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

TJKV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3444 (23 September 2021)
Division:GENERAL DIVISION
File Number: 2020/5842
Re:TJKV
APPLICANT

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

DECISION
Tribunal:Ms A E Burke AO, Member
Date:23 September 2021
Place:Melbourne

The Tribunal sets aside the decision of the delegate dated 3 September 2020 refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, that it is satisfied of the Applicant’s identity.
............................[sgd].......................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – stateless Hazara national – whether satisfied of identity of applicant –whether documentation was sufficient – whether made genuine attempt to obtain documentation from Afghanistan/Iran - consideration of DFAT Country Information Report – whether satisfied of life story - whether the application for citizenship should be approved – life story remained consistent – Tribunal satisfied of identity – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2016 (Cth)
Migration Act 1958 (Cth)
Cases
Ater and Minister for Home Affairs [2018] AATA 4677
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Secondary Materials
Australian Citizenship [Policy Statement], Department of Immigration and Border Protection (27 November 2020)
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act, Department of Immigration and Border Protection (10 April 2019)
DFAT Country Information Report Afghanistan (27 June 2019)
DFAT Country Information Report Iran (14 April 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
REASONS FOR DECISION
Ms A E Burke AO, Member
23 September 2021

The Applicant is a 32-year-old stateless Hazara woman, born in Tehran to Afghan parents who were residing in Iran as refugees. The Applicant is married and lives with her husband and three children. On 11 June 2012, the Applicant sought asylum in Australia, arriving by boat on Christmas Island. She was subsequently granted a Permanent Protection Visa (Subclass 866) on 18 January 2013 and is currently the holder of a Resident Return Visa (Subclass 155) granted onshore on 26 July 2019.
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person's capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant holds a protection visa, the Tribunal has decided it is appropriate to refer to the Applicant as "the Applicant" throughout this decision.
On 17 September 2018, the Applicant lodged an application for Australian citizenship by conferral and on 8 August 2019 the Department sent a request for further information. The Applicant did not respond to this request.
On 3 September 2020, a delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act), as the Department was prohibited from approving the application as the delegate of the Minister was not satisfied of the Applicant’s identity. The delegate stated:
After considering all of the information provided on your file, in the Department's systems and the relevant legislation, I have refused your application for conferral of Australian citizenship on the basis that I am not satisfied of your identity. While I am not satisfied of your identity, I am satisfied that the information I have taken into consideration when making my decision is related to you, the applicant.
On 24 September 2020, the Applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal stating:
I want my decision to be reviewed AAT because my citizenship application was refused by australian citizenship office as i didnt meet their requirements on time for supplying them with the following
* FORM 80
* Request for documents in support of your identity
The hearing was held on 19 May 2021, by video conference under s 33A of the Administrative Appeals Tribunal Act 1975, the Applicant was self-represented and assisted by a Dari interpreter. Mr Thomas Creedon, of the Australian Government Solicitor, appeared on behalf of the Respondent. At the conclusion of the hearing, additional material was requested from the Applicant and the Respondent, the Applicant provided two additional statements.
ISSUE FOR THE TRIBUNAL
The issue is whether the Tribunal is satisfied of the Applicant’s identity to fulfil the requirements of s 24(3) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)       is aged 18 or over at the time the person made the application; and
(b)      is a permanent resident:
(i)       at the time the person made the application; and
(ii)      at the time of the Minister’s decision on the application; and
(c)      satisfies the general residence requirement (see section 22) or the    special residence requirement (see section 22A or 22B), or satisfies   the defence service requirement (see section 23), at the time the   person made the application; and
(d)      understands the nature of an application under subsection (1); and
(e)       possesses a basic knowledge of the English language; and
(f)        has an adequate knowledge of Australia and of the responsibilities    and privileges of Australian citizenship; and
(g)       is likely to reside, or to continue to reside, in Australia or to maintain    a close and continuing association with Australia if the application   were to be approved; and
(h)      is of good character at the time of the Minister’s decision on the    application.
Section 24 of the Act provides, in part:
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.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)      the person has not become an Australian citizen under section 28;   and
(b)      either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a)      the person is covered by subsection 21(2), (3) or (4); and
(b)      the Minister is satisfied that, at the time the Minister proposes to                   cancel the approval, the person is:
(i)       not a permanent resident; or
(ii)       not likely to reside, or to continue to reside, in Australia or to               maintain a close and continuing association with Australia;   or
(iii)      not of good character.
The stated role of the Australian Citizenship Policy (the Policy) is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2016 (Cth). Additionally, the Citizenship Procedural Instruction 16 (CPI 16), published and used by the Department in relation to decision making under the Act, also contains relevant guidance about assessing an individual's identity, specifically for the purposes of determining whether the prohibition in s 24(3) of the Act applies.
When considering whether a decision maker is satisfied of an Applicant's identity, the three pillars of identity are set out in CPI 16 at 4.4:
(a) Biometrics - personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies;

(b) Documents - which may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. CPI 16 relevantly states that "only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features"; and

(c) Life story - being the narrative of the events that happened to them from birth to present, which may include "descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence".
The CPI 16 further provides that:
Officers should not rely on a single pillar to establish a person’s identity.
Considering a single pillar in isolation is generally inadequate for providing a
reliable basis on which to establish a person’s identity. In order to comprehensively
test and evaluate a person’s claims with regard to their identity, decision-makers
should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity
assessment process. The citizenship applicant is likely to be well documented,
information provided to the Department will have remained consistent over a long
period of time, and no inconsistencies or concerns will have been identified.
Through their reliability and comprehensiveness, identity documents testify to
important events in the applicant’s life story. Through personal identifiers contained
in identity documents the applicant’s biometrics held on departmental records are
matched and confirmed.
…
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek
to establish a person’s identity from birth using an evidence-based approach. It is
not sufficient to be satisfied of a person’s identity at one point in time, as a person’s
identity is not a point in time concept; it must be verified incrementally throughout a
person’s life and considered historically.
The way in which officers should approach the concept of assessing a person’s
identity from birth is to create an identity timeline, thus creating a complete picture
of the person’s identity from birth to present. The objective is to link the applicant’s
identity at birth to the identity provided in their application for Australian citizenship
by considering key chronological events in the person’s life. The three pillars are
the methodology for establishing a person’s identity, and officers must turn their
mind to the individual characteristics in order to piece together a person’s identity
timeline and create an ‘identity picture’.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application,
officers should seek to create a complete identity ‘picture’ of the person from birth.
This is not done by asking a person to recite their life story in interview. Instead, a
practical way in which to begin an assessment of a person’s identity, while at the
same time considering their life story, is to consider their identity timeline.
…
There may be cases where one pillar may be given more weight than the others.
For example, cases where the applicant claims they are stateless and therefore
undocumented. In such cases, the available pillar (for example, life story) may
become more significant when assessing the person’s identity. There is also likely
to be a heightened need to explore further material. This may include, but is not
limited to researching credible open source country information. This research will
enable the officer to test and verify whether the applicant’s claims, relevant to
aspects of their life story, are consistent with the situation in a particular country.
Credible country information will support and add weight to a decision, and can be
cited in the decision record.
Example - undocumented arrival: potential avenues of research where one
pillar may be given more weight than the others.
A citizenship application is received from a person claiming:
·they are stateless, undocumented, and are unable to provide any evidence of their identity prior to arriving in Australia as an Illegal Maritime Arrival (IMA);
·they exited their country of residence on a bogus travel document; and
·they previously held an identity card issued to stateless people by the Government of the country they resided in. They do not have the card now.
Issues
· No documentary evidence of the person’s identity from birth to arrival in Australia
· No biometrics which can be used for comparison purposes.
Potential action
In order to test the veracity of the above claims and make an informed assessment,
it is necessary for the officer to research country information. This research will
provide an informed basis on which to assess whether the claims are factually
accurate or plausible, and align with country processes.
….
The officer must then consider, assess, and weigh the country information and
evidence provided by the applicant, ensure that natural justice requirements have
been met, and make a determination whether they are satisfied of the applicant’s
identity. The decision must show the link between the law, facts, clearly explain the
reasons they considered and the weight given to the evidence that ultimately led
them to reaching their decision.
EVIDENCE
The evidence before the Tribunal included two sets of documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), referred to as the “T documents” and the “Supplementary T documents”. The Applicant lodged a statutory declaration, identity documents and other supporting documentation.
The Applicant provided the following documentary evidence to establish her identity:
(a)Statutory declaration;
(b)Water bill;
(c)Australian issued travel document – Titre de voyage;
(d)Victorian driver’s licence;
(e)Medicare card; and
(f)Passport-sized photograph.
The Applicant’s husband’s Statement of Claim for Protection Visa application taken on 4 April 2012 states:
Introduction
1. I am a citizen of Afghanistan and I do not have a right to citizenship or a right to reside in any other country.
2. I am Hazara and a Muslim Shi'a
3. I was born [in 1984] in Qala-e-Shada Kabul Afghanistan.
The country to which I fear returning
4. I fear returning to Afghanistan and Iran.
Why I left that country (describe problems in chronological order and in detail including when/where/what happened/ why/ who caused the harm)
5. I was born in Afghanistan. I am not sure why my family left Afghanistan I was too young, and I cannot remember. My father told me it was because of the fighting in the area. The Islamic party of Gulbudeen were firing rockets on Kabul city and my father was afraid for our safety. A few rockets hit my father's neighbours’ houses and there were people killed. Due to the threat to our lives my father made the decision to leave Afghanistan and go to Iran.
6. In Iran we were not recognized as citizens at any time. We did not have any cards. We were not issued with any cards as far as I know. My father had a card that was an ID card for one of the factory that my father was working and it was a card that he could show the police so that they would not bother him. Whenever it expired he had to pay bribes to the factory to renew it for him. It was not easy for him to renew it. We did not have any rights in Iran as Afghani citizens. I was not allowed to enrol ourselves in schools, we had no permission to work, the coupons that were given to Iranian Citizens were not issued to us. We were not allowed to have a drivers licence or own a private car, we were not allowed to own property. The Iranian authorities were not happy with us living there as refugees. Once every month or two months they would arrest us and we would have to pay bribes to be released from their detention centres and avoid being deported.
7. Even Iranian citizens were looking at us and treating us like lower class citizens, insulting and abusing us. The Iranian police did not count Afghani refugees even as a human being. They were dealing with the Afghani refugees as though they were animals. We had to live in Iran with all those difficulties.
8. I met my wife approximately 2 years ago. She came with her mother to my tailoring shop and since then we knew each other and became friends. When we both agreed to get married and I requested my family to ask her family my parents went and asked permission for me to marry their daughter but her family would not give her permission to marry me. Her parents said that our families did not have any ties and they did not know our family and they wanted my wife to marry one of her own relatives. For one year my parents were asking permission and her parents were not agreeing to the marriage.
9. Her parents wanted her to marry one of their distant relatives who was close friends to her brother. I was informed by [the Applicant’s] sister that during that week they were going to engage [TJKV] to that boy. [TJKV] told me that if her parents forced her to marry the other boy she would kill herself because he was 10 years older and she did not like him. Finally I made a plan with [TJKV] to run away and she pretended one day to go to her uncles house and we both escaped. We continued to live in Tehran in hiding at my aunty house. This happened approximately second week of April 2011.
10. Only my parents knew where we were. I had informed my parents what I was doing and where we were going. My parent agreed with our plans to go in hiding to my aunty house. While we were living at my Aunt house my parents brought a Mullah to my aunt house together with themselves and arranged for our Nikkah (marriage certificate). My wife's family would be aware something was happening because [TJKV] had disappeared. Her brothers knew that she had ties with me and a few times they came and bashed me up. As soon as she disappeared from the house they knew she was with me. I was expecting this fact (that [the Applicant] ran away to be with me) might make her family calm down and accept the situation and that their daughter obviously wanted to be with me.
11. She was under pressure before she escaped with me for about 6-7 months because they were very strict religious family and they were keeping her like a prisoner. She was not allowed to leave the house and her brothers would beat her up. My family were supportive of our relationship and happy for me to marry her. We were staying in my aunt house for 3 week to one month. As my parents were in contact with us and they were informing us that her family is not going to agree with the situation. Her father and brothers came to my family home with the local police and they took my father and interrogated him about my whereabouts and the whereabouts of their daughter. My father said he did not know anything about our situation.
12. My father came and advised me that the situation would get worse and I should leave Iran and take my wife elsewhere. We decided to return back to Afghanistan and travelled there in approximately May/ June 2011. Somehow my wife family found out that we were in Afghanistan. We are not sure whether this was through her elder brother who was living in Afghanistan perhaps he obtained information from locals in the area that we had returned; or perhaps the Afghan community in Iran gave them information that we returned to Afghanistan. We are not sure. As soon as her family came to Afghanistan my father called me and advised me that her family had travelled to Afghanistan to find us.
13. My father told me that Afghanistan is a very dangerous country. I could see being there that there was no law and order and we could not live their permanently. For 1 ½ months while in Afghanistan I did not go out of the house I was living in with [the Applicant] because her eldest brother has real estate agency selling houses and we knew he had a wide range of contacts. We stayed in hiding so he would not discover us. I gave money to an agent to arrange our passport and Taskera. Before I asked the agent to arrange a passport for us as soon as he did this I wanted to travel to Behsood district and live in my father's house in Behsood. I used to live with a paternal aunty in Kabul and she informed me if I wanted go to Behsood on the way the Taliban are very active and it is very dangerous for Hazaras. In Kabul and other areas throughout Afghanistan the situation is different because each ethnicity is living in certain areas. I could not live with Hazara anywhere in Afghanistan and if I wanted to stay in another area where Pashtun and Tajik were I was a stranger to them and I would not be accepted into their communities.
14. Finally it was proven to us that it would be difficult to live in Behsood in my father and grandfather house because of lack of security both travelling to and from Behsood and also the situation in Behsood. There were a lot of stopping Hazaras and killing them in the street and I was afraid that this would happen to me. Life became very difficult in Afghanistan for my wife and I. My father-in-law and brothers-in-law threatened my father and told him if they ever saw us they would kill us immediately. My father passed the threat on to me. He was very concerned about our safety.
15. As we were planning what to do because we could not continue to live in Afghanistan or return to Iran. My aunty husband told us that people were going to Indonesia and from there they were travelling to Australia. I was not aware of this. I was in the situation to leave as soon as possible so we could save our lives. My aunt husband searched for a smuggler and obtained a contact number, I spoke with them and he was in India. The smuggler told me if I go to India by myself legally then he would assist us from there. He said he would send me by air to Jakarta from India as soon as we arrived in Dehli. My aunt husband found an agent who had arranged my Taskera and we gave him more money to obtain our passport and travel document to India.
16. We travelled to India and from India we travelled to Indonesia. In Indonesia we were arrested and detained for two months in a jail. My wife was pregnant and the prison authority realised that she only had one week left until her delivery and so they released us from prison. As soon as we were released from prison we were given to IOM in Indonesia. IOM took us to a hotel and we stayed there for two months. Monthly the IOM were paying us 1.2 million Indonesian Rupee per head for our daily expenses. Within those two months we saw people waiting 3-4 years and not accepted by any other country so we decided to get out of Indonesia as well. I found a smuggler and he assisted us to come to Australia. We arrived in Christmas Island on 11-06-2012. While we were in Indonesia we registered with UNHCR. We did not have any interview we were given a paper so we were not stopped by authorities and that was renewed two months later but we did not have an interview.

In the Applicant’s entry interview at Christmas Island on 27 June 2012, she describes how she travelled to Australia:
04/2011 issued with a letter and a bus took us to the border, not sure where the letter came from maybe embassy, it was my name and when we went across border we give it to driver of bus. We left Afganistan from Kabul airport, don't know airline, we had passports, don't know where they came from. We flew to India, I don't know where. The smuggler was waiting at the airport and took us to a house. Smuggler was a dark skinned short man he was Afgan but don't know what area.
The house was in a noisy, dirty area and very crowded, I did not leave house most of time so don't know anything. We stayed for 1.5 months in this house and then smuggler prepared passport and we flew to Indonesia with a transit stop in Thailand. First they would not issue visa and then my husband gave them money I don't know how much because he was taken by them and then they let us leave the airport. I did not see these men.
Got in taxi and drove to Bogor, we stayed for a while in Bogor and contacted smuggler to come to Australia. We were arrested and went to prison. We were taken to a hotel and after three months in hotel we were taken to prison. All the passengers were taken to a hotel and then the police came and arrested us, other passengers fled but they arrested a few families. Since I was close to my due date of birth the IOM released us from prison. IOM gave us accomodation and we stayed for approximately 1.5 to 2 months.
The Applicant’s Statement of Claim for Protection Visa application of 7 August 2012 states:
Introduction
1. I am a citizen of Afghanistan and I do not have a right to citizenship or a right to reside in any other country.
2. I am Hazara and my religion is Muslim Shi'a.
3. I was born [in 1989] in Tehran Iran.
The country to which I fear returning
4. I fear returning to Afghanistan and Iran.
Why I left that country (describe problems in chronological order and in detail including when/where/what happened/ why/ who caused the harm)
5. My husband, […] has provided a statement of claims and described in detail our situation and why we fled from Iran to Afghanistan and then why we fled from Afghanistan to Australia. I ask that his statement is taken into consideration when making an assessment of our claims. In addition to my husband's claims I would like to add further information about my fears and our situation. I agree with everything my husband has put in his statement.
6. When my brothers first found out I had ties with my husband (before we were married) they bashed me up very badly. I can say that they almost bashed me to death with any items that they could put their hands on they bashed me with them. They were punching me and bashing me. My family are very strict religious people. As their daughter I was not allowed to for example go shopping alone and if I wanted to I had to be escorted by one of my family members. Even while I was making mistakes with my homework they were bashing me and telling me I was careless because I intended to marry my husband. Beside the difficult situation I was not allowed to talk at home at all and finally one of my brother's friends family came and asked my family for my marriage to their son and my family decided to agree with them. That boy was about 10 years older than me and I didn't want him to be my life partner. In my family the female genders have no right to stand up for themselves only the male members of the family can talk and stand up for themselves.
7. They did not allow me to go to school. In the punishment they were giving me it was very severe. Once I was ironing the female clothing by accident my brothers clothes were not ironed properly and when he saw it he made the iron very hot and he put it on my leg and burned me with the hot iron. I have the scar from the burn on my leg. This happened approximately 1 - 1 ½ yrs ago. with my family anymore. My mother did not have the right to stop them and what they were doing to me. When they wanted to engage me with my brother's friend they never asked me they just did it.
8. Finally I informed [my future husband]that I could not live with my family anymore and I wanted to kill myself instead of staying with them. When my sister passed my message to [my future husband]he sent me a message through my sister and suggested I run away together with him and I agreed with that suggestion. I asked my mother's permission to go to my uncles house and I promised her I would be home quickly and on my way to my uncles house I ran away with [my future husband] and never returned. My uncle lives two doors from us so I said I was going there and I did not need to be accompanied to go there.
9. My father-in-law informed [my future husband] Mustafa that my father and my brothers went to his house and disturbed him. Meanwhile my family said if they find [my future husband] and I they would kill us. My husband explained this in his statement. I loved [my husband] and wanted to marry him and that is why I ran away with him. My sister was aware of my relationship and only my sister was supportive, and she would communicate with [my husband] while I was not permitted to leave the house. I have not had any contact with my family since I left.
What I fear may happen to me if I return to that country and why
10. I believe if I return to Afghanistan because my family are currently in Afghanistan and as soon as they found out that I was in Afghanistan they will kill me. I cannot return to Iran as I am not a citizen of Iran and I have never been recognized as a citizen of Iran.
Who I think may harm/mistreat me in that country and why.
11. I believe if I return to Afghanistan my family will harm me. My father and brothers are very strict and they have already been physically and verbally abusive to me and if they find me at any time they will kill me because they believe I have shamed them by disobeying their orders and marrying [my husband] even though they wanted me to marry someone else.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country.
12. The authorities in Afghanistan cannot protect me. They do not have the power to protect me and I am Hazara so they would not protect me. If my family kills me the authorities would say it was their right because I am their daughter and I disobeyed them.
Why I think relocation to another area in my country is not a reasonable option.
13. I cannot go to any part of Afghanistan. I am afraid of my family. My husband provided reasons we cannot relocate to other areas and these apply to me as well. I cannot return to any part of Afghanistan.
The Applicant’s statutory declaration of 29 August 2018 states:
I wish to declare that I was born in Iran as refugee. The Government in Iran does not issue birth certificates to children born as refugees. I therefore request that the department accept my application without birth certificate or Taskera as I cannot provide due to birth in Iran as refugee.
The Applicant’s statutory declaration of 20 January 2021 states:
I [Applicant] was born [in 1989] as female in Tehran Iran.
I left my family behind and escape from home to be free as women and have choice for my own life. Since that I don’t have any contact with them and any relative to keep safe my family from them and any danger may cause by them to my children.
Because of this, I can not provide any evidence of my past.
The President of Hazara Shamama Association of Australia Inc. (a registered non-profit community organisation based in Dandenong, Victoria) provided a reference for the Applicant dated 5 July 2021:
I am writing this letter to support [the Applicant] application to become an Australian citizen by conferral.
I state that [the Applicant] is one of our Hazara community members who has been residing in the Greater Melbourne area since approximately 2013.
I am aware that the Administrative Appeals Tribunal has asked [the Applicant] to provide reference letters from the Hazara community members / organisations in Melbourne attesting her identity.
Our organisation has been supporting and representing the Hazara community in Melbourne since 2009.
With regards to [the Applicant’s] identity, I can confirm that she is an Afghan national and belongs to the Hazara Shia ethnic group of Afghanistan. I am aware that she was born in Iran but is not considered an Iranian citizen. Many Hazaras from Afghanistan have been born in Iran but are not considered Iranian citizens by the Iranian governments and laws. In addition, from her facial features and her accent, I can confirm that she is of a Hazara ethnicity and Afghan national.
She is a hardworking housewife who has been supporting and trying to build a good life for husband and child here in Australia.
The Applicant’s husband provided a statutory declaration dated 15 July 2021 which states:
I [Applicant’s husband] declaring that [Applicant] is from Afghanistan Hazara Ethnicity.
I [Applicant’s husband] declaring that documents including passport and taskera which was used to depart from Afghanistan to India was fake and provided by the smuggler which I paid.
I [Applicant’s husband] declaring when me and my wife [the Applicant] left Iran and crossed the border to Afghanistan I do not remember if we had any documents or not.
On numerous documents the Applicant has described herself as an Afghan national, stateless citizen, who was a green card holder in Iran. She states she left Afghanistan on a document obtained by an agent in Kabul, travelled to India then Indonesia by air and then travelled by boat to Australia, entering without a passport. She has never worked and completed Grade three education in Iran.
CONTENTIONS
Applicant
The Applicant fundamentally attests that she is who she claims to be and has no way of obtaining any form of identity documents from Iran or Afghanistan. That she has not sought to mislead anyone and has provided a consistent story of her life from before she entered Australia.
The Applicant explained that she could not seek any assistance from family in Afghanistan or Iran to obtain proof of her identity as she feared for her safety. She had fled from her family to marry against their wishes and has had no contact with them since. She feared that her ultra-strict father and brothers would still seek to harm her, her husband and her children as reprisal for marrying against their wishes. The Applicant advised at the hearing:
Applicant: Did schooling up to grade three, after that I was not allowed, because they used to prefer mostly the male children to study. After that I stayed at home and I did not do any more education.
Member: What was she doing at home?
A: I was helping Mum, cooking food, preparing everything for other family members particularly my brothers and also cleaning, washing everything at home, and I was assisting my mother.
M: Did she have any friends outside the family?
A: There are families that had connections with us and relatives and acquaintances and if there was any girls, I used to be friends with them but outside the family circle, particularly those people who are strangers, we didn’t have any friends
M: So, for social activities, if there was events on was it all with the extended family?
A: Yeah that’s right, just with the family circle and extended family.
Respondent representative: Weddings or other kinds of events is that what you mean?
A: If there was an event, for instance, if there was a marriage ceremony or getting together or being guest or there was a party or function or something like that but if there was a funeral ceremony the girls were not allowed to go so we didn’t participate in that one but if there was something socially then we would go too.
R: When you say socially what do you mean?
A: We didn’t used to go places where there were strangers, for instance social gathering where family members wanted to invite others to sit for any particular reason, that is a social function. Acquaintances or relatives we also used to go and participate. That is the social functions.
M: Can I ask about Friday prayers or Eid, if she went to any events for those things?
A: In Iran at Friday prayers ladies were not going. During Eid ceremony one of the families or one of the persons was relatively wealthy and he wanted to invite all the other ones in his house so everybody on that particular day used to go and say hello to each other and celebrate Eid, that was the thing that we used to go, only one day.
R: In terms of people you met at these events, friends or connections, do you stay in touch with them, are you still in contact with them?
A: No, when I headed to Australia I was actually disconnected from the family, I don’t have any relations with any of them.
R: Just to confirm, you haven’t stayed in touch with any friends even online or by phone?
A: No, I’m not in touch with anyone in the family because I don’t want them to know that I’m in Australia, that’s why I’m not in touch with any family members.
R: Not in touch with family member? To make clear, if you had friends outside of family but they’re in Tehran, you’re in no contact with them?
A: Her family one is husband’s family, I don’t want my own family to understand I’m in Australia, but the family of my husband knows I’m here in Australia.
M: To clarify, she’s in touch with her in-laws in Iran?
A: Yes.
M: Since she’s been in Australia, she’s travelled back to Iran. When she went to Iran, she visited with her in-laws?
A: Yes, once went to Tehran to the house of the father of my husband, or father in law.
M: But she didn’t see any of her extended family or any friend she may have had before she left Iran to come to Australia?
A: When I went to Tehran, I was living in the house of father in law, he was not living actually in Tehran, he was somewhere away from Tehran, in an area where he was living. For three months we did not use to go outside here and there and we were just in the house of my father in law because he was sick and we went to see him, so we did not meet any other family member or acquaintance that we had before.
The Applicant explained that as a female she had no rights, both in her family and Afghani society. She stated she had never held any form of identity documents, as she was not issued with a birth certificate as a refugee in Iran, the green card was issued to the head of the family, and the various passports she used to travel from Iran to Australia had been secured by others and she was not aware if they were real or fake. The Applicant advised at the hearing:
Applicant: Most of the things [Applicant’s husband] was talking about I was not in the picture because I was under stress, [Applicant’s husband] didn’t want to tell me about them because he didn’t want me to have much stress and increase my tension, most things he was talking about I was not aware of.
Respondent representative: There’s some information about Iran that indicates sometimes documented refugees can choose to be deported from Iran, just trying to work out if that’s your situation?
A: Document was issued but it was to head of family only, head of household, not to each particular one, didn’t want to give us documents such as you say.
R: Will ask some more questions about passport, the one you say is an Afghani passport. In your application for protection visa, you say it was in an Afghani passport in your own name, do you recall looking at that passport?
A: Yes, because at airport in India we had that passport
R: Do you know if that passport was issued officially or was it obtained by somebody else?
Member: Was it a legal document or a fraudulent document?
A: I am not in the picture, that was made by [Applicant’s husband’s] auntie’s son’s cousin, maybe it was a fraudulent, probably not a genuine official document.
M: Does she think [her husband] would know?
A: Didn’t know whether it was fraudulent or whether it was an official document and a genuine passport because when we entered India, the smugglers came and collected that passport and said we would like to issue another passport, Iranian passport, and I’m not quite sure if it was a genuine one or a fake passport, but we entered through that one to India. The next day, the smuggler collected it and the next day we were – and then using that for the next day we headed towards Indonesia.
The Applicant advised the Tribunal that she wishes to become an Australian citizen as in this country she is happy, feels safe, she can come and go and her children will have a good future.
Respondent
The Respondent argued that given a certificate of Australian citizenship is a legal document of extraordinary significance, the Tribunal should not accept an outcome which could lead to a certificate being issued in circumstances where the identity of the Applicant is far from clear. The Respondent referred the Tribunal to the matter of Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38] where Senior Member Walsh observed:
Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. As submitted by the Minister, a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
The Respondent contended that the Tribunal cannot be satisfied of the Applicant‘s identity, having regard to the absence of identity documentation prior to the Applicant’s arrival in Australia, in circumstances where the Applicant has previously held an Afghani passport, or otherwise has not provided details regarding her life story.
The Respondent argued that the absence of identity documentation prior to the Applicant’s arrival in Australia was implausible and took the Tribunal to the Applicant’s claims in respect of her time in Iran and Afghanistan.
The Respondent argued the following in respect of the Applicant’s time in Iran:
(a)The Applicant has not provided any documentation from her life in Iran.
(b)Upon arrival in Australia the Applicant declared that she travelled from India to Indonesia on an Iranian passport. The Applicant has never produced a copy of that passport or explained whether it was a genuine or fake passport.
(c)The Applicant has declared that she has held a ‘green card’, a document issued by Iranian authorities to refugees in Iran prior to 2001. The reference to a green card is unexplained, and no efforts appear to have been made to produce a copy or obtain such a copy from Iranian authorities. Nor has the Applicant’s family in Iran provided their identity documents. The fact the Applicant held a green card indicates the Applicant and her family were documented refugees in Iran.
(d)Further, country information indicates that Afghani refugees in Iran were eligible to receive a ‘White Card’ (referred to as an ‘Amayesh card’) between 2001 and 2007. The Applicant resided in Iran during that period, and the absence of a White Card remains unexplained.
(e)The Applicant was married in Iran in 2011, but it is unclear whether there is any documentation arising from the Applicant’s marriage. The Applicant’s husband declared that a Mullah attended his aunt’s house to arrange for their ‘Nikkah’ (marriage certificate). No copy of this document has been provided.
(f)The Applicant has also claimed to have attended school in Iran between 1996 and 1999. Country information indicates that undocumented children did not have access to education in Iran prior to 2015. This indicates that the Applicant would not have been able to attend school if she was undocumented, as she claims.
The Respondent argued the following in respect of the Applicant’s time in Afghanistan:
(a)The Applicant resided in Afghanistan for a short period only (between May and July 2011) but it remains unclear whether she has identity documents from Afghanistan including a Taskera and passport.
(b)When the Applicant arrived in Australia, she advised that she had departed Afghanistan on an Afghani passport which was obtained in her own name. The Applicant’s husband declared in their protection visa application that they departed Afghanistan legally before meeting a smuggler in India. The Applicant claimed that this document had been taken by a smuggler.
(c)Given the Applicant’s claim that she departed Afghanistan legally using a passport in her own name, the Tribunal should infer that passport was a legitimate Afghan passport. The Applicant has not taken steps to confirm whether she could obtain confirmation that she had previously been issued a passport, or obtain further documentation such as a Taskera, from the Afghan Ministry of Interior. Country information indicates that the issuance of a passport requires a valid Taskera. The Respondent submits that the Applicant could take reasonable steps to enquire with the Afghan Embassy or directly to the Afghan Ministry of Interior to determine whether they are able to provide documents to verify her identity, such as a Taskera or new passport.

The Respondent, whilst accepting that the production of identity documents is not a legal requirement for the conferral of citizenship, contended that the Applicant has not availed herself of opportunities to obtain evidence of identity that might reasonably be expected to exist. Further, the Respondent argued there was no evidence of any steps taken by the Applicant to obtain documentary evidence, nor had she provided a cogent and acceptable explanation as to why such steps have not been taken.
The Respondent argued the Applicant had not provided any documentation from her life in Iran or Afghanistan, prior to her travel to Australia. The Respondent contended that the Applicant maintains connections in Iran, evidenced by the three months spent in Iran between November 2014 and February 2015, and has extended family in Iran or Afghanistan, in particular her in-laws. Given the Applicant’s connections in Iran and Afghanistan, the Respondent contended it would be reasonable to expect that she could make enquiries with friends or family about documents.
The Respondent argued that as the Applicant had not taken steps to provide details that could reasonably be expected to be obtained, the Tribunal should have doubt about her identity. The Respondent argued it was open to the Applicant to obtain statements from friends or family, but she had not, nor had she offered an acceptable explanation for why it would not be possible to obtain such statements.
The Respondent accepted the Applicant had been generally consistent regarding her reasons for leaving Iran and Afghanistan, which has been to escape an oppressive family who did not condone her marriage to her husband. Further, the Respondent accepts the Applicant has been consistent in providing information regarding her own date of birth, address in Iran and details of her family composition.
However, the Respondent contended that the Applicant has been inconsistent in her claims of citizenship. She stated when she arrived that she was an Afghan citizen and now claims she is stateless. The Respondent argued this inconsistency remains unexplained.
The Respondent contended a further inconsistency is whether the Applicant’s family was documented or undocumented during their time in Iran. The Respondent argued it was apparent that the Applicant’s family had lived in Iran since before the Applicant’s birth but there were few details of the Applicant’s family’s circumstances in Iran. The Respondent argued that this gave rise to questions regarding the Applicant’s life story.
In light of the lack of information about the Applicant’s family and lack of supporting documentation, the Respondent submits that it would be open to the Tribunal to have doubt about the Applicant’s background and identity.
COUNTRY INFORMATION
The DFAT Country Information Report on Afghanistan dated 27 June 2019 provides the following:
3.80 Afghanistan’s Hazara population has long faced social, economic, and political discrimination, although the extent of this discrimination has varied over time. The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression.
3.69 DFAT assesses that the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Long-standing traditional values and gender roles continue to restrict significantly the participation of women in the community and workforce, in both the public and private sectors. DFAT assesses that Afghan women face a high risk of gender-based violence, including sexual assault and domestic violence, while Afghan girls face a high risk of being forced into early or involuntary marriage. Afghan women working outside the home, in non-traditional areas such as policing or security, or in areas advocating women’s rights, face a high risk of violence, including targeted killings. Afghan women are particularly vulnerable to the effects of the continuing armed conflict and face an elevated risk of conflict-related death or injury.
3.63…Despite their relatively strong position within their own community, however, Hazara women – like all women in Afghanistan – experience high levels of societal discrimination and gender-based violence, including sexual assault and domestic violence. Hazara women and girls living outside the Hazarajat are subject to the same societal restrictions as other Afghan women. All Afghan girls attending school face a risk of violent attack, although this risk is likely to be lower for Hazara girls attending schools in the Hazarajat. Violence against women, particularly domestic violence, is endemic in Afghanistan. A 2010 survey by UN Women found that nearly 90 per cent of Afghan women had experienced physical, sexual or psychological violence in their lifetime, with 62 per cent experiencing multiple forms. DFAT assesses that the findings of this report remain valid. Violence may take the form of kicking, slapping, and beating with weapons such as wire, sticks, and gun butts. Acid attacks occur frequently, with many attributed to armed groups opposed to girls’ education and others committed by rejected suitors. Most violent attacks go unreported. Women who seek help to escape sexual or physical violence often face indifference or criminal sanctions for committing ‘moral crimes’ such as adultery or running away from home. Women who walk outside unaccompanied by a man often experience abuse or harassment, including physical groping, and are likely to be blamed for the assault.
3.67 The continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, particularly outside major urban centres. In addition, the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the government’s ability to protect its citizens even where its security infrastructure is strongest.
The DFAT Country Information Report on Iran dated 14 April 2020 provides the following:
3.165 Iran has one of the largest refugee populations in the world, primarily from Afghanistan. According to the United Nations High Commissioner for Refugees (UNHCR), Iran hosts nearly 1 million registered Afghan refugees, plus up to 2 million undocumented ones. Approximately 97 per cent of registered Afghan refugees live among host communities in urban areas. The remaining 3 per cent live in 20 refugee settlements managed by the Iranian Government. Refugee settlements are generally well equipped and include schools and vocational training centres. Iran also hosts around 26,000 registered refugees from Iraq.
3.166 Registered refugees are granted legal recognition under a system known as Amayesh. An Amayesh card proves legal right of residence and entitles the cardholder access to government services, including healthcare and education. However, no new Amayesh card registrations have taken place since 2007, mearning there is no way for post-2007 arrivals to become registered refugees. In 2015, the government ranted Amayesh cardholders’ access to Iran’s national universal health insurance scheme. Access to the latter is on a par with the health insurance package available to Iranian nationals, through the payment of monthly premium fees. Amayesh cardholders are eligible to receive work permits from the government, giving them the legal right to employment. While Amayesh cardholders can move freely within the province in which they are registered, they are subject to restrictions regarding their ability to relocate to other parts of Iran. Refugees are prohibited from residing in specified areas of the country, including Gilan and Mazandaran provinces along Iran’s Caspian Coast. Local sources told DFAT that, in practice, Amayesh cardholders often ignore these restrictions, but, where they do, would find it difficult to find formal employment.
3.167 Registered refugees who choose to leave Iran, including through third-country resettlement, must surrender their Amayesh card and any other Iranian documentation...
3.168 According to government estimates, Iran hosts between 1.5 million and 2 million undocumented Afghans (i.e. who reside in the country illegally, without an Amayesh card or valid visa). This includes an unknown number of undocumented Afghans who regularly move back and forth between Afghanistan and Iran for seasonal employment, trade and other purposes. Undocumented Afghans experience significant disadvantage, and most have to rely on their ability to work illegally to generate income or have to rely on NGOs and informal support (as they are not registered refugees, undocumented Afghans are ineligible for UNHCR assistance)…
3.170 The Ministry of Interior’s Bureau for Aliens and Foreign Immigrants’ Affairs is responsible for refugee affairs, including the issuance of Amayesh cards. The Amayesh registration scheme commenced in 2003 and has been carried out periodically since (with no new registrations since 2007). Amayesh cardholders must reregister annually. As part of the re-registration process, an Amayesh cardholder may add new family members to their registration. Re-registration involves the payment of a fee. According to sources, reregistration is prohibitive financially for many refugees. DFAT is unable to verify if a registered refugee has had their Amayesh card confiscated or been denied re-registration. If such a practice exists, DFAT assesses it is unlikely to be common.
CONSIDERATION
The Tribunal notes that the Policy indicates that the assessment of a person's identity must be conducted through an evidenced-based approach, which seeks to establish a person's identity from birth. Also, the Tribunal cannot be satisfied of a person's identity at one point in time, as a person's identity is not a point in time concept but must be verified incrementally through a person's life and considered historically. When assessing a person's identity, the objective is to determine whether inconsistencies are identified with any aspect of a person's life story, biometric data and documentary information (i.e. an identity card).
Further, the Policy clearly identifies that individuals seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arriving in Australia. In this situation, the Policy articulates that an informed assessment is necessary, based on research of applicable country information and weighed against the evidence provided by an Applicant.
The Tribunal finds the Applicant to be a credible and reliable witness who has provided a consistent life story since her arrival on Christmas Island seeking asylum, through her Visa application and lengthy citizenship process. The Tribunal found the Applicant had provided a cogent and consistent life story of her family life in Iran, her family composition, her meeting and marriage to her husband, fleeing her family out of fear of reprisal for marrying against their wishes and her journey to Australia as an asylum seeker.
The Tribunal finds the Applicant had been consistent in describing herself as an undocumented individual of Afghan nationality by descent, having been born in Iran to Afghan refugees. The Tribunal, relying on DFAT country information for Iran, notes the high proportion of Afghan refugees in Iran who were registered prior to 2015. The Tribunal notes the country information indicates cardholders were registered by family group and this is again consistent with the Applicant’s claims that her father held the “green card” on behalf of the family. The Tribunal notes that DFAT (Iran) Country Information at 3.170 states: As part of the re-registration process, an Amayesh cardholder may add new family members to their registration.
The Tribunal did not consider the Applicant had been misleading in her description of herself as an Afghan citizen as the legal context of this seemed to be beyond her command of the English language.
The Tribunal finds that the Applicant has provided a plausible, cogent and consistent reason as to why she has been unable to obtain any documentation from family or friends to confirm her identity prior to her arrival in Australia. The Applicant’s story of her marriage to her husband, escape from her family, and continuing fear of reprisal to herself and now her growing family has been consistent throughout. There was no evidence before the Tribunal to indicate the Applicant had been in contact with any of her family since she fled her home in 2011.
The Tribunal finds that as a female the Applicant has no ability to gain access to documentation from Afghanistan or Iran to confirm her identity as this would need to be obtained via her father, who the Applicant has a genuine fear of contacting. The Tribunal considers she has, in her limited power, attempted to provide enough information of her identity prior to her arrival in Australia as was open to her. The Tribunal relied upon DFAT country (Afghanistan) information which clearly outlines the systemic discrimination and gender-based violence, including sexual assault and domestic violence which Afghan women experience. The Tribunal finds the Applicant’s in-laws would also not be in a position to provide any documentary evidence of the Applicant’s time in Iran or Afghanistan, as they cannot approach the Applicant’s family nor the authorities as they are undocumented refugees in Iran.
The Tribunal consider the Applicant’s husband’s statement of 15 July 2021 was consistent with the Applicant’s evidence before the Tribunal and affirmed that the Applicant was an undocumented Afghan.
The Tribunal also accepted the statement of the President of the Hazara Shamama Association of Australia dated 5 July 2021 which clearly articulated that:
I can confirm that she is an Afghan national and belongs to the Hazara Shia ethnic group of Afghanistan. I am aware that she was born in Iran but is not considered an considered Iranian citizens by the Iranian governments and laws. In addition, from her facial features and her accent, I can confirm that she is of a Hazara ethnicity and Afghan national.
The Tribunal, having considered all the evidence placed before it, is satisfied of the Applicant’s identity. As such, she should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the delegate dated 3 September 2020, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to

section 43(1)(c)(ii) of the AAT Act, that it is satisfied of the Applicant’s identity.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

.......................[sgd].....................................
Associate
Dated:    23 September 2021
Date of hearing:  19 May 2021
Date of final submissions:  31 August 2021
Applicant:  Self-represented
Advocate for the Respondent:  Mr Thomas Creedon
Solicitors for the Respondent:  Australia Government Solicitors

[2021] AATA 3444

23 September 2021

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