X1 and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 48

X1 and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 48 (2 February 2016)

Division

General Division

File Number

2015/4523

Re

X1

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

File Number

2015/4525

Re

X2

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	2 February 2016
Place	Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

CITIZENSHIP – applications for citizenship by descent – whether satisfied of the identities of the applicants – whether satisfied applicants had a parent who was an Australian citizen at the time of their birth – insufficient evidence of biological parentage – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 16, 17

CASES

Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178

Jones v Dunkel (1959) 101 CLR 298

SECONDARY MATERIALS

Australian Citizenship Instructions, Department of Immigration and Border Protection National Office, 1 July 2014

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

2 February 2016

INTRODUCTION

1. This matter concerns two applications for review of decisions of the respondent, the Minister for Immigration and Border Protection (“the Minister”), to refuse to approve the Applicants, twin siblings, X2 and X1 (“the Applicants”), becoming Australian citizens by descent pursuant to Subdivision A of Division 2 of Part 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”).[1]

   [1]           The Tribunal determined to hear the applications of each of the twin siblings (Tribunal references            2015/4523 and 2015/4525) together given their close interrelation and the identical nature of the           evidence to be considered in each. 

2. The applications for citizenship the subject of these proceedings were made on 17 May 2015. The applications were refused on 5 August 2015 by a delegate of the Minister on the basis that the delegate was not satisfied the Applicants had a parent who was an Australian citizen at the time of their birth. On 28 August 2015 X5 (“X5”), on behalf of the Applicants, applied to the Tribunal for review of the decisions to refuse the applications.

3. According to the identification documents provided to the Tribunal the Applicants are twins, both having been born on 5 June 2009 in Kabul, Afghanistan. It is undisputed that X5, the purported father of the Applicants, was an Australian citizen as at that date. The Minister, however, considers there is insufficient evidence to be satisfied of the identities of the Applicants, nor of X5’s biological parentage of them.

   LEGISLATION

4. Section 16 of the Act sets out the eligibility requirements for individuals applying for citizenship by descent. Relevantly, s 16(2) provides as follows:

   A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

   (a)a parent of the person was an Australian citizen at the time of the birth;

   ...

5. Further, Sections 17(1A), (2) and (3) of the Act provide the following in relation to the Minister’s approval of applications for citizenship by descent:

   (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

   (2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

   (3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

   CONTENTIONS

   X5’s contentions

6. X5 gave evidence that in September 2008, at the age of 16, he travelled to Afghanistan for the primary purpose of getting married. The marriage was arrange by his family and his mother and sister travelled with him for this purpose. X5 and X4 (“X4”) were married in Kabul on 20 September 2008.[2] Their marriage was registered on 8 October 2008. X5 asserts that shortly after his marriage to X4, he entered into a second religiously approved marriage with X3, the purported mother of the Applicants (“X3”). This marriage was not registered. X5 contends that within two and a half weeks of his marriage to X4, he conceived the Applicants with his second wife, X3. X5 contends that X4 did not at the time know of his second marriage, as X3 was from a separate tribal community in Afghanistan. 

   [2]           Exhibit A, T documents, page 173; Exhibit A, T documents, page 176; Respondent’s written closing          submissions, exhibit L.

7. X5 learnt that X3 was pregnant with the Applicants when she phoned him three to four months after his return to Australia in October 2008. He did not tell X4 at that time. X4 learnt of the news of the pregnancy through exchanges between Afghan communities related to her and X3. X5 states that he is no longer married to X3. He stated in oral evidence that they were “pretty much divorced”, though details of the process and/or date of their divorce were not provided, other than a statement that it “involved tribal elders”.

8. X5 states that he has provided financially for X3 and the Applicants since before their birth: “my children have solely and entirely been financially dependent upon me before and after they where [sic] born and up until now. I have transaction records to prove that I have been sending money to Afghanistan to support them for along [sic] time”.[3] X5 provided Western Union transaction records for the period 2013 to 2015 stating that Western Union does not retain records earlier records than this. These records show various payments being made from X5 to individuals in Afghanistan.[4]

   [3]           Exhibit A, T documents, page 12.

   [4]           Exhibit A, T documents, pages 16 and 17.

9. In support of this X5 provided a statutory declaration from  X6 dated 7 September 2015 stating, among other things:

   On a regular basis I received money from X5 to support X3. This was sent through a Hawala service and I would pick the money up and would give it to X3. He would send money on roughly a monthly basis and would also send money on request for any pre-natal care that was required for X3 up until the birth of the children and even he sent a lot of money for special care because X3 the mother of his children needed extra financial support because she was having twins. Even after the birth he Financially supported X3 And X1 & X2, he’s [sic] children constantly up until now.

   …

   X5 has been financially supporting X3 before the children were born, up until they were born and after the children where [sic] born, he has been the sole provider for X1 and X2 and even X3 and currently still is. The mother has no means of income whatsoever and no support from anywhere else. X5 has been paying the full costs of medical treatment, general day to day care etc.[5]

   X5 declined to call X6 to give evidence at the hearing.

   [5]           Exhibit K.

10. X5 did not travel to Afghanistan at any time during X3’s pregnancy. He spoke to her regularly by phone. X5 gave oral evidence that he visited the Applicants in 2009 when he went to Afghanistan for one day to accompany X4 to Australia. The statutory declaration of X6 dated 7 September 2015 referred to above also contained a statement that “I saw X5 in 2009 and personally drove him to see X1 and X2 his children for the first time”.[6] He also visited them between April and July 2013 when he travelled to Afghanistan with X4. He did not stay with X3 and the Applicants, but rather he invited them to stay with him on various nights at X4’s parents’ home. No documentary evidence was provided (for example, photographic) of X5 having contact of any kind with the Applicants since their birth. When asked whether he could provide any photographs of himself with the Applicants X5 indicated that his laptop had recently been damaged and he had lost any photographs he may have had. He also indicated that X4 did not have any such photographs, “because it is Afghanistan”.

    [6]           Exhibit K.

11. X5 provided the Respondent and the Tribunal with copies of several “identity documents” in relation to the Applicants. These included:

    (a)Scanned copies of the Applicants’ Afghan passports;[7]

    (b)Tazkira certificates (Afghanistan identity documents issued by the Ministry of Interior) for each of the Applicants issued on 16 April 2015;[8]

    (c)A second set of Tazkira certificates for each of the Applicants issued on 2 July 2015;[9]

    (d)Birth certificates for the each of Applicants;[10] and

    (e)Birth registration cards for each of the Applicants.[11]

    [7]           Exhibit O.

    [8]           Exhibit A, T documents, pages 66-67 and 88-89.

    [9]           Exhibit A, T documents, pages 121-123 and 127-129.

    [10]          Exhibit A, T documents, pages 65 and 87.

    [11]          Exhibit A, T documents, pages 126 and 132.

12. X5 gave evidence that X1 was suffering from serious medical conditions and required urgent first world medical treatment unavailable to him in Afghanistan. This, he said, was the reason for his application for citizenship in Australia for the Applicants, and was also regularly cited throughout the proceedings as the reason why the applications must be expedited. In support of this X5 provided a medical certificate/letter from Dr Toryalay Ahmadzai of the Indira Ghandi Hospital dated 13 May 2015. The letter stated, among other things, that X1 had been a patient for the past three years and has been diagnosed with a rare form of cancer (Chronic Lymphocytic Leukaemia) and expressed support for X1’s “application for special consideration in regards to his citizenship application”.[12] This document was later found by the Respondent to be inauthentic. Verification results from the Identity Document Checking Unit of the Afghan Ministry of Interior provided:

    The information obtained from Indragandi Hospital, the health certificate belonging to X1 s\o X5 is not registered within this hospital nor a Doctor named Touryalai Ahmadzai works here.[13]

    This finding was not disputed by X5.

    [12]          Exhibit A, T documents, page 70.

    [13]          Exhibit A, T documents, page 167.

13. By letter of 25 May 2015 the Respondent made an offer to X5 for DNA testing for the Applicants. A number of subsequent offers have been repeated since that time. To date this has not been completed. X5 asserts that he is willing to accept the offer of testing, but that testing has not been possible for logistical reasons. I will refer to this in some detail later in these reasons.

    The Respondent’s contentions

14. The Respondent contends that X5 did not provide sufficient evidence to establish parentage of the Applicants. This is contended on four key bases:

    (a)there is insufficient evidence of the circumstances surrounding X5’s purported conception of the Applicants;

    (b)there is insufficient evidence of X5’s relationship with the Applicants (and with their purported biological mother, X3);

    (c)the Applicants’ identification documents are of limited reliability given the process by which such documents can be obtained by individuals in Afghanistan and the number of discrepancies contained therein; and

    (d)an adverse inference should be drawn from X5’s refusal to accept the offer of DNA testing by the Department of Immigration and Border Protection (“Department”)

    Evidence surrounding conception

15. The Applicants’ identification documents indicate that they were born on 5 June 2009 in Kabul, Afghanistan. The Respondent contends, therefore, that the Applicants would have likely been conceived in around early September 2008. According to the Department’s movement records, X5 was only in Afghanistan between 18 September 2008 and 9 October 2008. X5 accepts that the reason for this travel was to get married, and that his mother and sister travelled with him to Afghanistan for the marriage. X5 was married to X4 on 20 September 2008, and resided with X4’s family thereafter. Following his marriage to X4, X5 contends that before returning to Australia he entered into a second marriage with X3 which resulted in the conception of the Applicants. These circumstances, the Respondent contends, leave only a small window of opportunity for X5 to conceive the Applicants in Afghanistan.

16. The Respondent pointed to the lack of corroborating evidence which supports his relationship with X3 and asserted that the oral evidence given by X5 at the hearing regarding his marriages and continuing relationships with X4 and X3 was vague, evasive and inconsistent. For example, the Respondent noted, X5 initially claimed that his first marriage was “just a simple marriage contract” and occurred “very quickly”, he then later conceded this was not accurate when shown a letter he had authored in support of X4’s visa application which stated “At our wedding ceremony many of our family and friends from both sides attended. It is normal in our culture to have a big feast on that day and it is custom to invite all relatives.”[14]

    [14]          Respondent’s written closing submissions, exhibit L.

17. X5 initially claimed that his ceremony with X3 occurred shortly after his first marriage, without disclosing that he was in fact living with X4 at her parents’ residence at that time. When shown his letter of 3 November 2008 referred to above which stated as such, he was unable to reconcile it with his oral evidence, and instead claimed that he “moved out very quickly” to commence his relationship with X3.

18. X5 gave evidence that X4 did not know of his second marriage to X3 as she was from a “separate tribal community”. He gave evidence that X4 learned of X3’s pregnancy through word of mouth within Afghan communities. However, X4 was not called as a witness and could not be questioned on these assertions.

    Evidence of relationship with the Applicants

19. The Respondent contended that there was insufficient evidence of a parental relationship between X5 and the Applicants leading up to, and following, their birth for the following reasons. X5 accepted that he did not spend any time with X3 while she was pregnant, and as such did not provide any assistance with pre-natal care and arrangements. He was not present for their birth. There is no direct evidence (documentary, photographic or otherwise) of X5 spending time with the Applicants since their birth. Since the Applicants’ birth, departmental records show that X5 has left Australia on only two occasions: for two days in November 2009 and for three months in 2013.

20. In relation to the first trip X5 concedes that the purpose of the trip was to accompany X4 back to Australia. He was in Afghanistan for less than one day. The Respondent contends it is implausible that upon arriving he travelled to visit the Applicants for the first time and spent less than one day with them before returning to Australia; there is no credible evidence to support this taking place.

21. In relation to the second trip X5 gave evidence that he travelled with X4 to Afghanistan, and again stayed at her parents’ home. X5 asserts that the Applicants frequently stayed with him at X4’s parents’ residence during their stay. There was no evidence provided (witnesses, photographic, documentary) to corroborate this version of events.  

22. The Respondent also noted that in the statement by X5 that accompanied his application for review he discussed the nature of the relationship between himself and the Applicants and in relation to visitation stated:

    I visited them in the month of November 2009 for a short trip. But couldn’t stay long as I feared for my safety/illness and didn’t have a proper place to stay.[15]

    The Respondent pointed to this statement’s seemingly deliberate failure to disclose that he in fact spent less than one day in Afghanistan, and that the purpose of the trip was to accompany his first wife back to Australia. The Respondent further noted that no mention was made of the alleged substantial 2013 visit in this statement.

    [15]          Exhibit A, T documents, page 12.

23. It is the Respondent’s contention that the only evidence provided of any relationship or connection to the Applicants were the Western Union statements evidencing the transfer of funds to various individuals in Afghanistan[16] and the statutory declarations of X6 and X7.[17] The Respondent submitted that the Western Union statements only provide evidence of the transfer of funds by X5 to individuals in Afghanistan, and in no way demonstrate that the funds were received by X3 or applied to the Applicants. The Respondent also submitted that evidence of transfers was only provided for the period 2013-2015 and that it was unlikely that Western Union did not retain any earlier records as X5 suggests.

    [16]          Exhibit A, T documents, page 16-17.

    [17]          Exhibit K.

24. The Respondent also submitted that the two statutory declarations,[18] both of which refer to the passing on of funds from X5 to X3, should be given little or no weight. This was submitted on the basis that despite the Respondent’s request that the deponents be made available for cross-examination, X5 declined to call them to give evidence. The Respondent was therefore unable to test their evidence, and the Tribunal unable to make an assessment as to credibility. X5 did not provide an explanation for their unavailability, despite the fact that X7 is unemployed and X6 a taxi driver and both men reside on the Gold Coast.

    [18]          Ibid.

    Identity documents

25. The Respondent contends that the Applicants’ identification documents are of limited reliability and therefore are not sufficient on their own to establish the Applicants’ parentage or their identities.[19] The Respondent provided evidence, through witness Ms Lauren Egan, a Senior Migration Officer at the Department of Immigration and Border Protection in Dubai, that an individual in Afghanistan can request an amended Tazkira or other document to be issued by simply presenting themselves at the relevant office accompanied by a witness who attests to the changes requested to be made to the document. Ms Egan also gave evidence that the lack of centralised offices and registries in Afghanistan means that an individual can obtain amended identity documents for a fee without scrutiny.

    [19]          Respondent’s written closing submissions page 5, paragraph 14.

26. The Respondent also took issue with a number of discrepancies and inconsistencies within the documents provided. In relation to the identity documents provided the Respondent provided a witness statement from Ahmad Shah, an Integrity Officer at the Department of Immigration and Border Protection in Dubai.[20] Mr Shah reviewed copies of the first and second set of Tazkira (in both the Dari and translated English versions) as well as the birth certificates of the Applicants. In summary, that statement provided the following observations:

    (a)On the first set of Tazkiras the word ‘Duplicate’ appears. This indicates that the Applicants each previously held an earlier Tazkira. Tazkiras are only reissued in Afghanistan if a person loses a Tazkira, or changes are made to their records. No evidence has been provided by X5 as to the reason for the issue of the duplicates, nor have the earlier Tazkiras been provided.

    (b)The first set of Tazkiras was issued on 17 May 2015 and the second set on 17 July 2015. It is highly unusual in Afghanistan for children to be reissued Tazkiras by the same Population Registration Office within the space of three months.

    (c)Although the first and second sets of Tazkiras state they were issued from the same office, they have different stamps across the photographs of the Applicants and the signatories are different.

    (d)The first set of Tazkiras each included the Applicants’ mother’s name. The Paghman Registration office does not ordinarily include mothers’ names on Tazkiras.

    (e)The number stamps on the first set of Tazkiras are consecutive whereas the number stamps on the second set are not. This is unusual given the second set appear to have been issued at the same time, on 2 July 2015.

    (f)Both X1 and X2’s birth certificates contain the same birth registration number. It is contrary to standard practice in Afghanistan for two individuals to have the same registration number, even where they are twins.

    [20]          Exhibit W.

    DNA Testing

1. The Respondent has made various offers for DNA testing to X5 since 25 May 2015.[21] The Respondent contends that an adverse inference should be drawn from X5’s refusal to accept the offers of DNA testing made by the Department both prior to, and following, the original decision of the Respondent’s delegate. The Respondent acknowledged that the Applicants’ location in Afghanistan makes it more difficult to submit to DNA testing than in other countries. However, the Respondent asserts that it made special arrangements to facilitate the testing and advised X5 of these. The Respondent submitted that DNA testing was feasible in the circumstances, and that X5 deliberately avoided submitting to testing, and as such an adverse inference is justifiable. Outlined below is a summary of the circumstances surrounding the proposed DNA testing as contended by the Respondent:

   [21]          Exhibit A, T documents, pages 94-97.

   (a)On 17 June 2015 the Department took steps to confirm with the panel doctor at the International Office of Immigration Kabul (“IOM”), Dr Assir, that DNA collection from one or more of the Applicants could take place at his clinic. The Department wrote to Dr Assir confirming that the DNA sample collection could proceed, and that the Australian laboratory selected by X5 would need to be advised to send the sample kit to the Australian Consulate General in Dubai.[22]

   (b)The Department offered to test only X2 in light of X1’s medical condition.

   (c)On 22 June 2015 Dr Assir provided written confirmation that he would be able to collect the samples.[23] X5 was informed by the Department that the IOM could facilitate DNA collection.[24] By emails on 1 July and 14 July 2015, the Department requested X5 keep it updated as to how arrangements for the sample collection from X2 were progressing.[25]

   (d)On 16 July 2015 X5 informed the Department that he had decided not to arrange for X2 to travel to Kabul to submit to testing as the Department had “called off the DNA sample collection”.[26] The Department denies the sample collection was ever called off.

   (e)In response to further claims from X5 that DNA collection in Kabul was not possible, the Department again advised by email dated 23 July 2015 that a process for collecting DNA from X2 at the IOM clinic had been confirmed.[27]

   (f)On 25 July 2015 X5 emailed the Department asserting that he had spoken with Dr Assir of the IOM clinic who had advised him that sample collection at the clinic was not possible.[28] The Department contacted Dr Assir the following day. The Department recorded Dr Assir indicated that “[X5] only wanted to hear that the DNA testing cannot be done in Kabul. Dr Assir explained to him that there is no formal process in place yet, however the DNA sample collection can be done for any exceptional case if and when required”.[29] Dr Assir again confirmed that the IOM clinic was able to facilitate the collection from the Applicants by email on 27 July 2015.[30] This confirmation was provided to X5.

   (g)X5 continued to assert that the collection process was not possible and that various laboratories he had spoken with have confirmed that to be so. By an email of 28 July 2015 the Department asked X5 whether the laboratories he contacted were aware of the Department’s proposed process for the collection and testing of the samples (i.e. that the sample collection kit was to be forwarded to the Australian Consulate General in Dubai and then physically transported to Kabul by a Department officer).[31]

   (h)X5 provided no evidence of the content of his conversations with any of the DNA laboratories, including any evidence of his having explained the process proposed by the Department. X5 provided one email from EasyDNA dated 1 August 2015 indicating testing in Kabul was not possible.[32] However, there is no indication EasyDNA were informed of the proposed process.

   (i)By letter dated 11 September 2015 the Department made a further offer of DNA testing to X5. The letter addressed X5’s concerns regarding the process and confirmed the process was feasible and could be completed in a relatively short timeframe.[33]

   (j)X5 refused this offer on the basis that the testing process would take too long in light of X1’s medical condition, and the matter would be resolved more expeditiously if the hearing listed for 29 September 2015 proceeded without DNA evidence. The Department indicated that it would do everything in its power to ensure that the collection and testing took the least possible time, and offered to facilitate X1l’s travel to Australia as quickly as possible in the event of favourable test results. The Department indicated to X5 that DNA testing would only likely delay the resolution by a few weeks. X5 still did not accept this offer and sought to raise additional obstacles to the collection process – such as querying whether a DNA sample is able to pass through customs and again contacting laboratories to query the feasibility of the process.

   [22]          Exhibit A, T documents, page 147-148.

   [23]          Exhibit A, T documents, page 155-156.

   [24]          Exhibit A, T documents, page 112-113.

   [25]          Exhibit A, T documents, pages 111 and 118.

   [26]          Exhibit A, T documents, page 116.

   [27]          Exhibit A, T documents, page 137.

   [28]          Exhibit A, T documents, page 136.

   [29]          Exhibit A, T documents, page 151.

   [30]          Exhibit A, T documents, page 138.

   [31]          Exhibit A, T documents, pages 144-145.

   [32]          Exhibit A, T documents, page 165.

   [33]          Exhibit A, T documents, page 205.

2. X5 also cited his inability to arrange for X2 to travel from the Wardak Province to Kabul for a collection appointment as an additional reason for declining the offer of DNA testing. The Respondent contends that little weight should be attributed to this as there was no evidence provided in support of those assertions. The Respondent also submitted that as the Applicants would be required to travel to Kabul if they were ultimately granted citizenship, any obstacles to their travel must be capable of being overcome.

   Applicants’ Identities

3. The Respondent contended that in light of the number of discrepancies in the identity documents, and the process through which such documents can be amended the Tribunal should not be satisfied of the Applicants’ identities. The Respondent also submitted that there was a real possibility that the Applicants are the siblings of X5’s wife, X4. This was based on the following information which was provided by X4 in the documents supporting her application for a provisional partner visa which was lodged in November 2008:

   (a)In response to Question 38 (“All your brothers and sisters”) on the form “Application for migration to Australia by a partner” dated 20 October 2008 she recorded the following siblings (amongst others):

   ·“X1” (DOB: “3 month”);[34]

   ·“X2” (“DOB: 2008”);[35]

   (b)In response to question 21 (“about your brothers and/or sisters”) on the form “Personal particulars for character assessment” dated 20 October 2008, X4 recorded the following siblings (amongst others):

   ·“X1” (DOB: “3 months”);[36]

   ·“X2” (DOB: “3 months”).[37]

   When taken to the above information during cross-examination X5 refused to provide any explanation for the significant similarities in the names and ages of the Applicants and the siblings listed in X4’s documents (including the fact that they also appeared to be twins), he instead simply stated that it was irrelevant.  

   [34] Exhibit A, T documents, page 179.

   [35] Exhibit A, T documents, page 191.

   [36] Exhibit A, T documents, page 201.

   [37] Exhibit A, T documents, page 201.

   CONSIDERATION

4. There are two primary questions that I must determine in this matter:

   (a)whether I am satisfied of the Applicants’ identities; and

   (b)whether I am satisfied, on the evidence before me, that X5 is the father of the Applicants as he contends.

   Identity Documents      

5. On the basis of the documentation provided which included passports, birth certificates, Tazkira and birth registration certificates, when taken together, I am satisfied of the identities of the Applicants. However, without reaching individual conclusions as to each of the issues raised with respect to the discrepancies identified in the identity documents by the Respondent, I am not satisfied that the documents, of themselves, are proof of X5’s parentage of the Applicants. In particular I base this opinion on the unchallenged evidence given by Ms Egan, Senior Migration Officer at the Department of Immigration and Border Protection in Dubai, as to the method through which details on such documents may be validly amended in Afghanistan and the lack of scrutiny involved in that process. Whilst I have considered X5’s evidence as to the attestation procedures undertaken to verify the documents, I am not satisfied that those documents, without more, substantiate his biological parentage of the Applicants.   

   DNA Testing

6. The availability of suitable DNA testing for the Applicants and X5 has been a topic of considerable contention between the parties. I accept, and the Respondent has quite properly conceded, that there were some logistical hurdles to sample collection and testing presented by the Applicants’ location in Afghanistan. I must consider whether an adverse inference should be drawn from the Applicants’ failure to take up the offers of DNA testing made to them by the Department. In considering whether an adverse inference is to be drawn in relation to X5 declining the offers of DNA testing I have had regard to the Australian Citizenship Instructions (“ACI”).[38]  

   [38]          The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide      guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and      the Regulations.   

7. Clause 19.3.1 of the ACI deals with DNA testing. That clause sets out that:

   In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:

   § an Australian citizen (for descent) or

   § an Australian citizen or permanent resident (for births onshore)

   and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.

   ….

   DNA evidence will be most useful in countries where there is a high incidence of document fraud or where official documentation is simply unavailable. It can also be useful where there is some doubt about the validity of the claimed relationships and/or credible documentation cannot be provided to substantiate the claims.

   ….

   If the opportunity to provide DNA evidence in support of an application has been offered and not accepted, the decision maker should consider the applicant’s reason/s for not accepting the offer and whether any adverse inference may be drawn.

   (emphasis added)

8. In view of these principles, and given the questions raised in relation to the identity documents, I consider the Respondent’s offer of DNA testing was reasonable in the circumstances.

9. In view of the position taken by the original decision maker not to draw an adverse inference from the Applicants’ failure to submit to DNA testing, and in fairness to the Applicants, I too am inclined to refrain from drawing an adverse inference from the Applicants’ ultimate failure to submit to DNA testing. In saying this, it should be noted that I have considered, and accept, the evidence of the Respondent with respect to the arrangements made for the proposed collection, and that those arrangements were feasible in terms of legality and retaining the integrity of the process.

10. Although I do not draw an adverse inference from the Applicants’ failure to undergo DNA testing, the Applicants do not have the evidentiary benefit of favourable DNA test results. The absence of that evidence allows for considerable doubt to remain as to the biological parentage of the Applicants.

    Inconsistency of evidence

11. I am troubled by the inconsistencies within the evidence provided by X5 at various stages of the applications. There were a number of significant matters which were put to X5, in relation to which he was unable to, or simply did not, provide adequate explanation. For example, when he was asked about the details of his first wedding ceremony and the celebrations that followed the oral evidence given by X5 at the hearing that it was “just a simple marriage contract” and “happened very quickly”. This was at odds with his previous written statement that friends and relatives gathered for a big feast, in accordance with tradition. I do not accept that the evidence provided by X5 is reliable.

12. X5’s oral evidence was vague as it related to his alleged departure from X4’s parents’ home immediately following his first wedding to travel to enter his second marriage. X5 did not recount the details of what the arrangements were as between himself, X4 and X3 at the time of the alleged consecutive marriage ceremonies, and thereafter. On the evidence before me I do not consider that it was plausible that there was a second marriage ceremony. Further, when X5 was asked whether he remained married to X3, he indicated that he was not. When asked about the manner of the dissolution of that relationship X5 only offered that they were “were pretty much divorced” and that the process “involved tribal elders”. I do not accept X5’s evidence that he simply “doesn’t really remember”, as these were on his account significant events in his life.

13. X5 provided a document to the Department, namely the letter purportedly from Dr Toryalay Ahmadzai verifying X1’s medical conditions, which was later found, undisputedly, to be inauthentic. I need not emphasise that the knowing provision of a false document to the Department of Immigration and Border Protection is a serious matter. The provision of this false document casts serious doubt as to X5’s credibility.

    Deficiencies in evidence

14. X5 submitted statutory declarations of X6 and X7 both dated 7 September 2015. Both statutory declarations refer to the relationship between X5 and X3, his parentage of the Applicants and X5’s financial support of the Applicants and their mother. Despite the Respondent’s request, X5 declined to call either X6 or X7 to give evidence at the hearing, stating he didn’t think they would be available. At the hearing it was explained to X5 at some length that there would likely be consequences in terms of the weight to be given to the statutory declarations if he elected not to call the declarants as witnesses because their evidence was unable to be tested and their credibility assessed. As a matter of fairness to X5 I stated that I would adjourn the hearing until the following (or another) day in order to hear the evidence of these witnesses, but X5 declined to take advantage of that opportunity. As the statutory declarations in question speak to matters in direct contention between the parties, and are otherwise largely uncorroborated by other verifying evidence, I do not place any weight on the declarations because the declarants were not made available for cross examination.

15. I consider there is significance to be attached to the fact that X5 could have provided further evidence in support of these applications. For example, it seems highly unusual that no evidence was provided by X3, the purported mother of the Applicants. This is particularly so in circumstances where X5 asserts that the success of the applications is critical to X1’s health, and that X3 is supportive of the applications. One would assume that X3 would have been in a position to provide confirming evidence for significant aspects of X5’s evidence that were without corroboration – in particular in relation to their alleged marriage and the circumstances surrounding the conception of the Applicants. Although X5 asserted that he is in frequent telephone contact with X3, her failure to give evidence to the Tribunal is inexplicable.

16. There is a distinct lack of evidence corroborating X5’s relationship with the Applicants or their mother since their birth. In this regard, X5 pointed to Western Union transaction records in the period 2013 – 2015 evidencing the transfer of funds to various individuals located in Afghanistan, but failed to lead satisfactory evidence linking those funds to X3 or the Applicants. I also note that these records provide no confirmation of X5’s assertion that he has supported X3 and the Applicant’s since before he left Afghanistan in 2008. I also find it significant that X5 was unable to point to any photographic evidence of himself with the Applicants, nor did he provide any evidence of any correspondence between himself and X3 during the seven years since their marriage. X5’s explanations that Western Union does not retain any earlier records, and that his laptop was recently damaged by water do not assuage my concerns in this regard. The lack of supporting evidence does not sit comfortably with X5’s claims that he is in frequent contact with X3, and has been the sole provider for her and the Applicants since their birth.

17. In Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178, a case also dealing with an application for citizenship by descent, Deputy President Forgie held that the principles in Jones v Dunkel[39] are applicable to Tribunal proceedings. Relevantly, those principles were explained in the following terms:

    The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.

    [39] (1959) 101 CLR 298, cited in Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178, [91].

18. I am not satisfied that X5 presented any explanation for the notable deficiencies in his evidence, such that a hypothesis other than that of his fear of exposure or detriment is the more natural one to explain his determination not to present such evidence. Accordingly, I am satisfied that an adverse inference is to be justifiably drawn from such deficiencies. 

19. It is not necessary for me to make a finding on the Respondent’s submission that there is a real possibility that the Applicants are the siblings of X5’s wife, X4.

    CONCLUSION

20. In reliance on the documentary evidence before me I consider that I am in a position to be satisfied of the identities of the Applicants, and as such the prohibition in s 17(3) of the Act does not apply.

21. However, I am not able to satisfy myself that X5 is in fact the biological father of the Applicants in circumstances where I am not satisfactorily persuaded by the identity documents as to the parentage of the Applicants, and without favourable DNA testing results. I am also unable to ignore the significant deficiencies and inconsistencies in the evidence. The correct and preferable decision is that I must affirm the decision under review. 

    DECISION

22. I affirm the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

...........................[Sgd]............................................

Associate

Dated 2 February 2016

Date of hearing	29 September 2015
Date final submissions received	19 November 2015
Applicant	In person
Solicitors for the Respondent	Clayton Utz