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

Alsafi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3230 (6 October 2022)
Division:GENERAL DIVISION
File Number(s): 2020/1814
Re:Adil Alsafi
APPLICANT

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

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:6 October 2022
Place:Melbourne

The decision under review is affirmed.
...............................[SGD].........................................
The Hon. Matthew Groom, Senior Member
CATCHWORDS
CITIZENSHIP — s 24(3) of the Australian Citizenship Act — refusal to approve the applicant becoming an Australian citizen — consistent identity while living in Australia insufficient —evidence of timing of applicant’s claimed fleeing from Iraq to Iran unreliable — evidence of claim not to have access to Iraqi identity documents while in Australia unreliable — explanation for inconsistencies with respect to wife’s Iranian citizenship status unreliable — Tribunal not satisfied of the applicant’s identity — decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Minister for Home Affairs v G [2019] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Australian Citizenship Regulation 2016
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
6 October 2022
INTRODUCTION

This matter involves a review of the decision of a delegate of the respondent dated

2 March 2020 refusing the applicant’s application for conferral of Australian citizenship under section 24(1) the Australian Citizenship Act 2007 (Cth) (the “Act”).
BACKGROUND
The applicant first arrived in Australia on 6 December 1999 as an irregular maritime arrival.
On 20 November 2000, the applicant was granted an XA 785 (temporary protection) visa.
On 21 October 2003, the applicant was granted a subclass XC 785 (temporary protection) visa.
On 21 November 2005, the applicant voluntarily departed Australia.
On 9 October 2010, the applicant returned to Australia, again as an irregular maritime arrival.
On 30 November 2011, the applicant was granted a subclass XA 866 (protection) visa.
On 7 December 2015, the applicant lodged an application for conferral of Australian citizenship pursuant to section 21(1) of the Act.
On 13 October 2016, the applicant was granted a subclass BB 155 (resident return) visa.
On 22 April 2017, the Department wrote to the applicant requesting that he provide additional documentation to help confirm his identity prior to his arrival in Australia.
On 28 June 2017, the applicant made a statutory declaration in which he stated that he does “not have any identity documents from outside Australia”.
On 14 November 2019, the Department wrote to the applicant and invited him to comment on the Department’s ongoing identity concerns. The applicant responded to the request by letter on 3 February 2020.
On 2 March 2020, a delegate of the respondent refused the applicant’s application for conferral of Australian citizenship on the basis that the satisfaction of identity requirement in section 24(3) of the Act was not met.
On 26 March 2020, the applicant sought a review of the delegate’s decision, which is the matter presently before this Tribunal.
LEGISLATIVE AND POLICY BACKGROUND
The relevant legislative provisions are set out in the Act and the Australian Citizenship Regulation 2016.
Section 24(3) of the Act provides that:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
In considering this matter the Tribunal has also had regard to the relevant policy documents issued by the Australian Government including the Australian Citizenship Policy Statement, the Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (“CPI 16”), and the National Identity Proofing Guidelines (the “Guidelines”).
The Tribunal acknowledges that while it is not strictly bound to apply government policies it is appropriate to have regard to such policies unless there are cogent reasons not to do so. Such circumstances would include where the Tribunal has formed the view that a government policy is inconsistent with the legislative scheme or is otherwise unlawful. The Tribunal is satisfied that no such circumstances exist in the present case. The Tribunal also acknowledges that where the Tribunal decides to apply a relevant government policy it must not do so in such a way as to avoid exercising its own, independent judgement having regard to the particular circumstances of the case. [1]
[1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and also Minister for Home Affairs v G [2019] FCAFC 79.
Chapter 2.1 of the Guidelines provides as follows:
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.
A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a [birth record] that details unique information about an individual–such as a name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on ... Australian immigration documents or records.
CPI 16 sets out further guidance in assessing identity for the purposes of the Act and notes that in doing so, the Department relies on a combination of three pillars of identity, namely, biometrics, documents and a person’s life story. CPI 16 notes as follows:
In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on Department records are matched and confirmed.
As noted by the respondent, CPI 16 also includes a specific example of a citizenship application made by a person lacking documentation as follows:
There may be cases where one pillar may be given more weight than the others. For example, cases where 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. This research will enable the officer to test and verify whether the applicant’s claims, relevant to aspects of their life story, are consistent with the situation in a particular country. Credible country information will support and add weight to a decision, and can be cited in the decision record.
ISSUE
The issue for determination by the Tribunal is whether it is satisfied of the applicant’s identity for the purpose of section 24(3) of the Act.
The Tribunal accepts the representation put on behalf of the applicant that, in making its determination with respect to its satisfaction as to identity for the purpose of section 24(3), there is no evidentiary burden of proof that applies. Rather, what is required is for the Tribunal to reach an affirmative belief in relation to the applicant’s identity having regard to the evidence before it.[2]
[2] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
In oral submissions made to the Tribunal, the applicant’s representative contended that an applicant’s inability to produce corroborating documentary evidence of identity in relation to the applicant’s life outside of Australia does not preclude a Tribunal from reaching the requisite level of satisfaction with respect to identity in appropriate circumstances. Further, it was contended that in light of the absence of a substantive documentary history prior to the applicant’s arrival in Australia, the Tribunal should place a substantially greater weight on the consistency of the applicant’s life story, documentation and biometrics that he has maintained during the period he has been living in Australia.
The Tribunal accepts that an inability to produce corroborating documentary evidence of identity in relation to the applicant’s life outside of Australia does not preclude a Tribunal from reaching the requisite level of satisfaction with respect to identity in appropriate circumstances. The Tribunal accepts that in some circumstances an applicant’s oral evidence might well explain the absence of corroborating documentary evidence, and be sufficient as a proper basis for the Tribunal being satisfied as to such an applicant’s identity for the purpose of the Act.[3] The Tribunal also accepts that the consistency of the applicant’s life story in Australia, together with the documentary evidence relating to that period, is a very relevant consideration and must be given appropriate weight. However, the Tribunal must also have careful regard to the consistency or otherwise of the applicant’s evidence regarding his identity and life story during the period he has been living outside of Australia. It is only by having careful regard to the whole of the evidence that the Tribunal can reach an informed view as to its level of satisfaction regarding the applicant’s identity for the purposes of the Act. That is the approach that the Tribunal has adopted in this case.
[3] Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162.
CONTENTIONS, EVIDENCE AND CONSIDERATION
The applicant gave evidence at the hearing through an interpreter in the Farsi language. In addition, the applicant relies on a statement dated 23 June 2021 that was prepared for the purpose of the hearing, together with earlier statutory declarations he made dated 28 June 2017 and 3 February 2020. Again, these statements have been prepared with the assistance of a translator.
The applicant’s evidence before the Tribunal regarding his identity, personal details and general life story can be summarised as follows:
(a)The applicant claims that he is Adil Alsafi, born in the Al Kadhimiya district of Baghdad, Iraq on 26 February 1955.
(b)The applicant claims that he is an Iraqi citizen and that he had a national ID card while he was living in Iraq. The applicant states that he no longer has the document and does not have access to any other identity documents from outside of Australia.
(c)The applicant states that his father was Abdul Jabbar Alsafi, born in Iraq in around 1905, and that his mother was Zahra Alsafi, born in Iraq in around 1926. He states that his father operated a wholesale jewellery shop in Shorja market, Baghdad. The applicant states that his mother was a housewife.
(d)The applicant claims that his father was a leader in the Shia community in Al Kadhimiya, who was arrested by Saddam Hussein’s regime as a consequence of his religious activities, and who subsequently died in prison.
(e)The applicant states that in around 1962 he studied for approximately six years at Jaafar Al Sadeq Primary school in Al Kadhimiya. He was around 13 years of age when he left school.
(f)The applicant claims that from around 1969 he worked helping his father in his wholesale jewellery shop. He states that he did some other temporary work for other similar businesses but that he mainly worked for his father.
(g)In his most recent statutory declaration, the applicant states that he married his wife, Ezat Mirsajadi, in approximately 1980, although he cannot remember the exact date. Under cross-examination, the applicant told the Tribunal that he was married at around 18 years of age in 1973. The applicant states that approximately four or five years after he got married they had a daughter, Azhar.
(h)In his most recent statutory declaration made on 23 June 2021, the applicant claims to have fled from Iraq and travelled to Iran, together with his wife and daughter in around 1991. The applicant states that this was following his father’s death in prison and due to a fear that he would be targeted by the Hussein regime. This was consistent with an earlier statement made in 2017. However, in the statutory declaration that the applicant submitted with his citizenship application in 2015, the applicant had claimed that he fled Iraq in 1971. In his statutory declaration dated 3 February 2020 the applicant states that the reference to 1971 had been a mistake. In that statement the applicant states that he “really cannot exactly remember the date that I fled Iraq” although he also states that he had lived in Iran for approximately 8 years prior to his travel to Australia in 1999. This again would imply a date of departure from Iraq of approximately 1991. Under cross-examination the applicant claimed to have fled Iraq in around 1977 or 1978. The Tribunal addresses the inconsistencies in the applicant’s evidence on this point in more detail below.
(i)The applicant states that when he fled Iraq, he did so by crossing the border into Iran illegally. He states that he was only focused on his family’s safety and that he did not think to take any identity documents from Iraq with him. The applicant’s evidence at the hearing was that others had said to him around the time of his departure from Iraq “they’re [the Government authorities] looking for you, they’re going to arrest you”.
(j)The applicant states that the house he was residing in prior to leaving Iraq was rented and he does not know what happened to the documents and possessions he left in the house.
(k)In his most recent statutory declaration, the applicant states that he lived with his family in Tehran, Iran for about eight years but that he did not have any identity documents issued by the Iranian government due to his illegal status. The applicant specifically denies being a citizen of Iran. The applicant states that while in Iran he worked as a jewellery wholesaler.
(l)The applicant states that about three to five years before he first travelled to Australia he fraudulently obtained an identity card in his correct name and date of birth. He states that he paid for the document and that he obtained it in order to make it easier for him to live and work in Iran.
(m)The applicant states that in 1999 he travelled to Australia by boat to seek asylum. He states that he gave the fraudulently obtained identity card to the Department of Immigration on arrival in Australia and explained to officials that the document was fraudulent. He states that the officers took a copy of the document and gave the original back to him. He states that he does not know what happened to the document but that he thinks he lost it during the first period of time he was living in Australia.
(n)The applicant states that after being released from the detention centre, he lived for a short time in Adelaide before moving to Melbourne. He states that during this time he maintained contact with his wife and daughter in Iran.
(o)The applicant states that in 2001 he applied for a Victorian driver’s licence. He states that he remembers going for the test but does not remember producing an Iraqi identity document at this time. He states that he was certain he did not produce an Iraqi driver’s licence because he had never obtained an Iraqi driver’s licence. He states that he was also certain he did not provide Iranian identity documents because he did not possess any. In his evidence at the hearing, the applicant stated that he had never previously been issued with a driver licence in any country other than Australia.
(p)The applicant states that in around 2004, while he was awaiting a decision on his permanent visa application, his wife was injured in a serious car accident in Iran. He states that he returned to Iran in 2005 to help care for her. He states that he did not have any Iraqi or Iranian identity documents when he left Australia. He states that he flew to Malaysia and then Syria and then crossed illegally into Iraq in order to be able to cross into Iran. He states that during this trip he was only in Iraq for a few days and was there solely for the purpose of being able to cross the border into Iran.
(q)The applicant states that between 2005 and 2010 he again resided illegally in Tehran, Iran. The applicant states that he again worked in jewellery wholesale during this period and that he was not issued with any identity documents by the Iranian government due to his illegal status.
(r)In his 2021 statement to the Tribunal, the applicant acknowledged that his wife had been able to obtain an Iranian passport. He stated that his wife’s passport was obtained with the assistance of her relatives and that the family had paid money for the passport. In his previous statutory declaration of 3 February 2020, the applicant states that his wife had obtained Iranian citizenship through her ancestry. In his most recent statement the applicant states that the previous reference to his wife having obtained Iranian citizenship by way of ancestry was incorrect. The applicant goes on to state that the reference had been mistakenly included in his previous statutory declaration as a consequence of a misunderstanding between the interpreter and himself.
(s)The applicant states that during the period he had returned to Iran his daughter was married to an Iranian citizen. Azhar and her husband also have a daughter. The applicant states that he believes their daughter was born before he left Iran but he cannot remember exactly when.
(t)The applicant states that in 2010 he returned to Australia and again sought protection. He states that he travelled on a false passport that was obtained with the assistance of a people smuggler but that the people smuggler took the passport from him before he arrived in Australia.
(u)The applicant states that he is unable to provide documentary evidence of his identity prior to arriving in Australia as his only original Iraqi identity documents were left in Iraq when he fled the country for Iran.
(v)The applicant states that his wife continues to live in Iran and that he maintains regular contact and has visited her there on approximately eight or nine occasions. He stated that on each of those occasions he has travelled on an Australian travel document.
(w)The applicant states that in August 2020, and again in June 2021, he called his wife and asked if she had kept their daughter’s school records or vaccination record. He states that his wife told him that she had not kept anything and that she is not sure if their daughter had kept anything.
(x)The applicant states that his daughter fled Iran to Turkey, together with her husband and daughter “some time ago”. He states that he has not heard from her since that time and he is very worried about her.
(y)The applicant claims to have two brothers and one sister. He states that his oldest brother is Jawad Alsafi, born in around 1949 and that his youngest brother is Rassul Alsafi, born in around 1970. He states that his sister was Khadeja Alsafi, born in around 1967. He states that his sister died in around 2017 and had been living in the United States. The applicant states that his oldest brother had been living in Iran but fled to Turkey with his family in around 2019 and that he has lost regular contact with him. He states that he does not know where his younger brother is and that he hasn’t had contact with him for about three years.
(z)The applicant claims to not have any close family remaining in Iraq. He states that the only people remaining in Iraq are cousins and distant relatives. He states that he is not in regular contact with them and that he did not believe they could apply for any Iraqi identity documents on his behalf.

Having carefully considered the documentary evidence before it, together with the evidence given at the hearing itself, the Tribunal accepts that the applicant was born in Baghdad, Iraq and that he lived there for a period during his childhood and adolescence. The Tribunal accepts that the applicant’s father operated a wholesale jewellery shop at the Shorja market in Baghdad and that for a time during the applicant’s childhood and adolescence the applicant worked for his father at the shop. The Tribunal accepts that the applicant attended school in Baghdad until he was approximately 13 years of age consistent with his evidence. The Tribunal accepts that the applicant has also previously lived in Iran for periods of time.
The Tribunal also accepts that the applicant has, during his time living in Australia, maintained a consistent identity as Adil Alsafi, born in the Al Kadhimiya district of Baghdad, Iraq on 26 February 1955. The Tribunal accepts that the Australian-issued identity documents the applicant has provided, which include photographs and personal signatures, support his claim of having maintained a consistent identity while living in Australia.
However, in making its assessment as to the applicant’s identity for the purpose of section 24(3) of the Act, it is not enough for the Tribunal to be satisfied that the applicant has maintained a consistent identity while living in Australia. The Tribunal must be satisfied as to the applicant’s identity for the purpose of the Act having regard to the whole of the evidence, including evidence relating to the applicant’s identity and life story prior to arriving in Australia.
Having considered the whole of the evidence, the Tribunal is not satisfied that the applicant has been full and frank in his evidence to the Tribunal regarding significant details that relate to his identity and his life story more broadly. More specifically, the Tribunal does not accept as reliable the applicant’s evidence regarding the timing of his claimed fleeing from Iraq to Iran; his claim not to have access to Iraqi identity documents while living in Australia; as well as his explanation for inconsistencies in the information the applicant has provided with respect to his wife’s Iranian citizenship status. The Tribunal expands on its reasons for reaching each of these conclusions below.
Inconsistency in dates the applicant claims to have fled Iraq
The applicant has consistently stated that he fled Iraq to Iran due to a fear of being targeted by the Saddam Hussein regime. This was in the context of his claim that his father had been arrested by the regime due to his religious activities and had subsequently died in prison.
However, there have been significant inconsistencies in the applicant’s evidence regarding the timing of his claimed fleeing from Iraq to Iran. The documentary evidence on this point can be summarised as follows:
(a)In a statutory declaration the applicant provided to the Department in 2015 in connection with his citizenship application, the applicant states that he was smuggled out of Iraq in 1971.
(b)In a statutory declaration made on 28 June 2017, the applicant states that he fled from Iraq to Iran in 1991. That statement was provided in response to a series of questions put to the applicant by the Department seeking further information regarding the applicant’s identity. The reference to the year 1991 being the date the applicant departed Iraq was repeated several times in the statement. The statement also included a reference to the applicant having lived in Iran for approximately eight years prior to travelling to Australia in 1999. The Form 80 provided to the Department together with the statutory declaration also references the applicant having departed Iraq in 1991.
(c)In a statutory declaration made on 3 February 2020, the applicant states that the previous reference to having left Iraq in 1971 was a mistake and the applicant expresses uncertainty regarding the exact date, stating, “I really cannot exactly remember the date that I fled Iraq”. However, notwithstanding that expression of uncertainty regarding the exact date, the applicant goes on to state in the statement that he had lived in Tehran, Iran for around eight years prior to his travel to Australia in 1999. That statement was provided to the Department in response to a letter setting out adverse information in respect of the applicant’s citizenship application and inviting the applicant to provide a response.
(d)In the applicant’s most recent statement made on 23 June 2021, the applicant states that he fled Iraq in 1991. Again, the reference to the applicant having fled Iraq in 1991 is repeated several times in the statement. The applicant also states that he lived in Tehran, Iran for about eight years and that he travelled to Australia in 1999.
The applicant also gave oral evidence regarding the timing of his departure from Iraq at the hearing itself. The applicant gave his evidence through an interpreter. At the commencement of the applicant’s oral evidence the applicant confirmed that the contents of his 23 June 2021 statement were correct. Early in the course of cross-examination and in response to a direct question from the Tribunal, the applicant confirmed his claim to have left Iraq in 1991. However, when pressed on this issue in the course of cross-examination, the applicant’s evidence changed significantly. While confirming his previous claim to have fled Iraq following his father’s arrest, when asked the year his father was arrested the applicant’s response was “before 1973”. When pressed further on this point the applicant clarified that 1973 was the year he had been married but that his father had been arrested around four years after that, so “1977, something like that”. The applicant also gave evidence at the hearing that he was born in 1955, was married at 18 in 1973 and had fled Iraq when he was approximately 23 years of age. When these date references were put to the applicant the applicant confirmed that he had fled Iraq in around 1978 and he again repeated that date further on in his evidence.
In closing submissions, the applicant’s representative noted that the applicant had “been very confused about dates and years” when giving his evidence at the hearing and further noted that the applicant “did say expressly in his February 2020 application that he could not remember exactly the date that he fled” and that the applicant had repeated that assertion in his oral evidence at the hearing.
When, in the course of his evidence, the applicant was asked to explain the inconsistency between his oral evidence at the hearing that he departed Iraq in approximately 1977 or 1978 and his earlier references to having departed Iraq in around 1991, the applicant’s response, provided through an interpreter, was “maybe I made a mistake in the dates and because the calendar is different in Iran, compared to the Gregorian calendar, and a long time has passed and I get a bit confused… I don’t know how you read the dates. I don’t know. Well, my memory doesn’t serve me right”.
The Tribunal has not understood the applicant’s response to mean that he considers himself incapable of providing an approximate year of his departure from Iraq due to memory issues or because he was confused. To the contrary, in the Tribunal’s view it was clear from the applicant’s evidence when considered as a whole that he had intended to convey to the Tribunal his belief that he had departed Iraq in approximately 1977 or 1978. Rather, the Tribunal has understood the applicant’s response to be an attempt by him to explain why his earlier statements addressing the timing of his departure from Iraq had referenced 1991 and not 1977 or 1978.
The Tribunal does not accept the applicant’s contention that his earlier inconsistent statements can be credibly explained as being a consequence of an inadvertent mistake, or an issue converting a date to the Gregorian calendar, or due to a long passage of time or a consequence of getting a bit confused or due to memory issues.
The Tribunal accepts that translation issues in combination with practical issues associated with the conversion of dates to the Gregorian calendar may explain some inconsistencies with dates that are more isolated in nature. For example, the Tribunal accepts as credible the applicant’s previous claim that the reference to the applicant having departed Iraq in 1971, which was included in his earlier statement, is an example of an inadvertent error of that kind.
However, the inconsistency in the applicant’s evidence on the timing of the applicant’s departure from Iraq was far from isolated. The applicant had referenced 1991 or around 1991 on multiple occasions in multiple prior statements. In the Tribunal’s view, the sheer number of references to 1991 as being the date of the applicant’s departure that were included in his earlier statements strongly suggest that that date reference was not an inadvertent mistake, or a mistake due to a conversion issue or as a result of confusion or due to memory concerns but rather was a deliberate, intended date reference. This is especially so given that the applicant provided that date reference in response to concerns raised by the Department regarding earlier inconsistencies in the nominated date of the applicant’s departure from Iraq. In the Tribunal’s view, it is reasonable to infer that in responding to such concerns the applicant took the time to carefully consider the timing and sequence of events in order to ensure that the further information being provided to the Department was accurate.
The Tribunal accepts that the applicant’s departure from Iraq occurred long time ago and that in that context and due to the passage of time it may be difficult to recall dates of key events with precision. However, this is not a case where the inconsistency is in relation to a precise date reference where the inconsistent dates that have been provided nonetheless relate to the same or an approximate time period, for example, within a year or two. In this case the two relevant time periods provided by the applicant in his inconsistent evidence are substantially different. For example, if the Tribunal were to accept that the applicant fled Iraq in approximately 1978, as ultimately claimed by the applicant in his oral evidence at the hearing, that would be consistent with the applicant having lived in Iran for approximately 21 years prior to his first arrival in Australia in 1999. Based on his claimed birthdate he would have been approximately 23 years of age when he departed from Iraq under that scenario. By contrast, the applicant’s earlier references to having fled Iraq in around 1991 would be consistent with the applicant having lived in Iran for closer to 8 years and having departed Iraq at approximately 36 years of age.
In the Tribunal’s view, if the inconsistency in the applicant’s earlier statements was due to some kind of inadvertent error as the result of a conversion or translation issue it would be reasonable to expect that such an error would have been identified well prior to the hearing and corrected.
The Tribunal accepts that the applicant’s memory is very likely to have been impacted to some degree due to a combination of the applicant’s advancing age, physical and mental health issues and the stresses he has experienced in the course of his life including the ongoing separation from his family. The Tribunal, however, does not accept that the applicant’s memory has been impacted to such a degree that the applicant, having carefully considered the timing and sequence of events surrounding his departure from Iraq, would confuse two date periods so substantially separated in time. In his oral evidence at the hearing the applicant generally demonstrated a reasonable recall of past events including, for example, recalling significant details regarding his early upbringing in Iraq and his work activities while living in Iran, recalling clearly his date of birth, the year of his marriage as well as the dates of his travel to Australia in 1999, to Iran in 2005 and his return to Australia in 2010. In the Tribunal’s view, the applicant presented as a person who had reasonable recall of past events allowing for some impact in memory due to his age, health and the stresses he has experienced over his lifetime. In this context the Tribunal does not accept that the inconsistency in the applicant’s evidence regarding the timing of his departure from Iraq can be credibly explained as being due to the applicant having a poor memory.
For these reasons, the Tribunal finds that the applicant’s explanation for the inconsistency in his evidence in relation to the timing of his departure from Iraq as being a consequence of an inadvertent mistake, or calendar conversion issue, or due to being confused as a result of the long passage of time or a poor memory is not credible.
In reaching this conclusion, the Tribunal has been very mindful of the fact that the applicant was giving evidence at the hearing through an interpreter, and that various statements previously provided were also prepared with the use of a translator. The Tribunal notes that the applicant has previously claimed that inconsistent information he had provided to the Department in an earlier statement was the result of a translation issue. It is noteworthy that the applicant made no such assertion at the hearing when asked to explain the inconsistency between his earlier claim that he departed Iraq in around 1991 and his oral evidence that he departed Iraq in around 1977 or 1978. In any case, given the extent of the inconsistency in the dates the applicant has provided, the Tribunal is satisfied that the inconsistency is not credibly explained as being the result of a translation or interpretation issue in either the preparation of the applicant’s prior statements or at the hearing itself.
In the Tribunal’s view, the most plausible explanation for the extent of the inconsistency in the applicant’s evidence regarding timing of his departure from Iraq is that the applicant has not been truthful in the information he has provided to the Department regarding the timing of that event and that he has not been able to reconcile the various dates he has previously provided against the timing of other key life events such as his birthdate, the timing of his marriage and his approximate age on his departure from Iraq. It is significant in this context that the first occasion the applicant has suggested that the year of his departure was approximately 1977 or 1978 was well into his cross-examination at the hearing and after having been questioned about his claim not to have previously obtained a driver’s licence in Iraq given his young age while living there. When pressed on this point the applicant’s evidence was that he was around 23 years of age when he left Iraq. It is extremely difficult to reconcile that evidence with the applicant’s earlier claim that he departed Iraq in 1991 when, based on the applicant’s claimed birthdate he would have been approximately 36 years of age at that time.
Given the applicant’s evidence at the hearing the applicant’s previous claim to have fled Iraq in approximately 1991 cannot be relied upon. The Tribunal also has significant difficulty in accepting the applicant’s claim made in his oral evidence at the hearing that he fled Iraq in approximately 1977 or 1978 given that those dates are not referenced in any of the applicant’s earlier statements describing those events. Those dates would also be inconsistent to some degree with the applicant’s previous claimed need for protection on his first arrival in Australia given that those dates would suggest that the applicant had been residing in Iran for approximately 21 years prior to his arrival.
Given the extent of the inconsistency in the applicant’s evidence on the timing of his departure from Iraq, and the absence of an otherwise credible explanation for that inconsistency, the Tribunal finds that the applicant’s evidence on the timing of his departure from Iraq is unreliable.
For these reasons, the Tribunal maintains significant doubt regarding the timing and circumstances of the applicant’s departure from Iraq. This in turn raises a serious question in the mind of the Tribunal regarding the movements of the applicant in the period prior to his arrival in Australia in 1999.
Purported Iraqi driver’s licence produced to VicRoads
The applicant’s evidence to the Tribunal was that he does not have access to any identity documents other than those issued to him in Australia. His evidence was that he left his Iraqi identity documents when he fled Iraq and has no way to obtain any such documents. His evidence was that he was also unable to obtain any authentic identity documents during the two periods he has lived in Iran as a consequence of his illegal status while living there. His evidence was that he had previously obtained a fake Iranian identity document, which he disclosed to Australian authorities on his arrival into Australia in 1999. His evidence was that when travelling to Australia for the second time he had paid a people smuggler to obtain a fake passport but had surrendered that document to the people smuggler prior to his arrival in Australia.
However, having carefully considered the whole of the evidence, the Tribunal is satisfied that the applicant has not been full and frank in his evidence regarding his access to Iraqi identity documents while living in Australia. Of specific concern to the Tribunal is the existence of documents included in the Tribunal materials which strongly suggest that the applicant produced a document that purported to be an Iraqi driver’s licence to VicRoads when applying for a Victorian driver’s licence in 2001. The Tribunal materials include a copy of a VicRoads driver’s licence/learner permit application form which contains the applicant’s personal details and which is dated 2 April 2001 (the “driver’s licence/learner permit form”) together with a copy of a licence assessment application and score sheet form which appears to have been completed on 21 May 2001 (the “the licence assessment form”). The driver’s licence/learner permit form includes a positive acknowledgment that the applicant, pursuant to the form, has previously held a driver’s licence for more than 3 years. In the section of the form that seeks details of any overseas licence, there is a written notation with the words “Not Sighted”. At the top of the licence assessment form there is a hand-written notation which reads “IRAQ LIC 26744 ISS 20-12-97”.
The applicant does not seek to dispute that the forms in evidence relate to his application for a Victorian driver’s licence in 2001. When the issue of the hand-written notation on the licence assessment form was put to the applicant in cross-examination, the applicant’s evidence was that he could not explain the notation. His evidence was that he could not remember having provided any such details to VicRoads, and that if he could remember he would say so. His evidence was that he did not know what the notation was referring to. When asked specifically whether he had ever been issued with a driver’s licence in Iraq, the applicant’s evidence was that he had not been issued such a licence as he was only young while living in Iraq. When asked how old he was when he left Iraq, the applicant’s evidence was that he was around 23 years of age.
The Tribunal is satisfied that the driver’s licence/learner permit form and the licence assessment form are forms that were completed in connection with the applicant’s application for a Victorian driver’s licence in 2001. In the Tribunal’s view, it is reasonable to infer from the details included on the driver’s licence/learner permit form that at the time of applying for an initial driver’s permit, the applicant represented to VicRoads that he had previously held an Iraqi driver’s licence for a period of not less than 3 years. The Tribunal also considers it reasonable to infer that the notation included at the top of the licence assessment form is a reference to an Iraqi driver’s licence that the applicant represented had been issued to him with an issue date of 20 December 1997 and that the notation was included on the form because a document that was purported to be a licence fitting that description had been produced by the applicant to VicRoads at the time of his licence assessment on 21 May 2001.

The written submissions on behalf of the applicant contend that the Tribunal should not be satisfied that the applicant produced a licence of that kind because the driver’s licence/learner permit form includes a notation of “Not Sighted” next to the section seeking details of any overseas licence. The Tribunal does not accept this contention. It appears clear from a careful consideration of the forms that the initial application for a driver’s permit was made on 2 April 2001 and the subsequent driver assessment took place on 21 May 2001. It was only following the driver assessment that the applicant was issued with a full driver’s licence. The acknowledgements and notations included on both forms strongly suggest that while the applicant represented that he had previously held an Iraqi driver’s licence at the time of applying for his initial driver’s permit, it was only at the time of his driver assessment on 21 May 2001 that he actually produced a document that purported to be such a licence. The Tribunal’s conclusions in this respect are also consistent with the screenshot of the VicRoads’ database included on page 45 of the applicant’s bundle of documents, which appears to record details of an Iraqi driver’s licence number 26744 with an expiry date of 19 December 2002 and a licence transfer date of 21 May 2001.
On the basis of the evidence, the Tribunal is satisfied that the applicant had in his possession at the time of undertaking his driver assessment in 2001, a document that purported to be an Iraqi driver’s licence fitting the description included in the notation at the top of the VicRoads licence assessment form and that he has falsely denied that fact in his evidence to the Tribunal. The Tribunal is satisfied that the applicant’s evidence that he cannot recall the incident and has no memory of producing such a document was not truthful. The Tribunal is satisfied that the applicant was aware that having produced such a document at the time of applying for his driver’s licence would be inconsistent with his claim not to have access to Iraqi identity documents and would, in that sense, not be helpful to his present application. The Tribunal is satisfied that it was for that reason that the applicant denied any memory of having produced the document to VicRoads and not because he could not recall having done so. The fact that the applicant was willing to be untruthful on this issue raises a further serious question in the mind of the Tribunal about the potential for the applicant to have been untruthful in stating that he does not have access to identity documents from either Iraq or Iran more generally. Having reached this conclusion, the Tribunal accepts that it is also reasonable to infer that the document purporting to be an Iraqi driver’s licence that was produced by the applicant to VicRoads included a name and birthdate consistent with the applicant’s claimed name and birthdate. However, such an inference does not of itself alleviate the Tribunal’s concerns regarding the reliability and truthfulness of the applicant’s evidence as described above.
Spouse records
The applicant claims to be married to Ezat Mirsajadi, currently residing in Tehran, Iran. Ms Mirsajadi has previously provided the Department with a copy of a police clearance from Iranian authorities and a copy of an Iranian passport, both issued under her name and giving a date of birth of 18 January 1952. Those documents indicate that she holds an Iranian birth certificate. In the applicant’s written response to adverse information dated 3 February 2020, together with his statutory declaration also dated 3 February 2020, the applicant states that his wife was an Iranian citizen and had obtained a passport from Iranian authorities as a consequence of her ancestry. In his more recent statement dated 23 June 2021, and in his evidence at the hearing, the applicant maintained that the information included in the 2020 declaration had been incorrect and that the passport was in fact obtained by paying money and with the assistance of relatives. The applicant has at various times explained that the inconsistencies in the information provided relating to his wife’s citizenship status were due to interpreter or translation issues. The Tribunal does not accept that explanation. The relevant statement included in the applicant’s 2020 declaration was a paragraph that dealt specifically with his wife’s Iranian citizenship status. The paragraph also provided clarification of previous inconsistent details included in an earlier statement. Given that the paragraph was prepared in an attempt to clear up previous inconsistent details, the applicant was clearly on notice of the importance of the content of the paragraph and the need to ensure it was accurately translated. In that context, the Tribunal finds the applicant’s explanation that the reference to his wife holding Iranian citizenship included in that paragraph was itself an error also due to a translation issue to not be credible.
It was contended on behalf of the applicant that the Tribunal should accept the applicant’s explanation because the disclosure that his wife has obtained a fraudulent passport would be contrary to the applicant’s interests. The Tribunal does not accept this contention. While the Tribunal accepts that a disclosure that the applicant has been involved in fraudulently obtaining a passport would not weigh in his favour in the present matter, neither would a disclosure that his wife had obtained Iranian citizenship as far back as 2012, as that would be contrary to the information the applicant had previously provided to the Department. In this regard, the Tribunal notes that the copy of the Iranian passport provided by Ms Mirsajadi had an issue date of 24 May 2012 and was provided to the Department as part of her offshore visa application dated 8 May 2013. Contrary to this information, in his statutory declaration dated 28 June 2017, the applicant stated that his wife continued to live in Iran illegally. In the absence of a credible explanation for the inconsistencies, the Tribunal is satisfied that the applicant has not been full and frank in his evidence regarding his wife’s Iranian citizenship status.
Iranian police clearance
The Tribunal materials include a copy of an Iranian police clearance provided by the applicant. The applicant relies on the document as evidence of his Iraqi citizenship and as further evidence of the reliability of his claimed identity on the basis of consistency in personal details included in the clearance document including his name and place and date of birth. However, it is not clear on the face of the document what steps, if any, the Iranian authorities have undertaken to verify the accuracy of the applicant’s personal details as described in the document. In those circumstances, the police clearance document does not allay the concerns the Tribunal has regarding the reliability of the applicant’s evidence as described above.
Personal character references
The Tribunal materials include a number of personal statements of support for the applicant. The materials include an unsigned statement from Mohammadkazem Akhtarani of Tehran, Iran dated 12 June 2020. The applicant claims to have met Mohammadkazem Akhtarani when he was about 12 or 13 years of age while working in his father’s shop in Iraq and then to have reacquainted himself with Mr Akhtarani during his time living in Iran. Mr Akhtarani’s statement attests to having known the applicant since his time living in both Iraq and Iran. The statement is consistent with the applicant’s evidence regarding the applicant’s name, approximate date of birth, and early life living in Iraq and working at the Shorja market in Baghdad. The statement attests to having spent time with the applicant on his trips to Iran over the years and also on a visit to Melbourne. The statement otherwise provides very little personal detail in respect of the applicant and his life story. It is particularly vague regarding the timing of the applicant’s departure from Iraq, although it does make reference to the applicant’s father’s religious activities and also that Mr Akhtarani met up with the applicant again in Iran “more than 30 years ago”. This is despite the statement being very precise in referring to the date of the applicant’s first arrival in Australia, his return to Iran and his subsequent return to Australia. The statement does not provide any significant detail regarding the applicant’s wife, other than a reference to the applicant’s desire to be with his wife and the fact that she was seriously injured in a car accident and that the applicant had travelled to Iran to visit his wife on a number of occasions. The Tribunal has not heard from Mr Akhtarani directly and has therefore not been able to test the accuracy or truthfulness of the statement. However, even if the contents of the statement are accepted on face value, the statement does not allay the concerns the Tribunal has in relation to the reliability of the applicant’s evidence with regard to the issue identified above.
The Tribunal materials also include statutory declarations from Mohammad Alifanni dated 7 February 2020, the Rev Matthew Browne dated 5 February 2020, and Ms Narelle Riley dated 4 February 2020. Each of the statutory declarations attest to the writer’s engagement with the applicant during his time living in Australia and make other positive statements regarding the applicant’s character. However, while the Tribunal accepts that each of Mr Alifanni, Rev Browne and Ms Riley have made their statutory declarations with a genuine belief in the truthfulness of their content, those statements do not allay the residual concerns the Tribunal has in relation to the applicant’s evidence as described above.
Conclusion
Having carefully considered the whole of the evidence the Tribunal is satisfied that the applicant has not been truthful or otherwise full and frank in his evidence regarding the timing of his departure from Iraq, his claim not to have access to Iraqi identity documents and his evidence regarding his wife’s Iranian citizenship status. This, in turn, raises further doubt in the mind of the Tribunal about the reliability of the applicant’s evidence with respect to his claimed identity and life story more broadly. As a consequence, the Tribunal retains a significant doubt in its mind as to the applicant’s identity and life story. For these reasons, the Tribunal is not satisfied as to the applicant’s identity for the purpose of subsection 24(3) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member

...........................[SGD].....................................
Associate
Dated: 6 October 2022

Date of hearing: 2 December 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Andrew White

Refugee Legal

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Sarah Hardie

HWL Ebsworth Lawyers

[2022] AATA 3230

6 October 2022

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