Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 1267

Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267 (12 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2545
2019/2933

Re:Boshra Al-Hussaini
Danyal Al-Hussaini
APPLICANTS

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 May 2020
Place:Sydney

DECISION RE BOSHRA AL-HUSSAINI
The decision under review is affirmed.
DECISION RE DANYAL AL-HUSSAINI
The decision under review is set aside and consideration of his application remitted to the Minister with a direction that the Applicant is qualified for citizenship by conferral under all relevant sections of the Act.
..........................[SGD]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – two applications for citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person(s) – whether the applicant is of good character – making false and misleading statements in relation to identity – bogus document – use of multiple and changing names or nicknames – what may constitute acts of deception (deliberate and otherwise) – application of Citizenship Policy – decision affirmed – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
Migration Act 1958 (Cth) ss 101, 109, 107A, 487ZJ
CASES
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Chan and Minister for Immigration and Border Protection [2019] AATA 21
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979) AATA 179
Eidson and Minister for Immigration and Border Protection [2017] AATA 1354
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
G v Minister for Immigration and Border Protection (2018) FCA 1229
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84
Jones v Dunkel [1959] 101 CLR 298; [1959] ALR 367
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Qasimi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 378
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579
YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth), CPI 16 - Assessing Identity under the Citizenship Act, issued 10 April 2019
Australian Citizenship Policy, 75, 158-161
Explanatory Memorandum, Australian Citizenship Bill 2005
Canadian Immigration and Refugee Board, Iran: Information on possible punishment for an Iranian woman who had a child out of wedlock (Web page, 1 March 1993) < of the Islamic Republic of Iran, Article 12
IRN10969CQ: Iran: Iran and Citizenship, 23 November 2010. Civil Code of Iran, Articles 976 – 991
Jamila Hussain, Islamic Law and Society: An Introduction (Federation Press, Sydney, 1999) 74
Rima Alsammarae, Fluid Motion Architects designs controversial mosque in Tehran that challenges traditional Islamic design (Web page, 19 February 2019) < Mahshid Sadat, ‘Comparative Study of the Illegitimate Children’s’ Rights under English and Iran Laws’ (2013) 3(4) J. Basic Appl. Sci. Res. 254-262
National Identity Proofing Guidelines (Identity Guidelines), 2016
Syma Sayyah, A Visit to Hazrat-e Seyed-Al Shohada Hospital in Tehran (Web page, 16 March 2007) < align="left">Yatzer, The Groundbreaking Modesty of Vali-e-Asr Mosque in Tehran (Web page, 25 March 2019) < FOR DECISION
Chris Puplick AM, Senior Member
12 May 2020

This is an extraordinarily complex application which requires the Tribunal to give consideration to a variety of matters which are difficult to fathom, such as: the social and legal attitudes of the regime of the Islamic Republic of Iran; accepted marriage practices and conventions in Shi’a Islam; the processes of obtaining identity documents via agents in Iran and Iraq; the movement of people between Iran and Iraq; the use of multiple and changing names or “nick-names”; the establishment of contested identities; the impact of one person’s actions on the position of another; what may constitute acts of deception (deliberate and otherwise); and what constitutes being of “good character”.
The Tribunal has before it at the same time applications from a mother and son both seeking citizenship by conferral, where both applications have been refused on the basis of uncertainty as to the true identity of each party.
Hence, these applications turn upon the fundamental question of establishing, to the level of satisfaction required by the relevant legislation and policy, the true identity of each of the applicants. This in turn, may lead to a consideration of what constitutes good character under the Australian Citizenship Act 2007 (Cth) (the Act).
The first decision relates to that of Mrs Boshra Al-Hussaini (the First Applicant).
A separate decision must be made in relation to the application by her son, Danyal Al-Hussaini (the Second Applicant) who is still a minor. It must also be decided as to how contingent upon the decision in relation to the First Applicant is the decision in relation to the Second Applicant.
Timetable matters
Some of the key facts in relation to matters of contested identity are exactly the same.
The timetable of events immediately leading to this matter being before this Tribunal is as follows for the First Applicant:
(a)9 June 2010: the Applicant first arrived in Australia holding an XB202 Humanitarian Visa which had been granted on 9 May 2010.[1]
(b)2 July 2014: the Applicant lodged an application for grant of citizenship by conferral.
(c)15 April 2019: a delegate of the Minister (the Respondent) refused the application on the basis of not being satisfied of the Applicant’s identity under the relevant provisions of the Act.
(d)9 May 2019: the Applicant sought a review of the refusal decision by application to this Tribunal.
(e)21 and 22 April 2020: the Tribunal heard the application by video conference.[2]
[1] Respondent’s Supplementary Materials at [291]. Both Applicants were subsequently granted Return Resident (subclass 155) visas on 16 August 2016. Ibid at [253].
[2] Due to the restrictions imposed as a result of the COVID-19 pandemic, the Tribunal conducted its hearing by video conference of the parties and with the assistance of Farsi interpreters by telephone. Although some technical difficulties interrupted proceedings on a small number of occasions, the Tribunal is satisfied that procedural fairness was extended to all parties.
In relation to the Second Applicant, they are:
(a)9 June 2010: the Applicant arrived in Australia on a “Document for Travel to Australia” in the company of his mother. He was aged 7 years at the time (DOB: 12 December 2002).
(b)2 July 2014: the Applicant’s mother lodged an application for citizenship by conferral in which she included the Applicant as a dependent. He was aged 11 years at the time.
(c)15 April 2019: a delegate of the Minister (the Respondent) refused the application on the basis of not being satisfied of the Applicant’s identity under the relevant provisions of the Act.
(d)9 May 2019: the Applicant sought a review of the refusal decision by application to this Tribunal.
(e)21 and 22 April 2020: the Tribunal heard the application by video conference.
The Policy Framework
It is necessary at this stage to outline the complex provisions of the Act and various other policy directions or instructions within which decisions of this nature must be made. Each application must be considered individually, and different sections of the Act apply in respects of each of them.
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) provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
However, s 24(3) explicitly states:
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
There is no discretion available to either the Minister or any other decision-maker, in this case the Tribunal, to grant citizenship unless that decision-maker is satisfied as to the identity of the applicant. In the absence of that satisfaction, the application must be refused.
The Explanatory Memorandum to the Australian Citizenship Bill 2005, which became the 2007 Act makes it clear that:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen. (at 41)
The Department has issued the Citizenship Policy and a set of Citizenship Instructions which contain relevant policy guidance in relation to assessing identity under the Act. Unless there are cogent reasons not to follow the Policy or Instructions, the Tribunal is obliged to adhere to them.[3]
[3] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979) AATA 179.
However, as the Tribunal stated in Qasimi:
The Australian Citizenship Instructions (“Instructions”) have been adopted by the Minister to guide those making decisions under the Act. Chapter 5 of the Instructions sets out the relevant legislative requirements and policy guidelines for Australian citizenship by conferral. The Instructions reflect Government policy and are not binding on the Tribunal. However, the Tribunal should have regard to the Instructions unless there is good reason not to do so.[4]
[4] Qasimi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 378 at [9].
This is consistent with a long line of authority. Decision-making in such circumstances is not entirely a black and white or automatic process. As far back as 1979, the Full Court of the Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[5]
[5] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that, in relation to the responsibilities of a decision-maker, “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[6]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].
In 1981, the Full Court of the Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[7]
[7] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Frank J at [642] and Deane J at [646].
In 1985, the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[8]
[8] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994, the Full Court of the Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[9]
[9] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[10]
[10] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].
The relevant sections of Chapter 13 of the Citizenship Policy[11] provide, inter alia:
[11] Australian Citizenship Policy pages 158-161.
ln addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person's identity.
Concept of identity
The concept of identity is as described in the Attorney-General's Department's National Identity Proofing Guidelines.
…
On 10 June 2015, the ANAO tabled in Parliament the performance audit "Verifying Identity in the Citizenship Programme" (the identity audit). The identity audit made five recommendations covering development of guidance on establishing identity, programme management and notification tools for use in tracking how the programme manages its cases where there are questions about an Applicant's identity. The department agreed to these recommendations. To this end the department is developing an Identity Assessment Framework for Citizenship which will apply to all Applicants.
Name to be used
The application must be made in the most recent name that the Applicant has been known by according to acceptable identity documents, the Applicant's 'current full name'...
For citizenship purposes, the Applicant's current full name would be the most recent name that appears on acceptable official forms of identifying documents.
The allowable identity documents relating to the Applicant's name for the purposes of a citizenship application would include officially issued documentation such as:
·         birth and adoption certificates
·         official change of name documentation
·         marriage, divorce or other relationship status certificates or entry records
·         official passports
Changes to name or other identity information
If the Applicant has changed their name, date of birth, sex or gender they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.
In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage.
However, a change to personal/biographical data is a serious matter if the change leads to a different identity.
A change of identity (changes to component(s) of the person's identity) diminishes the usefulness of the results of the security and criminal checks.
…
In reaching a finding of fact about the person's identity, decision makers are expected to consider issues such as:
·         the reason that the person provided the original personal information relating to their identity when they applied for citizenship
·         the reason for changing their personal information
·         whether the person has had any other amendments such as dates of birth/names and the reasons for those changes
·         the documentation that was provided to support the change of personal information.
In assessing matters of identity, regard must be had to the National Identity Proofing Guidelines (Identity Guidelines) issued by the Attorney General’s Department in 2016. They relevantly provide as follows (footnotes omitted and emphasis in original):
1.1      Background
1.1.1    Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5    Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the Policy. Instances of this have arisen in relation to people who have been refugees from conflict zones; victims of natural disasters; unauthorised maritime arrivals (back to the days of the Vietnamese “boat people”); victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities. The Identity Guidelines establish that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include:
1Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2Verification of the person's claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
3Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[12]
[12] Identity Guidelines at 5.1.3 (1-4).
It is also important to note what the Identity Guidelines provide in definitional terms. Chapter 2.1.1 states:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.

This definition is restated in the most recent version (10 April 2019) of the Department’s Citizenship Policy Instructions, CPI 16 – Assessing Identity under the Citizenship Act.[13]
[13] CPI 16 – Assessing Identity under the Citizenship Act at 4.2.
The Act contains a further set of requirements which must be met by all applicants for citizenship by conferral. Section 21(2) contains a list of such requirements as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister's decision on the application.
Where an applicant for citizenship by conferral is under the age of 18 years but over the age of 16 years, s 21(5) of the Act provides:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged under 18 at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application.
The Australian Citizenship Policy provides:[14]
Person aged under 18 years (s21(5))
When was application received
For applications received before 9 November 2009, refer to the Act and ACIs in effect immediately before 9 November 2009.
For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa by entering Australia or by being granted the permanent visa while onshore) at the time of application and at the time of decision to be eligible for Australian citizenship.
The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out in this chapter.
Consideration must also be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s24).
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be under 18 at the time of decision on the application and the child is living in Australia. Refer to Chapter 22 - Best interests of the child.
[14] Australian Citizenship Policy page [75].
Tribunal decisions related to identity issues for citizenship
Questions of identity and identification, together with their relationship to determination of matters of good character have been considered in several Tribunal decisions. So have questions about the integrity of documents presented to the Australian authorities.
All Tribunal decisions are conscious of the significance of the granting of citizenship. In Beyan and Minister for Immigration and Border Protection the Tribunal made clear that:
"... a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear."[15]
[15] [2015] AATA 256 at [38].
In Dhayakpa and Minister for Immigration and Border Protection,[16] Deputy President Nicholson said:
117. Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
118. I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
[16] [2015] AATA 310.
In Confidential¸ the Tribunal had found that, with reference to requirements related to the completion of forms on behalf of an applicant for citizenship under the age of 16 years:
[34] I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.[17]
[17] Confidential and Minister for Immigration and Citizenship [2013] AATA 144.
Dhayakpa was followed in YMPL[18] where the Tribunal said:
Relevantly, the test for establishing identity is outlined in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 where the Honourable R Nicholson, Deputy President was satisfied that the applicant in that matter had established his identity to the best of his ability. The Deputy President stated at [117]: “Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.
Having carefully considered the evidence and the relevant circumstances, the Tribunal is reasonably satisfied that YMPL’s identity is that which he claims it to be.
[18] YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458.
It went on to conclude:
[61] The Tribunal finds that YMPL’s identity is that which he claims it to be. The Tribunal also finds that YMPL is of good character for the purposes of satisfying the relevant eligibility criteria to become an Australian citizen.
Similarly, in Al Temimi and Minister for Immigration and Border Protection[19] the Tribunal considered conflicting evidence about identity documents, which after consideration led it to state:
[32] … the Tribunal is “satisfied of the identity” of the applicant, within the meaning, and for the purposes, of s 24(3) of the Act.
[19] [2014] AATA 97.
It should be noted, however, that in this case the Tribunal went on to find that although identity was established, the applicant was not a person of good character under s 21(2)(h) of the Act and the refusal decision was affirmed.
A similar outcome resulted in Sinnathamby where the Tribunal accepted that the applicant had genuinely lost his identity documents in the capsizing of a boat en route to Australia but that the inconsistencies in his other evidence and the bogus nature of some documentation gave rise to a conclusion that he was not a person of good character.[20]
[20] Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579 at [48]; [65] and [67].
In Gjura, the Tribunal found that the applicant’s evidence regarding how he obtained a Yugoslavian/Kosovan birth certificate was “vague and opaque” and that the applicant was “unable to confirm whether other documents were genuine or fake, nor was he able to give specific, transparent details of how they were obtained.”[21] As a result, the Tribunal was not able to be satisfied of the applicant’s identity.
[21] Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 at [75].
Where issues about the genuineness or otherwise of documents submitted in support of migration, visa or citizenship applications have been called into question, the Tribunal has been very clear in its findings.
In Nguyen[22] I came to a conclusion, affirming a denial of citizenship, in the following terms:
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.[23]
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[22] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
[23] See Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Similarly, in Fang, I said, in relation to the use of false documents:
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.[24]
[24] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686 at [103].
It is against this background of legislation, policy, departmental instructions and Tribunal decisions, that the claims of both the First and Second Applicants must be assessed.
BOSHRA AL-HUSSAINI: THE FIRST APPLICANT
The nub of the dispute between the First Applicant and the Respondent is that the latter claims there is sufficient evidence to show that the former used a different name when she was living in Iran, that her family composition is different from that which she claims and that, as a result, the Minister cannot be satisfied as to her true identity as required by s 24(3) of the Act.
The First Applicant’s narrative
Her name
The First Applicant claims that she is Boshra Al-Hussaini and that she has never been known by any other name.[25]
[25] Respondent’s Supplementary Materials at [200].
Her parents
She states that she is the daughter of Yousef Morteza Al-Hussaini and Maryam Hassan, both born in Karbala, Iraq and both now deceased.[26] She says that she was born on 23 December 1974 also in Karbala, Iraq.[27]
[26] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [190]-[191].
[27] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [188].
Arrival in Iran
In representations to the Department, she advances the claim that she left Iraq on 1 August 2001, in the company of her sister Amirah “and the rest of the family”. By this, it is understood by the Tribunal that she means her sister, her sister’s children[28] and her son. She gives as the reason for this departure that her brother-in-law was having “political problems in Iraq”. She states that this brother-in-law (Hassan) had already left Iraq and departed for Australia in 1999. She acknowledges that this border crossing was illegal[29] and told the Tribunal in oral evidence that she and her companions crossed the border in a mini-bus of some type together with other people and some sort of driver or smuggler. In other evidence, the First Applicant says the border crossing was by foot after a drive to that point.[30] There is also a claim by the First Applicant to the effect that: “I was a young girl and in some ocasion (sic) when my life was threcens (sic) and that’s why I fled.”[31]
[28] Respondent’s Supplementary Materials at [403].
[29] Respondent’s Supplementary Materials at [034].
[30] Ibid at [419].
[31] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [183].
Marriage
She states that between 13 September 2001 and 25 March 2002, she was married to a man named Mohammed Ali,[32] whose nickname was “Jalal”.[33] She claims that this was a sigheh form of marriage, recognised under Iranian jurisprudence. As a result of this marriage, she gave birth to a son, Danyal, on 12 December 2002. Her husband must have left almost immediately upon hearing of his wife’s pregnancy and she claims that she never saw him again and has no idea of his whereabouts.[34]
[32] Respondent’s Supplementary Materials at [016].
[33] Ibid at [201].
[34] Ibid at [034].
Residential arrangements
She claims that, once in Tehran, she lived with her sister until she departed for Australia (sponsored by her husband) on 4 August 2006[35] and thereafter, with a female friend of her sister who allowed her and her son to live with her rent free.[36]
[35] Ibid at [035].
[36] Ibid at [404].
Visa application
On 9 May 2008, the First Applicant applied for an Offshore Humanitarian Visa (subclass XB202) at the Australian Embassy in Tehran and was first interviewed about her application on 7 July 2008.[37] A second interview followed on 29 March 2010. At this interview, the Australian Embassy official indicated to the First Applicant that the Iraqi identity card which she had produced as proof of her identity was considered to be counterfeit.[38]
[37] Ibid at [008].
[38] Ibid at [301].
Iraqi Identity Card
In relation to this card, the First Applicant states that she applied for the card at some sort of Iraqi office in Tehran and that she paid $US50 for someone to travel to Iraq to obtain it for her. The card was issued or created somewhere and returned to Tehran where she collected it.[39] Whether this is to be understood as the intermediary being paid directly by the First Applicant or whether the intermediary was arranged by the Iraqi office is unclear and it is possible to read the First Applicant’s statements either way,[40] although in oral evidence the First Applicant claims it was the latter. The ID card is dated 17 August 2007 and was initially considered to be counterfeit by the Tehran Embassy but was returned to the First Applicant at that stage. It was finally confirmed as counterfeit by the Department’s expert document examiner in December 2015[41] and seized on 29 January 2016 under s 487ZJ(1) of the Migration Act 1958 (Cth) (the Migration Act).[42]
[39] Ibid at [204].
[40] Ibid at 179 (paragraph 71).
[41] Ibid at [104].
[42] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [229].
Reasons for leaving Iran
The First Applicant claimed both that she was vulnerable in Iran as she had no family and in particular no male protector[43] and that she was at risk of physical harm because she was an illegal resident and had a child regarded as illegitimate.
[43] Respondent’s Supplementary Materials at [344].
Necessary interpolation: Sigheh marriage
Sigheh (in Farsi) or Nikah mut’ah (in Arabic) refers to what can be described as a “temporary” marriage (literally, a “pleasure marriage”). It takes place in private, based upon a verbal agreement by the parties, and lasts for only a limited period of time. It is particularly a feature of the jurisprudence of Twelver Shia Islam, the official religion of the Islamic republic of Iran,[44] but is not recognised as legitimate in Sunni jurisprudence.
[44] Constitution of the Islamic Republic of Iran, Article 12.
Importantly in this matter:
“[Mut’a or temporary marriage]. This is a contract between and man and a woman to enter into a marriage type relationship for a specified period of time. The man must agree to pay the woman an amount of money for the agreement. There are no witnesses and the woman does not inherit from the man, although children have the normal rights of legitimate children.”[45]
[45] Jamila Hussain: Islamic Law and Society: An Introduction [Federation Press, Sydney, 1999] page [74].
It was the First Applicant’s evidence that she entered into this form of marriage to Mohammed (“Jalal”) Ali for a period of approximately six months from September 2001 to March 2002. This period would be regarded as not untypical for sigheh arrangements.
A significant variety of inconsistences
Her name
The Tribunal will discuss separately the matter of whether or not the First Applicant used an alternative name when resident in Iran.
Her parents
The First Applicant has stated that she had little memory of her parents both of whom, she says, died when she was young, although not at the same time. She said at one stage that she would need to check with her sister to establish these details.[46] By contrast, there is a document lodged by Zakiyeh[47] Bahmanyar, who the First Applicant states is her close and long-standing friend, wherein Yousif Hussein Murtda (family name Al-Hussaini), husband of Maryam Bahmanyar, born resident in Iran is listed as “retired”. Yousif and Maryam are listed as the parents of this applicant.[48]
[46] Respondent’s Supplementary Materials at [103].
[47] Zakiyeh’s (Bahmanyar) name is spelt differently in various documents but the Tribunal has used a standardized version as “Zakiyeh” throughout.
[48] Respondent’s Supplementary Materials at [090].
In her direct sworn testimony to the Tribunal, Fatemeh Khamehyar, who is the daughter of Zakiyeh Bahmanyar testified directly that she spoke “not that much” to her grandfather Yousif Murtda but that he was certainly still alive. This is also the conclusion reached by the Minister’s Delegate when considering the possible cancellation of the First Applicant’s Return Resident visa.[49]
[49] Ibid at [264].
Arrival in Iran
As noted above, the First Applicant stated that this was 1 August 2001. This is a version different from that recorded by a Departmental officer on 3 December 2015, where it is recorded that: “Client claimed since she moved to Iran from Iraq in 1999, she had not been anywhere other than coming to Australia.”[50]
[50] Ibid at [103].
Marriage
The First Applicant states on a number of occasions that she was married to Mohammed Ali in a sigheh relationship. A Delegate of the Minister accepted that there was a marriage.[51] Dr Ishrat Ali (a consultant psychiatrist) in providing a report back to the First Applicant’s general practitioner reports that she “has been married for one year” before referencing her second husband and that she “had one child from her previous marriage.”[52] The First Applicant herself states: “After living in Iran for some time, I met a man named Mohammed Ali to whom I got married.”[53] She claimed to be in a marriage/de facto/common law/or customary marriage with Mohammed Ali in her Humanitarian Visa application.[54] When interviewed by Embassy officials at her home in Tehran she told them she had been in a sigheh relationship with Mohammed Ali eight years prior to their visit (April 2010).[55]
[51] Ibid at [183]. The delegate writes: “I also consider it is likely you were previously legally married and that Danyal was conceived while you were married to an Iranian citizen.”
[52] Ibid at [175].
[53] Ibid at [034].
[54] Ibid at [016].
[55] Ibid at [308].
On the other hand, in an interview with the Australian Embassy in Tehran, the First Applicant flatly denied that she was married to Mohammed Ali who she described as “no, boyfriend only”.[56] In a Statutory Declaration of the First Applicant dated 3 December 2015, she states that her son Danyal, “is from my boyfriend, he no have a father.”[57] In a submission to the Parramatta Office of the Department she writes: “Official name of boyfriend was/is Mohammed Ali. He had a nickname of Jalal in everyday life.”[58]
[56] Ibid at [404].
[57] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [214].
[58] Ibid at [256].

The First Applicant’s official Document for Travel to Australia, apart from listing her son’s birth of place as being in Iraq, also shows her marital status as “Never Married.”[59]
[59] Ibid at [203].
Residential arrangements
The First Applicant’s account of her living arrangements in Tehran are consistent with the findings of a home visit conducted by the Australian Embassy in Tehran on 22 April 2010.[60]
[60] Respondent’s Supplementary Materials at [308]-[309].
Visa application
As noted, the First Applicant has made a number of claims to have left some form of documentation with the Australian Embassy in Tehran during various interviews. She has also claimed that she possessed no documentation. There is no official record of any documentation having been received.[61]
[61] Ibid at [110].
Iraqi Identity Card
Again, as noted, the First Applicant has provided what might seem to be inconsistent versions of how this card was obtained, either through her direct payment of someone to travel to Iraq to obtain it or else via some agency in Tehran. There is also some confusion about how much she might have paid for such a service.[62]
[62] Ibid at [176] and Section 37 Tribunal Documents (Boshra Al-Hussaini) at [256].
Of more significance is the fact that despite being cautioned that the ID card was counterfeit, the First Applicant continued to make use of it for official purposes.[63] In a letter to the Department received on 12 February 2016, the First Applicant records that “I was really shocked when I known my ID is bogus. With my best of knowledge this is my original document. And same time this ID I gave to immigration department in Iran in Australian Ammebessy (sic) when I applied first time before I came here.”[64] (original text)
[63] Ibid at [232].
[64] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [238].
The Respondent, in its Statement of Facts, Issues and Contentions draws attention to the facts that:
(a)The Applicant provided a counterfeit Iraqi Personal Identity Card to the Department in a citizenship interview on 3 December 2015;
(b)The Applicant provided a counterfeit Iraqi identification document to the Department in a visa interview in 2010;
(c)The Applicant provided a contradictory explanation to the Department in the interview on 3 December 2015 and a letter to the Department on 12 February 2016 as to how she obtained the identity document.[65]
[65] Respondent’s SFIC at [44].
Reasons for leaving Iran
In an interview at the Tehran Embassy on 7 July 2008, the First Applicant expressed a fear that “under Iranian law they will kill her son as there are no evidence that he was born within marriage.”[66] In her statement responding to a notice of possible cancellation of her Resident Return visa she averts to concerns that “Execution was a penalty for any women who illegally (without religious rituals) would enter into a relationship and would have a child as a result of that relationship.”[67]
[66] Respondent’s Supplementary Materials at [008].
[67] Ibid at [203].
These fears, although they might have been held by the First Applicant, are without foundation if, as she otherwise claimed she was a partner in a sigheh marriage.[68] In other respects the fear might have some justification.[69]
[68] Mahshid Sadat Tabaei: “Comparative Study of the Illegitimate Children’s’ Rights under English and Iran Laws”, J. Basic Appl. Sci. Res. 3(4) 254-262, 2013.
[69] Canadian Immigration and Refugee Board: “Iran: Information on possible punishment for an Iranian woman who had a child out of wedlock” (1 Mat 1993) >
It is also the case, according to notations by the Australian Embassy in Tehran, that under Iranian law if her husband was an Iranian citizen then his wife would be entitled to both Iranian citizenship and an Iranian passport.[70] It is also the case that nationality in Iran is by paternal descent and if Mohammed Ali were an Iranian (as appears to be the case) and Danyal the child in a sigheh marriage, he would also be eligible for Iranian citizenship.[71]
[70] Respondent’s Supplementary Materials at [407].
[71] IRN10969CQ: Iran: Iran and Citizenship, 23 November 2010. Civil Code of Iran, Articles 976 – 991.
Elsewhere in the documentation, the First Applicant claims that her fears of persecution relate to a return to Iraq,[72] although there is a possibility that in this instance, she actually meant Iran.
[72] Respondent’s Supplementary Materials at [035].
As noted above, the First Applicant’s stated reasons do not necessarily stack up against the reality of the legal position in Iran. On the one hand, the First Applicant’s concerns can well be understood. On the other hand, the First Applicant has returned to Iran on several occasions, at least once taking her son with her.[73] Additionally, the First Applicant was planning a further trip to Iran in March 2020.[74]
[73] Respondent’s Supplementary Materials at [283]-[284].
[74] Applicant’s Submission at [4].
A major point of concern for the Respondent is the suggestion that the First Applicant was known by and operated under another name while living in Iran and did so until quite recently. This leads to the next question for consideration by the Tribunal.
Despite the inconsistencies
On 9 May 2010, the most senior migration officer at the Australian Embassy in Tehran (the Chief Migration Officer) reviewed the material before him. In the departmental record it states:
“I have reviewed this application including the interview and claims made in the file and the site visit report. While I think there are still areas of concern, I find that there is no evidence to contradict PA’s claims and as such I find that PA and PD met the requirements for the grant of a sc 202 visa. As all requirements are now met, I have granted their visas accordingly.”[75]
[75] Respondent’s Supplementary Materials at [299]. PA/PD = Party applying and Part dependent.
The Chief Migration Officer then issued (signed on his behalf) a letter to the First Applicant advising of her grant of visa on 13 May 2010.[76]
[76] Ibid at [293].
The Tribunal cannot simply ignore the fact that concerns about the First Applicant’s identity (and consequently that of her son) were clearly drawn to the attention of the Chief Migration Officer of the Australian Embassy in Tehran. He had all the relevant material before him, including details of the site visit and the expressed concerns of other officers. Nevertheless, he was prepared to make a decision to grant a visa – albeit recognising the existence of concerns – on the basis that all requirements for a visa to be issued had been met.
In some respects therefore, it is quite understandable that the First Applicant thereafter proceeded on the basis that the Australian authorities had accepted her documents (such as they might have been) and her application as being genuine and sufficient for the purposes of a visa grant.
It is only with the visa application of Zakiyeh Bahmanyar that those concerns were revivified.
Who is Boshra Bahmanyar?
The name Boshra Bahmanyar arises in the first instance as a result of the Department undertaking a review of certain financial transactions in which the First Applicant sent money from Australia to a certain Zakiyeh Bahmanyar in Iran. That review appears to have been triggered by the citizenship application from the First Applicant and the Department’s need to satisfy itself of her compliance with statutory requirements. Records from AUSTRAC reveal that starting in June 2013 up until March 2015, the First Applicant made 22 separate payments to Zakiyeh Bahmanyar.
Zakiyeh Bahmanyar’s telephone number (which is stated in the records) is exactly the same number as that given by the First Applicant as her contact point in her Form 842 application for the Humanitarian Visa.[77]
[77] Respondent’s Supplementary Materials at [261].
On 22 March 2015, Zakiyeh Bahmanyar (who was born on 23 September 1971 in Karbala, Iraq) applied at the Australian Embassy in Tehran, for a Visitor visa (subclass 600) to visit Australia. In that application she listed her parents and her siblings. Her parents are shown as Yousif Hussein Murtda and Maryam Bahmanyar.[78] It is stated that her mother is deceased but that her father was born in Karbala, Iraq and is now retired and living in Iran. Among her siblings, a sister is listed as Boshra Bahmanyar, born on 12 December 1974 in Iraq.[79] This sister is stated to have as her occupation: “childcare”.[80] Her two other brothers are listed as Amir and Mahmud Bahmanyar.
[78] Ibid at [090].
[79] Ibid at [261].
[80] Ibid at [090].
The First Applicant lists her birthdate as 23 December 1974, but states that her son Danyal was born on 12 December 2002. Although in her citizenship application the First Applicant lists her occupation as “Housewife”,[81] she also told the Department that she worked as a “house cleaner”.[82] She also told a departmental officer that: “when she was in Iran, she was working, working for neighbour like childcare, never worked in Iraq.”[83]
[81] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [189].
[82] Respondent’s Supplementary Materials at [003].
[83] Ibid at [103].
This obviously alerted the Department to the fact that this applicant was claiming to have exactly the same parentage as the First Applicant and that she had given details of a sister, also called Boshra who is of the same age and stated occupation (childcare) as Boshra Al-Hussaini.
Zakiyeh Bahmanyar is the mother of Fatemah Khamehyar who is married to Morteza Khorsand Poor (previously known as Murtada Mahdi) who the First Applicant states is her nephew, being the son of her sister Amirah.
The Australian Embassy in Tehran has satisfied itself of the true identity of Zakiyeh Bahmanyar by examination of her Iranian identity document (a shenasnameh) issued on 22 January 2006.[84] In an application for Australian citizenship lodged on 9 August 2018 by Fatemah Khamehyar, it is claimed that her mother (Zakiyeh Bahmanyar) although born in Iraq had acquired Iranian citizenship by birth,[85] although exactly how is not clear in the material before this Tribunal.
[84] Ibid at [261].
[85] Ibid at [262].
There is then the question of the role of Amirah Al-Hussaini, who the First Applicant claims is her only sister.[86] Amirah (DOB: 1 July 1963) has four children, including Murtada Mahdi who changed his name to Morteza Khorsand Poor and gave oral testimony at the hearing. She was also the sponsor for the First Applicant’s visa application.[87]
[86] Ibid at [058].
[87] Ibid at [042].
It then appears that Amirah Al-Hussaini was also particularly active in arranging transfers of money from Australia to both Iraq and Iran. The AUSTRAC records show some 46 transactions between April 2010 and July 2013. Some seven of these are to Zakiyeh Bahmanyar, and three of them to Boshra Bahmenyar. The former take place between October 2010 and July 2013. The transfers to Boshra Bahmenyar take place between April and May 2010.[88] They stop just before the First Applicant’s arrival in Australia (June 2010) – a point emphasised by the Respondent in submissions.
[88] Ibid at [133].
The First Applicant told the Tribunal that Boshra Bahmanyar was the sister of her close friend Zakiyeh Bahmanyar. She also told the Tribunal that her only sister Amirah sent money to her (the First Applicant) via either of these sisters because she (the First Applicant) did not have a bank account in Iran due to her illegal status. The First Applicant then later remitted money to Zakiyeh Bahmanyar by way of repayment of loans which she had received from her.
The Respondent’s interpretation of all this material is as follows:
(a)Boshra Al-Hussaini and Boshra Bahmanyar are one and the same person.
(b)Boshra Bahmanyar is the sister of Zakiyeh Bahmanyar.
(c)Boshra Bahmanyar has failed to declare Zakiyeh Bahmanyar and two other brothers on her various visa and citizenship application forms.
(d)As Zakiyeh Bahmanyar has Iranian citizenship by descent it is likely that the same applies to the First Applicant.
(e)Boshra Bahmanyar was legally married to Danyal’s father and her failure to declare details of this or to provide documentation to this effect was a further attempt to conceal the fact of her Iranian citizenship.[89]
[89] Respondent’s Supplementary Materials at [263]-[264].
Such conclusions are flatly denied by the First Applicant. She states: “I am Boshra AL HUSSAINI and I have not been known by any other name.”[90]
[90] Ibid at [200] and [202].
The conclusion that Boshra Al-Hussaini and Boshra Bahmanyar are one and the same person which the Respondent advances in this matter is not the first time that the Department has come to this conclusion. Between August and November 2019 the Department gave consideration to the possible cancellation of the First Applicant’s Return Resident (subclass 155) visa. Such a review was undertaken pursuant to s 107A of the Migration Act and arises where a breach of or non-compliance with ss 101(a) and 101(b) related to previous visa applications are suspected. On this occasion the Delegate set out their concerns in much the same terms as the Respondent advances in this matter and came to the same conclusions as outlined above. The First Applicant was provided with the opportunity to respond to these concerns and did so in detail and at length.[91]
[91] Ibid at [200]-[212].
For a variety of reasons, including the impact of such a cancellation decision on the First Applicant’s husband and more particularly upon her son, the Delegate exercised their discretion under s 109 of the Migration Act not to cancel the visa.[92]
[92] Ibid at [252]-[282].
Amirah Al-Hussaini
There might have been a way of resolving some of these questions and that would have been, had Amirah Al-Hussaini been prepared to give evidence to the Tribunal in either written or oral form.
This matter was raised by both the Respondent and the Tribunal itself on the first morning of the two-day hearing. The First Applicant was asked if it might be possible for Amirah Al-Hussaini, who is resident in Sydney, to give evidence by telephone on the second day. The Second Applicant was asked to contact his aunt during the luncheon adjournment and ask if she was willing to appear as a witness. The initial advice from the Applicants, after consulting her, was that this would be possible, and arrangements were made to hear her testimony on the morning of the second day.
On that day the Second Applicant advised the Tribunal that his aunt was not prepared to give evidence, “for health reasons”.
Such health reasons would not have prevented Amirah Al-Hussaini from providing a written submission to the Tribunal at any time prior to the hearing, especially as the issues of identity were clearly known to the First Applicant as a result of extensive correspondence from the Department over a number of years, most recently set out in its Statement of Facts, Issues and Contentions. The First Applicant has otherwise provided a significant number of references as to her history, health status and character.
The failure of Amirah Al-Hussaini to give any form of corroborative evidence on behalf of the person who claims her as her only sister can only be taken to count very heavily against the First Applicant and her version of contested matters. The Respondent made this point without direct identification of a Jones v Dunkel[93] submission.
[93] [1959] 101 CLR 298; [1959] ALR 367.
The questions of identity
Between the expressed concerns of the Respondent and the testimonies of the First Applicant, the Tribunal is left to face a whole raft of questions. These include:
(a)Are Boshra Al-Hussaini and Boshra Bahmanyar one and the same person?
(b)Is the First Applicant (whatever her name) the sister of Zakiyeh Bahmanyar?
(c)What exactly is the First Applicant’s family composition?
(d)If that family composition is as stated in the documentation supplied by Zakiyeh Bahmanyar,[94] then who exactly is Amirah Al-Hussaini?
(e)Is the First Applicant an Iraqi or an Iranian citizen?
(f)Was the First Applicant ever married to Mohammed (“Jalal”) Ali?
(g)Did the First Applicant knowingly obtain and use a counterfeit identity card?
[94] Ibid at [090].
Discussion and Conclusions re Identity
On the evidence before it, it is not possible for the Tribunal to come to a definitive conclusion on all of those questions, although it does find that the First Applicant was married to Mohammed Ali by way of a sigheh arrangement.
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.
The Tribunal accepts the point made in In Dhayakpa that:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity.
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.
The Respondent goes on from the point of s 24(3) to further assert that the First Applicant is not a person of good character under s 21(2)(h) of the Act.
Good character
In mounting its case, the Respondent relies primarily upon its claims that the First Applicant has been untruthful in her representations to the Department and has sought to conceal critical matters of identity, nationality/citizenship and family composition. Moreover, the Respondent asserts, the First Applicant has obtained and used a false identity document, not only in an initial application but in subsequent applications after being told that it was regarded as a counterfeit document.
The Respondent draws the Tribunal’s attention to the definitions of good character used by the Federal Court in Irving[95] and the significance of granting the privilege of citizenship in Fenn.[96] It further draws attention to several of the cases cited above regarding the significance of honest dealings with the Department and the Tribunal’s frequent condemnation of the use of false identity documents.
[95] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84.
[96] Fenn and Minster for Immigration and Multicultural Affairs [2000] AATA 931.
The First Applicant has supplied numerous references which attest to her good character and her contribution to the community. They also refer to her various health conditions. She also notes that she has committed no offences bringing her to the attention of law enforcement authorities. The Tribunal has taken careful note of the references[97] however, none of them goes to the question of the identity of the First Applicant. They attest to her good qualities, and the Tribunal has no reason not to accept them as prima facie evidence of such. None of them help resolve the question of whether the First Applicant is Boshra Al-Hussaini, Boshra Bahmanyer, or both. None of them provide any details of circumstances and events in Iran or before the First Applicant’s arrival in Australia.
[97] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [260]-[269], Shefa Medi-Clinic; Chiswick Road Medical Centre; James Saffery; Michele Chiu; Therese Saffery; Bentolhda Ghiassy; Dr Nasir Hasanzadeh.

As the Tribunal has found that the First Applicant cannot satisfy the identity requirements of s 24(3) of the Act and hence the First Applicant cannot be granted citizenship by conferral, it finds that it is unnecessary for it to go on to make any further determination in relation to questions of good character, and makes none.
What are the First Applicant’s continuing options?
The First Applicant is free to submit a further application for citizenship by conferral at any time in the future.[98] This decision does not preclude such a course of action.[99]
[98] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
[99] Eidson and Minister for Immigration and Border Protection [2017] AATA 1354 at [60].
For that to be successful, she would need to make every effort to obtain from the authorities in either Iraq or Iran the necessary documentation that would allow a clear determination to be made of her personal identity, her nationality/citizenship and her family composition.
The Tribunal notes the First Applicant’s testimony to the effect that she had planned and booked a trip to Iran for just such purposes, but that trip was cancelled as a result of the travel restrictions attended upon the coronavirus pandemic.[100] It speaks well of her that she made these attempts and it is unfortunate that the pandemic frustrated them. She was clearly on notice following the decision not to revoke her Return Resident visa that this course of action was necessary.
[100] Applicant’s Submissions at [4] and [6].
The First Applicant has the capacity to travel to both Iran and Iraq at some stage in the future given her continuing possession of an Australian Return Resident visa and her previous effective use of Australian travel documents.
DECISION RE BOSHRA AL-HUSSAINI
The decision under review is affirmed.
DANYAL AL-HUSSAINI: THE SECOND APPLICANT
The Second Applicant’s Narrative
The Second Applicant’s narrative is relatively straightforward. It amounts to a claim that he was born in Tehran, Iran and that he and his mother were granted offshore Humanitarian visa (he as her dependent) to allow them to travel to Australia where they eventually were granted permanent resident status. The Second Applicant was included in the application for citizenship by conferral lodged by the First Applicant on 2 July 2014, which application (in relation to both applicants) was refused on 15 April 2019. The Second Applicant lodged a separate appeal against this decision at the Tribunal on 28 May 2019.
Danyal Al-Hussaini claims that:
(a)He was born on 12 December 2002 as shown in his Australian Certificate of Identity.[101]
(b)He was born in the Hazrat-e Seyed-Al Shohada Hospital in Tehran.
(c)His mother is the woman known in her Australian Certificate of Identity as Boshra Al-Hussaini.[102]
(d)His father’s name is Mohammed Ali, known as “Jalal” who was temporarily married to his mother in a sigheh relationship.
(e)He fulfills the requirements of s 24(3) of the Act in relation to his identity.
(f)He fulfills the requirements of s 21(2) of the Act, including being a person of good character (s 21(2)(h)).
[101] Section 37 Tribunal Documents (Danyal Al-Hussaini) at [13] and [121].
[102] Respondent’s Supplementary Materials at [076].
Legislative and Policy framework
In making the refusal decision, the Minister’s delegate wrote:
If the parent’s application in which a child has been included is refused then the child must be assessed against the policy guidelines for children under 16 applying individually in their own right.
Your application for conferral of Australian citizenship was refused on 15 April 2019 therefore I have considered Danyal AL HUSSAINI’s circumstances against the policy guidelines for children under 16 applying in their own right.[103]
[103] Section 37 Tribunal Documents (Danyal Al-Hussaini) at [18].
The Second Applicant was aged 11 years at the time of the original application lodged by his mother (2 July 2014); aged 16 years at the time of the refusal decision (15 April 2019) and is aged 17 years as at the time of this Tribunal’s decision.
The relevant date in all these matters is the date of the decision of the application.
In submissions to the Tribunal, the Respondent agreed that it would be appropriate to consider the Second Applicant’s application under the provisions of the Act relating to applicants aged 16 or 17 years. This places the Second Applicant in a slightly more favourable position than an applicant under the age of 16 where certain “significant hardship or disadvantage” considerations must be assessed.
The basis for the refusal of the Second Applicant’s application is set out at paragraphs [22] to [25] of the Respondent’s Statement of Facts, Issues and Contentions:
22. From assessing the Applicant's statements, his documentation and the statements of his family members, the following inconsistent details have been identified:
(a)the details of his mother and father;
(b)his history prior to coming to Australia (including his country of birth);
(c)his family composition; and
(d)the necessary documentation used to satisfy identity requirements.
23. The Respondent contends that although the Applicant's mother has claimed she has provided comprehensive identity material regarding the Applicant to the Department, there is no record of the existence of any birth or hospital records for the Applicant. Therefore, there are no verified documents for the Applicant prior to his arrival in Australia.
24. In summary, many of the significant aspects of the life story of the Applicant have varied throughout the relevant dealings with the Department of Home Affairs and the Respondent contends that a sufficient assessment of the Applicant's identity is not possible in circumstances where:
(a)due to the inconsistent information that has been provided by the Applicant's mother, the creation of coherent timeline of the Applicant's life events or the assessment of his biometrics is not possible prior to his entry into Australia (relevant to assessment of Pillar 1 of CPI 16);
(b)a number of inconsistencies exist in relation to the documents available for the Applicant prior to his arrival in Australia and therefore it is not possible to assess these crucial documents (relevant to assessment of Pillar 2 of CPI 16); and
(c)due to the inconsistent information that has been provided by the Applicant's mother, understanding the Applicant's life events is not possible prior to his entry into Australia (relevant to assessment of pillar 3 of CPI 16);
25. The Applicant through the actions of his mother has provided an implausible and incoherent history as to his life story prior to entering Australia such that his identity is not clear. The inconsistences have not adequately been addressed in his submissions to the Department or the Tribunal and in the above circumstances, the Respondent contends that the Tribunal should not accept the Applicant's claimed identity.
Assessing the claim on its own merits
In essence, the Respondent lays upon the Second Applicant’s mother the burden of failure for his application. It is, the Respondent states, entirely his mother’s fault that his application fails.
The injunction of visiting the sins of the father (mother) upon the children dates back to the Old Testament where it is both affirmed[104] and rejected.[105]
[104] Exodus 34:7; Numbers 14:18; Deuteronomy 5:9.
[105] Deuteronomy 24:16; Ezekiel 18:19-20.
However, the Act requires that each application be considered on its own merits and although the First Applicant has provided information about the Second Applicant which appears to be false, this does not necessarily mean that the Second Applicant must bear all the consequences arising.
Considerations
Birth: Documentation
There is, in the view of the Tribunal, no persuasive basis upon which to gainsay any of the Second Applicant’s claims. For the reasons outlined above, in discussion of the First Applicant’s case, there appears to be no formal birth certificate available to demonstrate conclusively the day of his birth. His mother’s testimony that she received only some form of “discharge papers” or letter from the hospital, and the difficulty in providing documentation as to the father’s identity for the hospital records have been canvassed.
However, documentation issued in his name, including his Australian Certificate of Identity and his Document for Travel to Australia, issued by the Australian Embassy in Tehran,[106] list this as his birth date.
[106] Section 37 Tribunal Documents (Danyal Al-Hussaini) at [120].
There is also a certificate from the Valiasr Mosque[107] signed by eight individuals which attests to the Second Applicant’s birth on 12 December 2002 (21 Ramadan (September) 1381 in the Islamic calendar). This certificate also lists the hospital of his birth (given as Seyed ul-Shohada) and the fact that the Second Applicant lived for seven years in the Tehran suburb of Piruzi.[108] Although this document does not appear to be dated, and although the highly controversial (for reasons of design) Valiasr mosque was not opened until 2007/8 there is no reason to doubt the authenticity of the information it contains.[109] The document states clearly: “This paper is to be presented to the Australian Government” and the Tribunal believes that mosque authorities would not be party to any attempt to provide false or misleading information.
[107]Applicant’s Submissions at [5].
[108] This address is consistent with that given in the First Applicant’s Humanitarian visa application, Respondent’s Supplementary Materials at [023].
[109] >
Even were the First Applicant’s Iraqi identity card to be counterfeit, this has no bearing on this particular matter. There was obviously sufficiently persuasive evidence in Tehran for the issue of the travel document which contains the Second Applicant’s photograph and date of birth.
The Tribunal accepts that there is documentation, supplied by the First Applicant which states that the Second Applicant was born in Karbala, Iraq[110] – her own birth place and that of both of her parents. However, there is also documentation in terms of the First Applicant’s application for an Offshore Humanitarian Visa which shows the Second Applicant’s place of birth as Tehran, Iran.[111] This was received on 9 May 2008, whereas the former documents are dated somewhat later – the first of uncertain date and the latter in 2014.
[110] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [190]; Respondent’s Supplementary Materials at [082].
[111] Respondent’s Supplementary Materials at [013].
Birth: Oral evidence
In relation to the 2014 documentation, evidence was given by Muhammed Nadeem Afzal, the First Applicant’s current husband (but from whom she is separated) that he completed this application form and take responsibility for this error and for confusing Iraq and Iran. He says he relied upon other documentation showing the Second Applicant’s nationality as being Iraqi.
Although challenged on this point by the Respondent’s representative, the Tribunal formed a view that Mr Afzal was a witness of credibility and that his evidence should be accepted. Indeed, the Tribunal notes some internal correspondence from the Department as follows:
Thanks for the advice you provided previously.
Unfortunately, we were unable to send Mr AFZAL an NJL as we could not locate any adverse information on him that would question his character.
We have reviewed the PR file and a new Form 80 which we requested recently in the hope of finding inconsistent information that we could put to him as part of a natural justice letter however there is nothing to suggest that he is involved in or aware of his wife’s migration fraud.[112]
[112] Respondent’s Supplementary Material at [188].
Apart from establishing that there is nothing to question the good character of Mr Afzal, the Tribunal finds it quite extraordinary that departmental officers thought it “unfortunate” that no adverse information could be found about Mr Afzal to question his character, or indeed that they were “hoping” to find “inconsistent material”.
Evidence was given to the Tribunal by Morteza Khorsand Poor (the nephew of the First Applicant and cousin of the Second) to the effect that he visited the Second Applicant and his mother shortly after the birth of the Second Applicant at a hospital in Tehran. He could not recall the name of the hospital. Further evidence was given to the same effect by Fatemeh Khamehyar (the First Applicant is her husband’s aunt) who also named the hospital as the Seyed Shohada hospital.[113] The First Applicant stated that this was the hospital of her son’s birth and noted that she did not have to pay any hospital fees. This is consistent with the Hazrat-e Seyed-Al Shohada Hospital in Tehran being a charity hospital.[114]
[113] See also Applicant’s Submissions at [3].
[114] Syma Sayyah: “A Visit to Hazrat-e Seyed-Al Shohada Hospital in Tehran”, >
The evidence of these witnesses on this point was not challenged by the Respondent and is accepted by the Tribunal as establishing that the Second Applicant’s place of birth was Tehran, Iran.
Parental status
There is a well-established Latin maxim: Mater semper certa est, pater semper incertus est (“the mother is always certain, the father is always uncertain”) which suggests that cases such as this are not particularly unusual. Disputes over paternity come before the Tribunal on many occasions.[115]
[115] Chan and Minister for Immigration and Border Protection [2019] AATA 21.
The parental status of Mohammed Ali is attested to in the First Applicant’s application for an Offshore Humanitarian Visa (received 9 May 2008) where he is listed as a “Previous Partner” and the date of the relationship given from 13 September 2001 to 25 March 2002 with the notation “The Partner left.”[116] In this application the name of the Second Applicant is given as Al Hussaini – Danyal (Mohammed Ali).[117]
[116] Respondent’s Supplementary Materials at [016]. See also Section 37 Tribunal Documents (Boshra Al-Hussaini) at [256] and Respondent’s Supplementary Materials at [034].
[117] Ibid at [013].
In the Delegate’s statement of reasons provided as part of the Notice of Intention to Consider Cancellation under s 109 of the Migration Act 1958, addressed to the First Applicant, the Delegate has written:
“I consider that you were previously legally married to Danyal’s father…”[118]
[118] Respondent’s Supplementary Materials at [179].
Although the Delegate goes on to draw adverse conclusions about the ending of the relationship, what is established is that the Department accepted that Boshra Al-Hussaini was legally married to Mohammed Ali and that Danyal was their son. As such it also notes that the Second Applicant is entitled under that country’s laws to a grant of Iranian citizenship.
The Tribunal accepts that there are considerable inconsistencies in the First Applicant’s statements regarding the existence of any documentation relating to either her marriage or the birth of her son. [See above re status of the marriage.]
In relation to the marriage, if it were a sigheh marriage there would be no such documentation.
In relation to the Second Applicant’s birth certificate, on the one hand she claims that she had some form of what she described in her oral testimony as “a paper” and in her written statement as a “discharge letter or … similar kind of letter”[119] from the hospital, but when being interviewed at the Embassy in Tehran she stated that there was no relevant documentation.[120] In her oral testimony she sought to distinguish “a paper” from “a document”. She also states that some material was left with the Tehran Embassy,[121] but that material was now somehow “lost”. The Department asserts that no such material was lodged and none has been located.[122]
[119] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [256].
[120] Respondent’s Supplementary Materials at [403].
[121] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [214], [238] and [256].
[122] Section 37 Tribunal Documents (Boshra Al-Hussaini) at [12].
Findings
Taking all these matters into consideration, the Tribunal is satisfied that Danyal Al-Hussaini:
(a)Was born on 12 December 2002.
(b)Was born in Tehran, Iran.
(c)Is the son of Boshra Al-Hussaini and Mohammed Ali who were legally married under a sigheh arrangement.
(d)The Tribunal finds that the Second Applicant’s identity is established to a degree that satisfies the requirements of s 24(3) of the Act.
(e)As agreed by the Delegate making the original refusal decision, the Second Applicant also meets the requirements of s 21(5) related to persons under the age of 18 years.
Alternative options: the Respondent’s position
What the Respondent, in effect, puts to the Second Applicant is that, in order to qualify for Australian citizenship, he should somehow obtain documentation from the Iranian authorities attesting to details of his birth, parentage, nationality/citizenship and hence identity. How he is supposed to do this is unclear given the circumstances of his birth and the details of his father which the Tribunal is prepared to accept. In practical and human terms, the proposed impositions facing the Second Applicant seem, to the Tribunal, to be manifestly unreasonable.
Good character
The Tribunal put it directly to the Minister’s representative that the Second Applicant was also a person of “good character” under s 21(2)(h) of the Act and the representative explicitly agreed that such was the case.
The Tribunal agrees entirely.
The Tribunal notes the references provided in support of the Second Applicant’s application, particularly the glowing reference from Dr Wissam Mustapha, Headmaster of the Al Zahra College.[123]
[123] Section 37 Tribunal Documents (Danyal Al-Hussaini) at [153].
The Tribunal has not considered in detail the requirement for the Australian Government to act in the best interests of the child as referenced in the Australian Citizenship Policy (see above) or as required by the Convention on the Rights of the Child to which Australia is a signatory. The Minister’s Delegate gave consideration to this, without finding that it favoured the Second Applicant’s application.[124]
[124] Ibid at [19].
The Tribunal notes however, that in the Delegate’s extremely detailed statement of reasons when consideration was being given to the cancellation of the First Applicant’s visa, the Delegate noted that the Second Applicant would “experience a degree of hardship” if removed from Australia.[125] In the event the First Applicant’s visa was not cancelled and any decision on refusal of citizenship by conferral has no relevance to matters of visa cancellation. What the Delegate’s analysis confirms is merely the benefit of the Second Applicant continuing to live in and develop his ties with Australia.
[125] Respondent’s Supplementary Materials at [280]
The Tribunal itself put a number of questions to the Second Applicant, both about his memory of incidents in his life in Iran and in relation to why he sought to become an Australian citizen. These follow upon his own eloquent statement given in support of his and his mother’s applications.[126] His answers were clear, forthright and well-articulated. His response to questions about citizenship revealed a mature understanding of the rights and obligations attached thereto. He is clearly a respectful and intelligent young man, obviously a devoted son, and a good scholar. He expressed satisfaction at being able to start to learn Arabic so as to read the Qu’ran as it is supposed to be read. He is the sort of person who ought to be an Australian citizen and shows every indication of being a potentially significant contributor to a better community.
[126] Ibid at [213]-[215].
CONCLUSION

The Tribunal is satisfied that in relation to an application by a person under the age of 18 years (s 21(5)), his identity is established (s 24(3)) and he is a person of good character (s 21(2)(h)).
DECISION RE DANYAL AL-HUSSAINI
In respect of the Second Applicant, Danyal Al-Hussaini, the decision under review is set aside and consideration of his application remitted to the Minister with a direction that the Second Applicant is qualified for citizenship by conferral under all relevant sections of the Act.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[sgd].......................................
Associate
Dated: 12 May 2020

Date(s) of hearing: 21 and 22 April 2020

Applicants: In person (by telephone)

Solicitors for the Respondent: Mr C Brinley, Clayton Utz

Date(s) of hearing:	21 and 22 April 2020
Applicants:	In person (by telephone)
Solicitors for the Respondent:	Mr C Brinley, Clayton Utz