Federal Court of Australia

Gulzari v Minister for Immigration and Citizenship [2025] FCA 910

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the costs of the respondent, to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The applicant came to Australia in December 2010, arriving by boat at Christmas Island, without a visa and without any formal identity documentation. At that time he claimed, and since then he has maintained, that he is Baba Ali Gulzari and that he is a citizen of Afghanistan. Although the proceedings concern a dispute as to the applicant’s identity, there is no doubt that he goes by the name Baba Ali Gulzari.

2    On 6 July 2011, Mr Gulzari was granted a Protection (Subclass 866) visa, on the basis that he was considered to be a citizen of Afghanistan. On 24 October 2019, he was granted a Resident Return (Subclass 155) visa.

3    In July 2015, pursuant to s 21 of the Australian Citizenship Act 2007 (Cth), Mr Gulzari lodged an application for Australian citizenship by conferral. On 2 November 2023, a delegate of a Minister administering the Australian Citizenship Act refused the citizenship application on the basis that they were not satisfied of Mr Gulzari’s identity. On 10 September 2024, the Administrative Review Tribunal (Tribunal) affirmed the delegate’s decision to refuse the citizenship application: Gulzari and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3271.

4    By his amended notice of appeal filed on 4 March 2025, Mr Gulzari now appeals to this Court against the decision of the Tribunal pursuant to s 172(1) of the Administrative Review Tribunal Act 2024 (Cth).

5    For the reasons that follow, Mr Gulzari has not established that the Tribunal made any error on a question of law and the appeal is dismissed.

Relevant applications, investigations and decisions prior to the decision of the Tribunal

6    On 7 December 2010, Mr Gulzari participated in an entry interview. In the course of that interview he said that he was born in 1958. He said that he had a Taskera (an Afghan identity document) which was in Afghanistan, and that he held a Pakistan Registration Card and a Pakistani passport, but did not have them with him. He claimed to be a Shia Muslim of Hazara ethnicity. He said that he had 14 children – eight with his first wife, Amir Begum, and six with his second wife, Zahra – and that all of them were residing in Quetta, Pakistan.

7    On 19 February 2011, Mr Gulzari made a request for a refugee status assessment. In support of his claim to be entitled to protection, he submitted a statutory declaration made by him on 3 February 2011, in which he claimed to be an Afghan citizen by birth. He said that he had no other citizenships and no entitlement to citizenship of, or residence in, any other country. He claimed to have been born on 31 December 1958 in Dah Mahdi, Gulzar Jaghori Ghazni, in Afghanistan. He said he had worked on his father’s farm between the ages of 12 and 32, married his first wife in 1979 and travelled to Pakistan in 1990. He married his second wife in 1992 and took her back to Pakistan where he lived with his two wives and children until 2006. He returned to Afghanistan with his second wife to investigate whether they could settle back in, with a plan to then bring his first wife and his children back to Afghanistan. Then, following an incident in which the Taliban demanded money from him and beat him, Mr Gulzari had fled to Pakistan.

8    On 19 April 2011, a delegate of a Minister administering the Migration Act 1958 (Cth) made a finding that Mr Gulzari was to be recognised as a person to whom Australia had protection obligations under Article 1A of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.

9    In July 2011, Mr Gulzari lodged an application for a protection visa. In the form in support of that application, he identified himself as Baba Ali Gulzari and his date of birth as 31 December 1958. He claimed to be a citizen of Afghanistan and of no other country. Mr Gulzari also relied on his statutory declaration dated 3 February 2011 in support of the protection visa application. He provided details of family members that included 14 children. A decision to grant the protection visa was made by a delegate administering the Migration Act on 6 July 2011.

10    On 26 July 2012, Mr Gulzari lodged a request under the Freedom of Information Act 1982 (Cth) that records relating to him be amended to record his date of birth as 28 May 1953 and his family name to include “Gulzari”. In support of that request, he provided an Afghan Taskera (document number 697174). On 30 July 2012, a delegate decided to amend Mr Gulzari’s date of birth and declined to amend his name because they were not satisfied that the existing record was incomplete, incorrect or out of date. In the written reasons for that decision, the delegate found that, on the evidence before them, there was no reason to doubt the veracity of the Afghan identity card (ie, the Taskera) that Mr Gulzari had presented. The delegate said:

… I also find accept [sic] you were probably not born on 31 December, and that the day and month allocated to you on arrival were only given to you as default dates generally given to refugees when the day and month is not known. It is unclear why you did not provide this information when you first entered however. On the balance of probability, I have decided to give the identity card significant weight in reaching my decision. I have therefore decided the information held by the department with regard to your birth date is likely to be incorrect. I have given you the benefit of the doubt and have approved the amendment of your birth date.

11    On 12 November 2012, Amir Begum Gulzari lodged an application for a humanitarian visa which included six of Mr Gulzari’s children (two born to Amir Begum and four to Zahra).

12    On 21 February 2013, one of Mr Gulzari’s daughters, Bakhtawar, lodged an application for a partner visa. In that application, Bakhtawar stated that she was a citizen of Pakistan and that her place of birth was Quetta, Pakistan. She listed her father as Baba Ali Qambar Ali (specifying his date of birth as 1 January 1951), and her mother as Amir Began Baba Ali. In support of her application, Bakhtawar provided:

(a)    a marriage certificate evidencing her marriage on 11 May 2012 which listed her father as Baba Ali;

(b)    information relating to a Pakistani passport in her name which listed her National Identity Card (NIC) number as 54400-5400164-2; and

(c)    a Pakistani birth certificate, which recorded her father as Baba Ali (NIC 5440003936441) and her mother as Ameer Begum (NIC 5440003673210).

13    In connection with the consideration of Bakhtawar’s partner visa application, staff of the Department of Home Affairs took steps to check the veracity of her NIC number. The National Database and Registration Authority of Pakistan (NADRA) confirmed that the NIC issued to Bakhtawar was a genuinely issued document, and that only citizens of Pakistan are able to hold a NIC.

14    On 13 July 2015, Mr Gulzari applied for Australian citizenship by conferral. In the application he stated that he was born on 28 March 1953 and that he had never had a different date of birth. In support of that application, he stated that he was an Afghan citizen, and that he held a Taskera (document number 697174) as evidence of his identity. The process of considering and determining Mr Gulzari’s citizenship application took a long time to complete.

15    On 24 October 2019, Mr Gulzari was granted a resident return visa.

16    On 6 April 2022, a delegate of the Minister sent to Mr Gulzari notice of the delegate’s intention to consider cancellation of his resident return visa under s 109 of the Migration Act, and invited Mr Gulzari to comment on certain information. The letter stated that the delegate considered that Mr Gulzari had not complied with ss 101(b) and 103 of the Migration Act. Section 101(b) relevantly states that a non-citizen must complete a visa application form in such a way that no incorrect answers are provided. Section 103 relevantly provides that a non-citizen must not provide a bogus document to an officer performing a function under the Migration Act.

17    By three letters dated 12 May 2022, 16 May 2022 and 12 July 2022, Mr Gulzari’s solicitors provided responses to the invitation to comment on information that had been identified as relevant to the decision whether or not to cancel his resident return visa. On 17 November 2022, the delegate made a decision not to cancel Mr Gulzari’s resident return visa. Mr Gulzari was notified of the decision by a letter dated 17 November 2022, which included the following statement:

I have decided that there was not non-compliance in the way described in the Notice of Intention to Consider Cancellation under section 109 of the Migration Act 1958 (section 107 notice).

18    The reasons for that decision were recorded in a separate document that was created by the delegate contemporaneously, but which was not provided to Mr Gulzari at that time. The statement of reasons for deciding not to cancel the resident return visa included a finding that “the visa holder complied with s 101(b) and s 103 of [the Migration Act]”. The delegate found that parts of the evidence provided by Mr Gulzari’s solicitors were “reasonably compelling in supporting the visa holder’s claimed [sic] of being an Afghan national” and concluded:

… [A]ny subsequent verification of Afghan issued identity documents is no longer possible. On that basis, I give the visa holder the benefit of the doubt that the evidence before me appears to indicate he is an Afghan citizen, rather than a documented Pakistani national.

19    The delegate further stated that “on balance”, they considered “that the visa holder is likely to be an Afghan national as claimed”. While it is evident that the delegate considered that there was reason to have some doubt, I accept that the delegate made a positive finding that Mr Gulzari was likely a national of Afghanistan, albeit by giving him “the benefit of the doubt”.

20    On 26 July 2023, the delegate who was considering Mr Gulzari’s citizenship application sent a letter to Mr Gulzari in which he particularised concerns about his identity and invited him “to comment on, or provide an explanation about, adverse information that may lead to a decision to refuse to approve [him] becoming an Australian citizen”. The delegate’s letter relevantly informed Mr Gulzari that his Australian citizenship could be approved only if the delegate was not prohibited from approving the citizenship application pursuant to s 24(3) of the Australian Citizenship Act, and that that would be the case if the delegate was unable to be satisfied of Mr Gulzari’s identity.

21    On 19 October 2023, Mr Gulzari’s solicitors, by email to the delegate, provided a response to the invitation to comment on adverse information in respect of the citizenship application.

22    On 2 November 2023, the Minister’s delegate refused the citizenship application on the basis that the delegate could not be satisfied as to Mr Gulzari’s identity and was therefore prohibited from approving the application under s 24(3) of the Australian Citizenship Act.

The decision of the Tribunal

23    On 23 November 2023, Mr Gulzari applied to the Tribunal for a review of the decision of the delegate. On 23, 24 and 29 July 2024, the Tribunal conducted a review hearing via video conferencing facilities, with the assistance of an accredited Hazaragi interpreter.

24    The only issue for determination by the Tribunal was whether it was satisfied of Mr Gulzari’s identity pursuant to s 24(3) of the Australian Citizenship Act. Section 24(3) provides as follows:

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

(Note omitted.)

25    The Tribunal considered the evidence before it in respect of Mr Gulzari’s date of birth; the partner visa application made in 2013 by his daughter, Bakhtawar; the composition of his family; his Taskera; and his life story.

26    Accepting, first, that there exist differences between countries in record-keeping in relation to births, and that persons fleeing a country may have difficulty accessing documents, the Tribunal found that the evidence before it was “indicative of a number of significant inconsistencies in [Mr Gulzari’s] date of birth over a significant period of time” (at [207]). The Tribunal found that his date of birth was “contradicted in a number of applications and forms submitted with respect to immigration applications, citizenship application and in [his] evidence at the review hearing” (at [208]).

27    The Tribunal then considered the significance of an application made by Bakhtawar for an Australian partner visa dated 17 December 2012 and submitted to the Australian Embassy in Islamabad, Pakistan, on 21 February 2013. The Tribunal said (at [221]-[223]):

… The information provided in the Partner visa application was that the Applicant (declared to be Bakhtawar’s father) was Baba Ali Qambar Ali and that he was at the time of this application he was [sic] resident in Pakistan. The form also contained a declaration that Bakhtawar was born in Quetta Pakistan and that she was a citizen of Pakistan and that she held a Pakistani passport for which she provided the document number and date of issue and expiry.

… [T]he Partner visa application form contained inaccurate information with respect to her father’s date of birth and incorrect information with respect to her father’s country of residence. She noted her father was resident in Pakistan when he was in fact resident in Australia and had been since December 2010.

The Tribunal is at a loss to understand why Bakhtawar provided inaccurate information to the Department with respect to her father in her Partner visa application and why she failed to correct this information at a later point in time.

28    In relation to Mr Gulzari’s family composition, the Tribunal (at [224]-[226]) highlighted apparent inconsistencies between information included in:

(a)    a statutory declaration dated 3 February 2011 in support of Mr Gulzari’s application for a protection visa, in which he stated that he was married to his first wife, Amir Begum, in 1979, and to his second wife, Zahra, in 1992, that he had four sons and four daughters with his first wife and three sons and three daughters with his second wife (a total of 14 children), and that all of his children resided with him in Pakistan;

(b)    an application for an offshore humanitarian visa made by Mr Gulzari’s first wife, Amir Begum, in which she provided details of one biological son, one biological daughter, three step-daughters and one step-son, all of whom were said to be dependent on Amir Begum and her husband, and listed no non-dependent children;

(c)    a Form 80 personal particulars for assessment including character assessment which Mr Gulzari’s daughter, Bakhtawar, was required to complete in connection with her partner visa application, which asked her to list all of her siblings and step-siblings, and in which she listed only two sisters and two brothers;

(d)    Mr Gulzari’s immigration interview on Christmas Island on 7 December 2010, in which he stated that he had 14 children from his two wives;

(e)    a Form 80 completed on 28 August 2017 and submitted by Mr Gulzari in connection with his citizenship application, in which he identified only six of his children;

(f)    a further Form 80 completed by Mr Gulzari during an interview held with him on 3 February 2011 while he was in immigration detention, in which he provided details of 14 children; and

(g)    the details provided by Mr Gulzari at the hearing before the Tribunal, in which he was only able to name 13 of his children.

29    Although apparently accepting that Mr Gulzari “cannot be held to account for incomplete or inconsistent details in the forms for migration completed by his first wife Amir and his daughter Bakhtawar”, the Tribunal nevertheless found (at [227]) that Mr Gulzari’s account of his family composition was unreliable partly as a result of the relevant details in those documents being inconsistent and incomplete. In relation to this evidence, the Tribunal said (at [232]-[233]):

Despite the fact that in no form or application prior to hearing the applicant had mentioned that he had two daughters named Bakhtawar, at hearing the applicant claimed, for the first time that he indeed did, and that they were both given this name because it meant “good luck”. He also claimed that his second daughter named Bakhtawar was referred to in his previous applications and forms as Gul Bakht which he claimed was short for Bakhtawar. The Tribunal does not accept the applicant’s evidence with respect to him having two daughters named Bakhtawar as since his arrival in 2010, his completion of forms relevant to his migration and in the conduct of interviews relevant to his migration, he had never mentioned this fact until the hearing before the AAT. The Tribunal finds that this evidence was self-serving and unable to be relied upon.

The evidence before the Tribunal is indicative of inconsistencies provided by the Applicant in his visa applications and forms provided for immigration and citizenship purposes with respect to family composition. These inconsistencies were also evidenced at the Tribunal hearing when the Applicant, despite being given every opportunity to do so, could not name his 14 children and then claimed that this omission was attributable to the fact that he had two daughters named Bakhtawar.

30    Next, the Tribunal set out (at [236]) various inconsistencies between two documents that were both said to be translations of Mr Gulzari’s Taskera, including in such details as his family name, place of birth, and date of birth. The Tribunal noted that Mr Gulzari’s Taskera does not reference the name of his village, nor his age, but that it does feature a unique document number. The Tribunal noted (at [237]-[238]) that an Afghan authority, the National Statistics and Information Authority (NSIA) had subjected Mr Gulzari’s Taskera to verification checks and “found that the document was not able to be verified”, despite the fact that the unique document number on the Taskera had been provided to the NSIA. The Tribunal found that it could not be satisfied that Mr Gulzari’s Taskera had “been the subject of conclusive verification” (at [238]).

31    At [246] of the reasons, the Tribunal acknowledged the impediments to obtaining identity documents that may be faced by asylum seekers when fleeing persecution.

32    The Tribunal also referred to the Taskeras of Mr Gulzari’s brothers, which it noted (at [249]) “have not been the subject of independent scrutiny and verification” by the NSIA or another relevant Afghan authority. The Tribunal found that it was not assisted by the fact that the details set out on Mr Gulzari’s Taskera match those on the Taskeras of his brothers.

33    The Tribunal also set out Mr Gulzari’s “life story” (at [239]-[243]). After summarising his evidence relating to his life in Afghanistan and Pakistan, and his travel via Malaysia to Australia, the Tribunal said (at [242]-[243]):

The Applicant with respect to his life story elicited at hearing was a poor historian and if there was a detail that he could not recall he would defer to the fact that he was a child at the time or that he was illiterate or due to the passage of time. The inconsistencies in the Applicant’s life story were apparent at hearing. The Applicant gave varying and inconsistent accounts with respect to him being targeted and injured by the Taliban and the hospital treatment that he received after the incident. The Applicant gave inconsistent evidence with respect to the land dispute that he attempted to resolve after his return to Afghanistan in 2006 and in respect of whom the dispute was with and for which there were court proceedings, the outcome of which the Applicant could not recall.

The Applicant has claimed that the witness statements tendered in support of his application are corroborative of his identity, However, as has been noted these statements are formulaic and appear to be a direct duplication of testimony to the word and hence the Tribunal finds them unreliable and apportions limited weight to them.

34    In respect of the NIC and Pakistani passport that Mr Gulzari said he obtained during his time living in Pakistan, and which he said were thrown overboard by people smugglers when he came to Australia by boat in 2010, the Tribunal noted (at [253]) that those documents “will never be able to be tested”, but that there was evidence to suggest that they may have been genuinely issued documents. The Tribunal further noted that the Pakistani Civil Registration Management number of each of Mr Gulzari and Amir Begum listed on the birth certificate of their daughter, Bakhtawar, and submitted in support of Bakhtawar’s application for a partner visa, have been verified by NADRA as genuine and matching the biodata details of Mr Gulzari held by authorities in Afghanistan.

35    The Tribunal concluded (at [255]) that, having “given consideration to the evidence before it both singularly and cumulatively”, it could not be satisfied of Mr Gulzari’s identity for the purpose of s 24(3) of the Australian Citizenship Act.

The appeal to this Court

36    Mr Gulzari’s amended notice of appeal contains seven grounds. Only grounds 1, 4 and 7 are pressed and it is not necessary to say anything about the other grounds.

Ground 1

37    Mr Gulzari’s first ground of appeal appears in the amended notice of appeal as follows:

1.    Ground 1: Irrationality. Failure to Consider Relevant Material (Taskera and Afghan Identity Evidence)

Particulars:

1.1    In determining that the Applicant’s Taskera was unreliable, the Tribunal acted irrationally and contrary to the evidence produced, which, had it been properly assessed, would … inexorably have [led] to the conclusion that the Taskera was a genuine document

•    The Tribunal failed to give proper consideration to the Applicant’s Afghan Taskera and passport, as well as the verified Taskeras of his wife and children, and unverified Taskeras of his brothers; which corroborated his Afghan citizenship and familial ties (paragraphs 26-30 of the Tribunal’s decision).

•    Although the Tribunal acknowledged the existence of Afghan Taskeras (para 28), it dismissed their evidentiary value based on speculative concerns about the prevalence of fraudulent documents in Afghanistan, without any independent verification of the applicant’s brothers’ documents.

•    The Tribunal did not appropriately weigh the Taskera documents in light of the Applicant’s life story and their consistency with the family history provided. This oversight constitutes a failure to consider relevant evidence, as required by law.

38    The first two particulars make reference to paragraphs of the reasons of the delegate, not the Tribunal. The way in which this ground was argued in writing and orally did not reflect the way the ground was expressed in the amended notice of appeal. I have attempted to address the ways that Mr Gulzari advanced the argument in support of ground 1 in written and oral submissions.

39    At [237]-[238], the Tribunal said:

The authenticity of the Taskera document has been the subject of verification checks with the Afghan authorities, the NSIA, who found that the document was not able to be verified. The Applicant’s representative has contended that the NSIA did not have the relevant information pertaining to this assessment, namely the Applicant’s village name and his age. The Applicant’s representative asserts that this adverse finding is countered by the fact that the Applicant’s brothers[’] Taskera details match those of the Applicant.

Despite the document not referencing the applicant’s village name and age, the Tribunal notes that the document contained a unique document number, 697174, and despite the provision of this number the document was not able to be verified. The Applicant’s representative claims that the Applicant’s Taskera information should be accepted as it was by village mediators, the district government, and the High Court of Afghanistan. The Tribunal finds that despite this assertion the document has not been able to be verified by the NSIA in Afghanistan and in the absence of this verification the Tribunal finds that it could not be satisfied that the document has been the subject of conclusive verification.

40    Mr Gulzari submits that it was irrational to reject the authenticity of his Taskera, or to doubt its authenticity, by reference to the fact that the Taskera was not verified by the NSIA. Mr Gulzari submits that the NSIA verification certificate was issued to “Baba Ali son of Qambar Shah”, whereas Mr Gulzari’s Taskera “is not recorded as having been issued to such a person”. Mr Gulzari submits that the fact that the Taskera and the NSIA verification certificates are not recorded as having been issued to persons with the same name means that the failure of the NSIA to verify his Taskera was not inconsistent with the Taskera being a genuine document.

41    I do not accept that the Tribunal’s approach to the absence of verification of the Taskera was irrational in the relevant sense.

42    The Tribunal’s finding that “it could not be satisfied that the document has been the subject of conclusive verification” was itself correct. Whatever the possible reasons why the NSIA had not verified the document, the fact was that it had not been verified. It was not irrational for the Tribunal to take into account that Mr Gulzari’s Taskera had not been verified when assessing what weight to give to it as evidence of his identity, in the context of a body of evidence that included conflicting information. This did not amount to a positive finding, or an irrational leap to a conclusion, that the Taskera was a document that was counterfeit, or fraudulent, or had not been officially issued. It was simply an assessment of one factor that was rationally capable of bearing upon the weight to be given to the Taskera as a piece of evidence relevant to the question of whether the Tribunal was satisfied as to Mr Gulzari’s identity.

43    It was also not irrational for the Tribunal to refer to the fact that the Taskera contained a unique document number, because this was capable of suggesting that, assuming the NSIA had acted in good faith in attempting to verify the Taskera, it was more likely to have been able to do so using the document number. That was a rational consideration because it suggested that the document the NSIA purported to have attempted to verify was the correct document, with the same document number. This tended to counter the submission (which had been advanced by Mr Gulzari, and which the Tribunal had recorded at [184]) that any attempt to verify the Taskera had been undertaken in relation to the wrong person.

44    Mr Gulzari argues that the Tribunal had failed to appreciate the submissions made on his behalf regarding the problems faced by the Afghan diaspora in obtaining verification of Taskeras, including because of the possibility, or probability, that the NSIA may have been improperly or politically motivated “along ethnic lines” (ie, to discriminate against a Hazara asylum seeker). I do not accept that the Tribunal failed to appreciate this submission. The Tribunal referred to these submissions, albeit quite briefly, at [17] of the reasons for its decision. I do not consider that the Tribunal had to respond to those submissions specifically in order to undertake its overall task of assessing whether it was satisfied of Mr Gulzari’s identity.

45    I do not agree with Mr Gulzari’s submission that the Tribunal’s reasons suggest that it proceeded on an inherent assumption that the non-verification of the Taskera was to be taken as if the search had been performed by a government department that was untainted by possible impropriety. It was still rational for the Tribunal to attach some significance to the fact that the Taskera had not been verified, even if the evidence before the Tribunal had not excluded every possible explanation consistent with the Taskera being a genuine, officially-issued, document. Again, it is relevant to note that the Tribunal did not treat the absence of verification as the basis for making a positive finding that the Taskera had not been officially issued.

46    Insofar as Mr Gulzari submits that the Tribunal failed to consider the Taskera in light of his life story and its consistency with information in certain other documents, I do not accept that submission. The Tribunal referred to those matters in its reasons, but also noted apparent inconsistencies between various documents. It was left with substantially differing information from a range of sources and it was open to the Tribunal in those circumstances to find that it was not able to resolve the differences with sufficient confidence to conclude that it had reached the state of satisfaction required by s 24(3) of the Australian Citizenship Act.

47    None of the complaints made by Mr Gulzari in connection with ground 1 of the appeal establishes that there was any relevant irrationality or illogicality in the reasoning of the Tribunal with respect to Mr Gulzari’s Taskera.

Ground 4

48    Ground 4 of Mr Gulzari’s amended notice of appeal appears as follows:

4.    Ground 4: Misapplication of Citizenship Procedural Instructions (CPI 16)

Particulars:

•    The Tribunal applied [CPI 16] in an overly rigid manner, without considering the flexibility allowed by case law in interpreting identity (para 40-41).

•    The Tribunal’s application of CPI 16 did not take into account the complexities of verifying identity for individuals from conflict zones, where document authenticity is often difficult to prove. The rigid application of these guidelines undermined the broader picture of the Applicant’s life story and other identity evidence (para 206).

•    The Tribunal’s overly strict application of [CPI 16] constituted an error of law as, rather than applying the statutory standard of satisfaction provided by subsection 24(3) of the Australian Citizenship Act 2007 (Cth), the Tribunal strictly applied [CPI 16] as if it was the law. Thereby, impliedly the Tribunal accepted to be directed by the Respondent as it made a decision in the manner directed by the Respondent, and not the law. This may have compromised the Tribunal’s integrity and decision-making power as an independent statutory body.

Relevant Case Law: In GJDB v Minister for Immigration [2023] AATA 3245, Justice Kyrou emphasized that CPI 16 should be applied with flexibility and must accommodate the particular circumstances of refugees or displaced individuals. The Tribunal’s failure to adapt its approach in light of this case constitutes a legal error.

49    Mr Gulzari made no written submissions in support of ground 4 of his appeal to this Court, but relied on the particulars set out in the amended notice of appeal. In oral submissions, Mr Gulzari submitted that, when fairly read, the Tribunal’s decision reveals too rigid an application of the policy set out in Citizenship Procedural Instruction 16 (CPI 16). He further submitted that the Tribunal ought to have approached the question of Mr Gulzari’s identity in this case not just by asking whether he had sufficiently proved that he is an Afghan national but also whether the Minister was satisfied that Mr Gulzari was not a Pakistani national.

50    I do not accept these submissions. The ultimate question for the Tribunal, to which it directed itself, was whether it was satisfied of Mr Gulzari’s identity. In the circumstances of this decision, an important issue arising in the context of that inquiry was whether Mr Gulzari was a national of Afghanistan. The Tribunal appreciated that the only real alternative possibility was that he was a national of Pakistan, and it approached the issue on that basis.

51    The Tribunal does not fall into error by referring to a departmental policy as a guide to statutory decision-making, particularly where the legislation does not prescribe the methods to be adopted or factors that must be taken into account in establishing a person’s identity: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 (Bowen CJ and Deane J). Policy guidelines such as CPI 16 promote the consistent and rational application of the legislation by the Tribunal in conducting reviews, and the application of policy guidelines aids in avoiding “blinkered and individualised decision-making”: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at 194 [54] (French CJ, Bell, Keane and Gordon JJ), 198 [69] (Gageler J). Although the Tribunal may determine the weight that should be placed on policy, “this principle cannot be pushed past the point at which the Tribunal no longer makes an independent assessment on the material before it”: Hneidi v Minister for Immigration and Citizenship [2009] FCA 983 at [50].

52    Nothing in the reasons of the Tribunal suggests that it applied the “three pillars of identity” methodology in a manner which was rigid or which did not recognise the potential difficulties faced by persons from conflict zones, where document authenticity may be difficult to prove. The Tribunal referred to the decision of Kyrou J in GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245 (GJDB) several times in the course of its reasons. At [193], the Tribunal noted a submission made on behalf of Mr Gulzari that “the Tribunal may find CPI 16 a useful guide ‘to the extent that it does not lead to a decision which deviates from the correct and preferable decision’ with respect to [Mr Gulzari’s] identity”. At [205] of its reasons, the Tribunal stated that it had had regard to the following observations of Kyrou J in GJDB (at [28]):

The three pillars approach set out in CPI 16 can provide a useful, common sense framework for assessing facts of a particular case to determine whether one can be satisfied of the identity of an Applicant for citizenship. Accordingly, the approach set out in CPI 16 can be adopted by the Tribunal to the extent that the Tribunal considers that the approach may be of assistance in determining whether it is satisfied of the identity of an Applicant in a particular case.

53    The Tribunal did not further elaborate on the manner in which it applied those observations in the case before it. It did not refer to the “three pillars” methodology in its reasons except in the passage quoted above from GJDB and in the course of describing the content of the letter sent to Mr Gulzari by the delegate on 26 July 2023 (referred to at [20] above). At [245], and again at [254], the Tribunal referred to GJDB together with several other decisions of the Tribunal that have addressed the issue of identity in the context of applications for citizenship. At [246], the Tribunal said of those decisions:

The decisions of the Tribunal recognise that the issue of identity is of significant importance because of the wide range of benefits that are conferred on a person through the grant of Australian citizenship. The Tribunal has considered the evidence closely which it has discussed extensively above. The Tribunal with respect to its decision acknowledges the impediments to the obtainment of identity documents which may be experienced by asylum seekers when fleeing persecution.

54    The Tribunal thus exhibited an awareness of the difficulty faced by Mr Gulzari in attempting to demonstrate his identity, and assessed the evidence before it with that in mind.

55    The Minister contends that the Tribunal did not apply CPI 16 inflexibly. Rather, it applied itself to the terms of the Australian Citizenship Act and independently assessed the evidence having regard to that Act. The Minister further submits that, although the Tribunal referred to the “three pillars” of CPI 16 when citing GJDB, it did not otherwise refer to or make any findings by reference to them. I accept these submissions.

56    The Tribunal formed the view that it was not satisfied of Mr Gulzari’s identity having regard to inconsistencies in documentation and interviews with Mr Gulzari in relation to his date of birth, family composition and life story. Those were considerations to which the Tribunal was permitted to have regard in determining whether it reached the relevant state of satisfaction as to Mr Gulzari’s identity. The Tribunal did not explicitly make its assessment by reference to the “three pillars” of CPI 16; it did not rigidly or inflexibly apply the policy.

57    The Tribunal’s statement that Mr Gulzari’s Taskera had not been verified by Afghan authorities was factually correct, and was made in a context where there was conflicting evidence in other documents before the Tribunal that cast doubt on Mr Gulzari’s identity and, in particular, his nationality. No error of law has been demonstrated and it is not for this Court, on an appeal limited to a question of law, to consider the evidence for itself and substitute its own conclusion for that of the Tribunal.

Ground 7

58    Mr Gulzari’s seventh ground of appeal asserts that the Tribunal “erred in that it arrived at a determination which was not rational, having regard to previous determinations of the [Minister]”. He contends that the Tribunal’s decision was affected by irrationality because, since his arrival, Mr Gulzari had consistently claimed to be a national of Afghanistan and:

(a)    on 19 April 2011, a delegate had determined that Mr Gulzari met the definition of a refugee, accepting that he was a Hazara and a citizen of Afghanistan, and that, although he had lived in Pakistan between 1990 and 2006, he had “no legally enforceable right to enter and reside in” Pakistan;

(b)    on 17 November 2022, having earlier given Mr Gulzari a notice of his intention to consider cancellation of his resident return visa that had been granted to him on 24 October 2019 on the ground that he had provided information and documents relating to his identity which were incorrect or false, a delegate had decided not to cancel the resident return visa; and

(c)    on 30 July 2012, a delegate had decided to amend Mr Gulzari’s date of birth to 28 May 1953, in accordance with Part V of the Freedom of Information Act 1982 (Cth), based on information and documents provided by Mr Gulzari, including his Taskera.

59    The ground is framed in terms of legal unreasonableness or irrationality. The limits of reasonableness and rationality in the exercise of a particular statutory power are to be ascertained by reference to the nature of the power conferred by the statute: see, eg, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at 647-8 [130] (Crennan and Bell JJ); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at 5 [11], 6 [12] (Allsop CJ), 17 [55], 20 [62] (Griffiths J). The Tribunal’s statutory task in this case was to reach the correct and preferable decision for itself and, in particular, to consider whether it was satisfied as to Mr Gulzari’s identity. This included (but was not limited to) consideration of whether he was a citizen of Afghanistan.

60    Mr Gulzari’s submissions in support of ground 7 focus mainly on the decision of the delegate who, after consideration, on 17 November 2022 decided not to cancel his resident return visa. The material that was before the delegate was substantially the same as the evidence that was before the Tribunal.

61    Mr Gulzari submits that the Tribunal erred (at [11] of the reasons) in finding that Mr Gulzari had, on 6 April 2022, responded to the notice of intention to consider cancellation sent by the Minister in respect of Mr Gulzari’s protection visa; the notice in fact related to Mr Gulzari’s resident return visa. It may be accepted that the Tribunal misidentified the visa that the Minister’s delegate had considered cancelling. Notably, the Tribunal later (at [13]) correctly identified the relevant decision as relating to Mr Gulzari’s resident return visa. I do not accept that this slip reveals any error of law by the Tribunal or that it affected its decision.

62    Mr Gulzari submits that the Minister’s decision not to cancel the resident return visa involved a positive finding that there had not been non-compliance in the way described in the notice of intention to consider cancellation, and that that decision was made following a comprehensive and complete analysis of the information before the delegate in relation to Mr Gulzari’s identity. As indicated at [19] above, I accept that the delegate who decided not to cancel the resident return visa did make a positive finding that Mr Gulzari was a national of Afghanistan, albeit that they described that they reached that conclusion by giving Mr Gulzari “the benefit of the doubt”. None of the delegates was required to be satisfied of Mr Gulzari’s identity as such, but I accept that the issues that they addressed (in particular, as to Mr Gulzari’s nationality) overlapped substantially with the issues that arose before the Tribunal, and that the findings that the delegates made were in tension with the conclusions of the Tribunal.

63    Mr Gulzari submits that, given that a delegate of the Minister had reached a state of satisfaction as to Mr Gulzari’s nationality in addressing the potential cancellation of his resident return visa, the Tribunal’s finding that it was not satisfied of Mr Gulzari’s identity was irrational. However, the submission does not really articulate why the finding of the Tribunal was irrational, beyond pointing out that it was not consistent with a finding recorded by the delegate.

64    Mr Gulzari relied on the decision of Mortimer CJ in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 (BQG21) at [38]. In that case there were several aspects of the reasoning of the Administrative Appeals Tribunal (AAT) that were internally inconsistent and illogical. The AAT appears to have accepted that the material put forward by the applicant in that case positively established that he was who he said he was. It accepted the genuineness of identity documents on which he relied. It referred to an offshore protection visa application made by or on behalf of the applicant which included a photograph of him but featured different names and an incorrect statement as to the applicant’s relationship with another person. The applicant accepted that the offshore application related to him but denied authorising or making the application, and the AAT made no findings about that. It was in that context that Mortimer CJ observed that it was telling that the AAT had not explored at all the potential consequences of its conclusion for the applicant’s holding of his protection visa, and noted that the AAT did not find that the applicant was not the person he had claimed to be in his successful protection visa application. Chief Justice Mortimer held (at [33], [37]) that the decision was illogical because, having accepted the applicant’s Iraqi identity documents, it would have to have explored certain factual issues had it been reasoning logically. Her Honour summarised the irrationality in the AAT’s decision in the following passage (at [45]):

In the present case, the [AAT’s] fact finding is internally inconsistent on material issues. It is irrational to accept as accurate all the applicant’s Iraqi documentation, and supporting testimony, and then to find in substance that he should not be believed because of the existence of other documentation for which there could well have been explanations wholly consistent with the applicant’s narrative, but not explored at all by the [AAT]. It is irrational to conflate the factual question of the use of different names with the concept of identity. It is irrational for the Tribunal to have accepted all the documentation put forward by the applicant, and the supporting testimony, and impliedly accept the validity of the grant of the protection visa to him on that basis, and then find itself not satisfied of his identity. It is irrational for the [AAT] to find the applicant was the same person as A2 and then not accept his identity. All these irrationalities were central to the reasoning of the [AAT] on s 24(3).

65    I do not think the Tribunal’s decision in this case involved illogicality in the same way as the decision of the Tribunal in BQG21. The Tribunal in this case clearly appreciated that Mr Gulzari was claiming to be the same person who had been granted a protection visa, and whose resident return visa had not been cancelled despite initial doubts as to whether he had provided incorrect information in connection with the application for it. The Tribunal was confronted with inconsistent evidence, some of which supported Mr Gulzari’s position, but some of which suggested that, contrary to his claims, Mr Gulzari and his family may have been Pakistani nationals.

66    For the Tribunal to decide to draw one inference rather than another, or to fail to reach a state of satisfaction as to Mr Gulzari’s identity in those circumstances was not, in my view, so irrational as to amount to a failure lawfully to exercise its review function. The following statements of Crennan and Bell JJ in SZMDS (at 648 [131]) are apposite:

… [T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

67    Mr Gulzari accepts that the Tribunal was not bound to make a decision that was consistent with the earlier decision of the delegates who had decided to grant him the protection visa and not to cancel the resident return visa. However, he submits that the Tribunal was required to acknowledge and have regard to the fact that previous decision-makers had considered many of the same issues which led the Tribunal to find that it was not satisfied of his identity, and that, having considered those issues, each of the previous decision-makers had reached the conclusion that they should accept that Mr Gulzari was a national of Afghanistan.

68    The Tribunal was required to have regard to the evidence before it and the submissions relied on by Mr Gulzari before the Tribunal in support of his contention that the Tribunal should be satisfied that he was a citizen of Afghanistan. It was not, however, required to have regard to the fact that, in previous decisions, delegates of the Minister had found that they were satisfied that he was indeed a citizen of Afghanistan.

69    This ground is not explicitly framed as a failure to take into account a mandatory relevant consideration, but the submissions advanced on behalf of Mr Gulzari were essentially to the effect that, in the circumstances of this case, in order to discharge its review function, the Tribunal was legally required to consider the decision of the delegate not to cancel Mr Gulzari’s visa. The Tribunal was aware of that decision, and in that sense took it into account. I do not accept that the Tribunal, in reviewing a decision under s 24(3) of the Australian Citizenship Act, was legally required to consider the earlier decision or findings of the delegate who had decided not to cancel his visa, in the sense of giving the delegate’s decision weight in the Tribunal’s own reasoning process. The Tribunal had regard to the evidence before it (which included essentially the same evidence that had been considered by the delegate who decided not to cancel Mr Gulzari’s resident return visa) but independently came to the conclusion that the Tribunal was not satisfied of Mr Gulzari’s identity.

70    For these reasons, ground 7 must be rejected.

Conclusion

71    Mr Gulzari’s position evokes some sympathy. He has previously satisfied three different decision-makers within the Department of Home Affairs of his identity, or at least that he is a national of Afghanistan. The decision as to whether his resident return visa should be cancelled, in particular, was made on substantially the same documentary material that was considered by the Tribunal in connection with his citizenship application, and the delegate who made the decision not to cancel the resident return visa was satisfied that Mr Gulzari was a citizen of Afghanistan. Yet the Tribunal was not satisfied of his identity, and consequently Mr Gulzari has been unsuccessful in his application for Australian citizenship.

72    It was reasonably open on the material before the Tribunal for it to find that it was not satisfied of Mr Gulzari’s identity, and its reasoning was not irrational. It was the Tribunal’s function to make that decision. It is not the function of this Court, on an appeal from the Tribunal limited to a question of law, to reach, or give effect to, its own view as to whether it is satisfied of Mr Gulzari’s identity. The issues for decision in this Court only concern the lawfulness of the Tribunal’s decision.

73    None of Mr Gulzari’s grounds of appeal has been successful. The appeal must be dismissed with costs.

Associate:

Dated:    8 August 2025