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

BCXK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 322 (1 March 2021)
Division:GENERAL DIVISION
File Number: 2019/8291
Re:BCXK
APPLICANT

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

DECISION
Tribunal:Senior Member P J Clauson AM
Date:1 March 2021
Place:Brisbane

the reviewable decision is affirmed.
............................[SGD]....................................
Senior Member P J Clauson AM
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – whether Tribunal can be satisfied of applicant’s identity – were applicant claims to be stateless – were there is a paucity of supporting documentation – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Al Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
CNDB and Minister for Immigration and Border Protection [2018] AATA 757.
Dhayakpa and Minister for Immigration and Border Protection AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] 2 ALD 634
G v Minister for Immigration and Border Protection (2018) 266 FCR 511, [2018] FCA 1229
Minister for Immigration and Border Protection v G (2019) 266 FCR 569
Mohamed Taei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4728
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection [2018] AATA 3045
Secondary Materials
Australian Citizenship Bill 2005 (Cth)
Australian Citizenship Instructions (Department of Home Affairs, 10 April 2019)
Australian Citizenship Policy, (Department of Home Affairs, June 2016)
Country Information Report on the Republic of Iran (Department of Foreign Affairs and Trade, April 2014)
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson AM
1 March 2021

On 23 November 2015, Mr BCXK (“the Applicant”) submitted an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”)[1] in which the Applicant claimed that he was Stateless.
[1] Exhibit 1, T7, 47 to 71.
The Applicant was born in Iran on 23 October 1987 and was 32 years of age at the date of hearing. Upon arrival in Australia on 8 October 2010 as an illegal maritime arrival, he was granted a Protection (Class XA) Permanent (Sub-Class 866) Visa on 1 November 2011.[2]
[2] Exhibit 1, T6 at 43.
The Department requested that the Applicant provide original overseas documents with English translations on 25 March 2019 to support his claimed identity prior to his arrival in Australia and requested that he complete a Form 80.[3]
[3] Exhibit 1, T8, page 72.
The Applicant returned a completed Form 80 on 3 June 2019 throughout which he referred to his status as a Stateless person. He made the entry at Attachment “B” to the Form 80:
I am Stateless and don’t have any document here or even back in Iran.[4]
[4] Exhibit 1, T9, pages 84 to 101.
On 10 December 2019, a Delegate of the Minister (“the Delegate”) refused the Applicant’s application for Australian Citizenship on the basis that the Delegate could not be satisfied pursuant to sub-section 24(3) of the Act of the Applicant’s identity.[5] The provision provides:
(iii) Identity
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
[5] Exhibit 1, T11, pages 107 to 117 at 116.
ISSUES FOR THE TRIBUNAL
The Tribunal has to determine:
(a)Whether the Tribunal can be satisfied of the Applicant’s identity for the purposes of sub-section 24(3) of the Act.
LEGISLATIVE FRAMEWORK
The decision in this matter is governed by sections 21 and 24 of the Act. In order for an application for citizenship to be approved, the Applicant must satisfy all the relevant eligibility criteria found in section 21 and then separately not enliven any of the approval prohibitions in section 24.
The eligibility criteria are:
21 Application and eligibility for citizenship
1A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
2A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i)     at the time the person made the application; and
(ii)    at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
2AParagraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
…
Statelessness
8A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a)the person was born in Australia; and
(b)the person:
(i)     is not a national of any country; and
(ii)    is not a citizen of any country; and
(c)the person has:
(i)     never been a national of any country; and
(ii)    never been a citizen of any country; and
(d)the person:
(i)     is not entitled to acquire the nationality of a foreign country; and
(ii)    is not entitled to acquire the citizenship of a foreign country.
Section 24 sets out situations when the Minister is prohibited from approving an application for citizenship, notwithstanding section 21.
24 Minister’s decision
1If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
1A The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
2The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
…
Identity
3The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Further the mandatory requirements of the Act. The Citizenship Policy (“the Policy”) provides further guidance on implementation of the Act. Policy should be followed to the extent that there are no cogent reasons to depart from it. The relevant sections of the Policy are set out below.
4.2 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 other within a specific context.
4.4 When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.

Three Pillars of Identity Individual Characteristics

Biometrics Personal Identifiers, which include fingerprints, facial recognition or a person’s signature. Biometrics can be used for comparison, with, for example, facial images, held by the Department or other domestic or international agencies

Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life Story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
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 departmental records are matched and confirmed.

The Policy then provides further elaboration on the individual pillars and the purpose of each and how each is to be satisfied.
Separately, the Policy provides the following proofing objectives:
(a)The uniqueness of the identity in the tended context to ensure that individuals can be distinguished from one another.
(b)The claimed identity is legitimate to ensure the identity has not been fraudulently created through evidence of commencement of identity in Australia.
(c)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)The linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 4 is not only legitimate, but that the person claiming the identity is its legitimate holder.
(e)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.
Finally, the Revised Citizenship Instructions (‘the Instructions”) provide that identity cannot be assessed at a point in time. It develops incrementally over the course of a person’s life and so leaves a trail throughout history. Therefore, the Tribunal’s task is to assess the Applicant’s identity, not as he currently exists at a point in time in Australia, but rather, in a historical context and to with a view of the proofing objectives of the Policy. This must be done by references to the pillars of identity provided by the Policy.
THE APPLICANT’S BACKGROUND
The Applicant was interviewed on 12 October 2010 by an Officer (“IO”) of the then Department of Immigration and Citizenship assisted by an Interpreter fluent in the Persian language.[6] The following information set out in the paragraph below is extracted from that interview.
[6] Exhibit 2, Annexure “B”.
The Applicant confirmed he was born on 23 October 1987 at a given address in Karaj, Iran. He also provided an address to the Officer interviewing him where he had lived in Karaj, together with his parents’ telephone number.[7] He also gave his citizenship status as “Stateless”.
[7] Exhibit 1, Annexure “B”, page 2.
The Applicant told the IO that he was a Muslim Shia and of Kurdish Faili ethnicity, that he spoke Kurd, Farsi and Arabic and was unmarried[8] and had no children. He further advised that both his parents were living and residing at the address he had provided earlier in the interview. He provided his father’s name as Najm [BCXK] and stated that he worked for a paint company and was 53 or 54 years of age and that his mother’s name was Farideh Sarbakhteh and she was 43 or 44 years of age and was a housewife.
[8] Ibid, page 5.
The Applicant told the IO that he had a brother and sister. His sister, Somayeh [BCXK], was born in 1995 and at the time of this interview was in detention on Christmas Island. His brother, Sohil [BCXK], was born in 1991 and was still resident with their parents in Iran.[9]
[9] Exhibit 2, Annexure “B”, page 6.
The Applicant attended school in Iran for 11 years and left high school in 2005 with a Diploma in Computer Skills. His work history shows that he commenced work in 2006 and was working as a Store Manager for a paint company in 2010, the year he left Iran.[10]
[10] Exhibit 2, Annexure “B”, page 4.
He also disclosed that he was accompanied on the boat to Christmas Island by the brother of his brother-in-law, Mohsen, together with his cousins, Hassan and Husain.[11] He confirmed to the IO that he had never applied for an Entry Visa to Australia, nor had any members of his family or other persons he may have known. He also confirmed that he had never travelled outside of the country of his residence, nor had he lived for more than one month outside of that country.[12]
[11] Exhibit 2, Annexure “B”, page 6.
[12] Exhibit 2, Annexure “B”, page 1 to 18.
The IO recorded that the Applicant stated that he had not, nor had any of his relatives, been involved with any political groups or organisations or anti-government activities and he was not a member of any particular social or religious group.[13]
[13] Exhibit 2, Annexure “B”, page 11.
The Applicant told the IO that he had not served with the Police, security or any intelligence organisation and that he had not been in any military service.[14] The Applicant also stated to the IO that he had not contacted the United Nations High Commission for Refugees (“UNHCR”) either in his country of residence or in any other country whilst in transit.[15]
[14] Exhibit 2, Annexure “B”, pages 12 and 13.
[15] Exhibit 2, Annexure “B”, page 9.
In his interview, he advised the IO he had decided to leave Iran because:
(a)he did not have any identity and did not have a Birth Certificate;
(b)he could not undertake any study beyond high school;
(c)he could not obtain a driver licence;
(d)he could not get gainful employment and consequently Iraqi Kurds received no medical insurance, pension and had to pay disproportionately more for medical services;
(e)a lack of identification and recognition were big problems for him as an alien;
(f)he was targeted because of his ethnicity by the Basij and gave examples of being picked up by them because his hair was too long and they shaved his head. He was arrested for walking with a girl and had to pay a bribe to secure his release and they took all the money he had.[16]
[16] Exhibit 2, Annexure “B”, page 10.
Preparations to Leave Iran
The Applicant told the IO he started to prepare his departure for Australia in or about August or September 2010,.
The Applicant told the IO that his uncle introduced him to a person called Adel and that this person organised a passport for him. He described this man as being about 40 years of age, normal build, clean-shaven and thought he was an Iranian Iraqi. He told the IO that Adel knew a Mr Hamed in Jakarta and they telephoned him. The Applicant was told to buy a ticket and to let Mr Hamed know the date of his departure.[17]
[17] Exhibit 2, Annexure “B”, page 14.
According to the Applicant, Adel made the passport for him and Adel gave him an airline ticket to fly to Indonesia. He told the IO that he knew he was being sent to Australia. The Applicant told the IO that he paid a total of $10,000.00 (US) for his journey broken down as to $5,000.00 (US) to Adel for the passport and air ticket and $5,000.00 (US) to Mr Hamed for smuggling him.[18]
[18] Exhibit 2, Annexure “B”, page 13.
The Applicant’s Account of his Journey
The Applicant informed the IO that on 29 September 2010, he travelled with his sister’s brother-in-law, Mohsen, to Imam Khomeini Airport in Tehran and had no problems going through Immigration. They flew to Abu Dhabi and waited there in transit for about four or five hours.[19] They then flew to Jakarta and they paid $25.00 (it is assumed by the Tribunal to be US Dollars) and were taken to an interview room, searched and asked for their business card. They advised the questioning party they had none and told the IO that they had to pay $300.00 (presumably US Dollars again) each by way of bribes to be released. He advised that both of them were fingerprinted and photographed. As their possessions were x-rayed, they were again searched and then released.
[19] Exhibit 2, Annexure “B”, page 16.
The Applicant and his companions left the airport and telephoned a Mr Hamed who told them to get into a light blue taxi, the driver of which telephoned Mr Hamed and received instructions regarding where to take them.[20]
[20] Exhibit 2, Annexure “B”, page 21.
The taxi took them to a shopping centre called “La Piazza” where they met Mr Hamed. He was driving a black four-wheel drive. He advised them to go to the shops and eat or bring their food with them. He then took them to a 23-storey high-rise building in what appeared to be a poor area where they spent that night. Mr Hamed collected them the following day and moved them to a hotel and then they paid him. They waited there for about two hours and then around early evening Mr Hamed put them into a van, taking them to a beach, where they boarded a small boat that ferried them to a larger boat. The trip from the hotel he estimated to have been two or three hours and the boat transfer approximately one and a half hours. He stated that they sailed for one day before the boat broke down and they were collected by another boat and towed to Christmas Island. He stated that it took seven days to reach Christmas Island.[21]
[21] Exhibit 2, Annexure “B”, pages 22 and 23.
The Applicant told the IO that he chose Australia as his preferred destination because it took migrants and observed human rights and that it was able to be reached with the money they had rather than anywhere else.[22] He stated that he did not wish to return to Iran because he feared he would be accused of being a spy and was sure he would end up in prison or if returning after leaving the country without a legal document, would be classified as a spy and executed.[23] The Applicant provided a Statutory Declaration dated 13 February 2011 with his Form 866C (Application for a Protection (Class XA) Visa) which effectively repeated those aspects contained in the interview with the IO.[24]
[22] Exhibit 2, Annexure “B”, page 17.
[23] Exhibit 2, Annexure “B”, page 18.
[24] T5, Exhibit 1, page 41.
THE RESPONDENT’S CONTENTIONS

The Respondent’s contentions, in summary, are that the Tribunal cannot be satisfied of the Applicant’s asserted identity when it is taken into consideration his life story because:
(a)the Applicant, having lived in Iran since birth until the age of 22 years, has not provided any document issued in Iran during that time which can identify the Applicant. The earliest document provided showing the Applicant’s identity was dated 19 November 2012 and was generated in Australia, an expired Australian passport;[25]
(b)because all of the identity documentation provided by the Applicant is generated in Australia and thus should be given minimal weight as proof of identity;
(c)the Applicant has not provided a copy of his Iranian White Card. He has been unable to provide adequate and compelling reasons as to why he does not have a White Card or was unable to obtain one. This is especially so as he implausibly suggests that he managed to live and work in Iran without one;
(d)further, the Applicant claims that his parents and brother are still residents of Iran[26] but has produced no evidence to this and that he states that the family’s White Cards were taken by his father for renewal but that “they did not give any documents back” are implausible. Given that his parents are said to live in rented accommodation, his father and brother have employment and he and his siblings received their education in Iran, it would be unlikely to live and work and attend schools in Iran without some form of official government-issued identification; and
(e)the Tribunal cannot be satisfied of the Applicant’s identity as there are inconsistencies in the Applicant’s life story which pose further implausibilities as regards his identity, namely:
(i)that in his Protection Visa Interview, he claimed to have departed Iran on a fraudulent Iranian passport and paying $10,000.00 in total to do so; and
(ii)this was inconsistent that he was a 23-year-old Faili Kurd who worked in low-level (and paying) labouring jobs; and
(iii)Department of Foreign Affairs and Trade (“DFAT”) Country Information indicates that exiting Iran via Imam Khomeini Airport using false documents would be very difficult because of the strict security controls there in place.[27]
[25] Exhibit 1, T7 at 63.
[26] Exhibit 1, T9 at 97, 98 and T4 at 16.
[27] Respondent’s Statement of Facts, Issues and Contentions document, Exhibit 2, pages 6 and 7 at paragraphs 22 to 28 and the Respondent’s closing Submissions at the hearing, Transcript of Proceedings, pages 20 and 23.
THE HEARING
A Review Hearing was convened in Brisbane on 14 September 2020 and utilised MS Teams.
The Applicant appeared self-represented and gave evidence on his own behalf.
The Respondent was represented by Mr Burgess.
CONSIDERATION
As has been discussed earlier, the governing legal framework is contained in Division 2, Part 2 of the Act.
Division 2, Sub-Division B, covers the aspect of citizenship by conferral. Section 21 permits a person to make an Application to the Minister to become an Australian citizen and in other sub-sections enunciates the specific and general requirements for the purposes of making an Application for Australian Citizenships.
Importantly, section 24(3) provides that Australian citizenship cannot be granted unless the Minister is satisfied of the Applicant’s identity.
Prior to the Australian Citizenship Bill 2005 being passed into law, the Explanatory Memorandum accompanying it outlined what the duty of the Minister was to be in making a decision on identity and stated, inter alia:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances, the Minister cannot approve the person becoming an Australian citizen.
Although “identity” is not defined, it is necessary to fall back on the requirements outlined in the policy as discussed in the earlier outline herein and rely upon the Attorney-General’s departmental “National Identity Proofing Guidelines” 2004 (“NIPG”) for assistance in coming to a correct and preferable decision on the evidence before the Tribunal.
The Tribunal notes also the recent decision of Sosso DP in the matter of Mohamed Taei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4728. In that matter, the Deputy President made the following observation:
It will be noted that section 24(3) has been drafted in a manner that places, in effect, a prohibition on the Minister approving citizenship unless the Minister is satisfied of the identity of the Applicant. In short, the issue of identity is a fundamental threshold issue that must be dealt with before other issues, such as character, can be addressed.
Given that the Act requires of the Minister that they be “satisfied” as to the Applicant’s identity, it is appropriate to have reference to the Tribunal’s decision in the matter of Sinnathamby and Minister for Immigration and Border Protection[28] where the observation below was made by Senior Member Morris:
[56]Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibility and privileges ...
[28] [2018] AATA 2579 at paragraph 56.
This Tribunal accepts the premise, generally accepted, that if doubts exist as to an Applicant’s identity then, the Minister cannot approve citizenship. The doubts, in the view of the Tribunal, need to be sufficient to bring a decision-maker reasonably to the view that identity is not able to be adequately established on all of the evidence before them.
In matters such as this where the Applicant has come to Australia from a region that is unstable and beset by many diverse and troubling circumstances, difficulties are posed for a decision-maker in considering an Application for Citizenship where identity has to be considered within the parameters of the Act.
The Applicant’s credibility will be of significance in any deliberations regarding identity and where the deposed evidence of the Applicant on matters relevant to their identity is less than convincing than a negative finding would be consequential. See CNDB and Minister for Immigration and Border Protection.[29]
[29] [2018] AATA 757.
Credibility is significant as of itself, however, in matters where the Applicant lacks corroborative documentation to support their application may take on a greater significance. The lack of documentation regarding identity in matters such as this, it is acknowledged, is not unusual nor need it be the fatal blow to an Applicant’s claim for citizenship. However, it will be generally accepted of an Applicant who is applying for Australian citizenship that once under the comfort of a Protection Visa they would make every endeavour to obtain copies of what the Respondent has referred to as “feeder documents” in its Statements of Facts, Issues and Contentions.[30] A feeder document is a document which links the Applicant’s story to the person’s history. For example, when given the choice between a birth certificate and drivers’ licence, the birth certificate ought to be given more weight as it is a primary document that would “feed” into drivers’ licence as a secondary form of identification.
[30] Exhibit 2, page 6, paragraph 23.
Although an Applicant’s quest to obtain such corroborative material may well prove fruitless there is, however, a presumption that an Applicant seeking the not insignificant privilege of conferral of citizenship and the benefits that that entails, would demonstrate in a sense of good faith, that they have taken all reasonable steps which may contribute to that body of evidence before the Tribunal tending to indicate that strong probability exists that they are the person who they claim to be.
Failure by an Applicant in the above regard may lead to a Tribunal making a finding contrary to the Applicant’s aspiration. It is necessary in matters where the Applicant’s identity needs to be sufficiently confirmed to a reasonable satisfaction of the Minister that every one of the threads of the Applicant’s life history that can be retrieved need to be collected and woven into a material state sufficient to meet the Revised Citizenship Procedural Instruction (“RCPI”).[31] The resulting material may be a patchwork but, nonetheless sufficient to confirm the Applicant’s identity.
[31] Chapter 16 – Identity – 4.12.
In the matter of Taei,[32] Sosso DP describes those matters which an Applicant should provide to assist a decision-maker in this type of matter:
[59]What is critical in each case is whether an Applicant has provided to the relevant authorities a consistent-like story. It is of central importance in ascertaining identity whether an Applicant has provided consistent and cogent information of their time and place of birth, their ethnicity, the composition of their family, their schooling, work history, medical care, raising of funds, travel information and any other matters that are of relevance.
[32] Ibid.
The Deputy President confirms yet again that identity is not a “single point in time” concept – it is a concept of incremental verification considered in an historical context.
In this matter, the Applicant has, by way of attempting to establish his identity to a level of satisfaction required by the Minister, has provided no more than a series of assertions, namely:
(a)That he was born on 23 October 1987 to parents of Iraqi/Kurdish Failli ethnicity;
(b)That he was stateless and possessed no original documentation either here or in Iran that may assist in proving his identity;
(c)He could name his parents, siblings and their ages, but stated that he was unaware of where his parents and brother were now living, but spoke to them from time to time (presumably by telephone).
As outlined earlier herein in the legislative framework overview, the CPI, in Chapter 16, provides the decision-maker with guidance in the assessment process for identity under the Act. The Tribunal generally has regard to the CPI guidelines unless there is a cogent reason not to, a principle enunciated in Drake and Minister for Immigration and Ethnic Affairs (No. 2)[33] and the matter of Al Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[34]
[33] [1979] 2 ALD 634.
[34] [2020] AATA 1267 at paragraphs 15 and 16.
The Tribunal also recognises that the CPI is a set of guidelines and does not have force of law, but is formulated to provide guidance to promulgate decisions which maintain consistency of approach, fairness and result in the correct and preferable decision in any matter. In the matter of G v Minister for Immigration and Border Protection,[35] Her Honour Justice Mortimer enunciated the principle as follows:
… Policy is not to become the rule of law. The Statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.[36]
[35] [2018] FCA 1229 at [210]. The Tribunal notes that this decision was overturned on appeal in the decision of Minister for Immigration and Border Protection v G (2019) 266 FCR 569 but not on the point of law enunciated above.
[36] Ibid at [210].
In the Applicant’s circumstances, the CPI’s relevance lies within that section which outlines the three pillars of identity of biometrics, documents and life history.
It is stated in the CPI that reliance should not be placed on one pillar to establish a person’s identity and that consideration should be given to every pillar, it is recognised that in different circumstances of each matter, one pillar may be of greater significance than the other. Significantly, an example is provided in the CPI where, as in this Applicant’s case, a claim is made that the person is stateless and undocumented. It is then necessary to turn to the pillar of the life story to try to assess the Applicant’s identity. The Applicant, in his evidence to this Tribunal, was unable to produce any evidence in regard to his biometrics which would tend to prove his identity during the progress of his life. No fingerprints, facial identification images or signatures affixed to or displayed on any official documents from his past have been placed before this Tribunal by him. The Applicant was adamant that no such identifiers exist or did ever exist in fact. He also stated that the only documents he had produced (excluding any official documents created here in Australia) was the unsworn statement signed by two parties who are not called as witnesses. They did not provide Affidavits of identification of a photograph of the Applicant, nor provide any substantive proof of who indeed they were or who the Applicant was. The letter reiterated only those matters asserted before this Tribunal by the Applicant regarding his date of birth, and the fact that they had attended school with him, that his family were Kurdish and had immigrated from Iraq but held no identification document.[37]
[37] See Exhibit 4.
The Tribunal accepts that although corroborative original documents are not mandated by Statute or the common law to be produced to prove identity, they are helpful, if able to be produced, to assist in that process. The Tribunal notes with approval the comment by Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection[38] where it was stated:
Neither the Act nor the common law requires the identify can only be established by the production of documents appropriate to an established or undisturbed society, the decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submissions for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected, the question here is whether the identity can be established to the satisfaction of the Tribunal.
[38] AATA 310 at paragraph 117.
Also, the comments of the Member in the matter of ZVNT:[39]
the Tribunal accepts that a certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256). The Tribunal, having considered all the evidence before it, given that the ZVNT and MFYW were issued with pink cards, finds that ZVNT, MFYW and SWQL, should be required to make an attempt to secure certified copies of pre-requisite documents required for citizenship. the Tribunal supports the contention of the Respondent that there was no effort made to do so, and consequently, this has impacted adversely on the success of this application. Having considered all the evidence before the Tribunal, the Tribunal holds the view that further inquiries and production of documents are requires to satisfy the criteria for identity under the Citizenship Act.
[39] ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection [2018] AATA 3045.
The Tribunal, in considering the Applicant’s Application under Review, has had regard to those aspects available to it of the life story of the Applicant.
The Tribunal can accept that the Applicant was born in Iran and lived in that country until he left at age 22. The Tribunal has no official document before it, such as a Birth Certificate, to verify his date of birth or verify his identity. In fact, the Applicant’s evidence is that he is not in possession of such a document.
The Applicant told the IO and the Tribunal that he lived with his parents at their address at First Valiaser Street, Prishangi City, Hezarak Area, Karaj, Iran. He confirmed to the Tribunal that his brother still lived with his parents in Iran and that his sister and her husband were now living in Australia, having come here under the same process as he asserts that he did. His interview document with the IO indicated quite specifically his parents’ address, set out above, and their telephone number, both current at the time of his departure.[40]
[40] Exhibit 2, Annexure “B”, page 2.
The Applicant was asked by the Presiding Senior Member in this Tribunal if he wanted to make submissions to the Tribunal and he did take that opportunity to do so. He confirmed that his parents had left Iraq to avoid the Saddam Hussein regime and that they and other families were living there without support.
The Tribunal asked the Applicant about how he communicated with his parents and his brother and also what the current residential arrangements were for his parents and brother. He told the Tribunal that he corresponded with his parents by telephone, that they did not have email, that his brother had email but that he never corresponded with his brother by email. The following exchange between the Presiding Senior Member and the Applicant:[41]
[41] Transcript, pages 8 and 9, Transcript of Proceedings.
WITNESS: And anything I said about my parents, myself is a hundred per cent true. Like my parents, you know, they ran away, like they’ve been kicked out from Iraq and then they become – they moved to Iran but unfortunately they – like there are many families like our family there that they don’t get support and they’ve got nothing, they is just living there. To be honest I’m lucky, you know, to run away to be here. And that’s all I’m seeking, like I’m seeking help and protection to be honest.
SENIOR MEMBER: Now, in the material it says that you’ve got a sister here, is that right?
WITNESS: Yes.
SENIOR MEMBER: And she is still here.
WITNESS: Yes.
SENIOR MEMBER: Yes. And your mother and father still live where? In Iran together with one of your brothers, is that correct?
WITNESS: Yes, correct.
SENIOR MEMBER: Yes. Now, do you correspond with them?
WITNESS: Yes, sometimes I do.
SENIOR MEMBER: Okay. And how do you – what medium do you use to correspond with them?
WITNESS: By telephone.
SENIOR MEMBER: Telephone, mainly telephone. Email?
WITNESS: That’s correct.
SENIOR MEMBER: Do they have email?
WITNESS: Telephone. My parents don’t. My brother I think he has but I never contact him with email.
SENIOR MEMBER: Okay. Thank you. Yes, you’re right, do you have anything further to say?
WITNESS: It’s just all I’m thinking, yes, I don’t know how to explain and it’s just I’m being honest with you guys and whatever I say is true. And honest I don’t know what else I can do to prove that to you guys but I’m being honest and I don’t find any reason to lie to you guys, like when I’m here to seek help why should I not like provide anything if I have.
SENIOR MEMBER: Okay.
WITNESS: Thank you.
SENIOR MEMBER: So whereabouts are your parents living now in Iran?
WITNESS: (Indistinct).
SENIOR MEMBER: No, but whereabouts? Do they have an address or in a camp?
WITNESS: They do, yes. It’s somewhere in Karanj (sic). Like I know they moved from where we were that they found another place. I don’t know the actual address but I can get that for you.
SENIOR MEMBER: No, that’s all right. I just wondered if there was an address that was all or whether they were living in a camp, I just didn’t know what their living arrangements may be. Because they’ve been there for some 20 odd years, haven’t they?
WITNESS: Correct.
The Tribunal has considered as part of the evidence from the Applicant and would note that at the commencement of the hearing, the Tribunal asked the Applicant if he wanted the opportunity to place any further materials before the Tribunal. The Applicant indicated at that time that he would relying upon that evidence already before the Tribunal and his oral evidence at the hearing itself.

It is clear from the Applicant’s evidence that he is able to contact his parents and brother in Iran. However, the Tribunal finds it incongruous that, notwithstanding his ability to contact his parents and sibling, to seek assistance with this quest to obtain documents from Iran which may tend to form part of the threads to help “weave the fabric” of his identity, he relies upon an unsworn statement co-signed by two unidentified third parties in Iran in which they effectively regurgitate the Applicant’s own evidence of his circumstances. The Tribunal finds that the Applicant has not produced any evidence to the effect that he has made any earnest effort through his family in Iran to obtain or at least make enquiry if they could obtain any documents helpful to establishing is identity.
The Applicant, in his Application for his Protection Visa, is specific in relation to the history of the levels of schooling he achieved in Iran. He describes each of the educational facilities he attended with a good degree of specificity. It would stand to reason therefore, that some enquiry could have been made by the Applicant directly or via his family as to what records those establishments may have as to his attendance thereat.[42]
[42] Exhibit 1, T5 at page 28.
The Applicant’s further evidence regarding corroborative documentation from Iran was that he had held a White Card known as an Amayesh.
The Amayesh or White Card is described in the DFAT Country Information Report Iran (“CIRI”) dated the 14 April 2020.[43] The Amayesh provides proof of a legal right to residence and entitles the cardholder to enjoy access to government services such as healthcare and education. It is noted that since 2007 no new Amayesh card registrations have been granted and thus since 2007 there is no way for new arrivals to become registered. The CIRI notes also that Amayesh cardholders are able to receive Work Permits from the government and to move freely within the province of their registration.
[43] Exhibit 2, Attachment 2A, page 57 at paragraph 3.166.
The Applicant, when questioned about the history of the Amayesh that his family and he had held, was very unclear in his description of its purpose and the effects of the alleged failure by the authorities to renew them. Amayesh cardholders are required to re-register annually.[44] The Applicant’s evidence was to the effect that his father had gone to renew their cards, had paid the money for the renewal, but had not received the new cards.
[44] CIRI at paragraph 3.170, ibid.
The CIRI also indicates that DFAT is unable to verify if a registered refugee had their Amayesh confiscated or been denied re registration. DFAT assesses that if the practice exists, it is unlikely to be common.
If the Applicant’s Amayesh card was not renewed when he was 18 or 19, as he claimed in his evidence,[45] it would mean that he lived with his parents and worked in Iran for some four years without any Amayesh card. In his evidence to the Tribunal, he affirmed this claim. He also confirmed that his parents had rented and lived for many years at the address where he had lived with him and that they had moved to a new address, the description of which he did not have to hand at the hearing, but claimed he could obtain those details. His parents rented and resided at their earlier residence and then moved and were renting at their current residence without, it would seem, possessing White Cards.
[45] Transcript at page 18.
The evidence provided by the Applicant to the Tribunal around this question of Amayesh cards tended to be contradictory in its presentation and posed a serious question in relation to its credibility. The following exchange gives evidence to the conundrums posed by the evidence:
MR BURGESS: Well, you now claim that you were undocumented in Iran, is that correct?
WITNESS: Sorry, what?
MR BURGESS: You say now you don’t have any documents from Iran? No, no, I don’t.
WITNESS: No.
MR BURGESS Do your parents have a white card now?
WITNESS: No, they don’t.
MR BURGESS And you say that your father attempted to renew your white cards but they were confiscated?
WITNESS: Correct.
MR BURGESS: When do you say this occurred?
WITNESS: The date to be honest I can’t remember the date but I know that they’ve taken it for review, like they give you a new one to replace it, and they’ve taken them and they didn’t replace it anymore. They just, you know, they give you a date to go and grab it and then they didn’t give anything back.
MR BURGESS: Okay, well, I’m asking you when this occurred?
WITNESS: The date I’m not sure to be honest because - - -
MR BURGESS: I don’t mean a specific date but if you can explain perhaps, you know, how old you were, what you were doing at the time by reference to that? I was like I would say roughly around 18, 19.
MR BURGESS: Yes, and so you lived in Iran for four years without any documents?
WITNESS: Yes, roughly, yes, I would say, yes.
MR BURGESS: And during that time you say you were able to work?
WITNESS: I was working, yes, cash work I was doing, yes.
MR BURGESS: And your parents were renting a house or did they own the house?
WITNESS: We were in the same place renting.
MR BURGESS: Renting?
WITNESS: Yes.
MR BURGESS: And they were able to rent that house without having a white card?
WINTESS: Because we stayed there for such a long time, I’m not sure how long we were there but it was like a very, very long time we were in the same place.
MR BURGESS: So what you’re saying is if you had to go somewhere else then you might have needed a white card but because your parents were staying in that same place that you’d previously had a white card?
WITNESS: Yes.
MR BURGESS: Well, you’ve told the tribunal that your parents have now moved? Yes, I believe so.
WITNESS: Yes, they moved, yes.
MR BURGESS: Yes. But that doesn’t make sense, does it, Mr [BCXK], because you say your parents didn’t have a white card and therefore they couldn’t have rented somewhere else?
WITNESS: No, I know, yes, but like if you – like I’m just saying like if you know someone they’re not going to ask, I’m just saying like if someone knows you they’re not going to ask for my ID if I want to – now I’m just saying if I want to share with another person or like right now I’ve got a friend like he’s sharing with me. I’m not asking for anything like – yes, I’m not sure like where exactly they are, like the place, the address and this stuff or how did they find that place. But, yes, of course, they haven’t provided anything for that place. They don’t have it.
MR BURGESS: Mr [BCXK], can I take you to the DFAT report? Specifically at page 58 of that report? Page 58. So this was filed with the statement of facts, issues and contentions. So page 58 it says:
The Minister’s Interior Bureau for Aliens and Foreign Immigrants Affairs is responsible for refugee affairs, including the issuance of Amayesh cards.
That’s the white card, is it?
WITNESS: Yes.
MR BURGESS: Yes, 58. It says:
The Amayesh registration scheme commenced in 2003 and it has been carried out periodically since. Amayesh card holders must reregister annually as part of the reregistration process. An Amayesh card holder may add a new family member to the registration. Reregistration involves a minimum fee. According to sources reregistration is prohibitive financially for many refugees. DFAT is unable to verify if a registered refugee has had their Amayesh card confiscated or been denied reregistration. If such a practice exists DFAT assumes it is unlikely to be common.
Now, I’d put it to you your family’s white cards weren’t confiscated and that you either held a white card at the time you left Iran or you were a citizen of Iran, I put that to you?
WITNESS: That’s not right.
MR BURGESS: Okay. And I put it to you that you’ve concocted this story that you have no documents to support your claim for protection of being an undocumented Faili Kurd because you had more chance of being granted protection if you were undocumented in Iran and Stateless, do you agree with that?
WITNESS: Sorry, can you - - -
MR BURGESS: Do you agree?
WITNESS: Can you explain that again?
MR BURGESS: Do you agree that you’ve concocted a story to support your claim for protection, that you were an undocumented Faili Kurd living in Iran?
WITNESS: Sorry, I’m getting a bit lost, sorry. Sorry.
MR BURGESS: Okay, what I’m putting to you is that you’ve made up this story and that it’s false?
WITNESS: No, no. No, I haven’t.
MR BURGESS: And that you made it up to support your claim for protection (indistinct)?
WITNESS: No, no, not at all. No, sorry, I’m just trying to understand what you meant, sorry. No, of course not.
The tenor of the Applicant’s evidence to the Tribunal contains the theme of wanting not to tell the Tribunal what he knew about aspects of his parents’ residential arrangements until asked about them. He was coy about the fact that they had moved residence, for example, notwithstanding the alleged absence of their holding a White Card. The evidence of the Applicant was that he had irregular contact with his parents and brother and only by telephone notwithstanding he believed his brother had email. It is the Tribunal’s view that the Applicant could have communicated easily either with his parents or his brother with a view to seeking their assistance to obtain any historical documentary or photographic material which may have assisted in his quest to establish his identity to the satisfaction of the Minister.
The Applicant gave the impression that he was undocumented and that that assertion should be accepted on its on its face as the fact. Unfortunately, the Tribunal does not agree. An approach by the Applicant to potential sources of historical family information is, in the view of the Tribunal, required and that meaningful attempts should, on the part of the Applicant, be shown to have been made. The Tribunal is unable to accept that the Applicant in this matter has so made any such attempt.
The Tribunal has also considered the evidence provided by the Applicant relating to the passport he used to leave Iran and the manner in which he obtained and paid for the passport document and the people smugglers who assisted him.
The Applicant has stated in the written material he has submitted for the purposes of this review that he paid $10,000.00 US to have a passage to Australia. He stated that the passport process was instigated by his uncle, however, no statement from that person was available to the Tribunal to attest to that assertion.[46] The Applicant told the IO that $5,000.00 US was paid to Adel, the passport procurer, for the passport and air ticket and another $5,000.00 US was paid to Mr Hamed for the smuggling leg of his journey. During the course of his oral evidence to the Tribunal, the Applicant reiterated that he had paid $10,000.00 US to get smuggled to Australia. However, inconsistencies in his story became apparent insofar as to what the passport end of the transaction actually cost him. The inconsistencies became more apparent as the Applicant was given the opportunity to explain them. The following exchanges between the Applicant and the Respondent’s Representative indicated the inconsistencies referred to.
[46] Exhibit 2, Attachment 2B, page 14.
MR BURGESS: So you say that you paid $10,000 US, so you would say that she paid about the same as that?
WITNESS: Roughly, yes, I would say. It’s around the same, I’m not a hundred per cent sure to be honest like how much she paid, yes, because she did it with her husband, yes.
MR BURGESS: So she paid for that money or did your family pay for that money? Like we borrowed to be honest, like we borrowed money from all around, like whatever we had, friends, family, like we could get.
WITNESS: Yes, and even her and myself as well, yes.
MR BURGESS: And you had another family member on that same boat as well, didn’t you?
WITNESS: Yes.
MR BURGESS: The boat that you came on?
WITNESS: Yes.
MR BURGESS: That was your stepbrother’s brother, sorry, brother-in-law’s brother?
WITENSS: Brother-in-law, yes, my sister’s husband’s brother, yes.
MR BURGESS: Yes. So he would have been paying a similar amount as well?
WITNESS: Yes, correct.
MR BURGESS: What I’m trying – finding hard to accept, Mr [BCXK], is that for someone who was earning a maximum of a couple of thousand dollars a year how you managed to at the age of – in what your early twenties – how old were you when you came over? I believe like around 22. 21, 22. 22. So how you managed to have $10,000 US to get a forged passport and to pay smugglers to come to Australia?
WITENSS: Yes.
MR BURGESS: I put it to you that you wouldn’t have had that money?
WITNESS: No, no, like to be honest I don’t know why they did that. Like the money that I paid in Iran like that wasn’t US dollar, like in Iran it was like 5,000 Iranian money at the time.
MR BURGESS: Okay, well, I’ll take you to what you told when you arrived in Australia, if I can – I’ll pull that up, sorry?
WITNESS: Yes. No, I’m sure they did it as like a dollar because I put like – that’s I paid like 5,000 in - - -
SENIOR MEMBER: Didn’t I see somewhere where you paid $10,000 to get a false passport?
WITNESS: Sorry, no, no, it’s together like 10,000. Like 5,000 I paid there, 5,000 I paid when I came to Indonesia.
SENIOR MEMBER: Mr Burgess, you might be able to enlighten me on that.
MR BURGESS: Yes. So you’re saying now, Mr [BCXK], that you only paid 5,000 Iranian dollars for your passport?
WITNESS: No, no.
MR BURGESS: And then you paid $5,000 US?
WITNESS: Yes. Yes, correct.
MR BURGESS: So I’m having trouble following this. How much did you pay in total in US dollars?
WITNESS: 5,000 in US and 5,000 in Iranian money when I was back in Iran, yes.
MR BURGESS: Well, if I can take you to the document - - -
SENIOR MEMBER: Can I have a breakdown of that, please?
MR BURGESS: Yes.
SENIOR MEMBER: Just for clarification. The 5,000 in Iranian money that was for what?
MR BURGESS: He got the first half of it and then first half of it when I came to Indonesia to send me over.
SENIOR MEMBER: Okay, all right. Anyway, yes, Mr Burgess, continue.
MR BURGESS: When you say - - -
SENIOR MEMBER: It might become clear as you go through.
MR BURGESS: When you say you paid 5,000 Iranian dollars, now you’d understand that – the current – that’s Rial, that’s Iranian dollars Rial?
WITNESS: Yes.
MR BURGESS: So 5,000 – sorry, in 2010 5,000 Rial was 50 cents. Do you accept that that’s – it’s not plausible that you paid 50 cents to a smuggler, 50 US cents? No, sorry, it’s – in Rial it would be – because, sorry, when I say that it’s Toman, like 5,000 – sorry, Toman is a bit different, yes.
MR BURGESS: So you didn’t pay 5,000 Rial?
WITNESS: No, no, that’s - - -
MR BURGESS: Okay?
WITNESS: No.
MR BURGESS: So you paid the equivalent of $10,000 US in total but half of that was paid in Rial?
WITNESS: Yes, but it was less than that. Like, sorry, because in Iran – I don’t know why he like he asked for that and then that would be it if you calculate that it would be in Rial, I’m just trying to (indistinct).
MR BURGESS: So in 2010 it was 10,000 Rial to the dollar?
WITNESS: 10,000. So it would be – I believe it’s like it would be – sorry, if you do 50,000 how much would that be, sorry?
MR BURGESS: 50,000 would be five US dollars?
WITNESS: No, no, it could be 500, so it would be – I think it was about like – because I paid in Iranian it could be like 500, $500.
MR BURGESS: Well, that’s very different, you understand that’s very different to $5,000 US?
WITNESS: Yes, yes, like honest like I’ve been trying to say like it’s 5,000 Iranian like money at the time.
MR BURGESS: Well, we’ve established it wasn’t 5,000 Iranian because 5,000 Iranian was 50 cents.
SENIOR MEMBER: That’d be what 50 cents?
WITNESS: But I know like I paid like 50, sorry, $5,000 US there but back there like 5,000 Iranian it would be - - -
MR BURGESS: Mr [BCXK], I’ll take you to what you told the person who interviewed you when you first arrived in Australia. Do you have a copy of annexure B to the statement of facts, issues and contentions? It has at the top “Immigration in confidence not to be released”. This is your entry interview?
WITNESS: Yes.
MR BURGESS: So if I take you to question 14.
SENIOR MEMBER: Was that 14?
MR BURGESS: Yes, question 14, it’s on page 15.
SENIOR MEMBER: Page 4, is that right?
MR BURGESS: Page 15 down the bottom of your entry interview.
SENIOR MEMBER: Sorry, I’m looking at the wrong one.
WITNESS: Sorry, I’ve got trouble to find it but I will, yes, I can explain.
MR BURGESS: So it says – you were asked:
How much did your family pay for you to travel to Australia, total amount?
And your answer was:
US $10,000.
You were then asked:
Who did you pay this money to? Name, when, amounts, address of contact, and how much money was paid?
And you answered:
$5,000 to Adar.
Is that the smuggler?
WITNESS: Yes.
MR BURGESS: For passport and tickets.
And then:
US $5,000 to [Redacted] Hamad.
WITNESS: Yes.
MR BURGESS: For smuggling.
WITNESS: Correct, yes.
MR BURGESS: Now, you would accept that that’s inconsistent with what you’re telling the tribunal today, that you paid 5,000 Rial?
WITNESS: It can be – I’m just trying to calculate like how it would be but it was like – it’s not like a hundred – like $5,000 US, it would be like converting their money, like it was less than that, yes.
MR BURGESS: Well, you knew when you came to this tribunal today you’ve previously gone through a decision of a delegate and you know that in that decision it was raised that you’d paid $10,000 US. Now, you haven’t disputed that until now, have you?
WITNESS: No, no. No, I haven’t, no, but I mean because I know that $5,000 it was Australia – sorry, it was US dollar I paid. That 5,000 like I assume is about $5,000 US. Like I didn’t like say it was a hundred like or US dollars like I had, you know, but it was about like 5,000 I just said, about $5,000 US.
MR BURGESS: Okay, well, if I can take you to page 113 of the T documents?
WITNESS: 113, yes.
MR BURGESS: Yes. Now, this is the delegate’s decision. I take it you’ve read this decision, you appealed this decision to the tribunal. Have you read this decision?
WITNESS: Sorry, whereabouts? Sorry, it’s the (indistinct)? Yes, PT11 page 113? Correct.
MR BURGESS: Now, this is the page of the decision but you would have read this decision, this is the decision you appealed to the tribunal?
WITNESS: Yes, I have, yes.
MR BURGESS: Yes, now, the third paragraph from the bottom it says:
As part of your protection visa application you claim to have paid a series of fees totalling approximately $10,000 US to facilitate your exit from Iran. This would be a large sum of money for an undocumented 23 year-old Faili Kurd who worked in various low skilled labouring jobs in Alborz Province in Karanj.
Now, you were on notice that this was an issue. You then applied to the tribunal and your application is at PT2. You say:
In regards to the $10,000 that is correct. I had some money from working. I also borrowed from people I knew.
Well, I put it to you, Mr [BCXK], that you’re not telling the truth here. You’ve just told the tribunal that it was less than $10,000. Which one is it?
WITNESS: It is true. Like to be honest like that 5,000 it was definitely US dollars. All I’m saying like it was like a 5,000 I was talking about like Iranian money roughly about that but not like a hundred per cent you say, no, it was like hundred per cent like $5,000 US.
MR BURGESS: Okay, well, how much in total, if you convert it to US dollars, did you pay to come to Australia?
WITNESS: Like at the time – it’s hard to be honest, like I can’t remember like how much exactly was the, you know, the conversion with US dollars and Iranian money.
MR BURGESS: Well, Mr [BCXK], I put it to you that you can’t remember because you’re making it up. You’ve previously told the tribunal it was $10,000. You’ve told the delegate it was $10,000. You told the initial entry interview it was $10,000 US. I now put it to you that it’s very unlikely that you would have been able to raise $10,000 when you were earning between one and $2,000 or less every year and struggling to get by on your living expenses. It can’t be accepted that you had $10,000 or that you were able to – your family was able to borrow, you know, $20,000 for you and your sister to come to Australia within a month of each other?
WITNESS: I’m not sure like my sister what she has done because she was with her husband. Like I borrowed from, you know, my parents, my uncles, like I have.
MR BURGESS: Now, I put it to you, Mr [BCXK], that you didn’t purchase a fraudulent passport and that you left Iran on your Iranian passport. What do you say to that?
WITNESS: I haven’t what, sorry?
MR BURGESS: I’m putting it to you that you didn’t purchase a fraudulent passport and that you actually left Iran on an Iranian passport?
WITNESS: I have left with the Iranian passport, I did.
MR BURGESS: Yes, on a genuine Iranian passport and that Iranian passport was your passport?
WITNESS: I’m not sure it was genuine, like honestly I paid and then I got that one. He gave me that passport.

It is apparent to the Tribunal that the Applicant, when giving his evidence to the Tribunal about the cost of the passport and the ticket, stated that he actually paid not $5,000.00 US but in Iranian money. This does pose a serious question in relation to the Applicant’s credibility as to what the passport and ticket actually cost and whether it was obtained in the manner he originally postulated in his documentation.
The Applicant, under cross-examination, stated that the money paid in Iran was paid in Iranian dollars, or Rial. When he was informed that 5,000 Rial equated in 2010 to 50 cents US, he then stated that it was in Toman “like 5,000 – sorry, Toman is a bit different”.[47] The Tribunal, through its resources, has established that Toman was the most commonly used super unit of currency in Iran in 2010 and, in fact, is now the official unit of currency in the country. It equates to 10 Rials and at the time in question and so therefore $1.00 US would have been exchanged for 1,000 Toman. Thus, $5,000.00 US would have equated to 5,000,0000 Toman in 2010. It is the view of the Tribunal that such a figure of 5,000,00 Toman, a currency unit commonly used commercially every day in Iran, would not be an easily forgotten figure if used to pay for something as significant as a passport and an air ticket.
[47] Transcript of Proceedings, page 14, lines 10 to 15.
The Applicant’s evidence became less convincing as he was engaged by Mr Burgess further on the cost of the passport and ticket in Iran, as witnessed by the following exchange:
MR BURGESS: So you paid the equivalent of $10,000 US in total but half of that was paid in Rial?
WITNESS: Yes, but it was less than that. Like, sorry, because in Iran – I don’t know why he like he asked for that and then that would be it if you calculate that it would be in Rial, I’m just trying to (indistinct).
MR BURGESS: So in 2010 it was 10,000 Rial to the dollar?
WITNESS: 10,000. So it would be – I believe it’s like it would be – sorry, if you do 50,000 how much would that be, sorry?
MR BURGESS: 50,000 would be five US dollars?
WITNESS: No, no, it could be 500, so it would be – I think it was about like – because I paid in Iranian it could be like 500, $500.
MR BURGESS: Well, that’s very different, you understand that’s very different to $5,000 US?
WITNESS: Yes, yes, like honest like I’ve been trying to say like it’s 5,000 Iranian like money at the time.
MR BURGESS: Well, we’ve established it wasn’t 5,000 Iranian because 5,000 Iranian was 50 cents.
SENIOR MEMBER: That’d be what 50 cents? But I know like I paid like 50, sorry, $5,000 US there but back there like 5,000 Iranian it would be - - -
It can be seen that the Applicant did not know what was paid to Adel for the passport and ticket as it ranged in his evidence from $5,000.00 US to perhaps $500.00 US and all the while he apparently had no concrete idea of money conversion between Iranian currency and US Dollars. The Tribunal considers that such a momentous and significant transaction would remain clearly in one’s memory and it would appear that the Applicant was indeed struggling with the passport issues to such an extent that no credible reliance could be placed upon his evidence in this regard.
The Tribunal noted the Applicant’s evidence in relation to his employment arrangements in Iran as a Faili Kurd wherein he alleges that he and his father (and presumably other family members), were poorly paid, worked for cash in fairly unskilled labouring occupations and were financially exploited and paid less than the general employees in the Iranian population because of their ethnicity. Further, he contended that because of these circumstances, it was very difficult to make ends meet and get ahead.
Mr Burgess for the Respondent drew the Tribunal’s attention to page 11 of the CIRI which indicated that the gross national income per capita for 2019 in Iran was about 5,680 USD and that the Applicant’s contentions were that he would be paid less than half that figure.
The Tribunal has also considered the material in the Applicant’s interview with the IO relating to his employment at Question 13 where he stated his employment between 2006 to 2010 as an Installer, a Packer at a paint company and a paint company Store Manager. None of these positions would equate to the roles of a low paid labourer in the general public’s mind. In fact, it would appear that from the age of about 18, the Applicant had worked in occupations which employed some skill and technical knowledge.
The Tribunal finds difficulty envisaging how, if the positions the Applicant held while resident in Iran paid less than half of the national gross individual income and living costs were very expensive, that, in those circumstances, he could save money to finance his journey to Australia. It is noted that he has contended that, in large part, he borrowed the rest of the funds to underwrite his journey from family and friends, an assertion around which a large of lack of specificity exists, and no evidence exists before the Tribunal as to what arrangements were or are in place for his repayment of those borrowings now or into the future. Given that he said his parents and uncles loaned him the money, it raises the question if they were struggling financially like him, how did they hold excess funds to lend him the money?
A further area of concern for the Tribunal in this matter is the passport itself and the Applicant’s apparent ease of exit from Iran via Imam Khomeini Airport in Tehran. It is clear that the Applicant would not be able to leave Iran via its principle airport unless he was in possession of a passport. The Tribunal has had to have recourse to the CIRI Report where it outlines the security arrangements attaching to travellers and their documentation when exiting through the venue. The CIRI Report notes at page 73, paragraph 5.45 that:
Security procedures at Imam Khomeini International Airport in Tehran are robust. They included computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.
Given the level of security outlined above, combined with the information shown on an Iranian passport outlined in CIRI at page 72, paragraph 5.38 as follows.
5.38Iranian passports are burgundy, with the Iranian Coat of Arms emblazoned on the top of the front cover. Passports serve as proof of Iranian citizenship. All Iranian passports are biometric (since February 2011). Iranian passports include the following data: Holder’s signature; country of residence; place of issue; name and position of the issuing authority; passport type; country code; passport number; national identity number; holder’s name; father’s name; date and place of birth; sex; date of issue; and date of expiry. Passport Applicants are required to provide their original Shenasnameh, photocopies of all of the pages of the Shenasnameh containing an ID photograph, the original and a copy of their Resident’s Permit, and three passport photographs taken within the last three months. Applications can be lodged at Police stations. New passports are dispatched by registered post and arrive 10 to 15 days after the application’s date of lodgement. As with driver’s licences and other forms of identification, women must have a headscarf covering their hair completely in their passport photograph. The Iranian Passport Office is the issuing authority for Iranian passports.
It seems to the Tribunal that the Applicant’s version of how he managed to depart from Imam Khomeini Airport under a fake passport lacks credibility. The Tribunal is of the view that only two options present themselves as to how such a departure could have occurred in the Applicant’s circumstances - the first of which is that he held a legitimate Iranian passport that he used to depart with or; secondly, it was a valid passport containing all of the required details referred to above but illegally procured via some corrupt process.
The Applicant’s constant assertion throughout is that effectively he held no identity documentation whatsoever and that the passport was fake. This, in the view of the Tribunal, is an untenable position because the personal information required for a legitimate passport is comprehensive and includes, inter alia, the person’s national identity number. The information is so extensive and easily capable of being security cross-checked that the Tribunal considers that it would be, as CIRI indicates, highly improbable to get through the Imam Khomeini immigration gate with a false document.
CIRI has also analysed the likelihood of fraud at page 72, paragraph 5.41 and at page 72, paragraph 5.41 it is stated that:
5.41Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.
And, further at paragraphs 5.42 and 5.43:
5.42Local sources told DFAT that document fraud is ‘extremely difficult’ for primary forms of documentation like passports, national identity cards, Shenasnameh and driver’s licences. Obtaining these documents is considered beyond the technical and financial means of most Iranians. Passports and national identity cards have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge. These features also make fraudulent passports and national identity documents easy to detect …
And at paragraph 5.43:
5.43Multiple layers exist to protect against the issuance of fraudulent documents. In addition to being prohibitive financially, the potential consequences for officials involved in the fraudulent procurement of primary or secondary forms of identification, if caught, act as a major deterrent (including imprisonment). While DFAT cannot discount the existence of corruption in relation to official documentation, it does not assess it to be prevalent, particularly in relation to primary and secondary forms of documentation. DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.
The Tribunal is also alerted to the comments of the Applicant during cross-examination on the point regarding his obtaining a passport via payment to the third party. The relevant exchange is as follows:
MR BURGESS: Now, I put it to you, Mr [BCXK], that you didn’t purchase a fraudulent passport and that you left Iran on your Iranian passport. What do you say to that?
WITNESS: I haven’t what, sorry?
MR BURGESS: I’m putting it to you that you didn’t purchase a fraudulent passport and that you actually left Iran on an Iranian passport?
WITNESS: I have left with the Iranian passport, I did.
MR BURGESS: Yes, on a genuine Iranian passport and that Iranian passport was your passport?
WITNESS: I’m not sure it was genuine, like honestly I paid and then I got that one. He gave me that passport.
MR BURGESS: Yes, well, I put it to you that that passport was a genuine passport and that you held that passport as a genuine citizen of Iran?
WITNESS: To be honest like I paid it, I never had a passport. Like I paid for that.
The Applicant’s responses are somewhat difficult to correlate with the assessments in the CIRI at paragraph 5.42 where the degree of technical difficulty described therein virtually rules out the ability of the ordinary Iranian being able to overcome the security features in such a document and the reality that the cost would be almost prohibitive to create such a document.
The Applicant, having surrendered his passport to the people smuggler in Indonesia, also renders it impossible for the Tribunal to confirm the Applicant’s assertion as to the provenance of that document. The Applicant clearly passed through the Imam Khomeini Airport security and thus the Tribunal can conclude that the passport was in such a form as to allow such egress.
The Tribunal finds that it cannot be satisfied as to the Applicant’s identity under section 24(3) of the Act for the following reasons:
(a)The Applicant has asserted that he has no documentation relating to his identity since birth and has not attempted to make any enquiries of relatives still living in Iran who may have access to the means of sourcing such documents.
(b)The Applicant has produced only one document apparently sourced from Iran, being a letter co-signed by persons by the names of Mohammad Hamadi and Soheil Abedi whose identities are not confirmed by any other means and who simply assert that they know the Applicant and reiterated his assertions that he is from a Kurdish tribe, that his parents are Iraqi Kurds who immigrated to Iran and that the Applicant does not hold any identification documents. The Tribunal cannot attach any credibility to this document.
(c)The Applicant’s documentation of any official standing which may tend to identify the Applicant, namely copies of his passport, Medicare card, adult proof of age, Queensland Driver Licence et al are all documents issued to the Applicant by Australian authorities. They are issued as complimentary to the Applicant’s acceptance by the Australian government of the Applicant’s status as the holder of a Protection (Class XA) Permanent (Sub-Class 866) Visa. They are not primary “feeder documents” suitable to help knit together the Applicant’s life history and tend towards positively assessing identity for citizenship purposes.
The documents provided are documents issued at face value based on the Applicant’s status as the holder of a Protection Visa and are issued with a certain degree of leeway to assist persons such as the Applicant to settle into Australian society, seek employment and enjoy mobility to facilitate those daily activities within Australian society. In the case of applying for citizenship, the bar is set necessarily higher, with particular emphasis on establishing the party’s identity. The purpose is reasonably straightforward as receiving Australian citizenship entails the bestowal of privileges and obligations to the nation for and upon an Applicant. The establishment of identity is crucial to ensure that the person is indeed who they claim to be and that the authorities can be satisfied, to the best extent that they can, that the Applicant has not acted fraudulently and thus of doubtful character before the privilege of citizenship is bestowed upon them.
Nothing by way of documentation has been produced in this matter to be of assistance in establishing the Applicant’s identity.
(d)The Tribunal has difficulty with much of the Applicant’s evidence relating to the White Card. The Applicant’s assertion that the family’s White Cards were refused or otherwise not renewed when his father sought to have new cards issued is somewhat difficult to accept as his parents are still living and working in Iran, as is his own brother, and, in fact, have moved and rented a new residence there. All of these activities require an Amayesh, as do the applications for Work Permits to be issued. The Tribunal is not convinced that the Applicant was necessarily engaged in low paying labouring occupations and receiving half of the individual Iranians annual income and yet was able to save enough to help pay at least part of his way to Australia. These doubts are further reinforced by the Applicant’s assertion that his parents and uncles had enough funds set by to fund his departure notwithstanding their own alleged strained circumstances. This doubt is further reinforced by the fact that his sister also left Iran with her husband under a similar arrangement and it is understood funded by family members.
(e)The Tribunal is also far from satisfied with the Applicant’s evidence which he gave relating to the obtaining of the passports. The Tribunal has been left in serious doubt as to the procurement of this document given the Applicant’s evidence which unveiled his own uncertainties as to the cost of the documents. The question here is not whether he used an Iranian passport to leave that country – he obviously did use a document for that purpose, but one of credibility as to its source and the cost of procurement. It appears to the Tribunal that the Applicant had fixed upon the figure of $5,000.00 US for obtaining the passport and an air ticket. However, when subjected to cross-examination, his evidence took on a shambolic state which served to suggest that when asked for a more rigorous explanation of that sum, he became uncertain and was attempting to try and develop an impromptu explanation for the Tribunal. The Tribunal finds his evidence in this regard unconvincing.
(f)Finally, the Tribunal has noted the CIRI document where assessment of the Iranian passport system and airport security system has been described. Given the sophisticated construction of Iranian passports and the extensive personal information required for inclusion in the documents, the Tribunal considers it highly unlikely that the Applicant used a fraudulent or “fake” passport to leave Iran. Also, given the level of security prevalent at the Imam Khomeini Airport described by CIRI and the level of skill possessed by the security staff as described, the Tribunal finds that the Applicant’s narrative lacks credibility.
The evidence available to the Tribunal in this matter upon which the Applicant relies to establish his identity, is effectively no more than his own assertion as to that claim. He has not made any meaningful effort to seek any original documents or copies of documents from Iran which may tend to prove his identity. The fact that he still has relatives living in Iran to whom he could have presumably made a request to see if they could assist him in this regard is unhelpful to his cause. It is incumbent in the view of the Tribunal, upon an Applicant where identity needs to be established to a suitable level of satisfaction for the decision-maker to act in the affirmative, to make reasonable attempts to try and elicit documents or sworn materials tending to helping identify the Applicant. The attempts only need to be reasonable and be reflective of using those resources available to the Applicant at hand. It would be expected that some Applicants may be better resourced than others. However, in a case such as this Applicant’s, enquiries or requests to known parties within the country of origin would be appropriate as a minimum attempt to obtain the relevant information. No evidence of any such enquiry by the Applicant is before this Tribunal. This circumstance serves to act as a negative factor upon the Applicant’s assertion that he is a stateless, Faili Kurd without identification of any type or any documentation proving his identity.
In consideration of the material canvassed in the hearing and the evidence produced before it, the Tribunal finds that it is unable to satisfy itself as to the Applicant’s identity prior to his arrival in Australia. The information available to the Tribunal is insufficient to satisfactorily allow it to assess and, if possible, affirm the Applicant’s identity. This matter is one where the Tribunal is unable to satisfactorily ascertain the Applicant’s identity. The provisions of section 24(3) are therefore relevant to the circumstances of this matter and the Tribunal, being in a sufficient state of doubt as to the Applicant’s identity, considers that the correct and preferable decision is to affirm the decision under review.
DECISION

The decision under review is affirmed.

I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

....................................[SGD]..................................
Associate
Dated: 1 March 2021

Date of hearing: 14 September 2021

Date final submissions received: 4 August 2021

Applicant: In person, by videoconference

Solicitors for the Respondent: Mr A Burgess, Sparke Helmore

[2021] AATA 322

1 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

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

Date of hearing:	14 September 2021
Date final submissions received:	4 August 2021
Applicant:	In person, by videoconference
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore