Barami and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 498
•12 March 2021
Barami and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 498 (12 March 2021)
Division:GENERAL DIVISION
File Number: 2019/2723
Re:Mohammad Barami
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R West
Date:12 March 2021
Place:Melbourne
The decision of the delegate of the Minister of 9 April 2019 to refuse the Applicant’s application for Australian citizenship by conferral under s 21(1) of the Australian Citizenship Act 2007 (AC Act) on the basis that the delegate was not satisfied as to the Applicant’s identity as required by s 24(3) of the AC Act is affirmed.
............[]............................................................
Member R West
Catchwords
CITIZENSHIP BY CONFERRAL – Minister not satisfied of Applicant’s identity – national identity guidelines – reasonable satisfaction – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007
Cases
Dhayaakpa v Minister for Immigration and Border Protection [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 248
YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458
Secondary Materials
Attorney-General’s Department’s National Identity Proofing Guidelines (2004)
REASONS FOR DECISION
Member R West
12 March 2021
INTRODUCTION
The Applicant, his wife and two children arrived in Australia as irregular maritime arrivals on 1 April 2010. The Applicant has resided continuously in Australia since that time.
The Applicant was granted a Protection (Class XA) Subclass 866 (PV) visa on 28 January 2011.
On 23 February 2015, the Applicant applied for Australian citizenship by conferral (Application) under s 21(1) of the Australian Citizenship Act 2007 (AC Act).
The Application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) on 9 April 2019 on the basis that the delegate was not satisfied as to the Applicant’s identity as required by s 24(3) of the AC Act (Reviewable Decision).
The Applicant seeks a review of the Reviewable Decision.
A hearing in relation to the review was held by videoconference on 17 September,
1 and 13 October 2020. The Applicant was self-represented and had the assistance of a Farsi (Persian) interpreter. The Respondent was represented by Mr Zhang, a solicitor from Clayton Utz.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing be conducted without the parties attending in person or that it be deferred until after the restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on the basis that it be conducted by video conference. Pursuant to s. 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) the Tribunal determined to conduct the hearing by videoconference.
EVIDENCE
In conducting the review, the Tribunal has had regard to:
a.the documents produced to the Tribunal by the Respondent pursuant to ss. 37 and 38AA of the AAT Act (the T Documents);[1]
b.the oral evidence of:
i.the Applicant;
ii.Farzana Karami; and
iii.Said Barami.
c.the Applicant’s Iranian Driver’s Licence (Exhibit A1).
[1] The documents are referred to in this decision by the prefix ‘T’(original T Documents), ‘ST’(Supplementary T Documents) and ‘FST’(Further Supplementary T Documents).
LEGISLATION
Section 21(1) of the AC Act provides that a person may make an application to the Minister to become an Australian citizen. Sub-sections 21(2) to (8) set out the general eligibility criteria. The AC Act further provides in s 24(3) that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person.
Sub-section 24(3) of the AC Act operates as a mandatory limit on the Minister’s powers such that the Minister must not approve a person becoming an Australian citizen unless the Minister is positively satisfied of the identity of the person. In the Reviewable Decision, the delegate was not positively satisfied as to the Applicant’s identity and on that basis refused the Application.
The Applicant’s Claim
The Applicant contends that the essential facts of his identity are:
- his name is Mohammad Barami;
- he is a stateless Faili Kurd who was born in Kalar, Iraq;
- his birth date is 22 December 1980;
- he is married to Farzana Karami and has three sons, Said (born 1998 in Iran), Suhel (born 2005 in Iran) and Sina (born 2013 in Australia); and
- his parents (both now deceased) were undocumented and stateless Faili Kurds who had left Iraq and settled in Iran in 1980, during the rule of Saddam Hussein.
Assessment of Identity
The Respondent submits that a high level of satisfaction is required for the purposes of
s 24(3) of the AC Act, because once a person obtains a certificate of Australian citizenship, they are able to acquire important identity documents such as a passport.
In Sullivan v Civil Aviation Safety Authority,[2] the Full Federal Court held that the Tribunal “may inform itself – and in some circumstances should inform itself – by reference to evidence or other materials which properly support the seriousness of the findings being made and the seriousness of those findings upon a party”.
[2] [2014] FCAFC 93 at [106], and see also [108].
The Tribunal acknowledges that the grant of Australian citizenship is a serious issue, requiring it to be satisfied as to the Applicant’s identity on the basis of the evidence before it assessed in the context of the legislative scheme set out in the AC Act. The level of satisfaction required to be met is “reasonable satisfaction”.
The Attorney-General’s Department’s National Identity Proofing Guidelines (2004) (Identity Proofing Guidelines) state that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives, being:
a.To confirm the uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another.
b.To confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created through evidence of commencement of identity in Australia.
c.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community.
d.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder.
e.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used.
Identity Proofing Guidelines at page 7 describe identity 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… For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons to the contrary in a particular case.[3]
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Under the Identity Proofing Guidelines, the accepted methodology for determining identity in relation to applications for citizenship is the “three pillars of identity” test which involves documentation (including bio data), personal identifiers/biometrics and life story (including social footprint).
Biometrics
Biometric information relevant to establishing identity comprises objective personal identifiers such as fingerprints, visual images, signatures, physical features, iris scans and DNA tests. In the Applicant’s case there is no evidence of biometric factors produced to the Tribunal which would assist in assessing the true identity of the Applicant.
Documents
The existence of documents which evidence a person’s identity is important in establishing identity. It is incumbent upon an applicant for citizenship to produce relevant documentary evidence. However, the production of documentation to establish identity is not legally essential.[4]
[4] Dhayaakpa v Minister for Immigration and Border Protection [2015] AATA 1458 at [34] cited with approval by the Tribunal in YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458 at [34] and more recently in QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 248 at [44].
Official Documents
The following official documents[5] were produced to the Tribunal in relation to the Application:
a. a copy of the Applicant’s Victorian driver’s licence
b. a copy of the Applicant’s Australian visa;
c. a copy of the Applicant’s Medicare card;
d. copies of the Applicant’s ANZ Community Loan statement; and
e. a copies of the Applicant’s Commonwealth Bank account statement.
[5] T4 at pp. 116-128.
The Respondent asserts that these documents are of limited probative value as they were all produced after the Applicant arrived in Australia and are the result of self-reporting. The Tribunal accepts the Respondent’s contention regarding these documents and gives them little weight in assessing the Applicant’s true identity.
The Applicant asserted that he did not have any official documents from his time in Iran, he had not taken any steps to try to obtain documents from Iran or Iraq which would assist in confirming his identity. In particular, he claimed that he did not have and could not produce:
a.his own Iraqi birth certificate;
b.an Iranian birth certificate for each of his two sons;
c.a marriage certificate;
d.an Iranian identity card (known as a white card) for himself or his wife;
e.a death certificate for either of his parents;
f.school records for himself or his children;
g.employment records; or
h.Iranian health records for himself or his family.
Other Documents
The Applicant identified two documents which he had used for identification purposes in Iran; first, a passport for himself and his family which was used to exit Iran and travel through Dubai and Indonesia en route to Australia and secondly a driver’s licence issued to him in Iran.
The Applicant claimed that the passport was fake, and he handed it over to people smugglers when he arrived in Indonesia and it could not be produced to the Respondent.
The Applicant provided his Iranian driver’s licence to Vic Roads when he applied for his Victorian driver’s licence, but he failed to produce it to the Respondent when making his citizenship application. It was eventually produced to the Tribunal during the course of the hearing.[6] The Applicant described the status of the driver’s licence in his statutory declaration of 6 March 2019[7] as follows:
…the licence was obtained legally, and it was usable both in Iran and internationally however due to lack of identification I had to bribe the instructor to be able to take the driving test without ID. Other than identification, the process to gain my licence was no different from everyone else. I didn’t pay for the licence. I bribed the instructor to allow me to do a driving test…
[6] Exhibit A1
[7] T12 at p.190
The Applicant did not produce to the Respondent at the time of his application or to the Tribunal on appeal any informal documentary evidence such as photographs, correspondence or receipts/invoices.
Without considering the Applicant’s explanation for the absence of any official or other informal documentation, the Tribunal notes that its assessment is not assisted by any documentary evidence other than the Iranian drivers’ licence to confirm the Applicant’s claimed identity. In the absence of any biometric evidence, the Applicant’s claim largely rests on the credibility of his life story.
Life Story
The Applicant provided the following life story to the Tribunal in his written statements[8] and through his oral testimony:
[8] T4 at p.131; T6 at pp146-151; T12 at p.190 and ST1 at p.3
a.His name is Mohammad Barami. He was born in Kalar, Iraq on 22 December 1980. He has no siblings.
b.He is a Faili Kurd.
c.At one year of age, he travelled with his parents from Iraq to Iran and he then lived in Iran continuously until travelling to Australia in 2010. In his statement attached to his application for citizenship,[9] he stated that:
[9] T4 at p.131 and in an unsworn statutory declaration - T6 at p.148
I am a Faili Kurd who was rejected by Iraq’s government, ruled by Saddam Hussein, then being expelled from Iraq to Iran. However, the Iranian authorities never accepted Faili Kurds into the Iranian community since Iran does not regard me of (sic) having any rights as an Iranian citizen.
d.Neither Iraq nor Iran accepted his family as nationals, and they remained stateless. While in Iran, Faili Kurds were denied access to work, education, bank accounts and travel documents and were unable to register births, deaths and marriages.
e.None of his family members had any identity documents. Neither he nor other members of his family obtained an amayesh card (known as a white card), which were issued in Iran after 2002 as a form of identity card for non-citizens.
f.The Applicant’s father was a farmer in Iraq and when he fled to Iran, he brought around 10 to 15 million Dinar (approximately AUS$15-16,000) with him. He exchanged the money for Iranian currency after he arrived. His father was killed at the Iraq/Iran border in about 2006 when he attempted to return to Iraq to obtain identity documents. His mother died approximately two and a half years later. His father’s body was not recovered, and the community had a small ceremony for him. His mother was buried in the village in secret and no death certificate was issued as she was an undocumented non-citizen.
g.He did not attend school in Iran.
h.He worked in the construction industry and was trained by his father. He was a skilled construction worker doing mainly bricklaying and painting. His level of skill was equivalent to an engineer. He worked casually being engaged by various builders on an irregular basis as they needed him. He was paid well below the rates in comparison to Iranian nationals doing the same work and he earned on average about US$100 per week.
i.He is married to Farzana Karami and they have three sons: Said was born in Iran on 16 December 1998, Suhel was born in Iran on 1 February 2005, and Sina was born in Australia on 4 April 2013.
j.He first met Farzana when he was employed to do some building work for her father in a town some 100km from Karaj, where he lived. She was 14 years old at the time. She ran away with the Applicant when her father refused to agree to their marriage. They were married in an informal ceremony attended by 10-20 local people in Karaj. The marriage vows were read by an elder and a document produced which confirmed the marriage and identified the four witnesses. The Applicant claimed that this was not a formal marriage certificate and it was either thrown away or lost some time after the wedding.
k.He and Farzana had two children together in Iran. Both boys were born at home and they were not issued with a birth certificate.
l.He lived with his family in Karaj and used his landlord’s identity to manage his affairs with banks, organisations and utility bills for which he was charged a fee by his landlord. The Applicant produced an email purportedly from his landlord confirming this arrangement[10].
m.He obtained a false driver’s licence in Iran so that he could drive his employer’s vehicle to pick up supplies. He paid a bribe so that he could sit the test and be issued with a fake licence. He said he got the fake licence because it would be accepted by the police in random checks, but it would not show up on the police system if properly checked, for example after an accident. He said, he did not have to produce the licence to the police in relation to his driving, but he was often stopped by the police otherwise and had to pay them a bribe to avoid arrest or a beating.
n.In around March 2010, the Applicant left Iran with his wife and two children and travelled to Australia, arriving on 1 April 2010.
o.He left Iran from Imam Khomeini International Airport and travelled by air via Dubai to Indonesia. He then travelled by boat to Christmas Island. Before leaving Iran, the people smugglers provided him with a single false passport for himself, his wife and the two children. He recalled that the name on the false passport was Be Rooz Karami or something close to that with his photograph inserted. He did not know if that name related to a real person and he could not recall what names were recorded for his wife and children. He handed the passport to the person who met him at the airport in Indonesia at the insistence of the people smugglers and has not seen it since.
p.He paid a total of around $15,000USD to people smugglers to facilitate the trip. He paid approximately US$12,000 to the person who gave him the passport in Iran and US$3,000 to the person who picked them up at the airport in Indonesia.
[10] Applicant’s submission dated 16 April 2020, p3.
The Applicant’s wife, Farzana Karami, gave evidence to the Tribunal. She confirmed the following aspects of the Applicant’s life story:
a.When she was 14 years old, she ran away with the Applicant to Karaj and they lived with his parents;
b.The Applicant lived with his parents but had no siblings;
c.The Applicant’s father was a bricklayer and painter and that he was killed at the Iraq/Iran border when he tried to return to Iraq to get documents;
d.The Applicant’s mother had died subsequent to his father’s death and she was buried in a private burial in the village;
e.She married the Applicant in Karaj. The wedding was attended by 10-20 people and elders had recited the traditional marriage statement for them and witnesses had signed a document, but it has now been lost;
f.Her two sons born in Iran were born at home and she did not have a birth certificate for them;
g.She said she had a shanesmah at her father’s house but did not take it with her when she ran off with the Applicant and she did not try to get a new one because she needed her parent’s permission until she was 18 and after that she was scared her father would kill her if he found out where she was;
h.She confirmed that the Applicant worked as a bricklayer and painter on a daily hire basis;
i.She confirmed that the Applicant had a driver’s licence but otherwise they had no identity documents;
j.She said they rarely went out and had no friends in Karaj;
k.She said she taught her children at home and they did not go to school; and
l.She confirmed that the family left Iran in 2010 via Imam Khomeini International Airport and that they used a single passport, but she said she wasn’t aware of the arrangements as she was afraid and busy looking after her two children.
The Applicant’s eldest son Saij Barami also gave evidence. He confirmed that he had written his father’s statements as filed in the proceedings based on what his father had told him. He stated that he was 10 or 11 years old when the family came to Australia. He confirmed that he had not attended school in Iran and had been taught at home by his mother. He said the family kept to themselves in Karaj although he had two friends with whom he played but he spent most time with his younger brother. He described their departure from Iran via Imam Khomeini International Airport. He said they were taken to the plane by a security guard, but he didn’t see their bags being screened and they just went to one counter to have their passport checked.
CONSIDERATION OF THE EVIDENCE
The Respondent raised a number of issues regarding the Applicant’s claimed identity.
Status as a Stateless Feyli Kurd
A key element of the Applicant’s claimed identity was his status as a stateless Faili Kurd who had been expelled from Iraq in 1980 and had lived as a non-citizen in Iran until his departure for Australia.
The Tribunal is mindful of the conclusions in the Department of Immigration and Border Protection Identity Analysis Report: Feyli Kurd Cohort of 11 July 2016 [11] (DIBP Report) which included the caution that:
Decision-makers must be vigilant when considering claimed stateless Feyli Kurd PV and citizenship applications given the level of known identity fraud within this cohort.[12]
[11] ST12 at p.163
[12] ST4 at p.72
The DIBP Report noted that the history of Feyli Kurds in Iraq and Iran shows that statelessness is not an attribute that can be automatically assigned to Feyli Kurds. The report noted that there is a significant indigenous Feyli Kurd population in Iran which enjoys Iranian citizenship. The report states that:
...the overwhelming majority of the indigenous Fayli Kurdish population in Iran are native born Iranian citizens, premised on over 90 years of documented Iranian citizenship status in both Iran and Iraq.[13]
[13] ST4 at p.55
Accepting that it cannot be assumed that the Applicant is a stateless person solely by reason of his Kurdish ethnicity, the Tribunal notes that the Applicant has not produced any evidence, other than the testimony of his wife, which would corroborate his assertion that he was a stateless non-citizen of Iran.
Lack of Documentation
The Tribunal notes that the Applicant lived in Iran for 30 years and yet he claims not to have retained any documents which could aid in his identification or confirm details of his life story other than an Iranian driver’s licence which he claimed was a fake.
The Applicant was cross examined extensively regarding his Iranian driver’s licence. He was questioned about his failure to disclose the existence of the licence to the Immigration authorities. He confirmed that he had produced the licence to Vic Roads in support of his application for a Victorian driver’s licence because it evidenced that he was a capable driver. He claimed that he did not disclose it to the immigration authorities because it was a fake document. It was put to him that he had not disclosed the licence because it would reveal his Iranian identity number which would enable the Department to check on his identity. He denied that this was the reason and insisted that the identity number on the licence was a false number because he was not able to get a driver’s licence legally in Iran.
The Applicant produced the driver’s licence to the Tribunal.[14] It was translated by the interpreter who confirmed that the licence did not include an Iranian identity number or any other means to verify the identity of the person holding the licence. The Respondent accepted that the licence would not enable the Respondent to verify the Applicant’s identity through formal Iranian channels.
[14] Exhibit A1.
The Applicant insisted that the licence is a fake document obtained by bribing a driving instructor. The Applicant was not forthcoming in disclosing the document to the Respondent and only made it available during the Tribunal hearing when pressed by the Respondent. There is no independent evidence to corroborate the Applicant’s claim that the licence is a fake. If it is genuine, it would suggest that the Applicant was not a stateless Faili Kurd and that he may be an Iranian national.
The Applicant was asked why he had not applied for a white card.[15] He responded that he feared being tracked by the Basij[16] and he was afraid he would have to answer questions when he went to the police station to ask for the card. In his statement of July 2020, the Applicant stated that he had tried to apply for a white card with the assistance of a lawyer. When questioned about this apparent inconsistency in his evidence, the Applicant said that his landlord, not a lawyer, had unsuccessfully inquired about a white card on his behalf.
[15] An Iranian identity document for non-citizens, also referred to as an Amayesh or a green card.
[16] A paramilitary organisation.
The DIBP Report notes that in October 2011, DFAT advised that since 2002, Iraqi refugees in Iran have been issued with a white card, and:
…the vast majority of Faili Kurd refugees in Iran had valid Amayesh refugee registration cards. Other information from 2001 referred to an Iranian government program aimed at registering aliens. The high rate of documentation amongst the Iraqi refugee population in Iran is perhaps unsurprising considering the considerable benefits attached to the possession of these documents and the Iranian government’s understandable enthusiasm for documenting people within its borders.
…Being a registered, documented refugee in Iran bestows the following benefits:
- Access to schooling
- Access to rental properties
- Access to medical insurance
- Ability to register births, deaths and marriages with the Bureau of Alien and Foreign Immigrant Affairs (BAFIA).The DFAT country information states that the vast majority of Faili Kurds in Iran have been issued with a white card since 2002. The Applicant disputed the figures in the DFAT country information that approximately 90% of Faili Kurds now have a white card. He claimed it was only about 5-10%. Farzana made a similar claim. The Applicant produced no evidence to substantiate this assertion. The Tribunal accepts the DFAT assessment.
In view of the common practice of non-citizen Faili Kurds obtaining a white card and the benefits which apply to the holders of the cards, it is difficult to accept the reasons advanced by the Applicant for not obtaining a white card. Essentially, the Applicant said that he feared questioning by the police at the time he applied and the possibility of being tracked once issued with the card. The Applicant did not point to any evidence to substantiate his claims and the legitimacy of his fears. The Applicant was not completely unknown to the Iranian police. He admitted that he had fairly regular contact with the police and had to pay bribes to them to avoid trouble.
In his statement of 28 April 2010,[17] he said he was confronted by the Basiji on a daily or weekly basis and was arrested and detained for short periods, sometimes overnight. The DFAT information indicates that a large majority of people in the same situation as that alleged by the Applicant had obtained the cards. Taking these matters into account, the Tribunal is not reasonably satisfied with the Applicant’s explanation for not obtaining a white card.
[17] ST1.
Similarly, the Tribunal is troubled by the Applicant’s claim, as echoed by his wife Farzana Karami, that they had no documents at all in relation to their time in Iran, a period of some 30 years. The Applicant did not produce a single photograph, any receipts or other commercial documents which would corroborate his claims to have lived in Karaj or any correspondence or other personal communication. In particular, the Tribunal has difficulty accepting the Applicant’s evidence that the marriage document he was issued by the village elder was lost or discarded because it was not a formal marriage certificate and the evidence of Farzana that she had no photographs of their wedding because their phone was broken and she had lost the few polaroid photographs that were taken.
The Tribunal also notes that the Applicant has failed to identify any steps he has taken to obtain documents which would support his claim. Nicholson DP noted in Dhayaakpa v Minister for Immigration and Border Protection[18] that:
“Neither the Act nor 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 authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunity to secure evidence 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.”
[18] Dhayaakpa v Minister for Immigration and Border Protection [2015] AATA 310.
Added to this is the Applicant’s evidence that events in his life transpired in a way which avoided the generation of any formal documentation. He did not attend school and so had no school records. His employers paid cash and so he had no employment records. The death of his father and mother failed to attract any official attention so that no death certificates were issued. His sons were born and schooled at home so that there were no birth certificates, health records or school reports. The Applicant’s marriage was informal and so not marriage certificate was issued.
The Tribunal does not disregard the possibility that, as a stateless person living in Iran without the legal rights and privileges of a citizen, circumstances may have played out in the way the Applicant claims. However, the Applicant’s claims have a ring of convenience about them such as to raise the possibility that his explanation may have been contrived to hide the facts regarding the existence of documents.
The uncertainty around the authenticity of the Applicant’s driver’s licence, the inadequacies around his explanation for not obtaining a white card and otherwise the complete absence of either formal and informal documents taken together raise an element of doubt in the Tribunal’s mind regarding the question of the Applicant’s true identity. The absence of corroborating documentary evidence makes it difficult for the Tribunal to accept the Applicant’s assertions regarding his life story simply on face value.
Aspects of the Applicant’s Life Story
Turning now to the third limb of the three pillars test, the Tribunal accepts that the Applicant’s life story does provide a plausible basis for his claim of identity, and his evidence is corroborated in large part by his wife, Farzana.[19] Nevertheless, there are aspects of the Applicant’s claimed life story which raise doubts.
[19] The Tribunal gives little weight to the evidence of the Applicant’s son Said who was only 10 or 11 at the time the family left Iran and he admitted in his evidence that he had assisted the Applicant to prepare his various statements.
The Respondent raised a number of issues regarding the Applicant’s account of his travel to Australia.
The Applicant’s evidence was that he departed Iran via Imam Khomeini International Airport using a false passport for himself and his family and the travel was organised by people smugglers engaged by his landlord.
The Applicant’s evidence regarding his financial position is difficult to reconcile with the cost he claims to have paid to the people smugglers who arranged his travel to Australia.
The Applicant stated that he was required to pay approximately US$15,000. He said that when his father came to Iran in 1980, he brought with him approximately that amount in Iraqi currency. He said that he and his father supplemented that sum with their wages and used the money for living expenses and to pay bribes to the police and other officials. He explained that he had to pay more for things as a non-citizen and that he was paid substantially less than Iranians doing the same work. He estimated that, on average, he earned around US$100 per week. The evidence does not establish at what age the Applicant began work with his father, but it is safe to assume that for at least 10 years after their arrival in Iran, the family was supported solely on the father’s wage. The evidence was that the father died in 2006 and so for the last four years the Applicant was in Iran, his wage was the sole source of income. Making an allowance for inflation and the likely diminished value of the money brought to Iran in 1980 and considering the limited income and necessary expenditure on daily necessities, there is some doubt whether the Applicant could have accumulated what would amount to three years’ wages in order to pay the people smugglers.
The Tribunal does not discount the possibility that the Applicant was able to accumulate that amount of cash, but the evidence taken as a whole does cast doubt on the Applicant’s claims in that regard.
Further, the evidence of the Applicant and his wife regarding their exit from Iran via Imam Khomeini International Airport raises significant doubt. The essential claim made by the Applicant, and largely confirmed by Farzana, was that the Applicant’s landlord Abdul Wahab arranged things with the people smugglers. They were driven to the airport and were given a fake passport by Abdul Wahab outside the terminal and handed over to a security guard who escorted them through the terminal and onto the plane. In his statement to immigration officials of April 2010, the Applicant stated that Abdul Wahab ...assisted us until the gate and then he left.[20]
[20] ST1 at p.22.
The Applicant claimed that Abdul Wahab had paid bribes to the immigration officers to allow the Applicant and his family to pass through the airport controls using the fake passport. The DIBP Report noted its overall impression that, whilst it is possible to get forged documents in Iran, obtaining a forged or fraudulent passport of sufficient quality to pass through Iranian departure controls is highly unlikely due to checking of existing passports against a computer system.[21] The report also noted the advice of the Danish Immigration Service that sources on the ground in Iran had said it was not possible to exit Iran through Imam Khomeini International Airport on a falsified document without a high price being paid as bribery. DFAT’s own assessment was that exit from Imam Khomeini International Airport with a forged passport would be difficult, but not impossible if significant bribery was involved. The DFAT assessment noted that Iran’s border with Turkey provides an easier way to exit Iran illegally and there are well-established smugglers’ routes.
[21] ST4 at p.60.
The evidence of both the Applicant and Farzana regarding what happened at Imam Khomeini International Airport was imprecise and did not address the various steps necessary in catching an international flight. They did not explain what happened at check in with the airline, at luggage security checking, and at aircraft boarding. Farzana claimed she was distracted in looking after the children and the Applicant gave only vague evidence as to what happened.
The Tribunal accepts that it is possible that the Applicant and his family exited Iran in the way he described, but the DIBP Report suggests that this course was attended by significant risk for a person travelling on a false passport when easier options were available. The Applicant’s explanation is not sufficiently robust to rule out the possibility that he and his family may have exited through Imam Khomeini International Airport on a valid Iranian passport.
Lack of independent corroboration
The Applicant’s account of his life story was in large part corroborated by his wife Farzana and his son, Said. However, save for a brief unsworn statement in an email from his landlord, the Applicant did not produce any evidence from any independent witnesses to corroborate his life story. His explanation was that his parents were both deceased, he had no siblings, his wife was estranged from her family and he had not maintained contact with any relatives, business associates, workmates or friends in Iran other than his former landlord. He called no evidence from people he knows in Australia.
Possible extended family
The Applicant was cross-examined about his Instagram account and his relationship with a number of people with similar names in Australia. He confirmed that he had a friend Ensen Bahrami currently living in Shepparton whose mother’s name was Moradi, the same as the Applicant’s mother. The Applicant denied that he was related to Mr Bahrami and asserted that Moradi was a common name. He also acknowledged that he was friends with a painter Namdor Alimoradi but denied that he was related. He also acknowledged that a Mark Moradi followed him on Instagram and that he was also a painter but denied that there was any familial relationship. He confirmed that he had worked with both Namdor Alimoradi and Mark Moradi and that they had got together socially in Australia. When asked why a Heydar Barami ‘follows’ his son Suhel on Instagram, the Applicant said that his son manages his Instagram account and they follow people with the same surname. He denied knowing several persons with the name Moradi and Barami linked to his Instagram account. He said he just followed people with the same name and that some were friends of friends.
The Applicant’s response to questions about this evidence was dismissive and questionable. He maintained that he had no familial relationship with any of the people despite the similarity in their names and insisted that he merely searched out people on Instagram with the same name, out of curiosity. It is possible that this explanation is truthful and the Respondent did not produce evidence of any actual familial connection between the Applicant and any of the persons referred to. However, leaving aside the Instagram connections, there was actual professional and social contact between the Applicant and several of the persons with the same or very similar names. It stretches credibility to accept that the Applicant would have such an involvement with people with the same name, just by coincidence. In addition, the idea that the Applicant and his son had befriended people with the same family name on Instagram just out of curiosity gives rise to some doubt. The evidence is inconclusive, but it raises the possibility that the Applicant had not been candid about his family and places a question mark over his claim to be the only child of deceased parents without family connections in Iran.
CONCLUSION
Applying the “three pillars of identity” test as set out in the Identity Proofing Guidelines to the Applicant, the Tribunal notes that there is an absence of any biometric indicators to confirm the Applicant’s identity. There is almost a complete absence of any documentary evidence which does not rely on the self-reporting of the Applicant to establish identity. The only Iranian document produced by the Applicant is his Iranian driver’s licence. His licence is of dubious value. On the Applicant’s evidence it is a fake document, but there is no independent evidence to show that it is fake. If it is a genuine licence it significantly undermines the Applicant’s claim that he lived in Iran as a stateless Faili Kurd.
There is much about the Applicant’s claimed life story which has a ring of authenticity, but it is also attended by doubt and uncertainty on some significant matters. There is no independent evidence, save for a brief unsworn email from the landlord, to corroborate the Applicant’s account. The Tribunal does not accept that it can simply assume that the Applicant is a stateless person or non-citizen of Iran solely because of his ethnicity. There are doubts about the Applicant’s account of his travel to Australia and those doubts leave open the possibility that the Applicant may have travelled on a valid Iranian passport. There are questions about the Applicant’s family composition raised by his association with persons in Australia with similar family names.
The Tribunal is mindful that s. 24(3) of the AC Act requires the Minister to be positively satisfied of the identity of a person before approving the person to become an Australian citizen.
Taking all of these matters into account and having regard to the seriousness of the matters to be determined, the Tribunal cannot reasonably be satisfied as to the identity of the Applicant.
Accordingly, the decision under review should be affirmed.
The Tribunal notes that this decision is not determinative of, nor does it serve as a bar to, any application for citizenship in the future. The Applicant is clearly entitled to re-apply for citizenship[22] in the future and in doing so he may address the issue of his identity with additional evidence.
[22] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354.
DECISION
The decision of the delegate of the Minister dated 9 April 2019 to refuse the Applicant’s application for Australian citizenship by conferral under s 21(1) of the AC Act, on the basis that the delegate was not satisfied as to the Applicant’s identity as required by s 24(3) of the AC Act, is affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member R West
...[sgd]..................................................................
Associate
Dated: 12 March 2021
Dates of hearing:
17 September, 1 and 13 October 2020
Applicant:
By videoconference
Solicitor for the Applicant:
Mr A. Zhang, Clayton Utz
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