Alimoradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2054

Alimoradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2054 (1 July 2021)

Division:GENERAL DIVISION

File Number:          2020/1145

Re:Hamed Alimoradi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr. A. Maryniak QC, Member

Date:1 July 2021

Place:Melbourne

The Tribunal set asides and remits to the Respondent for reconsideration the reviewable decision of 6 February 2020, pursuant to s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, with the Direction that the Applicant satisfies the identity requirement as per s. 24(3) of the Australian Citizenship Act 2007.

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Mr. A. Maryniak QC, Member

Catchwords

CITIZENSHIP – Applicant granted a protection visa – Applicant’s statelessness – citizenship by conferral – birth certificate not provided – process of identity proofing – consistent life story evidence – direct evidence holding greater weight – decision set aside and remitted to the Respondent – Tribunal satisfied of Applicant’s identity

Legislation

Administrative Appeals Tribunal Act 1975

Australian Citizenship Act 2007

Cases

Ahamod v Minister for Immigration and Border Protection [2019] AATA 7
Briginshaw v Briginshaw (1938) 60 CLR 336
CDNB v Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579

Secondary Materials

Attorney-General’s Department’s National Identity Proofing Guidelines 2016
Australian Citizenship Policy Statement

Chapter 16 of the Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Mr. A. Maryniak QC, Member

1 July 2021

1. The Applicant seeks review of the decision by the Respondent’s delegate dated 6 February 2020, refusing to approve the Applicant’s application for Australian citizenship on the basis of non-satisfaction of identity pursuant to s. 24(3) of the Australian Citizenship Act 2007 (the Act).

2. The sole issue for determination is the Applicant’s identity, pursuant to s. 24(3) of the Act, enabled by s. 52(1)(b) of the Act.

3. During the three-day hearing before the Tribunal, the Applicant, his father Ostovar Alimoradi, and his mother Samireh Bahrami, gave evidence via video link and were cross-examined and questioned by the Tribunal. The oral evidence given by each witness was essentially consistent with the evidence of each other witness.

4. The Tribunal is of the view that each witness gave their oral evidence truthfully and answered questions without hesitation. In such circumstances, the Tribunal accepts the oral evidence of the witnesses and assigns it significant weight.

5. In addition to the oral evidence, the following documentary evidence was before the Tribunal:

   (a)Statutory Declaration of the Applicant dated 9 February 2015 (Exhibit A1);

   (b)Unsigned Statement by Ostovar Alimoradi of seven pages (Exhibit A2);

   (c)University Transcript of the Applicant and Letters of Reference from the Applicant’s Employer (Exhibit A3);

   (d)Applicant’s Registration of Practice (Exhibit A4);

   (e)T-Documents (Exhibit R1);

   (f)Supplementary T-Documents 1 (Exhibit R2);

   (g)Supplementary T-Documents 2 (Exhibit R3); and

   (h)Supplementary T-Documents 3 (Exhibit R4).

   BACKGROUND

6. The following facts, by way of background, are not in dispute.

Date

Event

18 January 1995

The Applicant was born.

1 April 2010

The Applicant first arrived in Australia as an Irregular Maritime Arrival.

28 January 2011

The Applicant was granted a “Subclass 866 – Protection” visa (PV). The Applicant was included as a dependent child in the Applicant’s father’s PV application.

Early 2015

The Applicant initially lodged an application for conferral of Australian citizenship.

6 February 2015

The Department sent a letter to the Applicant notifying him that his application for Australian citizenship was invalid, to the extent that he had not provided his Birth Certificate (for the purposes of confirming his name at the time of his birth on 18 January 1995) and had not paid the correct application fee.

9 February 2015

The Applicant provided a Statutory Declaration which stated that he did not possess any Birth Certificate, due to his statelessness at the time of his birth on 18 January 1995.

11 February 2015

The Applicant re-lodged his application for conferral of Australian citizenship, enclosing the correct fee. The Applicant enclosed a number of documents with his Australian citizenship application, including, relevantly:

a.    The Applicant’s Victorian Change of Name Certificate, dated 9 October 2012 (Document no.62756/1995 N) (certified). The Applicant changed his surname from “Moradi” to “Alimoradi”;

b.    His Department of Human Services Health Care Card, issued 8 May 2012 (Document no. 421475967S) (certified);

c.     His expired Victorian Driver Licence, expired on 11 February 2017 (Document no. 036858468) (certified);

d.    The Applicant’s father’s Victorian Change of Name Certificate, dated 28 September 2012 (Document no. 680171/1974N) (certified). The document indicated that the Applicant’s father, Mr Ali Moradi, was born on 22 May 1974 in Iraq and that he changed his name from “Ali Moradi” to “Ostovar Alimoradi”;

e.    The Applicant’s mother’s Victorian Change of Name Certificate, dated 9 October 2012 (Document no. 62171/1976N) (certified). The document indicated that Mrs Samireh Bahrami was born on 22 March 1976 in Iraq and that she changed her surname from “Moradi” to “Bahrami”;

f.   The Applicant’s undated “PLO56” (Document no. 8058502367) (certified);

g.    His expired Medicare card, expired in March 2017 (Document no. 4353979624) (certified).

24 September 2016 and 21 December 2016

The Department sent letters to the Applicant, requesting further documents.

30 December 2016

The Applicant lodged a “Form 80”. The Applicant also lodged a “Consent to Release Information from VicRoads’ Records”.

19 January 2017

The Applicant provided a Statutory Declaration explaining why he could not provide the type of documents requested by the Department.

6 February 2020

The Minister’s delegate made a decision to refuse to grant the Applicant citizenship by conferral.

1 March 2020

The Applicant lodged an Application for Review of Decision with the Tribunal.

1. The Applicant obtained a Bachelor of Science degree in 2016 and Master’s degree in Health Science (Osteopathy) in 2018 from Victoria University. He is a registered and working Osteopath.[1]

   [1] Exhibits A3 and A4.

   APPLICABLE LEGAL PRINCIPLES

2. Section 21(1) of the Act permits a person to make an application to the Minister to become an Australian citizen; and where such application is made, by s. 24(1), the Minister must approve or refuse the person becoming an Australian citizen.

3. The question for this Tribunal is whether it is satisfied as to the Applicant’s identity for the purposes of granting Australian citizenship under s. 24(3) of the Act. Section 24(3) of the Act contains a prohibition to conferral:

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

4. The term ‘identity’ is not defined in the Act.

5. The Tribunal notes that the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:

   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.

6. The Attorney-General’s Department National Identity Proofing Guidelines 2014 (Guidelines), referred to in the Citizenship Procedural Instruction 16 (CPI 16), strengthen identity proofing processes and are also to be considered.

7. The Guidelines acknowledge [at 5.1] that:

   (a)  in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance; [2] and

   (b)   Alternative identity proofing processes that organisations MAY consider for these exceptional cases include… [a] detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[3]

   [2] National Identity Proofing Guidelines at [5.1.1].

   [3] Ibid at [5.1.3].

8. Three elements are relevant in assessing identity, known as the “three pillars of identity” in  paragraph 4.4 of Chapter 16 of the CPI:

Three pillars of identity	Individual characteristics
Biometrics	Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents	Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life Story	A person’s life story is a narrative of the events that happened to them from birth to the present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

1. Chapter 16 provides guidance in relation to the policies to be applied when assessing a person’s identity under the Act. Paragraph 4.15 provides guidance when assessing pillar three – life story:

   There may be cases where one pillar may be given more weight than the others. For example, cases were the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information.[4]

   [4] CPI 16 at [4.15].

2. CPI 16 at paragraph 4.16 states with regard to being ‘satisfied of a person’s identity’:

   Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.[5]

   [5] Ibid at [4.16].

3. Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether he or she is persuaded, on the basis of the evidence, of a person’s identity. In other statutory contexts, judges have said the decision-maker must feel an actual persuasion of that matter; he or she cannot be satisfied as a result of a “mere mechanical comparison of probabilities independently of any belief in its reality”.[6] On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

   [6] Briginshaw v Briginshaw (1938) 60 CLR 336, 361.

4. Officers should not merely collect information and documents, but consider the quality, plausibility and relevance of the information provided, in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person. Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions; that is, where there is conflicting evidence.

5. The relevant policies are generally to be applied by the Tribunal, unless there is a cogent reason not to.[7]

   [7] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

6. The relationship between the determination of identity and the grant of Australian citizenship is of fundamental importance. Substantial significance and privileges are part of such a conferral.

7. A certificate of Australian citizenship is a legal document of considerable significance. It is very clear that the grant of Australian citizenship by conferral is a matter in respect of which the Australian community expects the decision maker, and here the Tribunal, will approve only if the prerequisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.

8. Further, in Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579 the meaning of the statutory term “satisfied” was considered in respect of Australian citizenship applications at [56]:

   … the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges…

9. Relevantly, whilst production of documents to establish identity is not legally essential, in their absence a cogent and acceptable explanation is required: CDNB and WLVM v Minister for Immigration and Border Protection [2018] AATA 757 at [9].

10. Where an applicant has failed to show positive steps in obtaining identity or supporting documents, or has not provided an acceptable reason for not doing so, that failure ought to weigh against an applicant: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].

11. Finally, as essentially submitted by the Respondent, the Tribunal has to be careful to consider every case in the context of its own circumstances and facts; and recognise that some individuals may not always hold, or may not be in a position to obtain certain documents; and that conflict and bureaucratic or administrative structures or limitation in those structures may limit a person’s ability to obtain documents in relation to their identity that pre-date their arrival in Australia: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].

    CONSIDERATION

12. The Tribunal has considered the documentary and oral evidence as outlined above, and the submissions of the Applicant and the Respondent.

13. The Applicant claims he, his parents and grandparents are of Feyli Kurd ethnicity and are stateless. This ethnic group was expelled from Iraq in the 1980s. He asserts he should not be denied Australian citizenship because he has been unable to obtain any identity documents due to his stateless status from birth. He says the Revised Citizenship Procedural Instructions note that individuals seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arrival in Australia. He submits the CPIs articulate that an informed assessment is necessary, based on research of country information, and weighed against the evidence provided by him.

14. On 30 April 2010, the Applicant’s father (Mr Ostovar Alimoradi, previously known as Mr Ali Moradi) was interviewed. He stated that he immigrated to Iran without his parents, as a six-year-old, using illegal means including a false passport. He claims he was persecuted by the Basij and his children were not permitted access to public hospitals and public schools due to their statelessness.

15. He started to arrange travel to Australia in February 2010 and paid a person from Shush, Iran $18,000 for false passports for him and his family. He said that on 21 March 2010 the person from Shush provided the false passports at the Imam Khomeini International Airport and they flew to Dubai, United Arab Emirates, and then to Indonesia. The false passports were taken when the family was put on a boat to Australia six days later.

16. The consistency in oral evidence given by each of the witnesses during the hearing was supportive of the Applicant’s ‘life story’ as outlined above. And it was also essentially consistent with documentary evidence from the Applicant and his father, in particular Exhibits A1, A2 and a Statutory Declaration of 16 June 2020, which formed part of Exhibit R4. The Tribunal is satisfied on such evidence as to the plausibility of the Applicant’s life story and finds that evidence compelling.

17. Against this body of evidence, the Respondent contends that key aspects of the Applicant’s life story are implausible and/or inconsistent, and asserts that the Applicant is not stateless.

18. On balance, the Tribunal accepts the evidence given on behalf of the Applicant. The preponderance of consistent evidence and in particular, the oral evidence, outweighs the inconsistencies and other matters asserted by the Respondent, including the background general information set out in the IDBS Identity Analysis Report: Feyli Kurd Cohort, dated July 2016.

19. Specifically, the Tribunal accepts the evidence given on behalf of the Applicant as to his ‘life story’ and does not find any implausibility or inconsistencies of substance in the Applicant’s life story. For example:

    (a)The Applicant’s and the Applicant’s parents’ account of their departure from Imam Khomeini International Airport. The Tribunal is satisfied that the details, including where the people smuggler stood at the airport are sufficiently explained on the evidence and accepts the evidence given on behalf of the Applicant as to such departure. The Tribunal finds the Applicant’s father’s statement in this regard (lodged 2 October 2020) does not detract from the bulk of the evidence accepted by the Tribunal.

    (b)The various claims of statelessness. The Tribunal finds on the evidence before it that the Applicant and his parents are stateless. The oral and documentary evidence before the Tribunal outweigh the ‘general’ assertions relating to this aspect in the DFAT Report and other matters relied upon by the Respondent.

    (c)The Applicant’s claim that his family did not possess an “Amayesh” card. The statelessness of the Applicant and his family, and the bulk of the other evidence before the Tribunal, is consistent with this claim and the Tribunal finds and accepts this to be part of the Applicant’s ‘life story’. Such evidence outweighs the relevant aspects of the IDBS Report, and the minimal evidence of limited weight to the contrary, including the attempt by the Applicant’s father to obtain an “Amayesh” card.

20. The Tribunal finds that the oral evidence given on behalf of the Applicant by each witness portrays a consistent and plausible ‘life story’, which the Tribunal accepts. Such direct evidence is of greater weight and is not undermined by the various implausibilities and inconsequential inconsistencies asserted by the Respondent. The latter do not withstand close scrutiny, particularly when weighed against the consistent body of oral evidence given before and accepted by the Tribunal. For example, the Tribunal accepts the oral evidence that Namdar and Motjaba were not related to the Applicant’s father, and that due to past trauma he preferred not to discuss his previous life in Iran with Namdar and Motjaba.

21. The Tribunal finds that the Applicant is stateless, and accepts that in such circumstances it has not been possible for him to produce any documents as to identity, which pre-date his arrival in Australia in 2010.

1. On the basis of the matters discussed above, the Tribunal is satisfied of the authenticity and plausibility of the Applicant’s ‘life story’. The Tribunal is hence satisfied as to the Applicant’s identity pursuant to s. 24(3) of the Act.

   DECISION

2. The Tribunal sets aside the reviewable decision of 6 February 2020 and remits the matter to the Respondent for reconsideration pursuant to s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal being satisfied as to the Applicant’s identity.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision of Mr. A. Maryniak QC, Member

..........................[sgd]..............................................

Associate

Dated: 1 July 2021

Dates of hearing:	28, 29 October and 12 November 2020
Advocate for the Applicant:	Henry Qian of Victoria Migration Service Centre
Solicitor for the Respondent:	Kyu-Won Kim of Clayton Utz