VWPT and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3312

VWPT and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3312 (17 September 2024)
Division:GENERAL DIVISION
File Number: 2023/9182
Re:VWPT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Member
Date:17 September 2024
Place:Melbourne

The Tribunal sets aside the decision dated 8 November 2023 and remits it for reconsideration in accordance with the direction that the Tribunal is satisfied as to the Applicant’s identity.
...........[sgd].............................................................
Dr Stewart Fenwick, Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – national of Afghanistan – identity – biodata matched to different names – multiple visa applications under different names – inconsistencies in declarations made as to name and family composition – life story includes period of adoption – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245
Secondary Materials
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
REASONS FOR DECISION
Dr Stewart Fenwick, Member
17 September 2024
BACKGROUND

VWPT applied on 5 December 2023 for review of the decision of a delegate of the Respondent Minister dated 8 November 2023 refusing his application for citizenship on the basis that they were not satisfied of the Applicant’s identity under s 24(3) of the Australian Citizenship Act (Cth) (the Act).
The Applicant was born in Afghanistan and claims that at a young age he was adopted by a relative, later returning to live with his biological mother. It appears that he was the subject of two applications for forms of humanitarian offshore visa in what appears to have been his adoptive name, and in association with members of the adopting family. He later arrived in Australia in December 2010 as an unauthorised maritime arrival under the name used in a later protection visa application, and in his citizenship application. VWPT married in Afghanistan in late 2018, and has a son born in mid-2019, and these immediate family members remain overseas.
VWPT was granted a protection visa in 2011 and lodged an application for citizenship in mid-2015. He was asked in 2018 to comment on inconsistencies in personal information provided across the various visa applications, responding in mid-2019. It was at this point that the Applicant raised the issue of adoption. He lodged further material in support of his application in 2023.
The Applicant was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (ASFIC), a Statutory Declaration dated 8 July , a Tender Bundle (ATB) comprising statements and other documents, a Titre de Voyage (Exhibit A1), an amended translation for a Marriage Certificate (Exhibit A2), and a map of Khost Province (Exhibit A3).
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and an RSFIC.
VWPT gave evidence at the hearing, and in addition evidence was given by his mother PB (by telephone from Afghanistan), and his aunt SN both of whom had the assistance of an interpreter in the Pashto language.
LEGISLATION
An applicant for citizenship by conferral must satisfy a range of general and specific requirements, and the Act provides that the Minister must make a decision (s 24(1)). However, the Minister must not approve a person becoming an Australian citizen unless satisfied of their identity (s 24(3)).
Identity is not defined in the Act and Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16) has been produced as a guide to this subject. CPI 16 acknowledges that a person’s identity is constructed from various attributes, and that departmental processes are moving toward the use of biometrics in place of documentation [4].
CPI 16 provides that assessment of identity relies upon considering three pillars of identity being biometrics (such as images), documents, and life story [5]. Changes to attributes such as date of birth and name should ideally be supported by official evidence [6], and also provides that in some cases sensitivity should be exercised with some categories of applicant [8]. A life story should be understood as an ‘identity timeline’ [11.2] drawing upon dates provided in application documents. In some cases, such as undocumented persons, including illegal maritime arrivals, one pillar may be given greater weight than others [11.3].
Recent caselaw emphasises that a decision about identity involves reaching a state of satisfaction (on reasonable and rational grounds) that a person is who they say they are, and that attributes (which can change) should not be confused with a person’s identity (BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 (BQG21); and, GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245 (GJDB)).
ISSUES
There is a single issue in this matter which is whether I can be satisfied as to VWPT’s identity.
EVIDENCE
2015 Citizenship application
This application (T3) was made under the name VWPT, with a date of birth recorded in December 1987. The place of birth is identified as town T in Khost Province, Afghanistan. Parents are identified as being: mother – PB, born in January 1961; and, father – SB, born in December 1956. He later identified the following siblings (T5): brother – HB, born 1985, and now deceased; and, sister – RB, born 1983, and living in Afghanistan.
VWPT reported living in Afghanistan until mid-2010 and then spending several months in Pakistan as an illegal entrant, before passing through Malaysia and Indonesia in late 2010. He also declared that he had never been issued with a birth certificate (T3 e)), and that he had lost his Afghani licence (T5 c)).
Following a number of requests for further information and documents, VWPT’s then representative provided an undated statement from the Applicant (T13) in mid-2019. This statement relates:
(a)‘it is very common between close family members to adopt each other’s children for whatever reason …’;
(b)that VWPT grew up with his father AUN, and mother SN, with twin brothers EU, and KU, another brother BAS, and that the Applicant himself was known by the first name Sh;
(c)that AU[N] travelled to Australia in 2001, and six years later brought his wife and the Applicant was included as a dependent child in this application;
(d)that AU[N] made two separate humanitarian visa applications on VWPT’s behalf which were both rejected;
(e)VWPT realised after he grew up that he had not lived with his biological parents and that his father was in fact his maternal uncle, whose son Sh had died and being the same age as the Applicant, VWPT was adopted by that family;
(f)AU[N] managed to obtain a tazkira in the name of his son, ShK, for the Applicant; and
(g)it is impossible to fix his formal identity ‘and I ended up in a real mess as I had two previous cases under humanitarian visa stream under the name of [Sh]… but the reality is my name is [Sa].’
Following further correspondence with a later representative, additional information was provided in 2023 [T19]. It is put in a submission by this representative (T19 a)) that VWPT was not in fact aware of the contents of previous humanitarian visa applications made by his uncle, but accepts that he should have disclosed that he had been known by another name. The submission restates that the Applicant was the subject of a cultural adoption at a very young age and that his mother, PB, later revealed the arrangement to him.
In a Statutory Declaration provided at this time (T19 b)), VWPT states:[1]
(a)his late uncle helped in the preparation of the 2019 statement;
(b)his mother referred to his date of birth by solstices and crop cycles, and he relayed an estimated age on arrival in Australia which was converted into the date in December 1987;
(c)he does not have a tazkira in the name VWPT (corrected in his subsequent declaration);
(d)while he has provided a tazkira in the name ShK, this is not his name, although the document does bear the Applicant’s photograph;
(e)although not aware of the contents of humanitarian visas lodged by his uncle, ‘I can also recall attending a Department interview’; and
(f)the eight year delay in processing his citizenship application has caused a lot of distress and uncertainty, he cannot travel outside of Australia and has been separated from his wife for a long time, and his son does not understand.
[1] VWPT makes corrections to this declaration in his 2024 Statutory Declaration.
A Statutory Declaration of SN was also provided in 2023 (T19 z)) in which she states:
(a)she is the widow of VWPT’s late uncle;
(b)they adopted Sa when he was a young child – ‘a decision that was made with love and a deep sense of responsibility’ after they lost their own beloved child;
(c)this took place with the permission of his parents and in the context of the death of the Applicant’s father and his mother’s financial constraints;
(d)VWPT was raised as one of their own, and was sponsored in an application by her late husband under the name ShKN;
(e)Sa has continued to support her and he is a ‘beacon of compassion, understanding, and love’; and
complexity around his identity has been inadvertently shaped by her late husband.
Finally, I note that this group of documents include a departmental ‘Identity and Biometrics Biographic information comparison report’ (T23). It records that there are identified identity concerns arising from inconsistencies in name, date of birth and family composition across departmental records. This document also confirms that the comparison was based upon an initial match of records by the Facial Comparison team, confirmed by a forensic officer.
2011 Protection visa
This application (T24 a)) was made in the name VWPT, and with the same family composition provided in his citizenship application. In a Statutory Declaration made at Christmas Island Immigration Detention Centre (T24 e)), he states that he sought the assistance of his uncle to flee Afghanistan after his brother was killed by the Taliban.
Notes of VWPT’s arrival interview in December 2010 (T25) indicate that he used his current name, and was born in town T in Afghanistan. The Applicant apparently claimed to have had a tazkira which was destroyed on the advice of a people smuggler. Family composition is consistent with the protection visa application. VWPT also apparently stated that the passport used for travel was retained by the smuggler, and he did not see the document other than to be able to describe it as green.
2009 Offshore Humanitarian visa
This application (T30 a)) was made in the name ShK and was accompanied by a photograph of VWPT (T30 e)) and a tazkira (T30 e)) in that name, also with a photograph of the Applicant. The date of birth listed is a date in December 1987, with the birthplace Peshawar, Pakistan. Despite this information, the document also records the visa applicant as having Afghan nationality and refugee status in Pakistan, arriving in that country in 2001 (T30 a), 440).
Family composition in this application is as follows: father – AN; mother – SN; and, brothers – AN, BN, and KN. The application notes that ShK was the subject of a prior visa application, with AN identified as the proposer. It also notes that SN was successfully sponsored and granted entry to Australia, and that AN and SN are resident in Australia.
The residency history of the visa applicant is confusing, appearing to describe time in Afghanistan until 1987 (given the date of birth presumably meant to indicate residence from 1987), and residence in different locations in Pakistan between 2001-2011 (T30 a), 450).
This application was refused on the grounds that the applicant was not considered to meet relevant criteria and there were no compelling reasons to giving special consideration to its grant (T31).
2006 Humanitarian (Split Family) visa
This section of the materials includes correspondence from a representative (T26 a)) and two separate forms: Form 681 Refugee and special humanitarian proposal, dated in March 2006 (T26 b)); and, Form 842 Application for offshore humanitarian visa, also dated in March 2006. Both documents identify AN as the proposer and the subjects of the application as SN and ShK. The application can also be linked to VWPT by its use of a photograph of the Applicant attached to a police clearance certificate (T26 h)).
The latter document includes a statement by SN seeking to correct information apparently given by AN as to the correct age of ShK (T26 d), 402) and a long list of siblings of the Applicant’s spouse, none of which appear to be VWPT’s mother (T26 d), 396).
The covering correspondence makes a number of points including: the age of ShK and all other relatives are incorrect, due apparently to AN’s mental state upon interview; a birth certificate for ShK (T25 g)) provides a date of birth in December 1987; there is an absence of documentation to support the claimed family relationships; and, ShK is identified as a dependent child of AN, and is also described as wholly or substantially reliant on his mother for his entire life.
The materials also appear to provide a residency history for ShK largely similar to that in the 2009 visa application (T28). The application was refused in respect of ShK on the same grounds as the 2009 application (T29).
Written statements
In his 2024 Statutory Declaration, VWPT states (in summary):
(a)he does not have a physical copy of the tazkira bearing his name (clarifying an earlier statement that he had no such document), and has had two such documents issued in the past [3]-[5];
(b)a prior statement that taking the identity of ShK meant that he thought AN and SN were his parents, and that AN called him by that name from time-to-time both in Afghanistan and Australia, but was asked not to do that by PB and SN [6];
(c)he travelled to Pakistan in 2017, obtained his second tazkira during a trip to Afghanistan in 2018 (noting the document states that it was issued in 2017) and married his wife at this time, and the document was lost some time after it was obtained [11]-[13], [20];
(d)he does not recall the process in which his first tazkira was obtained in or about 2010 and he believes there is an error in the dates of the second, and he personally made the application [21]-[29];
(e)he also arranged the issue of his marriage certificate, and had it and the tazkira verified in Kabul [29]-[30];
(f)he does not know why his uncle failed to list his mother PB in the visa application [34];
(g)he did not know the use of the alias ShK was something he should disclose, and is not sure what happened to the tazkira in this name but obtained a copy from his uncle [35]-[37];
(h)he did not disclose that he had relatives in Australia upon arrival as the people smuggler said not to involve others in his case [39];
(i)information in both the 2006 and 2009 visa applications is incorrect and he has not previously seen them, and had he seen them he would have raised the issue, and assumes his uncle was trying to help him [41]-[46];
(j)he lived in Afghanistan from birth until 2010 and cannot remember if he had visited Pakistan as a child, he attended a mosque briefly for religious studies and worked on the family farm [47]-[51]; and
(k)his uncle arranged passage to Australia and took him to Pakistan, crossing illegally, thereafter travelling on a false passport [53]-[56].
The Applicant lodged what I understand to be the second of his tazkira (ATB15). This document was issued in October 2017 (as noted) and describes VWPT as aged 29 years old in 2016/2017. VWPT also lodged the marriage certificate (ATB16) and there may be an error in the cross reference made to the source identity particulars as one digit in the Series No. is different to that in the tazkira. Date of marriage is listed as in July 2018.
Movement records lodged by the Applicant (ATB17) indicate that he was in fact out of Australia between September 2017 and December 2017, and again between June 2018 and December 2018.
In a statement translated into English, dated 5 June 2024 (ATB1), the Applicant’s mother PB states:
(a)she is a widow, her husband passed away when the Applicant was a baby and their life ‘was not good’ at this time, and confirms that she is VWPT’s biological mother [3]-[5];
(b)around this time AN’s son ShK also passed away and because of this she gave VWPT to her brother [6];
(c)VWPT was around two and a half years old when this happened, and about seven or eight years of age when PB told him that he is her son, and that he was to come back to live with her [7]; and
(d)AN had a lot of love for VWPT and used to call him ShK, and she told him not to use that name [8]-[9].
In a statement translated into English, dated 24 June 2024 (ATB3), SN states:
(a)with reference to her previous statement, she is not aware what her late husband included in Australian visa applications [4];
(b)the cultural adoption of VWPT took place because ‘his father passed away and because his mother was poor and unable to look after him’, it took place some time before the Applicant was two, and he lived in her home between the age of three and five [7]; and
(c)she recalls her late husband sometimes calling the Applicant ShK and she was not happy about this, and she herself has never used that name for VWPT [7]-[10].
I note some relevant matters arising from the numerous additional statements lodged:
(a)VWPT’s wife declares (ATB2) that she lives with the Applicant’s mother in Afghanistan and that PB has shared with her matters disclosed in PB’s statement;
(b)a mutual friend of AN and VWPT states (ATB4) that he heard AN speak of VWPT by that name, and that he travelled to Afghanistan after AN’s death and met the Applicant’s mother, wife and son;
(c)a friend of the Applicant states (ATB5) that they are aware of VWPT’s adoption as a child, including from their dealings with AN, and because it is well known between their families and is talked about in the community;
(d)another friend (ATB6) confirms knowing about the matter from their dealings with AN, and confirms their understanding of a cultural practice in which assets, including persons, go to the paternal side when the head of the family dies;
(e)a former Governor of VWPT’s home district (ATB9) states that they are aware of the cultural practice of a paternal uncle stepping up to help a child when their father has died, and that they are aware that AN did this for VWPT.
In addition to a number of other statements attesting to the link between AN and VWPT, many statements attest to the Applicant’s high standing and good character, and this is also the view of a number of character witnesses from the community.
Oral evidence
In his evidence VWPT stated that in 2013 he attended the office of his then representative with his uncle who ‘told them what happened’ and that the Applicant did not read his undated statement at the time it was made. VWPT said that the statement he did not have a tazkira was not correct, and he confirmed that he obtained one in Afghanistan in 2018. The Applicant denied that his identity in Afghanistan was ShK, and denied taking the steps indicated in the statement to obtain a tazkira.

With respect to his 2023 declaration, VWPT stated that he does not know ShK’s birthday despite it being identified as on a day in December 1978. The Applicant stated he believes this to be a mistake, and there is not much of a gap with his own birthday. He acknowledged taking on ShK’s name, but denied this was his legal identity.
VWPT stated that he knew the two humanitarian visa applications had been lodged on his behalf, but did not know upon arrival in 2010 what was happening with them. When asked whether he knew these prior applications were in the name ShK the Applicant responded ‘how’? He stated he did not know about how the applications had been made. VWPT was shown the signature on the 2009 application as well the applicant’s name at another point in the form (both in traditional script) and denied that it was his, saying ‘I do not have such beautiful writing’.
In cross-examination, the Applicant was given an opportunity to explain apparent inconsistencies across his various statements. In essence, VWPT stated that he was ‘here today to tell the truth’, and his representative knew that he did not have a good memory. VWPT was also asked about his familiarity with prior visa applications, and references made to ShK. He denied that this was a reference to him and denied familiarity with the forms in question.
I sought to clarify VWPT’s education and literacy levels. He confirmed that he received no formal schooling and was unable to read and write in English or Pashto before coming to Australia.
VWPT confirmed that he did not refer to his adopted name ShK upon arrival in Australia, following the advice of the people smugglers. He stated that it was ‘hard to present this information’, that he was nervous, and feared deportation. The Applicant also acknowledged not revealing that he had relatives already in Australia. When pressed further about what he knew about prior visa applications, VWPT stated that in 2009 he was called for an interview. I sought further details about this which VWPT appeared unable or unwilling to respond to directly, stating that it was a long time ago. He did confirm that he was in Afghanistan when called for interview and his uncle took him for the interview. VWPT stated he could not recall where it took place but it was in Pakistan and he remained there for a few days.
When asked further about his arrival interview in 2010 and why he did not declare having been the subject of prior visa applications, VWPT responded that he did not know what to say, nor the details. When taken to his protection visa application lodged from Christmas Island, VWPT could not recall whether he had been specifically asked the question on the form about being known by any other names.
VWPT was then taken to his citizenship application and again asked why he had not declared being known by another name. The Applicant replied ‘with sincere apologies you are emphasising something that is not correct, I am [VWPT], why are you insisting … to accept a name that is not mine’? He also replied in this passage of evidence twice that he had been at risk of harm when travelling to Australia.
The Applicant was also asked to explain why he denied having national identity documentation when applying for citizenship. He responded that he did not have it in his hand at the time, and that is why he could not lie.
Additional questions from both representatives about the Applicant’s recollection of his adoption did not generate further helpful information.
Despite some brief technical challenges, evidence was taken from PB by telephone from Afghanistan. In summary, she confirmed the adoption narrative, stating that VWPT went to live with her brother before he could speak, and that he could speak when he returned.
Evidence was also given, in person, by SN. She also confirmed the adoption narrative and was unable to recall anyone other than her late husband calling the Applicant by the name ShK. SN stated that the Applicant was six or seven when he came to know about the arrangement.
CONSIDERATION
It was submitted for the Applicant that despite his photograph being associated with documents bearing different identities, the more compelling evidence is to the effect that he is VWPT. In short, the identity ShK was built up for the purpose of prior visa applications. The positive evidence for his identity is found in the consistent narrative about his life story. Notwithstanding uncertainty about his date of birth, he is the son of PB and has been known as VWPT since arrival in Australia; this is not a contrived story. Witness statements support the view that the uncle AN may have referred to the Applicant by the other name, but no witness knows him by that name. In the ASFIC, it is contended that two of the statement writers have knowledge of the family circumstances of VWPT from either living in, or visiting Afghanistan [25]-[26].
It was contended that the evidence demonstrates that VWPT did not know the contents of the two prior visa applications, but had some knowledge of them. The Applicant’s representative acknowledged that VWPT attended an interview in relation to the 2009 application, which was explicable by the context being his uncle’s efforts to help. It was also contended there was a lack of rigour around the 2019 statement, but this was an opportunity to refer to his identity as VWPT since he had already obtained a tazkira. It was also submitted that documents in this matter generally do not assist.
It was also acknowledged that there may be some matters of credit arising including: VWPT’s failure to disclose family upon arrival in 2010; not disclosing his association with the name ShK; and, not disclosing prior visa applications. Ultimately, it was contended that even should VWPT be considered to have been dishonest, this did not prevent the possibility of a finding as to identity. A decision does not rest on the Applicant’s evidence alone, but on wider corroboration – especially his mother and aunt.
For the Respondent it was submitted that the existence of official documentation in the name ShK and bearing VWPT’s photograph was difficult to reconcile with his current life story. Further, the Applicant’s evidence about the 2009 visa application was difficult to reconcile with his participation in an interview under the alternative name, which inference is open on the evidence.
It was acknowledged that cultural adoption is a common practice but documentary evidence undermined the claimed family relationship, and there was no reason in fact why this issue could not have been raised prior to 2019. Moreover, none of the wider group of deponents of statements had direct knowledge of the adoption. It was submitted that the evidence about identity documents is unsatisfactory, including the failure to acknowledge or produce until recently. The state of documentation, it was contended, raises uncertainty about the life story advanced.
I note the RSFIC identifies specific examples of the claimed inconsistencies in documentation [25]. Particular matters arising from various documents are also cited as supporting the contention that the adoption narrative is unreliable [29]. Other specific inconsistencies said to have been made verbally and in forms are identified [30].
It is important to recall that this matter is solely about identity. I accept that matters of consistency and reliability of evidence and overall credibility can influence a decision. Indeed, there are matters arising here that require some proper reflection and consideration.
There is little doubt that the use of VWPT’s photograph on multiple documents with different names is a serious matter. I consider that the Applicant himself can only safely be associated with the production of the latest tazkira, and his failure to declare or rely upon this until very recently is perplexing.
I did not find VWPT’s evidence about the prior visa applications to be particularly strong. However, overall, I consider these to be best understood as the initiative of his late uncle. I accept that VWPT had at the time of these applications little to no formal education and limited literacy in either his native language or English – and this matter was not contested. On this basis I cannot visit upon him responsibility for the information included – some of which is, in any event seemingly internally contradictory on its face.
Specifically, I identified what appears to be potentially inconsistent data in the 2009 visa application form (at [21] above). As noted, the Applicant was also taken to examples of traditional script in the form in evidence and denied signing the form. I also point out that there appear to be possible variations in these two pieces of script which make it challenging to determine whether they are in fact representing the same name.
That said, I do consider that the inference properly arises that VWPT travelled to Pakistan to be interviewed in association with the 2009 application, and did so assuming the name ShK.
Given his status as an illegal maritime arrival from a country in conflict, I am able to adopt latitude and sensitivity to interpreting evidence, and to place some weight on life story. For these reasons I do not consider VWPT should be harshly judged for apparent gaps in critical information in his arrival interview, and the subsequent protection visa application.
Moreover, I consider the evidence overall allows me to accept the adoption narrative. Notwithstanding some ongoing minor gaps and inconsistencies such as VWPT’s date of birth and the duration of the adoption, I find the witnesses at the hearing to have given broadly consistent and compelling accounts. This is, furthermore, generally supported by the wider body of material.
Drawing on the recent authorities noted above, I consider that I can make the finding that, put simply, VWPT is who he says that he is. I consider the Applicant’s contention to also be broadly correct, limited weight should be put upon the various inconsistent documents when compared to the oral life story advanced.
DECISION
For the reasons given above the Tribunal sets aside the decision dated 8 November 2023 and remits it for reconsideration in accordance with the direction that the Tribunal is satisfied as to the Applicant’s identity.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Member

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Associate
Dated: 17 September 2024

Date(s) of hearing: 15 and 16 July 2024

Solicitors for the Applicant Carina Ford Immigration Lawyers

Counsel for the Applicant Mr Kenneally

Solicitors for the Respondent Australian Government Solicitor

Solicitor for the Respondent:

Ms Baras-Miller

Date(s) of hearing:	15 and 16 July 2024
Solicitors for the Applicant	Carina Ford Immigration Lawyers
Counsel for the Applicant	Mr Kenneally
Solicitors for the Respondent	Australian Government Solicitor
Solicitor for the Respondent:	Ms Baras-Miller