.[8] He provided a copy of his Australian Titre De Voyage which contained his date of birth and nationality (Afghan).[9]
[6] Ibid 30.
[7] Ibid 31.
[8] Ibid 35-6.
[9] Ibid 44-5.
On 22 July 2017, the Applicant was granted a Five-Year Resident Return (subclass 155) visa.[10]
[10] Ibid 19.
On 1 August 2017, the Department contacted the Applicant and requested further information regarding his identity.[11]
[11] Ibid 65.
On 5 August 2017, the Applicant (through his legal representative) provided the Department with:[12]
(a)Statutory Declaration of the Applicant dated 5 August 2017;
(b)VicRoads Consent to Release Information dated 5 August 2017;
(c)Marriage Certificate; and
(d)An Iranian Refugee Card.
[12] Ibid 54-64.
The Applicant’s Statutory Declaration stated that he does not have any passport, birth certificate or national identity document from Afghanistan because he never lived there.[13] He said he left Afghanistan when he was one and a half years old. Since then, he has only lived in Iran and Pakistan before coming to Australia in 2011. He said he was given an Iranian Refugee Card which was meant for Afghans living illegally in Iran.[14] The Applicant’s Marriage Certificate declared that the Applicant was an Afghan national.[15] The translated Iranian Refugee Card stated the Applicant’s name but identified his date of birth as 21 March 1978.[16] The Refugee Card identified the Applicant has an Afghan national.[17]
[13] Ibid 56.
[14] Ibid.
[15] Ibid 62.
[16] Ibid 63.
[17] Ibid 63.
On 3 October 2017, the Department contacted the Applicant and requested further information regarding the Applicant’s identity.[18]
[18] Ibid 70.
On 11 October 2017, the Applicant’s legal representative provided a completed Form 80 as requested.[19] That document identified the Applicant by name, provided the November date of birth, and said he was born in Shahrestan, Afghanistan.[20] The same document was provided again on 1 December 2017.[21]
[19] Ibid 74.
[20] Ibid 79.
[21] Ibid 97.
On 28 November 2018, the Applicant’s legal representative provided a copy of the Applicant’s Taskera, and an English translation of the Taskera.[22] The Taskera contained the Applicant’s name, November date of birth, and said he was born in Shahrestan, Afghanistan.[23]
[22] Ibid 104.
[23] Ibid 105.
On 18 February 2023, the Applicant was granted a further Five-Year Resident Return visa.[24]
[24] Ibid 19.
On 31 July 2023, the Department verified the Applicant’s Pakistani Computerised National Identity Card (‘CNIC card’) as genuine.[25]
[25] Ibid 22.
On 22 March 2024, the Department invited the Applicant to a Citizenship Interview with Test to be held on 15 April 2024.[26]
[26] Ibid 117.
On 31 May 2024, the Department invited the Applicant to comment on adverse information regarding the Applicant’s identity.[27] The letter advised the Applicant that the Department had concerns regarding the lack of credible information or evidence to establish the Applicant’s identity prior to his arrival in Australia.[28] The letter identified that the Pakistani-issued documents that the Applicant provided at the time of his Protection visa application have been verified as genuine by the relevant authorities.[29] The Department advise that this information indicates that the Applicant was a Pakistani citizen, despite his claims of being an Afghan national.[30] The letter also identified the inconsistency in the date of birth on the Iranian Refugee Card.[31] Finally the letter advised that the Department had information that the Applicant had made multiple financial remittances to Iran under the category ‘Family Support’ to two people in Iran. The delegate advised that this information indicates that the Applicant had undeclared family members living in Iran.[32]
[27] Ibid 214.
[28] Ibid.
[29] Ibid 216.
[30] Ibid.
[31] Ibid.
[32] Ibid.
The Applicant was invited to comment on this information within 28 days. No response was received regarding the invitation within the timeframe.
On 2 July 2024, the delegate refused the Applicant’s citizenship application.[33] The application was refused on the basis that the delegate was not satisfied of the Applicant’s identity.[34] The delegate indicated that they did not assess the good character requirements application under s 21(2)(h) of the Act.[35]
[33] Ibid 14.
[34] Ibid 18.
[35] Ibid 20.
On 11 July 2024, the Applicant lodged an application for review of the decision with the Administrative Appeals Tribunal (‘AAT’).[36]
[36] Ibid 4.
On 19 July 2024, the Applicant’s legal representative provided further information to the Department as set out at paragraph 16 of the Respondent’s Statement of Facts, Issues and Contentions.[37] This was apparently provided in response to the Department’s earlier invitation to comment on 31 May 2024. The Applicant’s response was not contained in the T-documents.
[37] Exhibit R3 [16].
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Tribunal hearing
The Tribunal hearing was held by video at the Tribunal’s Melbourne Registry on 6 and 7 May 2025. The Applicant was represented by Mr Bilal Amani from Amani lawyers. The Applicant was assisted by an interpreter in the Dari language. The Applicant also called evidence from a family friend (Mr Ramazani). The Respondent was represented by Mr Maxwell Hopkins from Mills Oakley.
The Tribunal received into evidence the following materials:
(a)Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions dated 13 January 2025;
(b)Exhibit A2: Bundle of three reference letters in support of the Applicant;
(c)Exhibit R1: Respondent’s T-documents lodged 8 August 2024;
(d)Exhibit R2: Respondent’s Tender Bundle lodged 21 February 2025 which contained:
(i)DFAT Country Information Report on Pakistan dated 25 January 2022;
(ii)DFAT Report: ‘Top Resolution of Status (RoS) Countries – Citizenship, Statelessness and Identity Documents’ dated 17 April 2023;
(iii)LANDINFO Report ‘Afghanistan: Taskera, passports and other ID documents’ dated 22 May 2019; and
(iv)Citizenship Procedural Instruction 15 (CPI 15) – Assessing Good Character under the Citizenship Act dated 26 February 2021.
(e)Exhibit R3: Respondent’s Statement of Facts, Issues and Contentions dated 21 February 2025.
ISSUE TO BE DETERMINED
The sole issue to be determined in this matter is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.
In its Statement of Facts, Issues and Contentions, the Respondent urges the Tribunal to find that the Applicant is also not of good character for the purposes of s 21(2)(h) of the Act, even though the delegate who made the decision did not assess whether the Applicant satisfied the good character requirement.[38]
[38] Exhibit R3, [2] and [55]. See also Exhibit R1, 20.
Consequently, that aspect does not form part of the decision under review. The delegate has indicated in its decision that the question of character under s 21(2)(h) of the Act has ‘Not yet been assessed.’ The delegate refused to approve the Applicant’s application for Australian citizenship on the basis of identity only.[39] Therefore, consideration of s 21(2)(h) did not form part of the decision under review and has not been considered by the Tribunal as part of this review.
[39] Exhibit R1, 23.
LEGISLATIVE FRAMEWORK
Section 21(1) provides that a person may make an application to the Minister to become an Australian citizen.
Section 24(1) provides that if a person makes an application under s 21, the Minister, must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(3) provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:[40]
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
[40] Exhibit R3 [20].
Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act.
Citizenship Policy and Procedural Instructions
The Australian Citizenship Policy Statement (‘the Policy’) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (‘CPIs’) (reissued 26 February 2021) guide decision makers exercising powers and discharging their functions under the Act. Although such policy is not binding on the Tribunal, decision makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’[41] The Tribunal has not identified any reason why the Policy and CPIs should not be applied in this case and has therefore relied upon these documents in considering the matter before it.
[41] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
The relevant CPI in this case is CPI 16 – Assessing Identity under the Citizenship Act (‘CPI 16’).
CPI 16 – Assessing Identity under the Citizenship Act
Paragraph 4 of CPI 16 provides that a person’s identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.[42]
[42] Exhibit R1, 449.
Paragraph 5 states that when assessing a person’s identity, the Department relies on a combination of three elements, referred to as the Three Pillars of Identity.[43] Each pillar is made up of individual characteristics as follows:[44]
·Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face;
·Documents – reliable and secure identity documents; and
·Life Story – an account of the events that happened to a person during their lifetime.
[43] Ibid.
[44] Ibid.
The CPI provides that combining and fact checking the Three Pillars of Identity against each other provides a strong evidence-base to establish an identity.[45]
[45] Ibid.
Paragraph 11 provides guidance in assessing a person’s identity:[46]
When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person’s life story, delegates must consider:
• the significance and corresponding weight of the inconsistencies in the broader context of the person’s claimed identity; and
• what further research, or information, is necessary in order to be satisfied of the person’s identity.
…
While delegates must make every effort to inform themselves of an Applicant’s identity, the onus is on the Applicant to provide information or evidence to support their identity…
Note: while delegates must not assume an applicant satisfies identity for citizenship because they have met identity requirements for permanent residence, any previous assessment for a visa may be considered as evidence; however, it must not be the sole determining factor for a citizenship identity assessment.
(Emphasis in original)
CONTENTIONS
[46] Ibid 455.
Applicant’s contentions
The Applicant contends that since his first arrival into Australia, the Applicant has consistently claimed to be an Afghan national. He contends he was born on 20 November 1978 and is of Hazara ethnicity and Shia religion.[47] He states he was born in Uruzgan, Afghanistan. He contends that he obtained the Pakistani-issued identity documents through the payment of money so that he could live in Pakistan without hassle from the Pakistani authorities.[48] The Applicant argues that it is common for Afghans living in Pakistan to obtain Pakistani-issued documents through payment of money for work or study or day-to-day living in Pakistan.[49]
[47] Exhibit A1, 1.
[48] Ibid 2.
[49] Ibid.
The Applicant contends that his date of birth was incorrectly recorded on his Iranian refugee card.[50] The Applicant argues that his correct date of birth is 20 November 1978. He said he recalls his father recording his date of birth in the Quran as it is customary to do that in Afghanistan by some people.[51]
[50] Ibid.
[51] Ibid.
The Applicant’s family members lived in Iran without Iranian identity documents.[52] The Applicant said he would send money to his family members in Iran, via his family’s neighbours. The Applicant maintains these people are not the Applicant’s undocumented family members, but rather are neighbours of the Applicant’s family who assisted with the money transfers in Iran.[53]
[52] Ibid
[53] Ibid.
For these reasons, the Applicant contends that he is an Afghan national born on 20 November 1978 and is of Hazara ethnicity.
Respondent’s contentions
The Respondent notes that the CPI provides that the onus is on the Applicant to provide information or evidence to support their identity.[54] The Respondent contends that the Tribunal cannot be positively satisfied of the Applicant’s identity. This is primarily because of the following reasons:
(a)In the protection visa decision, the delegate stated that the Applicant speaks Hazaragi and has facial features typical of a Hazara person. However, the Respondent notes that a person’s ethnicity is only one component of identity. The Respondent states that although Hazaras historically originate from Afghanistan, there are many who live on the fringe of Afghanistan, close to Iran and Pakistan, and a number who live in Quetta, Pakistan.
(b)The Applicant has genuine Pakistani identity documents, and therefore it is plausible that the Applicant is a Hazara who is a Pakistani citizen by birth.
(c)The Applicant has provided the Department with a Taskera which records the Applicant’s date and place of birth. The Respondent argues that document fraud was a major issue in Afghanistan prior to the Taliban takeover, and the genuine documents could be issued on the basis of false information.
(d)The Applicant’s argument that his date of birth was recorded in a Quran is not supported by evidence before the Tribunal.
(e)The Respondent also contends that the information on the Applicant’s Iranian refugee card which identifies him as an Afghan national may be inaccurate as there is no basis for the Iranian authorities to have recorded the Applicant as an Afghan national, other than the Applicant having claimed to be. The Respondent again notes that the Applicant did not have any Afghan identity documents until he obtained a Taskera in 2018.
(f)The Respondent contends that it is not plausible for his family members to reside in Iran without any identity documents, especially as the Applicant said he was deported many times from Iran, but that members of his family have seemingly been able to continue residing there.
(g)The Applicant’s character witness says he has known the Applicant since he was born as he knew his parents back in Afghanistan. This evidence turned out to be incorrect because the witness admitted under cross-examination that he first met the Applicant in Australia, not Afghanistan. He said he only met the Applicant’s father one time in Afghanistan. The Respondent contends that this does not demonstrate the Applicant himself was born in Afghanistan.
EVIDENCE
[54] Exhibit R3 [39].
Documentary evidence – Arrival into Australia and Protection Visa application
The Department’s file regarding the Applicant’s arrival into Australia on 11 August 2011 and his subsequent Protection visa application contained the following information with regards to the Applicant’s identity:
(a)Biodata and Personal Circumstances Interview Form conducted at Christmas Island on 13 August 2011: This form contained the Applicant’s name, his November date of birth, and stated that he was born in Shahrestan, Afghanistan. It stated that the Applicant was a Hazara and Shia. It said he was married in 2002. It stated he most recently resided in Quetta, Pakistan. He provided his Iranian ID and Pakistan Driver’s Licence. The form notes that the licence was ‘fake’ and used his alias.
(b)Protection Obligations Evaluation Outcome dated 9 January 2012: Under the heading Claimant’s Key Migration History it stated the following:
The claimant was born in Miyan Qul, Shahrestan, Uruzgan, Afghanistan on 20 November 1978. In 1983 at the age of five, the claimant fled to Pakistan with his family. In 1996 he and his brother went to Iran seeking work and his family joined them one year later. He returned permanently to Pakistan in 2004 when his refugee card expired. During the period between 2004 and 2011, the claimant returned to work in Iran for short periods and was deported back to Afghanistan approximately six times, although he does not remember the dates. In 2011, he fled to Australia on a false Pakistani passport and with the assistance of people smugglers.
The claimant travelled via, Thailand, Malaysia and Indonesia. He arrived on Christmas Island on 11 August 2011 on a boat codenamed ‘CORBETT’.
(c)Under ‘Claims for Protection’ it stated that the Applicant and his family fled Afghanistan in 1983 when the claimant was aged five. It stated that since then he has resided in both Iran and Pakistan and has been deported back to Afghanistan several times. It stated he has not lived in Afghanistan for 28 years and does not recall what life is like there. He fears he will be killed by the Taliban if he returns to Afghanistan on the basis of his Hazara ethnicity and his Shia religion.
(d)Under ‘Nationality (Citizenship)/Country of former habitual residence’ it is noted that the Applicant speaks Hazaragi and ‘his facial features represent the archetypal appearance of a Hazara person.’[55] The delegate noted:[56]
During the POE interview, the claimant gave an account of what he did after being deported back to Afghanistan from Iran on each of the six occasions. He asserts that he was taken to Herat, the western Afghanistan province, bordering Iran. From there he travelled by bus to Kandahar and then to Spin Boldak and eventually over the border back to Quetta, Pakistan.
On the basis that the claimant gave a convincing account of having been deported back to Afghanistan from Iran on so many occasions, I find this is consistent with him being a citizen of Afghanistan.
The above information is consistent with his claimed identity and on this basis and with no evidence to suggest otherwise, I accept the claimant’s identity is as stated; a citizen of Afghanistan.
(e)The delegate accepted that the Applicant was a citizen of Afghanistan and a Shia Hazara who originates Uruzgan province.[57]
(f)The Applicant’s Statutory Declaration in support of his Protection visa application signed and dated 25 November 2011:[58] In this document, the Applicant claimed he was born in Shahrestan, Uruzgan, Afghanistan, and that his ethnicity is Hazara and his religion is Shia Muslim.[59] He gave an account of how his family left Afghanistan when he was very young. He said he later moved to Pakistan, then Iran. He gave an account of how he obtained his Iranian Refugee Card. Once the card expired, he moved permanently to Pakistan. He said during this period he still travelled to Iran for work for short periods. During this time, he was deported five times back to Afghanistan.[60]
(g)Various documents including his Iranian Refugee Card, Marriage Certificate and Pakistan Driving Licence. The Driver’s Licence bears the Applicant’s photo but is in a different name.[61]
[55] Exhibit R1, 235.
[56] Ibid.
[57] Ibid 236.
[58] Ibid 280-2.
[59] Ibid 280.
[60] Ibid.
[61] Ibid 365-71.
Documentary evidence – Citizenship application
The primary identification documents the Applicant provided the Department are his Taskera and translated Iranian Refugee Card.
(a)The Taskera was issued on 14 July 2018.[62] It contained the Applicant’s name, November date of birth, and his photograph. It said he was born in Shahrestan in the Daikundi province. It identified his religion (Islam), nationality (Afghan) and his marital status (married).
(b)The translated Iranian Refugee Card stated the Applicant’s name but gave a different date of birth (21 March 1978).[63] It stated his nationality was Afghan and he is permitted to remain in the country until 21 March 2004.
[62] Ibid 105.
[63] Ibid 63.
Documentary evidence – provided by Applicant to Tribunal
The Applicant submitted three reference letters to the Tribunal. The first letter was from Mr Razari and is dated 1 January 2025. It stated that he knew the Applicant since 2016. He said they are members of the same Afghan community group. He said he can confirm his background is from Afghanistan.
The second letter was from Mr Ramazani and is dated 9 January 2025. It stated that he knew the Applicant since he was born as he knew his parents back in Afghanistan and that they are from the same district in Afghanistan.
The third letter was from Mr Ahmadi and is also dated 9 January 2025. It stated that he has known the Applicant since 2018, and that the Applicant is a member of the local Afghan community group. He said his father and the Applicant’s father are from the same area in Afghanistan.
Oral evidence – Applicant
The Applicant gave oral evidence to the Tribunal and was cross-examined. Before he gave evidence, he was advised about his privilege against self-incrimination which he indicated he understood. He stated the following by way of oral evidence:
(a)He was born in Afghanistan and went to Pakistan as a small boy. He does not know how old he was. His family stayed in Pakistan until 1996. He then went to Iran where he worked for some time, before going back to Pakistan.
(b)He confirmed that his date of birth was 20 November 1978. He said he came to Australia by boat. He said his travel was arranged by a people smuggler. He had on him his Iranian Refugee Card, and an identity card from Pakistan. He paid money to get the documents from Pakistan.
(c)He confirmed he was born in Shahrestan, Afghanistan. He said he is a Hazara and his religion is Shia Muslim.
(d)He said he got his Pakistani-issued documents so he could work in Pakistan. He said he obtained a Pakistani passport which made it easier to go to Iran and work. He said having a Pakistani passport made it safer to travel to Iran.
(e)He said in 2004 he was deported from Iran to Pakistan. He wanted to work in Pakistan. In order to work, he obtained a Pakistani Driver’s Licence by paying money. He said there was no test; he just paid money to obtain the document.
(f)He said the Pakistani documents are not genuine documents and that he paid money in order to obtain them. The documents were issued under a different name.
(g)In regard to the money transfers made to Iran, he said he transferred money to his parents’ neighbours as his parents did not have any identity documents.
(h)He said his wife and children are Afghan nationals. He said he only obtained the Pakistani documents so he could obtain work.
(i)He said he obtained his Taskera from the Afghan Embassy in Canberra. He said he wanted a Taskera so he could obtain his Australian citizenship.
(j)During cross-examination, he said that four of his siblings were born in Pakistan. It was put to him that he said in his protection visa application that six of his siblings were born in Pakistan. He said that he really cannot remember but thinks four of them were born in Pakistan.
(k)He said that he cannot really remember how old he was when he went from Afghanistan to Pakistan. He said he could have been aged between one and five but that he cannot exactly remember.
(l)He said he recalls leaving Afghanistan in the back of a truck, but otherwise he cannot really remember the details.
(m)He said he paid money to get his identity documents from Pakistan so that he could work. He said that if you pay money, you get whatever identity documents you want. When asked about why the surname in the identity documents was different, he said they (the authorities) just made the name up.
(n)He said he did not have any documents when he was given his Iranian Refugee Card. He said they just identified him by his accent and face that he was Hazari. It was put to the witness that there are Hazaras born in Pakistan and that his siblings were born in Pakistan and are Hazari. He agreed with the proposition, but agreed that the Iranian authorities assumed he was Hazari when he was given his refugee card.
(o)He agreed he paid money to obtain a Pakistani passport. He then used this same passport to travel to Indonesia in order to come to Australia.
(p)It was put to him that he was not deported from Iran back to Afghanistan five or six times. He said was deported that many times but only stayed in Afghanistan for short periods on each occasion.
(q)He was questioned about the inconsistent date of birth on the Iranian Refugee Card. He said the difference exists because dates in the Iranian calendar are different.
(r)He said that to obtain his Taskera, he needed to submit his father’s Taskera and brother’s Taskera. He said someone assisted him to get his Taskera.
Oral evidence – Mr Ramazani
Mr Ramazani said he left Afghanistan when he was a child. He came here in 2014 and has known the Applicant since that time. He said he knew the Applicant by his father’s name, and that he met his father in Afghanistan.
He agreed under cross-examination that he cannot be certain the Applicant was actually born in Afghanistan, but is very confident he was born there. He agreed he only met the Applicant’s father when he was five or six years old.
CONSIDERATION
The Tribunal has had regard to the policy guidance in CPI 16 which provides guidance on assessing identity under the Act. That policy guidance focuses on three pillars of identity being biometric, documents and life story. When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent. If there are inconsistencies, decision-makers must consider the significance and corresponding weight of the inconsistency in the broader context of the person’s claimed identity and what further research, or information, is necessary in order to be satisfied of the person’s identity.
Each of the three pillars has been considered below:
Pillar one - Biometrics
A Biodata and Personal Circumstances Interview was held with the Applicant when he arrived on Christmas Island in August 2011. The delegate accepted during the processing of the Applicant’s Protection visa application, that the Applicant was an Afghan national, who speaks Hazaragi and has facial features typical of a Hazara person.[64]
[64] Ibid 235.
The Applicant has been through a Protection visa application process and the Department was satisfied that the Applicant was an Afghan national, of Hazara ethnicity and is a Shia Muslim. The Respondent argues that although historically Hazaras originate from Afghanistan, there are many who live close to Iran and Pakistan, and a number of Hazaras who live in Quetta, Pakistan. The Respondent contends that it is plausible for the Applicant to be a Hazara who is a Pakistan citizen by birth. The Respondent contends this is plausible because some of the Applicant’s siblings were born in Pakistan but are Hazaras.
The Tribunal has considered the information and evidence and has decided to prefer the conclusion made by the Department during the processing of the Applicant’s protection visa application. A Biodata and Personal Circumstances Interview was conducted when he first arrived on Christmas Island, and the delegate at that point was satisfied as to the Applicant’s ethnicity. In the Tribunal’s view, the Biodata interview process was a contemporaneous and vigorous assessment of the Applicant’s claimed identity. The Department concluded at that time that the Applicant was an Afghan national, who is of Hazara ethnicity and is a Shia Muslim. The Tribunal gives this significant weight in the Applicant’s favour.
Pillar two - Documents
Documents are an important element of the process in establishing identity.[65] The CPI provides that whilst documents do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information provided pursuant to pillar one (biometrics) and pilar three (life story).[66]
[65] Ibid 455.
[66] Ibid.
The CPI further provides that the crucial element of a document, whether genuine or not, is the story the document tells.[67]
[67] Ibid.
The key documents in the Applicant’s case are his Taskera, his Iranian Refugee Card and Pakistani identity documents.
The Respondent contends that there is no evidence before the Tribunal which demonstrates that the Taskera is genuine. It is contended, that even if it could be established that the document is genuine (which is not accepted), the Tribunal could not be confident in attributing any weight to the information contained in it as being accurate.[68] The Respondent relies on external reports which refers to the relative ease of obtaining identification documents in Afghanistan from the proper authority with incorrect information.[69] The report further notes that there is also a large market for fake documents in Afghanistan.[70]
[68] Exhibit R3 [49].
[69] Ibid [45].
[70] Exhibit R2 (LANDINFO Report – Afghanistan: Taskera, passports and other ID documents, 2019, 22 [8.1]).
The Applicant invites the Tribunal to consider the Taskera as genuine, as it was obtained via the Afghanistan Embassy in Canberra. It was only provided recently, but it was provided in support of his Australian citizenship application.
The Tribunal accepts that the information in the Taskera is genuine. It is accepted that the Taskera was obtained by the Applicant in support of his citizenship application. The Tribunal accepts that the Applicant did not require it prior to 2018 because his identity was never in issue as far as the Australian Government was concerned. His identity was confirmed by the Department though the Protection visa application process. Even if the Tribunal accepts, as a general proposition, that document fraud was an issue in Afghanistan prior to the Taliban takeover in 2021, there is no information to suggest this Taskera is not a genuine document. It bears his name, date of birth, photograph and place of birth. The Tribunal accepts the Applicant’s account that his father’s Taskera and brother’s Taskera had to be provided to the authorities in order for him to obtain his own Taskera. The Tribunal accepts that the information contained in the Taskera is genuine as it is consistent with the Applicant’s biometrics and life story.
The Tribunal also accepts that the Iranian authorities accepted the Applicant as an Afghan national when they provided him with his refugee card. The Respondent contends that there is no clear basis on which the authorities believed he was an Afghan national, other than the Applicant’s oral account.[71] The Respondent then posits two competing scenarios, being that the Iranian refugee card is genuine but was obtained with false information, or, that it is a counterfeit document.
[71] Ibid [51].
The Applicant acknowledges that the date of birth provided in the Iranian refugee card is inconsistent with the date of birth in other documents. The Applicant maintains that the difference is owing to the difference in dates in the Iranian calendar. He otherwise urges the Tribunal to accept that the refugee card is genuine, and to accept that the nationality identified within that document is correct.
The Tribunal accepts that the Iranian refugee card is a genuine document. It was provided to authorities when the Applicant arrived on Christmas Island and a translated version was provided to the Department for the purposes of his citizenship application. The Applicant has not tried to conceal the fact that the document contains an incorrect date of birth and has provided an explanation for that. The Applicant is named in the document which at that time permitted him to remain in the country until March 2004. This is consistent with his life story that he was deported many times from Iran back to Afghanistan. He was deported back to Afghanistan because that was the nationality recorded on the refugee card.
The final set of documents are the Applicant’s Pakistani identity documents. The documents contain a different name but the same birth year. The Pakistani identity documents have been verified by the Department as genuine. However, the Applicant has consistently maintained that he paid money to obtain the documents. He said he needed the documents in order to legally work and to get by in Pakistan. He maintained that obtaining genuine Pakistani documents is easy and that you can obtain them by simply paying money. He reported that he never sat a test, for example, to obtain his Pakistani driving licence, and that he just paid money to obtain it. He said he relied on the documents to come to Australia. He willingly provided the documents to the Department. He has not tried to conceal the fact that the documents exist nor has he denied that they are genuine. He maintains that it is not an uncommon practice to obtain documents through the payment of monies.
The Respondent concedes that document fraud is widespread in Pakistan.[72] Pakistan Country Information provided by the Respondent states that:[73]
‘(d)ue to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents.’
[72] Ibid [43]
[73] Exhibit R2 (DFAT Country Information Report, 25 January 2022, 5.53).
The Respondent contends that even if the Applicant did obtain genuine Pakistani documents fraudulently, it does not address the question as to whether the information recorded on those documents is also inaccurate. The Respondent contends that it is plausible that some or all of the information on those identity documents is accurate.[74]
[74] Ibid.
The Tribunal accepts the Applicant’s account to the Tribunal that he paid money to obtain the identity documents. The Applicant was forthright in his evidence to the Tribunal that he paid money, and that he obtained the documents fraudulently. The Tribunal accepts that he paid money to obtain Pakistani identity documents, which have been verified as genuine documents. The Tribunal does not accept that because the documents themselves are genuine, the information contained in them must therefore be accurate. As the Respondent concedes, document fraud is said to be widespread in Pakistan and the Tribunal accepts that proposition. The Pakistani documents do not in and of themselves establish that the Applicant was born in Pakistan. The Tribunal accepts that the Applicant obtained them in order to live and work in Pakistan and to facilitate his arrival into Australia.
The Tribunal accepts on the basis of the above that the documents support the Applicant’s account of his nationality and do corroborate the information provided pursuant to pillar one and pillar three. The Tribunal accepts that the document tells a story which is consistent with the Applicant’s account of his time in that region. He has maintained that account consistently since his arrival into Australia in August 2011.
Pillar three – Life story
CPI 16 provides that when assessing a person’s life story in the context of a citizenship application, decision-makers must seek to create a complete ‘identity’ picture from birth.[75] The objective is to link an applicant’s identity at birth to the identity provided in their application for citizenship. This can be done by considering key chronological events in the person’s life and using pillars one and three to piece together and corroborate information.[76]
[75] Exhibit R1, 457.
[76] Ibid.
The Applicant has maintained a consistent life story through his dealings with the Department. There have been some inconsistencies, but the Tribunal does not consider them to be consequential. Those inconsistencies can be summarised as follows:
(a)Date he first left Afghanistan: In his Statutory Declaration to the Department dated 5 August 2017, the Applicant said he left Afghanistan in 1980 when he was one and a half years old.[77] His Protection visa application he said he resided in Afghanistan until 1983.[78] In his Biodata Interview, he told immigration officials he left Afghanistan when ‘we were very young’.[79] In his oral evidence to the Tribunal he said he left Afghanistan in 1985, but that he is ‘guessing now’. He said that it could have been when he was aged between one and five, but he cannot remember exactly. He said he recalled leaving Afghanistan in the back of a truck, but otherwise he cannot remember.
(b)Absence of evidence to establish that he was deported from Iran to Afghanistan: The Applicant has consistently maintained he was deported back to Afghanistan from Iran. He has maintained that this occurred on five to six occasions. The Applicant has provided an Iranian Refugee Card which permitted him to stay in Iran until 2004. That document identified the Applicant by name and nationality (Afghanistan). It does corroborate the Applicant’s version of events that he was deported from Iran to Afghanistan (as opposed to being deported to Pakistan). The date of birth on the refugee card is different, but the Tribunal does not consider that inconsistency to be consequential.
(c)Transfers of monies from Australia to persons living in Iran: The Applicant told the Tribunal that he transfers money to his family in Iran via his family’s neighbours as the family reside there without identity documents. The Respondent argues that the Applicant’s story is difficult to reconcile in circumstances where he said he was deported multiple times from Iran, but his family continue to reside there.[80] The Tribunal does not consider the fact as to whether his family reside in Iran legally or illegally as providing assistance in determining the Applicant’s nationality. The Tribunal accepts (and the documents themselves establish) that the Applicant regularly sends money to persons in Iran. The personal circumstances of the Applicant’s family members that reside in Iran are not in issue before the Tribunal. The Tribunal cannot draw the inference that the Respondent invites the Tribunal to draw, that the Applicant was not deported from Iran to Afghanistan because his family have similarly not been deported. The Tribunal cannot draw such an inference, and it would be unfair to draw such an adverse inference against the Applicant without further information or evidence which it does not have.
[77] Ibid 56.
[78] Ibid 266.
[79] Ibid 305.
[80] Ibid 52.
The Tribunal considers that the Applicant has told a consistent life story since his arrival into Australia. There maybe some minor inconsistencies as outlined above but the Tribunal does not consider them to be of great consequence. The Tribunal accepts the Applicant’s life story as a plausible account of his time abroad.
CONCLUSION
The Tribunal is persuaded on the basis of the three pillars of identity, and for the reasons set out above, that the Applicant is a national of Afghanistan. The Tribunal accepts that he is of Hazara ethnicity and is a Shia Muslim. The Tribunal also accepts that he was born in Shahrestan, Afghanistan as claimed.
The Applicant has provided a consistent life story which he has not resiled from. He has provided the Department with the identity documents in his possession and has credible explanations for the inconsistencies that might arise in those documents. The Tribunal considers that the inconsistencies are not significant and do not detract in a significant way from the Applicant’s claims that he is a national of Afghanistan.
The Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act. The decision under review will be set aside and remitted to the Respondent for reconsideration with a direction that the Applicant’s identity for the purposes of s 24(3) has been satisfied.
DECISION
Pursuant to s 105(c) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that the Applicant’s identity for the purposes of s 24(3) has been satisfied.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of General Member. K Thornton
……………………SGD……………………………
Associate Stephanie Chronis
Dated: 30 June 2025
Dates of hearing: 6 and 7 May 2025 Advocate for the Applicant: Mr Bilal Amani Solicitors for the Applicant: Amani Lawyers Advocate for the Respondent: Mr Maxwell Hopkins Solicitors for the Respondent: Mills Oakley
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