CDNB v Minister for Immigration and Border Protection
[2018] AATA 757
•4 April 2018
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 (4 April 2018)
Division:GENERAL DIVISION
File Number(s): 2016/6613 and 2016/6612
Re:"CDNB" and "WLVM"
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member M Kennedy
Date:4 April 2018
Place:Adelaide
The decisions under review are affirmed.
.....................[Sgd]...................................................
Member M Kennedy
CATCHWORDS
CITIZENSHIP - applications for citizenship - satisfaction as to identity - no primary or secondary documentation produced - inconsistency in evidence - decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth), s 24(3)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v Civil Aviation Safety Authority 141 ALD 540, [2014] FCAFC 93
Re Dhayakpa and Minister for immigration and Border Protection 148 ALD 162, [2015] AATA 310
SECONDARY MATERIALS
National Identity Proofing Guidelines
Citizenship Policy
The Stateless Project: Feyli Kurds
REASONS FOR DECISION
Member M Kennedy
4 April 2018
CDNB and WLVM arrived in Australia as unauthorised maritime arrivals on or about 13 May 2010. They were subsequently granted protection visas after an independent merits review accepted that CDNB was a stateless Feyli Kurd, and faced a well-founded fear of persecution in his country of former habitual residence for that reason. WLVM was granted a protection visa on the basis that she was a member of CDNB’s family unit.
On 6 November 2015 CDNB and on 6 October 2015 WLVM, applied for a grant of Australian citizenship. On 21 November 2016, a delegate of the Respondent refused to grant citizenship to either CDNB or WLVM having found she was prohibited from doing so because she was not satisfied of their identity.
CDNB and WLVM applied to the Tribunal for review of those decisions on 6 December 2016.
ISSUE
The Australian Citizenship Act 2007 (Cth) (the Act) provides for the conferral of citizenship where eligibility criteria are met. However, the Minister expressly must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person: sub-section 24(3) of the Act. It is clear that the language of the Act prohibits the grant of Australian citizenship in circumstances where identity cannot be satisfactorily ascertained or a decision maker is not satisfied, in the sense of positively satisfied, as to the applicant’s identity.
The Respondent contends in this matter that a high level of satisfaction is required, having regard to the status of a certificate of Australian citizenship as a fundamental identity document in Australia. The Respondent contends that the principle laid down in Briginshaw v Briginshaw (1938) 60 CLR 336 to the effect that the nature or seriousness of an issue affects the process by which the decision maker obtains reasonable satisfaction is applicable, and in this regard the grant of Australian citizenship is a very serious issue.
In Sullivan v Civil Aviation Safety Authority 141 ALD 540, the Full Federal Court rejected the notion that the Tribunal is bound to apply the decision in Briginshaw when making findings of fact that are ‘grave or serious’, but “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” at [106], and see also [108]. While I accept the Respondent’s point that the grant of Australian citizenship is a serious issue, I do not purport to apply the ‘rule’ or ‘principle’ in Briginshaw having noted the analysis of the Full Federal Court in Sullivan. This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the CDNB and WLVM, in the context of a grant of Australian citizenship.
As to the concept of ‘identity’, the Respondent relies on the Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines) which in turn are reflected in the Citizenship Policy of the Respondent’s Department. The Guidelines observe that a person’s identity is not a fixed concept and is highly dependent on context.
As observed in Dhayakpa and Minister for immigration and Border Protection 148 ALD 162, [2015] AATA 310 at [117]:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
I proceed on the basis that production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.
In the case of CDNB and WLVM, no primary identity documents have been produced, and nor has any secondary documentation from their lives before arriving in Australia been produced. To avoid doubt, in these reasons I refer to orthodox documentation issued for the purpose of establishing identity (such as passports, birth certificates or refugee registration documentation) as ‘primary identity documents’, and other documentation that may tend to corroborate evidence as to identity (such as educational or medical documentation) as ‘secondary documents’. For reasons which follow, I have not found to be cogent or acceptable their explanation as to the reasons why no primary or secondary documentation from Iran has been produced. Furthermore, I have significant concerns as to the reliability of their evidence as to their personal background.
Context
CDNB and WLVM were formerly habitually resident in Iran. Iran falls within the description of a society that is ‘established and undisturbed’ (to use the terminology mentioned in Dhayakpa) in the sense that Iranian nationals are typically able to produce documents to establish their identity. Iran has laws, systems and bureaucracy regarding the registration of births, deaths and marriages. Iran issues passports accepted as identity documents throughout the world. Iran engages sophisticated systems at its frontiers to monitor the arrival and departures of its nationals and others. The Iranian Embassy in Canberra will issue passports to Iranian nationals upon request. My remarks in this regard are of a general nature and are made on notice. Support for the proposition that Iranian nationals will typically be able to produce primary documentation verifying their identity can however be found at ST13.[1]
[1] Exhibit A4, p 40-70 (both files).
Furthermore, evidence provided by the Respondent at ST6 and ST7[2] establishes, at least in a general sense, that non-Iranian nationals who are Feyli Kurds in Iran who were expelled from Iraq, and their descendants, will typically have been registered by the Iranian authorities and hold refugee registration cards described as either ‘Green Cards’ or ‘White Cards’.
[2] Exhibit A2.
CDNB and WLVM claim that they are Feyli Kurds expelled from Iraq (CDNB) or a descendant of Feyli Kurds who were expelled from Iraq (WLVM) and are not Iranian nationals. Neither has produced either a ‘Green Card’ or a ‘White Card’. Both state that their respective families once held ‘Green Cards’ but the documents were either retained by the authorities (CDNB), or lost or stolen (WLVM).
The Minister relies on the document at ST7,[3] entitled ‘The Stateless Project: Feyli Kurds’ authored by Mr Patrick Marburg. The Minister’s representative at the hearing informed the Tribunal that Mr Marburg is an officer of the Department who works in the identity field, and has acquired specialist knowledge in respect of statelessness. Mr Marburg has assessed more than 100 cases involving claims by applicants to be stateless Feyli Kurds, and is involved in authoring reports such as the document at ST7. The report itself references other sources, including information compiled by the Department of Foreign Affairs and Trade. I take into account the document for the purposes of understanding the context in which this application for review arises and taking into account the applicants’ explanations as to why no primary or secondary documentary evidence from Iran has been produced.
[3] Exhibit A2, p 88-111.
The document explains that persons claiming to be stateless Feyli Kurds have been one of the Department’s largest Irregular Maritime Arrival caseloads for years. The report states that evidence is now emerging that there has been systemic and widespread identity fraud within the caseload, and that a significant number of claimed stateless Feyli Kurds are not stateless, but in fact Iranian or Iraqi citizens. According to Mr Marburg, the Post in Tehran (that is, the Australian Embassy) is reporting case after case of formerly ‘stateless’ persons producing their citizenship documents to sponsor out their citizen families.
The report observes that many millions of Iranian citizens speak Feyli Kurdish or a variant, whereas the actual number of persons estimated to be undocumented stateless Feyli Kurds is only a few thousand individuals. In these circumstances, Mr Marburg is of the opinion that if a person states they are a stateless undocumented Feyli Kurd from Iran, and their sole evidence in support if this assertion is their familiarity with Feyli Kurdish language, this should not be considered sufficient.
Mr Marburg goes on to cite references to a proposition that life in Iran as a documented refugee is a life of limited rights, but not no rights at all. Mr Marburg suggests that in light of information about the rights and entitlements attached to refugee documentation such as the ‘White Card’, a statement to the effect that “the White Card is useless” should be treated with suspicion. Mr Marburg observes that there is a very real prospect that an undocumented Feyli Kurd will be deported from Iran.
Page 122 of ST7 is an extract from the Department’s ‘IDBS Identity Analysis Report: Feyli Kurd Cohort’. It states that being a registered, documented refugee in Iran bestows access to schooling, rental properties, medical insurance and the ability to register births, deaths and marriages with the Bureau of Alien and Foreign Immigrant Affairs. Mr Marburg makes the point that because of this, country information cited in his report establishes that the vast majority of Iraqi refugees in Iran are documented.
In this review, my role is not to assess again the claims of the Applicants to be stateless other than to the extent that it is relevant to consider their evidence as to why no primary or secondary documentation from Iran (or elsewhere) has been produced to establish their identity to my satisfaction, or otherwise form a view as to the reliability of other evidence given as to their identity. Conscious of the question before me in this review, I do however recognise the dilemma that would be faced by a hypothetical applicant for citizenship, who having secured Australia’s protection on false pretences as an undocumented and stateless Feyli Kurd, would be reluctant to produce identity documentation establishing them in fact to be Iranian (or Iraqi) nationals.
CDNB’s case
CDNB’s case before the Tribunal is that he was born on 25 August 1978 in Kanaqin. He states that he was two years old when his family fled to Iran to settle in Bakhas, near Tehran.
CDNB claims that he and his family have been stateless Feyli Kurds all their lives, and have never held identity documents, other than a period when CDNB’s father held a ‘Green Card’, which he claims was taken by the authorities in 2002.
In his statutory declaration of 24 October 2017,[4] CDNB states that he has tried to get proof of his identity but this has been impossible. He says he cannot contact his former school, employers, landlords, medical institutions or other people who might have known him. CDNB states this is because it was many years ago that he was living in Iran, but because the very nature of his statelessness meant every aspect of his life had to be informal and transitory.
[4] Exhibit B4.2 – 2016/6613.
He states he was never formally enrolled in school, and the school has long since closed. He worked for many years, but moved from one merchant to the next depending on who could pay him that day. While he had landlords, there were never any formal rental documents, and there was never any associated paperwork with his contact with medical people. CDNB states he has tried really hard to think of any other form of evidence he could provide, but can’t think of anything else.
Mr Aylen, a registered migration agent who represented CDNB and WLVM, has provided evidence of an email of 10 August 2017 sent to the Iraqi Embassy in Canberra, setting out CDNB’s claims regarding his family history, and making a general request for assistance. A further email was sent on 10 October 2017, noting there had been no response. Mr Aylen did not receive a response to either of his emails.[5]
[5] Exhibits B4.9 and B4.10, 2016/6613.
At the hearing, Ms Stokes (for the Respondent) cross-examined CDNB about information he had provided to the Department in relation to key particulars of his identity. CDNB confirmed the evidence in his statutory declarations that he had been born in Iraq on 25 August 1978. CDNB confirmed his evidence that his father had held a Green Card. He said that when Saddam Hussein was toppled, his father was told to exchange it for a White Card, but when he returned to collect the White Card, he was told that it was now safe in Iraq and he should return. CDNB stated that he had never held an alternative form of identification, for example a drivers licence. CDNB said that his father and mother were born in Iraq.
Conflicting evidence about place of birth
Attention was drawn to CDNB’s application for Australian citizenship at T5[6] of 6 October 2015. In that document, CDNB’s place of birth is stated to be Chnar Bashi, Iran. Attention was drawn to a change of name certificate of 8 January 2015[7] where CDNB’s place of birth is listed as Ilam (being the name of both a province and a city in that province in Iran). Attention was also drawn to the document at T7,[8] which is a Form 80 containing personal particulars for assessment, dated 6 September 2016. The place of birth identified is ‘Tahran (sic), Iran. Attention was drawn to a statutory declaration of CDNB of 25 October 2016,[9] in which he declares that he was born in Iran on 25 August 1978.
[6] Exhibit A1, T5 p38 – 2016/6613.
[7] Exhibit A1, T5 p 51 – 2016/6613.
[8] Exhibit A1, T7 p 60 – 2016/6613.
[9] Exhibit A1, T11 p 96 – 2016/6613.
CDNB’s Titre de Voyage (issued 21 September 2012) at T5[10] states that his place of birth is ‘Ilam’.
[10] Exhibit A1, T5 p 50 – 2016/6613.
Attention was also drawn to T15,[11] containing records of an interview conducted with CDNB on 27 June 2010, shortly after his arrival in Australia. The place of birth is recorded to be ‘Baghdad Iraq maybe’, and a more detailed description stated that CDNB lived in Baghdad. At T15[12], a statement signed by CDNB in support of his application for a protection visa on 10 August 2010, CDNB states that he was born in Khanaqin, in northern Iraq – 3 hours from Baghdad. ‘Khanaq, Iran’ is stated as a place of birth in an accompanying Form 80 of 10 August 2010 at T15.[13]
[11] Exhibit A1, T15 p 126 – 2016/6613.
[12] Exhibit A1, T15 p 154 – 2016/6613.
[13] Exhibit A1 T15 p 158 – 2016/6613.
CDNB has addressed concerns about inconsistency in his statements as to his place of birth in his statutory declaration of 24 October 2017. He states that the Department of Immigration made a mistake in the Form 80 of 10 August 2010 by stating his place of birth was Iran. I note through comparing the Form 80 of 10 August 2010 to the Applicant’s statement of the same date that Khanaqin, Iraq appears to be referred to as Khanaq, Iran in documentation dated the same day.
CDNB’s evidence is that since this mistake, whenever he has been required to complete a form, he has never known whether to put his true country of birth or the one on some of his documents. He said that he agreed with others who helped him to complete forms, and did not realise it was important to correct this mistake.
As to the Form 80 dated 1 September 2016 and statutory declaration of 25 October 2016 respectively, CDNB states that he was advised by a volunteer at the Australian Migrant Resource Centre that it was in his best interests to maintain consistency between his permanent residency documents and his application for citizenship, and to say that he was born in Iran even if this wasn’t true. I understand that Mr Aylen has attempted to locate this person without success.
In his oral evidence, CDNB states that he was told to put Chnar Bashi, Iran as his place of birth in his citizenship application because it was on the border and made no difference to him. He said he had never lived there and knew it wasn’t correct.
As to Ilam being identified as a place of birth in his Titre de Voyage, CDNB stated that his lawyer (a previous lawyer) had told him to write it. Where it appears in the change of name certificate, CDNB speculated that his wife may have completed the forms.
As to the reference to ‘Tahran’ (sic) being his place of birth in the Form 80 of 6 September 2016,[14] CDNB again stated that he was told to write what was in his documents, and he had done so because he considered it made no difference to him.
[14] Exhibit A1, T7 p 60 – 2016/6613.
As to the statutory declaration at T11,[15] CDNB stated that ‘they’ had copied this from other documents. He said he did not have an interpreter when singing that brief statutory declaration.
[15] Exhibit A1, T11 p 96 – 2016/6613.
As to the discrepancy between Baghdad and Khanaqin in his entry interview and subsequent documents supporting his protection visa application, CDNB confirmed he was born in Khanaqin. He said his mother had told him the town but he did not know where it was.
Evidence about CDNB’s life in Iran
CDNB confirmed that he had lived in Bakhas in Iran since he had arrived in Iran. He confirmed it is very close to Tehran.
CDNB was asked how he and his family had rented accommodation without identity documentation. He stated this was done through an uncle, and added the documents are not really required to rent premises in Iran. His uncle had arranged many things for his family. In his statutory declaration of 24 October 2017,[16] CDNB had explained that his maternal uncle had fled to Iran in 1969 and was able to obtain identity documents at that time.
[16] Exhibit B4.2 – 2016/6613.
CDNB was asked how his family had connected to utilities without any identity papers. CDNB said this was done through the landlord, who did not require documents. He said everyone knew his family from the time they held the Green Card.
CDNB was asked why arrangements were made through his uncle if the family had a Green Card up until 2002. CDNB stated that it was better to have a referral when arriving somewhere new.
As to his schooling, CDNB stated that he had five years in primary school at a community school in the village. It was noted that this differed from his educational history as set out at T15[17] (the entry interview), which stated he only had 2 years of informal schooling between 16 and 18 years old. CDNB said the entry interview was inaccurate. It was also put to CDNB that his statutory declaration at T15[18] of 10 August 2010 contained information inconsistent with his evidence to the Tribunal as to his schooling, and the information contained in the Form 80 of 29 September 2016 at T9.[19]
[17] Exhibit A1, T15 p 128 – 2016/6613.
[18] Exhibit A1, T15 p 153 – 2016/6613.
[19] Exhibit A1, T9 p 86 – 2016/6613.
As to why he had not produced any documents relating to his schooling, CDNB asked rhetorically why he would do that as he had attended the school 26 years previously.
CDNB was questioned as to his working history, and why he was unable to produce any documents from his years of employment. CDNB explained that he worked in scrap metal, and there was no particular employer. He stated he could have three employers in a month.
As to access to medical care without identity documents, CDNB stated that he never went to hospital and there were private doctors around. He said his son was born by caesarean in a private hospital, but his birth was not registered.
CDNB was also questioned as to how he could save up sufficient funds to engage a smuggler to travel to Australia on his limited salary. CDNB stated he was able to save US$8,000 towards the cost of US$25,000, and borrowed the remainder from his brother and sold some jewellery. He said he was able to save money through living cheaply.
CDNB stated that documentation used to leave Iran was organised by the smuggler. He travelled via the United Arab Emirates. No issue arose during the inspection of his travel documents either in Iran or in transit. He was given no particular instructions from the smugglers in relation to airport procedure in leaving Iran. The document he held at that time had his photograph on it.
At the conclusion of CDNB’s evidence I drew CDNB’s attention to the matters raised at ST7[20] (the report of Mr Marburg), being a range of observations on typical responses to answers given in interviews for Feyli Kurd claimants in relation to the absence of identity documentation. I did so because some of the typical responses identified at that extract of Mr Marburg’s report were in fact the effect of evidence given by CDNB. I invited CDNB to comment on the observations in the report.
[20] Exhibit A2, ST7 p 96.
Mr Marburg observes that evidence to the effect that the government had taken away a Green Card and refused to issue a White Card was:
“Not sensible – the white card is issued by the Authorities so that they can identify you. The issuance of identity documents is for the benefit of the Authorities as much as it is for the benefit of the card holder…”
CDNB restated his evidence that when his family had surrendered the Green Card to be replaced with the White Card, those in charge had said that now Saddam was gone, they could return to Iraq. He said that they did not follow this up at all and returned home. CDNB also stated that he had heard from an Afghan refugee in Iran that the card is issued so the holder can be taxed, plus the authorities would then know the person’s location and could find them to deport them. CDNB said that his family attended once and didn’t follow it up.
I asked CDNB if it was not more dangerous to have no identity documents. CDNB told me that Iran was not like that and one can bribe one’s way out of difficulty. CDNB also disagreed with the information about the things that could be done by a White Card holder in Iran. He stated that the government in Iran doesn’t give any assistance, and he and his family were able to rent premises and connect to utilities without a White Card
During re-examination, CDNB agreed with propositions put by Mr Aylen that he was concerned about approaching the Iranian authorities for records relating to his identity or for his family to be contacted in this regard.
WLVM’s case
In her statutory declaration of 24 October 2017 WLVM states that she was born in Ilam, Iran on 11 August 1983. Her parents were stateless Feyli Kurds from Iraq who had fled to Iran before she was born. She states in her statutory declaration that neither she nor her parents have ever had identity documents because they were illegal and stateless.[21]
[21] Exhibit B1.1 - 2016/6612.
She also states that she has tried to get proof of her identity, but this has proved impossible as there is no way she can contact her former school, landlords, or the medical institutions she used to visit. She states that this is because it was not only many years ago that she was living in Iran, but because the nature of her statelessness meant every aspect of her life was informal and transitory. She states that she was never formally enrolled in school, and her family did not have formal rental documentation. Her relatives no longer associate with the same people she used to associate with.
In her oral evidence, WLVM confirmed that she was born in Ilam Province, in a village named ‘Pokhal’ that was close to Ilam city.
WLVM’s sister gave evidence to the Tribunal via telephone. Her evidence proved to be controversial for two reasons.
First, WLVM’s sister was asked where and when WLVM was born. She answered that WLVM was born in Tehran. Second, she stated that she (WLVM’s sister) was legally married to her husband (an Iranian citizen) and their marriage was registered.
In WLVM’s statutory declaration, WLVM had stated that her sister could not officially marry an Iranian citizen because she was stateless. She said in her statutory declaration that her sister did not have an official marriage certificate. She stated that her sister’s husband believed he could be persecuted by the Iranian authorities for being in a relationship with a stateless Feyli Kurd and so was not prepared to send any identity documents for her sister’s children.
In her evidence, at first, WLVM’s sister stated “yes” in response to Mr Aylen’s question “do you have a marriage certificate, a legally-recognised marriage certificate?”. This question was put a second time in terms of “is it a legally-recognised marriage certificate or is it an unofficial marriage certificate?”. The answer, through the interpreter was “ she said its legally recognised. I’ll repeat again. Yes, we’re legally married and its registered because my husband got documents.”
My Aylen, on behalf of WLVM provided submissions after the hearing raising concerns about the use of a Farsi interpreter for WLVM’s sister. Concerns about the interpreting during WLVM’s sister’s evidence were also raised during the hearing, albeit after the evidence recounted above was received. It was submitted that WLVM’s sister can speak Farsi but is not fluent, and generally communicates in Feyli Kurdish with her husband and other Feyli Kurdish people in the area. Secondly, it is submitted that she has no formal education and she does not know many ‘formal’ or ‘technical’ words in Farsi. It is submitted by Mr Aylen that he spoke with the interpreter in private and it was explained to him that while the interpreter could understand what WLVM’s sister was saying, there were certain Farsi words she didn’t understand. I was asked to take into account these matters when assessing WLVM’s sister’s evidence. I record for completeness that when these matters were raised at hearing, I confirmed with the interpreter then present (and under oath) that the interpreting was proceeding satisfactorily from their perspective.
The Respondent contends on this issue that WLVM’s sister did not indicate that she had any difficulty understanding the interpreter, and only asked for a question to be repeated on one occasion. It was submitted that WLVM’s sister can speak Farsi to a reasonable standard given she would communicate in Farsi with her husband. It is contended that the assertions made on WLVM’s behalf that WLVM’s sister is a sheltered person who has not been exposed to minor variations in Farsi from people living in different parts of Iran is unsubstantiated and inconsistent with her evidence that she had lived in Pokhal near Ilam, and now lives in Tehran. The Respondent contends that I should wholly disregard the submission regarding Mr Aylan’s private conversation with the interpreter.
It is further submitted that the questions asked and answered were not complex or technical and the responses were immediate, and WLVM has clearly stated both that her sister (WLVM) was born in Tehran, and did not express any uncertainty about this evidence until the inconsistency with WLVM’s own evidence was raised in a leading question. Similarly, the Respondent contends that the evidence about the legal recognition of WLVM’s sister’s marriage and the status of the birth certificate was clear, and the use of the word ‘official’ came from WLVM’s sister in her evidence.
In my view, having participated in and observed the exchange complained of by Mr Aylen, there was no difficulty with WLVM’s understanding of the interpreter and the use of Farsi. Putting to one side any personal characteristics of WLVM’s sister that might make the use of Farsi as less than ideal (substantiated or otherwise) and the irregular nature of Mr Aylen’s private communication with the interpreter about this issue, I observed in the hearing and have confirmed again upon examination of the transcript that the questions and answers were clear and not accompanied by complex language giving rise to doubt. WLVM’s sister gave evidence in response to clear questions that her sister (WLVM) was born in Tehran, and that she (WLVM’s sister) has a legally recognised marriage and certificate.
I note that WLVM’s sister’s evidence as to the status of the marriage certificate changed only after a series of questions and statements from Mr Aylen that made it clear that her earlier direct answers to these questions were not what were expected and not supportive of her sister’s case.
A further issue explored with WLVM’s sister during her evidence was the reasons why documentary evidence of her marriage and the registration of her children’s birth had not been provided to WLVM and CDNB. In the course of her evidence, WLVM’s sister confirmed that the children had birth certificates, and as I have found above, gave evidence that she had a legally recognised marriage and certificate. Had that documentary evidence been provided, it would have shed some light on WLVM’s sister’s nationality (or lack thereof), and by extrapolation, the nationality of WLVM.
WLVM’s sister’s evidence was that her husband would not allow the documentation to be sent to Australia because of a claimed concern that this would be risky. When asked by the Respondent what the concerns were, WLVM’s sister stated that her husband had not specified what the problem was. WLVM’s sister stated that it was not her decision to make. WLVM’s sister was unable to give any oral evidence as to what information was contained in the marriage certificate. WLVM’s sister’s husband was not available to speak to the Tribunal about the concerns, and according to WLVM’s sister had already refused to read out the certificate.
Returning to WLVM’s evidence, it was put to WLVM that her sister had stated that she (WLVM) was born in Tehran and not Ilam. WLVM stated that it was likely that she was confused because she could not understand Farsi. WLVM stated that her sister was about 7 or 8 when she was born.
WLVM was asked whether her family had ever held identity documents. She stated that her father had a Green Card, but it was kept in a box and the box disappeared. Since then they have not held any Iranian identity documentation. WLVM stated that her family have never tried to obtain Iranian identity documentation.
WLVM stated that she had not visited a doctor in Iran, and she was unable to contact the school she had attended. In relation to her schooling she said that she attended without being registered, and her family did not have to pay. It was drawn to WLVM’s attention that this evidence was inconsistent with her evidence to the Independent Merits Reviewer at ST6[22] to the effect that her father had to pay bribes to allow her to attend school. Similarly, it was drawn to WLVM’s attention that her evidence about giving birth to her son in a private surgery was inconsistent with the evidence to the Independent Merits Reviewer that she needed to attend a doctor but could not afford private clinics, and had delivered her son at home for the same reason. WLVM stated that she could not remember telling the Independent Merits Reviewer this, and believed it may have been a misunderstanding.
[22] Exhibit A2, ST6 p 55 – 2016/6612.
WLVM stated that she had not registered her son’s birth in Iran because she did not have documents. WLVM stated in response to being advised that Iranian law required the registration of all births that she did not know.
WLVM was asked how her family was able to rent a home in Iran without papers. She said they had originally lived in a tent but then lived in a village where papers were not requested. As to Bakhas, she said that her family had friends that assisted them. The landlord would just collect the rent.
Other evidence
In the course of the evidence, an issue was agitated and explored regarding the capacity of CDNB to accumulate sufficient funds to pay for the smuggler and airfares to bring him and his family to Australia. In general terms, CDNB had described engaging in low-paying manual work.
CDNB had said that it cost US$25,000 for the whole family to come to Australia. There was considerable difficulty in settling on the amount in Iranian currency for the purpose of comparing that to his regular income, given that much time had passed and the volatility of the Iranian currency. The difficulty extended into understanding CDNB’s regular expenses in Iran in US dollar terms. CDNB stated in his evidence that he had saved about US$8,000, borrowed about US$8,000 from his brother and the rest had been raised from the sale of personal effects.
CDNB estimated that his income from employment was about US$6,000 per year, and on this basis the submission was ultimately advanced that the story as to how funds were raised had aspects of implausibility.
As conceded by the Respondent, it was not clear from CDNB’s evidence as to how long he had been saving to raise the funds.
A related issue arose in relation to information[23] obtained by the respondent demonstrating that funds had been transferred to Iran by CDNB to a person with a surname that appeared to be phonetically similar to WLVM’s surname, and a first name similar to WLVM’s brother. The relevance of this issue was that if funds had been received by WLVM’s brother in Iran, it may indicate that the person had a bank account, which is not something that a stateless and undocumented person can have.
[23] Exhibit A3, ST8.
CDNB’s evidence however was that the person to whom he had transferred funds was a friend of his brother. CDNB denied that the records relied upon by the Respondent showed a transfer to WLVM’s brother.
After the hearing, a document in Farsi (and translation) was provided. The statement was from WLVM’s brother. He stated that he is a stateless Feyli Kurd living Iran and he doesn’t have proof of identify documents. He states he cannot open a bank account and did not receive funds from Australia.
The Respondent contends that the evidence from CDNB on this matter was far from convincing.
I have also had regard to other statements provided on behalf of the applicants.
CDNB’s brother provided a written statement outlining the family’s history consistent with that put forward by CDNB, and states that he provided CDNB with 8,000 dollars towards the cost of CDNB’s travel.[24]
[24] Exhibit B1.4 – 2016/6612 & B4.3 – 2016/66213.
I have considered brief statements provided by WLVM’s siblings, also stating that the family does not have identity documents.
I have had regard to a letter from Dr Somasundaram of the STTARS who states that CDNB has been treated for a mixed Anxiety Depressive disorder that manifests in a poor memory and forgetting minor details. The letter states that CDNB is distressed by the procedures and delays associated with his citizenship application.[25]
[25] Exhibit B2 – 2016/6613.
I have had regard to a letter from Dr S Jaber (GP) outlining CDNB’s medical conditions.
I note that the medical evidence raises issues with CDNB’s memory and concentration. The medical evidence does not contend that CDNB was unable to give evidence to the Tribunal on account of his medical condition. I did not observe CDNB to have difficulty engaging with questions from his representative, the respondent or the Tribunal in the course of the hearing.
I have had regard to a letter from Mr John Maroulis (Psychologist) in relation to WLVM. Mr Maroulis states that WLVM is suffering from Major Depressive Disorder and Anxiety Disorder requiring psychological treatment. Mr Maroulis emphasises that the refusal of citizenship has been a major stressor.
SUBMISSIONS
It was submitted generally on the Applicants’ behalf that there was no doubt that some people had taken advantage of the situation facing stateless Feyli Kurds, but there were still many genuine stateless Feyli Kurds. It was submitted that the Applicants were exceptions to the general observations that there was identity fraud in the Feyli Kurd cohort.
It was submitted on behalf of CDNB that there had been an attempt to clarify identity on the Iraqi side, with no response. As there was no concrete evidence as to identity, CDNB relied on the case law to the effect that it is not essential to have documentary evidence of identity. It was submitted that it would be unreasonable to require CDNB to provide third-party evidence of identity because it would require considerable detective work and family members in Iran now live hours away.
As to the inconsistencies in the evidence about his place of birth, it was submitted that CDNB struggles to remember details about consultations, and both applicants had experienced trauma. Furthermore, CDNB had been told early on that his place of birth did not have significance because he had no documents, and he had gone along with some mistakes.
In relation to the difficulties encountered in the evidence relating to WLVM, it was submitted again that WLVM’s sister was illiterate and had led a sheltered life. It was also submitted that family relationships on WLVM’s side were somewhat strained and WLVM had encountered difficulties in obtaining cooperation from family in Iran.
It was submitted in respect of both CDNB and WLVM that their circumstances motivated them to live within a small community and develop a lifestyle living ‘under the radar’ with no documentation. It was submitted that despite the difficulties, there was sufficient evidence before me on which I could be satisfied as to their identity.
The Respondent submitted that the claims leading to the grant of a protection visa are relevant to the overall story to be assessed. The Respondent emphasised that a high standard of satisfaction was required.
It was noted that there was a level of consistency in relation to names, date of birth and Feyli Kurd ethnicity, but there was inconsistent evidence as to place of birth, schooling, medical care, the raising of funds, and an admission of travelling on a false passport. It was submitted that if I were to be satisfied that it had been plausibly explained how CDNB and WLVM had lived in Iran, such as renting premises, attending school and evaded negative consequences for being undocumented, then I may be satisfied of identify. It was submitted however that if I had any doubt, then there must be doubt about the truthfulness of WLVM’s and CDNB’s life story
ASSESSMENT
As mentioned above, no documentation has been provided to the Respondent or the Tribunal to demonstrate or corroborate the identity of CDNB or WLVM.
My approach is to consider the explanation offered by CDNB and WLVM as to why this is the case. Also, I have considered the degree to which I accept CDNB and WLVM’s evidence as credible generally, but more specifically as to the evidence of their personal history. These issues are of course thoroughly intertwined.
I turn first to reach findings as to the credibility of the evidence of CDNB.
In respect of CDNB, I have noted the significant inconsistencies throughout the material as to his place of birth. I have noted also that CDNB has given evidence to the effect that he has knowingly misrepresented his place of birth to the Department. The application for citizenship itself contains a place of birth CDNB has said he knows to be incorrect.
I have taken into account CDNB’s explanation that there was a mistake in identifying his country of birth as Iran when he had said it was Iraq (see above paragraph 27), and his subsequent conduct was on the basis that he wished to maintain consistency in his answers. I have taken into account that CDNB states that he did so on the advice of other people.
CDNB’s explanation does not fully explain the extent of the inconsistencies. In any event, I do not consider that any such explanation changes the significant concerns I have about the credibility of CDNB’s evidence generally in light of the inconsistencies as to his place of birth. I note that CDNB’s identification of his place of birth has not been consistent with the incorrect attribution of ‘Khanaqin’ or ‘Khanaq’ as being in Iran – but rather has then included references to Ilam and Tehran from time to time as recounted above. Furthermore, the reference to Khanaqin is inconsistent with CDNB’s first representation to Australian authorities that he was born in Baghdad.
Having considered carefully CDNB’s explanation for the various inconsistent identifications of his place and country of birth, I have formed the view that the various different references to places and countries of birth are more than simple inconsistencies, but disclose purposeful deception as to a most critical element of his personal background. This reflects adversely on the credit of CDNB’s evidence as to his background, and his evidence generally.
I am reinforced in this characterisation of the inconsistencies in the evidence by noting the inconsistent evidence about CDNB’s schooling. As mentioned above, CDNB has provided inconsistent evidence as to his schooling. At his entry interview for example, he provided evidence superficially consistent with a claim that he was a stateless and undocumented person (2 years of informal schooling), but his subsequent evidence about his schooling is quite different (5 years in a village school).
I am not satisfied with the explanation given as to why no corroborating documentation has been provided in relation to his schooling. I accept it would be difficult to obtain old records of this nature from overseas, but I gained the impression from CDNB that no effort had been made in this regard given the perceived difficulties.
As to CDNB’s evidence about what became of his family’s Green Card, and why he has not produced a White Card to corroborate his identity, I have significant concerns about the plausibility of his account having regard to the logical responses to such evidence contained in Mr Marburg’s report. In this regard, I found the approach and rationale in Mr Marburg’s report to be logical and supported by country information. Having regard to the purpose and benefits of official registration in Iran for both the authorities and the person being registered, and the lack of support in the country information for the proposition that Iranian authorities would refuse to issue a White Card, I reject this aspect of CDNB’s evidence explaining why no official documentation of his identity from Iran has been produced. I consider that the rationale put forward by CDNB as to why he and his family did not persist in attempts to obtain a White Card is implausible.
Also, I note CDNB’s evidence that his family secured premises and connected to utilities through the assistance of an uncle who had arrived earlier, which would not have been necessary as the family held a Green Card at the time. I do not accept CDNB’s explanation when this feature of his evidence was brought to his attention that it was better to arrange such matters through personal introduction given access to housing and the like was a specific purpose of the Green Card CDNB has claimed his family once held.
I have found CDNB’s evidence regarding his life in Iran as an undocumented person generally to be unconvincing, in particular the circumstances in which he claims his family lost official identity documents. In these circumstances, I have also found CDNB’s evidence as to why he has not produced any secondary documents (for example schooling or medical documents) to be unconvincing.
I am not satisfied that CDNB has adequately explained why he has not produced official documentation of his identity. I do not accept that it is because such documentation does not exist. I reject this important aspect of his evidence because of my general concerns as to his credibility and the specific aspects of his account of life as an undocumented person in Iran that I consider to be implausible.
I turn to reach findings as to the credibility of the evidence of WLVM.
Like CDNB, a significant inconsistency has arisen in the course of evidence before the Tribunal as to WLVM’s place of birth. In this regard, WLVM has been consistent in detailing her place of birth as Ilam province, but her sister gave evidence that WLVM was born in Tehran. Reflecting on the manner in which this evidence was given at the hearing, I cannot attribute that inconsistency to a problem with interpreting or the particular characteristics of the witness. Her evidence was clear and it was repeated. I have a real doubt as to where WLVM was born. This, however, is a less significant inconsistency in WLVM’s case than another inconsistency.
As to credibility, I have formed an adverse view of WLVM’’s credibility having noted that she has given inaccurate information to the Independent Merits Reviewer about the circumstances of her child’s birth. I do not accept that the Independent Merits Reviewer inaccurately recorded WLVM’s evidence in this regard.
The topic of the untruthful evidence to the Independent Merits Reviewer is significant. The only explanation for having given the Independent Merits Reviewer evidence that her son was born at home, when he was in fact born at a private clinic, is that the former story is superficially consistent with her claim to be an undocumented stateless person who cannot access medical care for that reason, whereas the version before the Tribunal raises many questions about that claimed status. I consider that the inconsistency between the evidence given to the Independent Merits Reviewer and the evidence given to the Tribunal about the circumstances of her son’s birth reflects poorly on the credibility of WLVM’s evidence, while the subject matter places specific focus on the credibility of her evidence about her background.
I have otherwise found WLVM’s evidence as to her family’s loss of the Green Card to be vague and unsatisfactory. Given the importance of such documentation and the benefits such a document provided to registered refugees in Iran, WLVM’s evidence was that it was lost and no particular effort was put into replacing it is difficult to accept.
Finally, as to the existence of documentation relating to WLVM’s sister’s marriage and children, I consider the explanation put forward as to why those documents have not been provided is unconvincing. I accept that the documents are not in WLVM’s direct control, and WLVM’s sister told the Tribunal that the matter was also out of her hands. However, the reasons as to why the documents have not been provided are vague – with a mere allegation that there is concern that the provision of the documents may place the family in Iran at risk from the authorities, with no cogent explanation as to why this would be the case in light of WLVM’s sister’s evidence that the marriage is legal and the documents are official.
It is unnecessary for me however to reach a concluded view about whether the fears expressed in this regard are generally held. Ultimately, it is necessary for me to be satisfied of WLVM’s identity. The absence of potentially relevant documentation that may exist from the evidence before the Tribunal does not assist her in that regard.
As to the evidence in relation to the plausibility of the family’s accumulation of savings to finance the travel to Australia, I am unable to reach any concluded view. Similarly, I do not think that there is sufficient evidence before the Tribunal for me to conclude that a sibling of WLVM holds a bank account, from which the existence of identity documentation might be inferred. On reflection, neither of these issues raised in the course of the hearing have proved to be issues on which my decision has turned.
Ultimately, I have not found the evidence given by either CDNB or WLVM to be credible or satisfactory as to the reason why they cannot produce either primary or secondary documentation as to their identity, or documentation tending to corroborate their identity from their life in Iran to be credible or satisfactory. Specifically, the evidence given as to why official documentation they say was once held by their families cannot be produced is in my view implausible.
Furthermore, I have found the evidence of CDNB and WLVM as to their background to generally lack credibility on account of significant inconsistencies. These inconsistencies arise in relation to matters that are central to the story of their personal background, and so the adverse effect on the issue before me is two-fold. I consider that the inconsistencies arise in circumstances of CDNB and WLVM being deceitful as to their personal background in their dealings with the Department.
In these circumstances, I am not satisfied as to the identity of CDNB or WLVM. It follows that I expressly must not approve either becoming an Australian citizen.
DECISION
The decisions under review are affirmed.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy
.......................[Sgd].................................................
Administrative Assistant
Dated: 4 April 2018
Date(s) of hearing: 21 & 22 November 2017 Date final submissions received: 4 December 2017 Advocate for the Applicant: Mr B Aylen, Migration Agent Advocate for the Respondent: Ms C Stokes Solicitors for the Respondent: Australian Government Solicitor
47
2
0