Zaidi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 2474

Zaidi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2474 (3 August 2022)

Division:GENERAL DIVISION

File Number:          2021/0551

Re:Syed Zaidi

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:3 August 2022

Place:Melbourne

The reviewable decision is affirmed.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – Afghan applicant – application for citizenship by conferral – delegate of the minister refuses citizenship as not satisfied of applicant’s identity – applicant failed to respond to requests from Department – applicant has now provided certain documents – chain of provenance – whether applicant has ability to obtain further identity documents – obligation on an applicant to obtain documents that are readily available – reviewable decision is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37, 38AA

Australian Citizenship Act 2007 (Cth), ss 21, 24

Cases

Briginshaw v Briginshaw (1938) 60 CLR 336
Drake and Minister for Immigration and Ethnic Affairs (No.2), Re: (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) 266 FCR 569

Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66

Secondary Materials

Department of Home Affairs – Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act (reissued 1 January 2022)

REASONS FOR DECISION

Senior Member D. J. Morris

3 August 2022

BACKGROUND

1. The Applicant states that he was born in Afghanistan on a named date in March 1984. He arrived in Australia in 2012 and was granted a bridging visa in June of that year. He is currently the holder of a different category of permanent visa, granted to him in August 2012.

2. The Applicant applied for Australian citizenship by conferral on 28 July 2017. He provided certain documents at the time of his application. In August 2018, July 2019, and August 2020, the Department of Home Affairs (‘the Department’) wrote to the Applicant requesting additional documents to better inform the delegate of the Minister responsible for the Australian Citizenship Act 2007 (‘the Act’) who was considering his application in relation to Mr Zaidi’s identity. The Applicant did not respond to those requests.

3. On 18 January 2021, the delegate refused the application, on the ground that the Applicant did not satisfy section 24(3) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

4. The Applicant has brought that refusal decision to the Tribunal, as he is entitled to do under section 52(1)(b) of the Act.

   HEARING

5. A hearing was held on 28 July 2022 by video link under section 33A of the AdministrativeAppeals Tribunal Act 1975 (Cth) (‘the AAT Act’). The Applicant made submissions and gave evidence. He was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers, representing the Respondent. The Applicant also called Mr Fida Hussaini, who gave evidence by telephone.

6. The Tribunal admitted into evidence the following documents:

   (a)       Applicant’s ID card from Afghanistan (Exhibit A1);

   (b)       First bundle of Applicant’s documents lodged 21 May 2021 (Exhibit A2);

   (c)       Testimonial from Ms Ruth Fluhr dated 16 May 2021 (Exhibit A3);

   (d)       Translation of identity card of Applicant (Exhibit A4);

   (e)       Translation of Tarkhis for Mohammad Amir (Exhibit A5);

   (f)       Translation of Taskera for Mohammad Amir (Exhibit A6);

   (g)       Second bundle of Applicant’s documents lodged 10 November 2021 (Exhibit A7);

   (h)       Applicant’s Document Details in two parts (Exhibit A8);

   (i)        Document with details of Applicant’s family outside Australia (Exhibit A9);

   (j) Volume of documents lodged by the Respondent under section 37 of the AAT Act (‘TD’) (Exhibit R1); and

   (k)Volume of supplementary documents lodged by the Respondent under section 38AA of the AAT Act (‘STD’) (Exhibit R2).

7. The Respondent also lodged a Statement of Facts, Issues and Contentions, which was taken into account.

   THE LEGISLATIVE AND POLICY FRAMEWORK

8. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that the Minister must approve or refuse to approve the person becoming an Australian citizen.

9. The decision record shows (TD, pp 64-68) that the Minister’s delegate found that the Applicant satisfied certain requirements under the Act. It was found that he was aged 18 years or over at the time of the application (section 21(2)(a)). It was found that he was a permanent resident at the time of the application and the decision (section 21(2)(b)). It was further found that he satisfied the general residence requirement (section 21(2)(c)).

10. Another requirement that the Applicant had demonstrated is that he understood the nature of the application, possessed a basic knowledge of the English language, and had an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship (sections 21(2)(d), (e), and (f)). This is satisfied through the person completing a citizenship test approved by the Minister (section 21(2A)). This was not assessed. Nor was the requirement that the Applicant satisfied the delegate that he was likely to continue to reside in Australia or maintain a close and continuing relationship with Australia (section 21(2)(g)), or that he was of good character at the time of the decision (section 21(2)(h) of the Act). 

11. Section 24(3) of the Act relates to identity:

    Identity

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

12. Division 5 of Part 2 of the Act sets out in detail the identity provisions.

13. The delegate decided that they could not be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship, so the delegate found that they were prohibited from approving the application under section 24(3) of the Act.

14. That halted consideration of the application. What is, therefore, before the Tribunal is whether, standing in the shoes of the Minister, it is satisfied of the Applicant’s identity such that the prohibition in section 24(3) does not apply. If the Tribunal is so satisfied, then the matter should be remitted to the Minister’s Department for consideration of the other requirements for citizenship by conferral.

15. In considering the application for Australian citizenship, the Minister’s delegate consulted Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (‘CPI 16’) issued by the Department and periodically updated. It relevantly states, under the heading ‘Purpose’:

    Establishing a person’s identity before the approval of a citizenship application requires the delegate to be satisfied of the person’s identity. The identity provisions under the Act prohibit the approval of a citizenship application in cases where the delegate is not satisfied of the person’s identity. 

    Delegates are required to understand and apply the relevant law as set out in the Act. Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for delegates. To the extent that the Act allows for discretion, delegates must give due consideration to the Department’s approved policy and procedures where relevant and appropriate in decision-making. Consideration of policy ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided. 

    However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, officers are to give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.

16. The Tribunal, unlike Department officers, is not bound to follow policy. But it has long been the practice of Tribunal Members, where a policy is promulgated which has been applied in making a decision that is under review, to have due regard for the policy unless there are cogent reasons to depart from it. That is to encourage consistency in decision-making.  Cogent reasons to depart from policy may include where the policy is inconsistent with the law or where rigid application of policy would have an unfair or perverse outcome in a particular case.

17. This well-accepted general approach was enunciated by the Tribunal’s eminent first President, the late Sir Gerard Brennan. What he said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645, relevantly set out below, has been successively endorsed by judicial opinion:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

18. The CPIs are only policy guidelines, not delegated legislation. Their status was considered by the Full Court of the Federal Court of Australia in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ). Their Honours observed, at [18]:

    There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.

19. And at [58]-[62]:

    58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created …

    59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision- maker] will make in the circumstances of a given case”; Drake (No 2) at 641.

    60. However, as Brennan J stated in Drake (No 2) at 641, “[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies” ...

    62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations ...

20. CPI 16 refers to the ‘three pillars’ of identity. They are set out in (the current) CPI 16 at paragraph 5:

    Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

    Documents – reliable and secure documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Life story – an account of the events that happened to a person during their lifetime.

21. CPI 16 was reissued by the Department on 1 January 2022, after the reviewable decision was made on 18 January 2021. However, the updated CPI 16 is the one that should be applied because the Tribunal must make a contemporary assessment as to whether, standing in the shoes of the Minister, it is satisfied (now) of the Applicant’s identity.

    Documents the Applicant initially provided

22. When the Applicant lodged his application with the Department in February 2017, he provided an Australian proof of age card, copies of two Australian credit cards, a Medicare card and a Heavy Vehicle Driver Licence issued by the Victorian Government (TD, p 33). He also provided the data pages of a document issued by the (then) Department of Immigration and Citizenship. The Applicant provided a utility bill showing his address in Australia.

23. Apart from these local documents, Mr Zaidi also provided a document issued by the Consulate General of the Islamic Republic of Afghanistan in Quetta, Pakistan, dated 8 May 2017 which was headed ‘Birth Certificate’ and certified certain information – the name of the Applicant, the name of his father and grandfather, his date and place of birth and what was listed as ‘Passport/National ID No’ (TD, p 35). 

24. In addition, the Applicant provided a school leaving certificate from a high school in Quetta, Pakistan, dated 1999, which has entered, next to ‘name of student’, the name ‘Syed Asghar Hussain’ and, next to ‘father’s name’, the name ‘Syed Mohammad Amir’. 

    Requests by Department

25. On 22 August 2018, an officer of the Department wrote (TD, p 45) to the Applicant by email requesting an overseas penal clearance certificate and listing other documents that the Applicant may be able to provide in support of his identity prior to coming to Australia. One of the items listed was a Taskera, for Afghan citizens.

26. On 22 July 2019, an officer of the Department wrote (TD, p 51) by post to the Applicant requesting that he complete a ‘Form 80 Personal particulars for assessment including character assessment’ and return the completed form.

27. On 19 August 2020, an officer of the Department wrote (TD, p 54) by post to the Applicant pressing the request for a Form 80 and asking for documents he may be able to provide in support of his identity prior to arrival in Australia.

28. In the decision record (TD, p 63) the delegate records that no response was received by the Department to the three letters referred to above.

    Information provided to Tribunal

29. The Applicant provided certain documents to the Tribunal, which are listed earlier in these reasons.

    ORAL EVIDENCE

30. In his opening submission, the Applicant told the Tribunal he did post certain documents in 2018 to the Department but learned they had not been received. He said he had since sent further documents that relate to his father.

31. Mr Zaidi said that at the time he applied for citizenship:

    My mother was very sick. I have a sister who was taking care of my mother in Pakistan. I didn’t have the opportunity to send someone to Afghanistan to obtain documents. My mother passed away in 2019. My sister then went to Afghanistan.  She obtained some documents and sent them to me and I have since sent them on to the Department.

    After eight years of waiting for citizenship, my wife divorced me. She has married someone else. I have two sons, aged 11 and 10. The first was a twin but one survived and the younger one did not. My ex-wife is in Iran. My sons are with her in Tehran. They send me pictures every day.

32. Mr Zaidi told the Tribunal about certain health conditions and that he had to leave his employment with a major international airline owing to chronic back pain. He used his accrued leave payment to send to his sister to help pay for his mother’s funeral and to fund his sister to go to Afghanistan and obtain identity documents for him. He said his sister also took the opportunity to obtain documents for her own children while she was there.

33. In terms of his own life story, Mr Zaidi said that when he was aged two, his parents went from Afghanistan to live in Pakistan. He grew up in Quetta and went to school there. As an adult, he said he worked in Iran for four and a half years but told the Tribunal that in 2007, he was caught by the Iranian police and returned to Afghanistan for working without permission. He said the period he worked in Iran was between 2003 and 2007.

    In cross-examination

34. Mr Orchard referred Mr Zaidi to a Taskera issued by the Afghanistan Central Civil Registration Authority (TD, p 11). He said that he sent a photograph of himself to his sister to take when she went to Kabul. She also provided documents from his father to the issuing authority. She also took his Pakistan school leaving certificate, his father’s ID card and “my birth certificate, I guess”. He said: “If you provide your parents’ documents and a picture, they will issue you a Taskera. It is not a big deal, so long as you provide proper documents from your father.”

35. Mr Zaidi was asked whether the document he submitted is a translation. He responded: “You have an option. You can get one in their language or if needed you can get one in Farsi or English.”

36. When pressed as to why it says it is a translation, Mr Zaidi said that it was translated by the Afghani government department, not subsequently translated. Mr Zaidi then said he was not sure if his sister provided his birth certificate.

37. Mr Orchard asked Mr Zaidi about the birth certificate issued by the Afghani Consulate-General in Quetta. He said: “I asked a friend or my sister to obtain it in 2017. She requested someone, her husband, I guess. He went to the Consulate in Quetta to obtain it.”

38. Mr Orchard asked how his brother-in-law would have known to quote his correct date of birth. Mr Zaidi responded: “People write down your birth date in some old book or the Koran”, and that is how he knew what his date of birth was.

39. In response to direct questions from the Tribunal, Mr Zaidi said his brother-in-law was told by his sister what day he was born. He said it was accepted by the Consulate: “It is very easy; you just take the father’s document.”

40. The Tribunal queried what was meant by the entry on the birth certificate of a seven-digit number next to the heading ‘Passport/National ID No’. Mr Zaidi responded: “I guess if I apply for a passport or national ID number.”

41. The Tribunal clarified that the Applicant thought this was a number allocated by the Consulate, not the quotation of a number from his own identity document or passport. Mr Zaidi said he has never had an Afghanistan or Pakistan passport.

42. Mr Orchard noted that the Applicant provided a copy of his sister’s Afghan passport issued in September 2020, which has an eight-digit number. He also provided copies of the Afghan passports of his niece and nephew, the first issued on the same date and the second issued two days later.

43. The Tribunal directly asked the Applicant whether, if his sister could obtain a passport on the strength of the identity documents she had obtained, he could also obtain one from the Afghanistan Embassy in Canberra. The Applicant responded: “I could if I needed a passport. It is no problem. I am an illiterate person. It didn’t come to my mind to obtain it.”

1. The Tribunal asked Mr Zaidi why he did not get a passport in his own name. He responded: “I never wanted to go out of Australia. Now, I realize it is important. If you have a Taskera you can obtain a passport.”

2. Mr Orchard asked the Applicant why the name ‘Zaidi’ was in inverted commas on the Taskera he has provided. Mr Zaidi said he had no idea. He said that family names were not generally used in Afghanistan until United States personnel arrived in his country, and after that they became more frequently used.

   Evidence of Mr Fida Hussaini

3. Mr Hussaini said he grew up together with the Applicant in a part of Quetta. He said he and Mr Zaidi played together as children and later played cricket and other sport together. 

4. Mr Hussaini said that he and the Applicant came to Australia on the same boat in 2012.

5. In answer to a direct question from the Tribunal, Mr Hussaini said that he did not know what steps the Applicant had taken to obtain identity documents. He said: “I know him. We were living in the same town before, in Quetta.”

   CONSIDERATION

   Australia and Pakistan source documents

6. The Applicant has provided several documents supportive of his identity issued by Australian entities, as recorded above. They include a driver licence, credit cards issued by Australian banks, a utility bill, and a Medicare card. He has also provided the data page of a document issued by the Department.

7. These documents are useful in an assessment of identity because they reveal a consistency in his identity since Mr Zaidi arrived in Australia in 2012. However, they are all issued in Australia based on other Australian documents or declarations made by the Applicant and are not, therefore, links in a chain back to primary identity documents issued in Afghanistan. The weight such Australia-source documents carry is therefore conditional.

8. The school documents that Mr Zaidi has provided from the high school he attended in Quetta are strongly supportive of his identity in the Tribunal’s assessment. They cite a consistent date of birth and list his father’s name. However, it is relevant to the Tribunal that the high school record of attendance dated (a named day) August 2018 (STD, p 94) records the Applicant’s name as ‘Syed Asghar Hussain’ and his father as ‘Syed Mohammad Amir’. This is consistent with the school certificate issued in 1999, which also has the Applicant as ‘Syed Asghar Hussain’ and his father as ‘Syed Mohammad Amir’. Nowhere on these documents is the name Zaidi.

9. The Tribunal is not satisfied with the Applicant’s conjecture about why the word ‘Zaidi’ is placed in inverted commas on the Taskera he says was obtained by his sister when she went to Kabul in 2020. 

   Afghanistan source identity documents

10. The Tribunal accepts that the robustness of documents issued by the Afghanistan Government does not equate to those issued by agencies of many other governments, and part of this is no doubt due to the decades of war and upheaval that country has experienced, which has necessarily affected the undisrupted delivery of civil service and the keeping of records.

11. The Tribunal was disturbed that, given that a passport is universally accepted as a valuable document in a person’s identity, Mr Zaidi has not taken the steps to obtain a passport from the Afghanistan Government. Mr Zaidi also submitted, in his closing remarks to the Tribunal, that he had married and divorced, and neither of these were in a false name. He submitted a typed translation of a dissolution of marriage certificate dated (a named day) July 2020, with a translation date of 21 March 2021. Accepting this is an authentic translation, the husband in the document is declared to be ‘Syed Asghar Hussain’. While the Tribunal accepts the Applicant’s submission that he was not divorced in a false name, the difficulty here is that the dissolution document shows a different name from the name in the Taskera obtained by his sister, which has the add-on name ‘Zaidi’, and rendered in inverted commas.

    Consideration of the evidence of Mr Hussaini and Ms Fuhr

12. The Tribunal accepts Mr Hussaini’s oral evidence, as far as it goes. Mr Hussaini had not provided any written statement in advance of his oral evidence, but I have no reason not to accept that he knew the Applicant in Quetta, grew up with him and came to Australia at the same time, by the same means. However, Mr Hussaini himself admitted that he did not know what steps Mr Zaidi had taken to obtain identity documents from Afghanistan.  Therefore, while Mr Hussaini’s evidence goes some way to supporting the Applicant’s life story, it does not contribute to a documented chain of identity from Afghanistan. If the witness had, for example, produced a photograph with the Applicant at school, that would have been important in the mosaic of Mr Zaidi’s identity.

13. Ms Fuhr provided a written testimonial (Exhibit A3) dated May 2021. She states that she has known Mr Zaidi since September 2020.  Ms Fuhr runs an academic and editing business and wrote that she had assisted the Applicant with some English language documents in the past. She also writes that her son was injured in a car accident and that Mr Zaidi has been very supportive of her and her son in the aftermath. Ms Fuhr wrote:

    Thus, I have come to view Syeed as a genuine, community-minded young man, whose character is beyond reproach and whose generosity is heartwarming and much-appreciated. In my considered opinion, Syeed deserves to feel warmly accepted and appreciated by the Australian government and by the community in which he resides.

14. The Tribunal has no reason not to accept this testimonial as supportive of the Applicant’s good character. But it still does not contribute to the chain of identity prior to Mr Zaidi coming to Australia, which is important to the question that must be satisfied by the Tribunal.

    Decision-maker must be satisfied of identity

15. As mentioned above, section 24(3) of the Act says that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity. It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied regarding this requirement.

16. The Courts have frequently considered what is meant by the statutory phrase that a person is ‘satisfied’ of a requirement. Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’) is the leading authority; and that it is still good law has been frequently re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66, by Toohey J for the Court, at [2]). In Briginshaw, Dixon J said, at 361-2:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

17. The Tribunal, therefore, must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

    Assessing the evidence against the ‘three pillars’ of identity

18. In terms of the ‘biometrics’ pillar, the Tribunal is generally satisfied that the several photographs provided by the Applicant, taking account of his age when the photographs were taken, show no inconsistencies.

19. In terms of the ‘documents’ pillar, Mr Zaidi has provided two documents from the school he attended in Pakistan, which I am satisfied refer to him as ‘Syed Asghar Hussain’. He has also provided several documents relating to his father, ‘Syed Mohammad Amir’, including a record of his father’s military service and a translation of his paternal grandfather’s Taskera, which satisfy me that this person is his father.

20. He has provided no documents from Iran. That is perhaps not surprising because I glean from his evidence that he worked there without permission and that he was detained by the Iranian authorities and deported to Afghanistan. The Tribunal is aware that it is not uncommon for Afghans to work in Iran as undocumented foreign workers, especially in construction. However, balancing that, he has not provided any testimonials from any person who might have worked with him for the four or so years he says he was working in Iran.

21. The Tribunal finds that it cannot be satisfied of the Applicant’s identity to the requisite standard. The explanation about his surname may be plausible, but it has not been explained why ‘Zaidi’ has been inserted into the Taskera in inverted commas, and yet does not appear on his school documents. The Tribunal accepts that the birth date cited by the Applicant is consistent with that on his school leaving certificate in 1999. This date was quoted by the principal of the school and the records officer when they were asked in 2018 to provide a certificate from the school records of his attendance. The Tribunal therefore finds that Mr Zaidi was indeed born on the named date in March 1984.

22. The Applicant has, however, on his own evidence, an ability to obtain an identity document of significant weight, i.e., a passport issued by the Afghanistan Government. In circumstances where the Applicant has not done so and has not adequately explained why he has not, I have come to the conclusion that this is fatal to me being satisfied of his identity. The issuance of such a passport would be important proof of the Afghanistan Government being satisfied of the name on the Taskera.

23. I emphasise that no finding in these reasons should be taken as a reflection on the Applicant’s character. There is no evidence before me that he has been involved in the provision of bogus documents nor of any subterfuge. There is evidence of his employment and his kindnesses to Ms Fuhr and her son, which is an objectively positive reflection on his character.

24. However, Mr Zaidi had several opportunities to gather documents in support of his identity, which he did not take up when prompted three times over three years by the Department.  When he latterly did, there was a question mark about the name on the Taskera he had put forward. There is the unanswered question as to why he has not taken the available opportunity to get a passport from his country of citizenship, which would have been a strong document of support in terms of his identity and his ultimate quest for Australian citizenship.

25. In the hearing, the Applicant said that the Tribunal or the Department could check to verify the documents he has provided. But that is not the role of the Tribunal, nor necessarily the role of the Department. The conferral of Australian citizenship is not something that is done lightly, because it brings with it a significant range of privileges, rights, and responsibilities It is the obligation of the person applying for citizenship to put his or her best case forward, including any identity documents they have or can readily obtain. Unfortunately for the Applicant, as I pointed out in the hearing, it is not enough that the Tribunal comes to a conclusion that he is ‘probably’ who he says he is; the Tribunal must be comfortably satisfied of his identity. Without more, the Tribunal cannot be.

26. There is no bar on Mr Zaidi making a fresh application for Australian citizenship. When doing so, he might provide more robust evidence of his identity from his home country, such as an Afghanistan passport, as suggested above. That would be a valuable component in any fresh application he might choose to make.

    DECISION

27. The decision under review is affirmed.

71.     I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................

Associate

Dated: 3 August 2022

Date of hearing:	28 July 2022
Applicant:	Mr Syed Zaidi (Self-represented)
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers