CFYJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 23
•12 January 2022
CFYJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 23 (12 January 2022)
Division:GENERAL DIVISION
File Number: 2019/6165
Re:CFYJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms A E Burke, AO Member
Date: 12 January 2022
Place:Melbourne
The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Ms A E Burke AO Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral –– undocumented stateless Feyli Kurd – whether satisfied of identity of applicant – whether documentation was sufficient – consideration of DFAT Country Information Report – whether satisfied of life story – incontinences in place of birth and family composition – whether the application for citizenship should be approved – Tribunal not satisfied of identity – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)Migration Act 1958 (Cth)
Cases
Ater and Minister for Home Affairs [2018] AATA 4677
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Taei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4728Secondary Materials
Australian Citizenship [Policy Statement], Department of Immigration and Border Protection (27 November 2020)
DFAT Country Information Report Iran, Department of Foreign Affairs and Trade (14 April 2020)
National Identity Proofing Guidelines, Attorney-Generals’ Department
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)‘Statelessness in Iraq – Country Position Paper’ European Network on Statelessness and the Institute for Statelessness (November 2019)
REASONS FOR DECISION
Ms A E Burke AO Member
12 January 2022
The Applicant is a 38-year-old undocumented stateless Feyli Kurd who arrived by boat on 1 December 2010 on Christmas Island to seek asylum in Australia. The Applicant was subsequently granted a protection visa (subclass 866) on 26 May 2011.
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person's capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant holds a protection visa, the Tribunal has decided it is appropriate to refer to the Applicant as ‘the Applicant’ throughout this decision.
On 28 May 2015, the Applicant lodged an application for Australian citizenship by conferral in which he stated his place of birth was Badre, Iraq. On 12 March 2019, the Department sent a request for further information. In response, the Applicant completed a Form 80, dated 9 April 2019, in which he advised his place of birth was Ilham, Iran.
On 11 September 2019, a delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act), as the Department was prohibited from approving the application as the delegate was unable to be satisfied of the Applicant’s identity. The decision under review states:
The discrepancy in your place and country of birth raises serious concerns about your identity and may undermine your claims for protection. It appears you may have been born in Badre, IRAQ as declared in your citizenship application, and open-source information suggests that according to Iraq’s Nationality Law (Law No. 26 of 2006) anyone born to an Iraqi mother or father is an Iraqi national. In light of this, it does not appear you have made a genuine attempt to obtain identity documentation from Iraq.
On 26 September 2019, the Applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal, stating:
Reason for my inconsistency was due to miscommunication between myself and individual instructed to complete original corresponding documentations including Form 80 supplied on 12 March 2019. As outlined in attached statutory declaration I confirm my place of birth is Badra, Iraq. This place of birth is listed on 28 May 2015 in the application for Australian Citizenship.
The hearing for this matter was held on 3-4 May and 1 November 2021 by videoconference. The Applicant was self-represented and assisted by a Farsi interpreter, the Respondent was represented by Mr Alex Zhang, solicitor at Clayton Utz Lawyers.
ISSUE FOR THE TRIBUNAL
The issue is whether the Tribunal is satisfied of the Applicant’s identity to fulfil the requirements of s 24(3) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A 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.
Section 24 of the Act provides, in part:
Minister's decision
(1) If 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).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
The stated role of the Australian Citizenship Policy (the Policy) is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth). Additionally, the Citizenship Procedural Instruction 16 (CPI 16), published and used by the Department in relation to decision-making under the Act, also contains relevant guidance about assessing an individual's identity, specifically for the purposes of determining whether the prohibition in section 24(3) of the Act applies.
When considering whether a decision maker is satisfied of an Applicant's identity, the three pillars of identity are set out in CPI 16 at 4.4:
(a) Biometrics - personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies;
(b) Documents - which may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. CPI 16 relevantly states that "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"; and
(c) Life story - being the narrative of the events that happened to them from birth to present, which may include "descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence".
The CPI further provides that:
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.
…
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek
to establish a person’s identity from birth using an evidence-based approach. It is
not sufficient to be satisfied of a person’s identity at one point in time, as a person’s
identity is not a point in time concept; it must be verified incrementally throughout a
person’s life and considered historically.
The way in which officers should approach the concept of assessing a person’s
identity from birth is to create an identity timeline, thus creating a complete picture
of the person’s identity from birth to present. The objective is to link the applicant’s
identity at birth to the identity provided in their application for Australian citizenship
by considering key chronological events in the person’s life. The three pillars are
the methodology for establishing a person’s identity, and officers must turn their
mind to the individual characteristics in order to piece together a person’s identity
timeline and create an ‘identity picture’.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application,
officers should seek to create a complete identity ‘picture’ of the person from birth.
This is not done by asking a person to recite their life story in interview. Instead, a
practical way in which to begin an assessment of a person’s identity, while at the
same time considering their life story, is to consider their identity timeline.
…
There may be cases where one pillar may be given more weight than the others.
For example, cases where the applicant claims they are stateless and therefore
undocumented. In such cases, the available pillar (for example, life story) may
become more significant when assessing the person’s identity. There is also likely
to be a heightened need to explore further material. This may include, but is not
limited to researching credible open source country information. This research will
enable the officer to test and verify whether the applicant’s claims, relevant to
aspects of their life story, are consistent with the situation in a particular country.
Credible country information will support and add weight to a decision, and can be
cited in the decision record.
Example - undocumented arrival: potential avenues of research where one
pillar may be given more weight than the others.
A citizenship application is received from a person claiming: they are stateless,
undocumented, and are unable to provide any evidence of their identity prior to
arriving in Australia as an Illegal Maritime Arrival (IMA); they exited their country of
residence on a bogus travel document; and they previously held an identity card
issued to stateless people by the Government of the country they resided in. They
do not have the card now.
Issues
No documentary evidence of the person’s identity from birth to arrival in
Australia
No biometrics which can be used for comparison purposes.
Potential action
In order to test the veracity of the above claims and make an informed assessment,
it is necessary for the officer to research country information. This research will
provide an informed basis on which to assess whether the claims are factually
accurate or plausible, and align with country processes.
….
The officer must then consider, assess, and weigh the country information and
evidence provided by the applicant, ensure that natural justice requirements have
been met, and make a determination whether they are satisfied of the applicant’s
identity. The decision must show the link between the law, facts, clearly explain the
reasons they considered and the weight given to the evidence that ultimately led
them to reaching their decision.
EVIDENCE
The evidence before the Tribunal included two sets of documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), referred to as the “T documents” and the “Supplementary T documents”. The Applicant lodged a witness statement, additional identity documents and other supporting materials.
The Applicant provided the following documentary evidence to establish his identity prior to his arrival in Australia:
(a)A screenshot from Google Maps which shows the border region between Iraq and Iran which indicates the proximity of Badra, Badreh and Ilham.
(b)A declaration confirmed by the Rural Islamic Council of Darbaloot in Arab Roodbar which states:
We – the undersigned – declare that we have full knowledge that CFYJ – father’s name […], date of birth […], resident of Badra province of Iraq – hasdone his medical immunisation at the Arab Roodbar clinic in the city of Sirvan. Due to his parent’s business of livestock in Badra, Iraq; the above named migrated to the city of Sirvan in the Arab district of Roodbar in 1986.
We – the undersigned – declare that CFYJ - father’s name […] migrated to the city of Sirvan, Ilam Province, Iran in 1986 due to his parent’s business of livestock in Badra, Iraq. He attended night school to learn literacy in 1989.
(c)A work contract, dated 15 November 2000, which states:
This is to certify that CFYJ – father’s name: […], resident of Ilam – starts working at […]Motorcycle Spare Parts shop with agreed conditions from the mentioned date.
(d)Rental agreements entered into by CFYJ, which states his father’s name and notes his place of birth as Iraq in 1983. He provided renta agreements for for periods of:
(i)Two years from 23 August 1997 to 23 August 1999
(ii)One year from15 April 2001 to 15 April2002
(iii)One year from15 April 2002 to 15 April2003
(iv)One year from 15 April 2005 to 15 April 2006
(e)The marriage certificate of the Applicant’s brother dated 30 October 2013, which notes that his brother is the holder of a foreign alien and migrants ID card.
(f)A statement from a friend who knew him in Iran, who also gave evidence at the hearing; ‘This is to certify that I […] have known CFYJ since long time ago from Iran. We have played football together when we were children in the village’.
The Applicant provided the following statutory declaration dated 24 September 2019:
My place of birth is Badra, Iraq. I have taken all reasonable steps to locate a birth extract document but was unable to do so. After my birth in Badra, Iraq my family relocated to Bedreh, Iran where they settled in Ilam, Iran. Ilam, Iran was my last place of residence in Iran before I escaped and made the journey to Australia.
The delegate found in the 11 September 2019 decision:
I have given regard to available open source and country information to gauge the likely veracity of your life story. In the absence of anything else, this is a fundamental element of my assessment.
In all of your statements to the department since your arrival in Australian you have maintained that you were never issued with identity documents from your time prior to your arrival in Australia. I note that in your entry interview you claim that you were issued with a ‘green card’ 2.5 years prior to your arrival in Australia however it was taken from you and never returned. When questioned as to why the cards were taken from you, you claimed that you signed a paper saying that you would leave the village and therefore the government took the ID cards back.
Your statements conflict with departmental advice which indicates that refugee identification cards offer refugees (including those who claim to be stateless) the legal right to stay in Iran and avoid the risk of deportation. Departmental information suggests that since 2002, refugees in Iran have been issued with a ‘White Card” (‘Amayesh kard’). Departmental sources show that the back part of this card reads as follows:
“1. This card is for identity purposes and is valid in the issuing province for opening savings accounts,
issuing health insurance booklets, issuing rental contracts and power of attorneys.
2. Law enforcement forces must confiscate expired cards
3. If this card is found, please place it in a post box.”
They offer access to education, health insurance and can be used as identification to open a bank account. I find it unlikely that you were able to reside in Iran and access services such as property rental, banking and health insurance without one of these identification cards. Departmental information suggests there is no evidence of reluctance on the part of Iranian authorities to document refugees within their borders, and there are considerable benefits to obtaining and maintaining identity documents.
I also note that there are significant barriers to international travel faced by undocumented stateless Feyli Kurds attempting to leave Iran via air. You claimed in your Protection application that you departed Iran on a passport in the name of […]. In the context of the strict and reliable processes that exist in Iran around departures via air, you have provided no plausible explanation about your means and manner of exiting from Iran, including precise details about the passport and your conduct at Imam Khomeini Airport (and through transit in Dubai and Indonesia) in order to bypass these strict controls. I find it more likely, for example, that you have departed Iran on a genuine passport bearing your own name, or via a land border where you could evade these controls more easily.
Related to this, in your entry interview you claim to have paid a series of fees totalling approximately $9 million tomans (Iranian currency) to facilitate your exit from Iran. This would be an extraordinary sum of money for an undocumented, 27 year old Feyli Kurd who worked in various low skilled, labouring jobs in Tehran province (as you also claimed in your entry interview) to have access to after other costs of living had been paid for. I find it more likely that you either have a work history that would allow you access to these funds, or as above, that you departed Iran using a genuine passport bearing your own name and did not have to pay such large sums to facilitate your exit.
I note that (as per your completed Form 80 and entry interview) you have family, including your parents and adult siblings, residing in Iran and you have not provided identity documents or supporting statements confirming their status as an undocumented Feyli Kurd (which would in turn assist in verifying your personal claims). I find it highly unlikely that your family continues to reside in Iran and not one the members (or any extended family) holds any identity documents.
…..
I find that you have provided documents attesting to your identity since your arrival in Australia. While I note that this covers the period since your arrival in Australia in 2010, and I further accept that these documents are consistent to each other, as there is an absence of any earlier documentation I place less weight on this evidence as it does not support your identity before you entered Australia.
I find that your claims regarding your purported inability to provide documentation prior to your arrival in Australia to be implausible. I also find that it does not appear you have made a genuine attempt to obtain identity documentation from your former overseas countries of residence, despite the Department writing to you to request documentation
CONTENTIONS
Applicant
In his final submission, the Applicant was at a loss as to what he was required to do to prove his identity:
I have things that I have been asked, everything that I was asked to send, I have sent them in and it’s all now in front of you and I’ve explained everything I was asked to explain and I don’t know what to say now.
The Applicant contended that he was a stateless Feyli Kurd born in a mountainous region on the border of Iran and Iraq. He said he is not a citizen of Iran or Iraq and is not eligible for citizenship of either country. The Applicant argued that neither he nor his parents ever held any official documentation as they were not recognised by any country.
The Applicant contended that he made many attempts to secure documentary evidence of his identity prior to his arrival in Australia. He contended that he had provided as much evidence as he was able, including rental agreements, statements from his parent’s local Islamic council, his brother’s marriage certificate and a statement from his childhood friend.
The Applicant argued that he had not comprehended the importance of correctly advising the Department of his place of birth and he had not intentionally misled anyone. In his arrival interview on Christmas Island, he described where he was born and raised as that was the only place he had known. However, later when seeking to be issued with travel documents, he enquired with his mother where he was born and she advised that he was born in Badreh, Iraq. The Applicant said that if he had realised that correcting his initial mistake would cause this much trouble, he would not have bothered, which he contended proved he was telling the truth about his identity.
The Applicant contended that his lack of English had hampered his ability to complete the numerous forms, and he had relied on various other people to do them for him. The Applicant’s evidence was he asked each person who assisted him to simply copy what was written on the previous forms. When a daughter of a friend assisted him to complete his Form 80, she advised him of the numerous inconsistencies on the forms.
The Applicant stated that he wished to secure his citizenship to gain an identity and so he could sponsor the love of his life to join him in Australia. It was also important to him to hold travel documents, to be able to prove who he was.
Respondent
The Respondent argued the Tribunal must be positively satisfied as to the Applicant's identity because establishing identity is a ‘critical starting point’ for access to government services and benefits, and in the citizenship context, may lead to the conferral of the rights and privileges of citizenship, including an Australian passport, referring the Tribunal to the matter of Beyan and Minister for Immigration and Border Protection [2015] AATA 256. The Respondent contended that previous decisions of the Tribunal have observed that the importance and significance of the conferral of citizenship, together with the wording of the provision in s 24(3) of the Act, make it essential that the Tribunal is reasonably satisfied of identity because of the consequences that flow, referring particularly to the matter Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579.
Fundamentally, the Respondent contended that the Tribunal cannot be satisfied of the Applicant's identity as the Applicant provided insufficient documentation to the Department, as well as some inconsistent information, and his evidence did not present a cohesive life story that is corroborated by compelling and reliable documentary evidence.
The Respondent contended that in accordance with the CPI, the onus is on the Applicant to provide information or evidence to support his identity and in this instance, the Applicant has been unable to provide sufficient information and evidence for the Tribunal to be satisfied of his identity.
The Respondent argued the Applicant's evidence was only sufficient for the Tribunal to be satisfied of one pillar of identity: his life story since his arrival in Australia in 2010. The Respondent contended that this was insufficient evidence on which the Tribunal could be positively satisfied of the Applicant's identity. As such, the Respondent argued the Tribunal must refuse the Applicant becoming an Australian citizen, pursuant to section 24(3) of the Act.
The Respondent contended that, on the basis of the evidence before the Tribunal, there was a significant level of uncertainty surrounding the applicant's identity. The Respondent submitted the Applicant has:
(a)Repeatedly provided inconsistent information to the Department in relation to his place of birth and has not provided a satisfactory explanation for these inconsistencies;
(b)Claimed throughout his interactions with the Department that he lived in Iran as an undocumented stateless Feyli Kurd, however several aspects of his life story (particularly in relation to his ability to enter into rental agreements, his employment, his financial means, and his departure from Iran) appear implausible in light of the country information relating to Feyli Kurds in Iran; and
(c)He has been unable to produce any primary identity documents prior to his arrival in Australia, nor has he demonstrated that he has made a reasonable attempt to obtain primary identity documents that may be expected to exist.
Place of birth
Applicant
The Applicant contended that he was a stateless Feyli Kurd who was born in Iraq and raised in Iran. He said he was born in a mountainous region where the towns and borders merged. His parents were farmers who bred livestock and moved the herd from one area to another. He submitted that, as a stateless person, he had no real knowledge of his place of birth or citizenship, but this had not been an issue in the area he had grown up as it was very remote and everyone knew each other.
The Applicant was at pains to explain that he would also like an answer to the question of where he came from and who he belonged to:
MR ZHANG: You did sign a declaration at the end saying that the information you have supplied was complete, correct and up-to-date in every detail, and you said that you have read and understood the information supplied to you. This is - and there's a warning that giving false or misleading information is a serious offence. So and you signed it and you applied your signature, and this is on page 197. So now you're telling the tribunal that some information in this form is not, in fact, accurate. Why should the tribunal believe what you've said in relation to your place of birth in another form, you know, at another time over what you've said in this form or vice versa? Why is the tribunal - why should the tribunal believe that you were, in fact, born in Badreh Iraq rather than what you've said here which you've signed and said to be correct in every detail, which is that you were born in Iran?
INTERPRETER: Do you know, I know where you come from and that is the same as you. I never considered that important but I'm pretty sure about that declaration about misleading and it's going to amount to perjury. I know - I know all about it and I signed it, and when I signed it for me it wasn't a piece of incorrect or misleading information. Because I consider myself born in Sirvan in the Arab Rood Bar, Ilam, and they are all because they're close, they're one region. To me they are all the same.
And, however, but, you know, you have to be a stateless to be understanding of the situation. That is actually practically the issue. Honestly, now you are asking me all these questions. I'm asking myself who am I? Where am I from? No wonder I'm considered stateless because it seems this important piece of information, that it is important to anyone's identity in their life is me (indistinct) my person, simply because I'm a stateless person. We are, ourselves, don't know where we are from and everything is quite all over the place.
We are just know we are from a mountainous area, that's how we consider different names on the different times in that country. Sometimes it belongs to one country, sometimes as (indistinct) its border just change and it's considered another area. And it's not a recognised area and not even considered an area for any authorities, neither of Iranian authorities nor Iraqi authority. No wonder they call us stateless. And now he's telling me how important it is, now I came to know practically I have no identity, as you already mention on my statement.
But I consider because I was raised in that Sirvan, I consider myself a person from Sirvan. If anyone asks I said, "Yes, I'm from Sirvan, I'm from Arab Rood Bar, I'm Badreh." Because they are all the same for me. But on the other hand you can't locate specifically a different area, actually not at the time when I was born, not even recently.
INTERPRETER: I always considered myself an Iranian-born and I said that I always thought that I was born in Iran and I was raised in Iran. This was my understanding for even when I came to Australia that was the case. And until I was working in that abattoir in Rockhampton when I wanted to apply for the proper document and they said you have to be specific of your country of origin of your birth, and that's why it prompted me to ask my family where I was actually born because I considered myself to be a person from Badreh area where all these areas, Sirvan and the rest, exist.
And my family says it's a mountainous area, it is Badreh, it's called Badreh, but it's not only Iran who's got this region named Badreh. There is also region called Badra but it belongs to the Iraq because it's quite borderline, it's very difficult apparently, I don't know, to challenge any - it keeps changing the borderline. And but they said, "No, you were born in Badra which belongs to the Iraqi region." And that's when in 2014/15 Rockhampton I came to know it's Iraq.
MR ZHANG: Okay but you never said to the Department prior to that, that you were born in Badreh in Iran. You told the Department that you were born in Sirvan which is a different city in the - which is the capital of the - Sirvan is a different city, as the map shows, in the Ilam province of Iran.
INTERPRETER: Yes, that's true I come from Sirvan but Sirvan and Badreh, they are all one thing. Imagine there is a mountain and it's all around the mountain you've got Sirvan back there but it's all considered one thing and so it's referred to as Sirvan or Badreh but it means one thing.
MR ZHANG: Well, Sirvan is a county, it's S-i-r-v-a-n, and Loumar is a city in that county and it's the capital of the central district of Sirvan county in Ilam province. Whereas Badeah is a city and the capital of the Badreh district of Ilam province. So they seem to be in different districts of the province and they seem to be different places. And you never said that you were from Badreh. You've always said that you're from Arab Rood Bar in Sirvan district or Sirvan county.
INTERPRETER: You're right, I know how confusing is that. Because if you ask me where you come from, I thought that I'll say I come from Sirvan. However, the problem is that imagine it's Sirvan, if you walked 10 steps to Sirvan side, it can be Badreh. If you walk 10 steps to the other it's going to Sirvan. So that's why it all comes to the one area. But because I said Sirvan, I thought, yes, I used the word Sirvan at all times. I said Sirvan.
And when I asked them where I was born and they said, "You were born in a place that is called Iraqi Badra." Because they said you were born in Badra. I said - okay, then, I think that they meant Sirvan. Badreh and Sirvan the same. But they said, "No, it's not that Badreh where the Sirvan and Badreh is. We're talking about Badra the Iraqi part." That is why - I don't know how I'm supposed to express myself, it's very difficult to express myself. And, yes, because it's all one thing at the end.
…
MR ZHANG: What I'm suggesting to you, CFYJ, is that the response that you provided that you were born in Arab Rood Bar in Sirvan county has nothing to do with Badreh. Badreh is a separate area of Ilam province. There is no cause for the confusion to arise.
INTERPRETER: Do you know, how am I supposed to say that? There is a mountain and at the end then there is a dead-end and the mountain starts, there is a river. If you swim in the river a few metres you get to Badreh. A few metres the other side, the other way, you get to Arab Rood Bar or you get to the other side, you get to Sirvan. But there's so many shepherds there, I know all of them.
So when we see each other, it depends that where you were raised in that sort of, I don't know, a few metres of residency you would say that I'm from that place. I know it's all considered one place. For example, if I was asked, "Where are you from?" I said, "From Sirvan," because I was born - I thought that I was born and anyway I was raised there. So when they said me, "Where are you from?" it doesn't necessarily mean that where you were exactly born. "Where are you from?" I said, "I'm from Sirvan."
And plus also these area, you say Badreh is a separate area; no, it's not a separate area. It's very close. If you check, you will come to know, yourself. You can ask any other shepherds, any other people from that area, they would say the same thing. Unless you can identify the differences with only a few metres or a steps. If you point to it, we could say, "This is Badreh, this is Sirvan," but they are all one place and I thought I'm considered a Sirvanian because I was raised there. Or I say, "I'm from Arab Rood Bar," and because I was raised there. And later on the name of Badreh came to my life.
The Applicant contended he had not lied on his application forms or at the various interviews during his asylum seeker process or citizenship application. He said that in his entry interview, he advised that he was born in Ilam, Iran as that was the last place he lived, but since his arrival in Australia, he has become aware that he was born in Iraq.
The Applicant contended that one can identify someone by the language they speak; his evidence was his father spoke Kurdish, his mother spoke Arabic and he spoke Arabic, Kurdish and Farsi.
Respondent
The Respondent contended that the Applicant has made a number of inconsistent claims in relation to his place of birth throughout his interactions with the Department, as shown below:
Date Where claim made
Claimed place of birth
26 December 2010
Entry interview
Ilam, Iran
29 January 2011
IAAAS interview and statutory declaration
Elam, Iran - 'I am stateless, born in Iran where I have always lived'; 'I fear returning to the country of my birth, Iran'
29 January 2011
Form 80 - Personal particulars for character assessment
Elam, Iran
31 January 2011
RSA interview
Can you tell me about the place where you were born in Sirvan?― From the place I, I'm,
came from? I came from Ilam, Arab Roodbar'
And you personally, had you ever visited Iraq or have you been to any other country?― No. I didn’t have anything [sic] to go.
'Just imagine I was living all my life in Iran and I didn't have any identity, I couldn't do anything'28 May 2015 Form 1300t - Application for Australian citizenship Badreh, Iraq 9 April 2019
Form 80 - Personal particulars for character assessment
Elam, Iran
'Iran did not give me any identity and citizenship since I was born'23 September 2019 AAT application for review Badra, Iraq 24 September 2019
Statutory declaration
Badra, Iraq
The Respondent contended that the Applicant has not provided a satisfactory explanation for these inconsistencies. The Respondent contends that there is significant doubt as to whether the applicant was born in Badra, Iraq or Ilam, Iran, such that the Tribunal cannot be satisfied of his identity.
The Respondent submitted the following in relation to the Applicant’s place of birth:
(a)The Applicant claimed in his application for review and his statutory declaration dated 24 September 2019 that he was born in Badra, Iraq. However, on at least five prior occasions, the Applicant informed the Department that he was born in Ilam Province, Iran, including at his entry interview and the Refugee Status Assessment (RSA) interview. The Applicant made further statements to the Department that reinforce his previous claim that he was born in Iran. For example, in his statutory declaration dated 29 January 2011, he claimed that 'I am stateless, born in Iran where I have always lived' and ‘I fear returning to the country of my birth, Iran'. At the RSA interview, the Applicant was asked to talk about the place he was born, to which he responded 'from the place I, I'm, I came from? I came from Ilam, Arab Roodbar'. Later in the same interview, he denied that he had ever visited Iraq. In his Form 80, dated 9 April 2019, he stated 'Iran did not give me any identity and citizenship since I was born'. These statements are directly inconsistent with his present claims that he was born in Badra, Iraq. As the Applicant had provided inconsistent information to the Department on various occasions (including in circumstances where he was under an obligation to tell the truth), the Respondent contends that the Tribunal cannot be satisfied as to whether he was born in Iran or Iraq.
(b)The Applicant claimed that the inconsistencies in the information provided to the Department were due to a 'misunderstanding between myself and the individual instructed to complete original corresponding documents including Form 80'. This explanation fails to address the fact that at the entry interview and the RSA interview, he personally stated to officers of the Department that he was born in Ilam, Iran. Records from the Applicant's Immigration Advice and Application Assistance Scheme (IAAAS) interview also suggest that he informed his representative during that interview that he was born in Ilam, Iran. The Applicant had the assistance of professional interpreters at each of these interviews. The Applicant has failed to provide a satisfactory explanation as to why he personally informed the Department that he was born in Ilam, Iran on a number of occasions in circumstances where he now claims that he was born in Badra, Iraq. Further, the Respondent contends that given the repeated nature of the Applicant's claim that he was born in Ilam, Iran, it is difficult to believe that he made a genuine mistake on each of these occasions.
(c)The Applicant further claims that Badra, Iraq and Badreh in Ilam, Iran are the same city but are located on different sides of the Iranian-Iraqi border. The Applicant appears to suggest that the similarities in the names of these localities may have contributed to the inconsistencies in the information he provided in relation to his place of birth. The Respondent contends that this explanation should not be accepted.
(d)On each occasion where the Applicant informed the Department that he was born in Iran, he stated that he was born in Arabroodbar, Sirvan, in Ilam Province, Iran and made no reference to Badreh, Iran on any of these occasions. Sirvan and Ilam Province as referred to by the Applicant are localities in Iran and there is no suggestion that any of these names are shared by localities in Iraq (noting that Badra in Iraq is located in Wasit). The Respondent further notes that Badra in Iraq and Badreh in Iran are, according to open-source information, 200km apart by road and are separated by localities of different names in between. The Respondent contends that is it unlikely that the similarities in the names of these localities caused the inconsistencies in the information provided by the Applicant as to his place of birth. The Applicant's explanation suggests that he was precisely aware of the fact that Badra, Iraq and Badreh, Iran are two distinct localities.
The Respondent’s contention is that the Applicant has not provided reasons for the fact that both prior to 2014 and after 2014, he continued to use Iran as his place of birth in his various forms. As the Applicant has provided inconsistent information to the Department on a number of occasions, including in various circumstances where he was under an obligation to tell the truth, the Respondent contends that the Tribunal cannot be satisfied on the evidence available, whether the Applicant was born in Iraq or in Iran.
Primary identity documents
Applicant
The Applicant consistently argued that as a stateless Feyli Kurd he had no rights to any documentation from any country; that Iran considers him Iraqi, and Iraq consider him Iranian, and neither would provide him with any documentation.
The Applicant consistently argued that as his parents lived in the mountains far from any city centre, they had no requirement for documentation. He said that in Iran you need money or connections to secure everything but as his parents were poor farmers, they did not have the means or connections to secure any form of documentation.
The Applicant’s evidence at the hearing was that he asked his brother in Iran to see if he could obtain any documentation to confirm he and his family’s identity. His brother went to the local Islamic Council and they provided the declarations he lodged. He also asked his former landlord in Tehran to send copies of his rental agreements and his former employer to provide his work contract.
The Applicant’s evidence at the hearing was that with money you can get anything in Iran, which is why he had not required documentation to rent an apartment or find work.
The Applicant recalled that his family had a green card which was later changed to a white card which was later taken off them. The Applicant contended that if his family had any form of identification, he would have gotten them to send him a copy to assist in this process. The Applicant contended he had never tried to obtain a white card for himself as he was scared of the police:
MR ZHANG: But you - CFYJ, earlier in these proceedings you had described that you experienced a lot of problems as a result of being an undocumented stateless Feyli Kurd. Wouldn't you think that having a document - identity document would have reduced the instances where the police or the authorities would harass you?
INTERPRETER: Yes, the point is that maybe the ones that applied, they got it, their parents they knew how to do it and the parents had the money. But my parents never knew how to do it and they never had the money. And also since childhood I was so terrified and scared of the police. I remember upon arrival here, once I was in Sunshine and I was holding the hand of a girl, when the police car drove through I was so terrified that I released my hand and starting (indistinct) and running away. And the girl told me, “Oh my god, why did you try to run?” I said, “All of a sudden I thought - I got the flashback, I thought I'm in Iran and because of holding your hand I will be caught and arrested by the police.”
MR ZHANG: So despite the fact that this white card can allow you to access education, to enter into leases, to access medical insurance, to register births, deaths and marriages, and it would prevent you from - or it would prevent you from being deported from Iran, and it would reduce the instances - the number of instances of police harassing you for not having any identity documents, you've never tried to get this card?
INTERPRETER: You have to have the money, you have to have a person to apply for, correct. I didn't have any of them, so how can I get that?
The Applicant contended that just because a report said things were meant to operate a certain way, this did not make it so and was not his lived experience. He reiterated that without money or contacts, everything in Iran was impossible to navigate:
INTERPRETER: ….. I know in Iran anytime you go and approach to any officers, you have to pay money to any other organisation and they will always be asking for the money, and let alone going for a card without any ID. You may even get caught, arrested, put in gaol.
MR ZHANG: CFYJ, in the country information set out in ST5 from DFAT, the Department of Foreign Affairs and Trade, it says that DFAT advised that the vast majority of Feyli Kurd refugees in Iran had valid refugee registration cards, and those are the white cards. It says other information from 2001 referred to an Iranian government program aimed at registering aliens. It says
The high rate of documentation amongst the Iraqi refugee population in Iraq is perhaps unsurprising considering the considerable benefits attached to the possession of these documents and the Iranian government's understandable enthusiasm for documenting people living in its borders.
INTERPRETER: Do you really believe Iranian government, imagine now 500 people dying daily because of COVID but the statistics are broadcast internationally says 50 COVID daily death. And is that something that whatever Iranian country - Iranian authorities they claim but when it comes to practice this is not the case. It is just, therefore, attracting international attention to get a good (indistinct) but in practice this is not the case.
MR ZHANG: Well, CFYJ, this is a report from the Department of Foreign Affairs and Trade based on their intelligence from Iran. It is not a report of the Iranian government and the Department of Foreign Affairs and Trade believes that the vast majority of people of Feyli Kurd refugees in Iran had some form of identity documents.
INTERPRETER: For the Iranian government this is the case, when they make an announcement they come and get IDs or whatever, even a bonus, when you go there - when you go there to get it and you're treated, you get caught and you may even be put in prison. This is how I saw the Iranian government.
MR ZHANG: This is based on, CFYJ, intelligence received or obtained by the Australian government.
INTERPRETER: The people who applied and who got it, they had money. If you don't have money you cannot get it. They paid for it. Iranian government may say, “It's free, you don't need to pay,” but when you go there you have to pay for the application fee. Imagine what's going to happen to those that they don't have money. Yes, it's not believable. They may just (indistinct) to maybe allocate such a card to maybe about four people for international attention. And not in practice and, yes, in reality this is not the case.
MR ZHANG: So you're saying that they don't issue these cards to a lot of people. Is that what you're saying?
INTERPRETER: For those who have money, who have contacts, not for those that they don't have money and contacts.
Respondent
The Respondent contended the Applicant had not provided any identity documents from either Iran or Iraq as evidence of his identity prior to his arrival in Australia, including primary identity documents such as a birth certificate, passport, identity card, or refugee registration cards known as 'green cards' or ‘white cards', ordinarily issued to Feyli Kurd refugees in Iran. At the time of the entry interview, the Applicant asserted that he had never held any identity documents.
The Respondent argued the Tribunal has, on a number of occasions, considered the operation of subsection 24(3) of the Act in relation to Applicants who were unable to provide identity documents as evidence of their identity prior to their arrival in Australia. The Respondent contends that it can be discerned from the authorities that, where an Applicant has not been able to provide identity documents issued prior to their arrival in Australia, the Applicant should; firstly, demonstrate that reasonable attempts have been made to obtain these documents and provide a cogent and acceptable reason as to why these documents could not be produced, and secondly, positively satisfy the Tribunal of their identity on the basis of other forms of reliable evidence. The Respondent referred the Tribunal to the matter of Dhayakpa and Minister for immigration and Border Protection [2015] AATA 310, where the Tribunal observed in relation to a Tibetan refugee who was unable to produce identity documents from prior to his arrival in Australia:
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 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.
And the matter of CDNB and Minister for Immigration and Border Protection [2018] AATA 757, which concerned Applicants who claimed to be stateless Feyli Kurds, and were unable to produce identity documents relating to the period prior to their arrival in Australia, the Tribunal observed:
I proceed on the basis that the 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 Ater and Minister for Home Affairs [2019] AATA 4677 at [72], the Tribunal stated in relation to an Applicant from South Sudan who did not have any identity documents:
However, there is an expectation that the Applicant demonstrate reasonable efforts to obtain those documents or other supporting evidence that may assist in satisfying a decision maker as to his identity. In the Tribunal’s view, it is not sufficient for the Applicant merely to state that such documents are not able to be produced in order to satisfy the Tribunal. Further, in the Tribunal’s view even where an applicant has demonstrated that reasonable efforts have been taken to obtain identity documents, if the applicant is unable to obtain those documents, it falls upon an applicant to provide other forms of evidence on which the Tribunal may be satisfied as to the identity of an applicant. … in the absence of documentary evidence confirming identity, persuasive evidence in other forms, for example third party statements and other material relevant to an applicant’s individual circumstances, may be required to enable a reasonable degree of satisfaction to be achieved.
The Respondent also drew attention to the Tribunal’s comments in CDNB and Minister for Immigration and Border Protection at [61] that limited weight can be placed on documents issued after an Applicant’s arrival in Australia, as these documents are most likely issued on the basis of the Applicant’s identity stated in their Australian documents, and as such provide little indication as to the Applicant’s identity prior to their arrival in Australia.
The Respondent contended that the Applicant has not demonstrated that he has made a reasonable attempt to obtain primary identity documents that may be expected to exist, nor has he provided a cogent and acceptable explanation as to why these documents could not be produced.
The Respondent contended that the Applicant's claim that he was unable to obtain identity documents from Iran should be assessed in the context of Iran, which is generally a well-documented society and those residing in Iran can ordinarily be expected to produce documents to establish their identities. DFAT country information recognises that Iran has laws and bureaucracies regulating identity registration, and a large number of transactions in Iran require identity documents. In CDNB and Minister for Immigration and Border Protection at [11], the Tribunal described Iran as an 'established and undisturbed' country for the purposes of issuing identity documents.
The Respondent argued that DFAT country information relating to Feyli Kurds residing in Iran states:
The Feyli Kurdish people are not now, nor have they ever been, a predominantly stateless people. The equivalency between the ethnic identity of Feyli Kurdish and the political status of statelessness expressed as fact in country information and decision records does not reflect reality. This is not to say that hundreds of thousands of Iraqi Feyli Kurds were not rendered stateless, but it must be recognised that the majority of the ethnically Feyli Kurdish population never experienced this, having remained in their tribal homelands in Iran as Iranian citizens
…
In October 2011, DFAT advised that the vast majority of Feyli Kurd refugees in Iran had valid Amayesh refugee registration cards. Other information from 2001 referred to an Iranian government program aimed at registering aliens. The high rate of documentation amongst the Iraqi refugee population in Iran is perhaps unsurprising considering the considerable benefits attached to the possession of these documents and the Iranian government’s understandable enthusiasm for documenting people within its borders.
The Respondent contended that the Applicant has not provided any cogent and acceptable reasons for failing to provide a refugee registration card from Iran which may reasonably be expected to exist if he was in fact a stateless Feyli Kurd, in circumstances where a vast majority of stateless Feyli Kurds hold such a card. The Respondent further contends that the fact the Applicant was unfamiliar with the process for issuing refugee registration cards, casts doubt on his claimed life story as a stateless Feyli Kurd.
The Respondent submitted the following.
(a)The Applicant explained at his entry interview that 'we had green cards before, but they were taken from us and not brought back'. This explanation is inconsistent with the country information set out above, which suggests that a 'vast majority' of stateless Feyli Kurds in Iran were provided with refugee registration cards by the Iranian government. The Applicant has not provided any cogent explanation as to why he was unable to obtain a refugee registration card in circumstances where a vast majority of Feyli Kurds living in Iran were able to do so. Further, in CDNB, the Tribunal referred to evidence from the ‘Stateless Project: Feyli Kurds’ report which stated that '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'. The Respondent contends that there appears to be little incentive for the Iranian government to refuse to issue the Applicant with a white card. In light of the country information available, the Applicant's claim that Iranian authorities refused to provide him with a white card, merely because he was Feyli Kurdish, appears unlikely.
(b)The Applicant claimed at his entry interview in 2011 that he did not have a green card until two and a half years ago. However, DFAT country information suggests that green cards were not issued after 2002. The DFAT country information suggests that 'green cards were issued to Iraqi refugees until the end of 2001. From 2002 onwards, green cards were replaced by white cards and green cards were no longer considered valid'. The Respondent therefore contends that the Applicant's claim that he was issued with a green card in 2008 appears implausible, and further demonstrates his lack of knowledge of the living conditions of stateless Feyli Kurds in Iran and the documents they are able to obtain, casting doubt on not only the credibility of his claims in relation to whether he had obtained a green card, but also his life story as a Feyli Kurd more generally.
The Respondent contended the documentation filed by the Applicant in these proceedings, purportedly from Iran as evidence of his identity, including two declarations from the Rural Islamic Council of Darbarloot, his work contracts from 2000, and rental agreements under his name dated between 1997 and 2006 should be given little weight.
The Respondent argued that there was no suggestion in any of the documents that the Applicant or his parents were undocumented stateless Feyli Kurds. The Respondent further contends that, to the extent that the Tribunal places any weight on these documents, the information set out in these documents in fact weighs in favour of a view that, contrary to his claims, the Applicant was not a stateless Feyli Kurd.
The Respondent argued that DFAT country information suggests that Feyli Kurds residing in Iraq prior to 1980, held either Iraqi or Iranian citizenship:
… ‘Statelessness’ in the Feyli Kurdish community did not exist as a substantial, identifiable subgroup until 1980. Up until that point, Feyli Kurds in Iraq held either Iraqi or Iranian citizenship. In Iran up until that time, Feyli Kurds were presumptively Iranian citizens. The country information above supports an assertion that this was a rule of general application, as even those who had not actively applied for a citizenship by this time had already been attributed a citizenship by virtue of the citizenship leanings of their tribe. Given that Iranian citizenship could not be relinquished without a declaration to the Iranian government and the fulfilment of specific conditions, it must be considered that after 1957, some Feyli Kurds probably held both Iranian and Iraqi citizenships. In 1980, the Iraqi citizenship of that group who had been present in Iraq in 1957, and who had remained in Iraq and not returned to Iran, was extinguished. The Iranian citizenship of those Feyli Kurds who were living in either Iran or Iraq, however, was not.
The Respondent argued that as the Applicant now claims that he and both of his parents were born in Iraq, country information suggests that he should have acquired Iraqi citizenship by birth. This would have entitled him to obtain identity documents in Iraq, such as a birth certificate or a nationality certificate. The Applicant has provided no evidence as to any steps taken to secure any of these documents which may be potentially available to him, nor has he satisfactorily explained why these documents are not be available.
Life story
Applicant
The Applicant’s evidence on his application for a protection visa dated 29 January 2011 was: ‘my parents are still alive, and I have one brother aged 18 (another one aged 21 deceased a few weeks ago) and one sister aged 20’. At the hearing his evidence was that he also had an elder brother, A, who he had never mentioned on any of his forms for his asylum or citizenship applications.
The Applicant maintained that his brother, M, was alive and living in Iran which is why he listed him as a point of contact upon his arrival at Christmas Island. The confusion over his family composition and number of siblings arose when he was advised by other detainees on Christmas Island that his brother had died. As he had not acknowledged A on any forms, he simply said it was M, but this has caused considerable confusion.
The Applicant’s consistent evidence at the hearing was that his brother, A, was older than him, a trouble-marker with mental health issues, and had been disowned by his parents:
INTERPRETER: (Indistinct) honestly never, ever mentioned. Because I never mentioned the word, Ali, as a brother in my forms in my application upon arrival here. Never mentioned that. But and also, I have to mention my brother passed away between the time I went to see the lawyer and the time that I ended up with the immigration officer. And because in the centre, everyone knew that my brother passed away, they wanted to hold a ceremony.
When I arrived for my interview with the immigration officer, they said, your brother passed away. And I said, yes, but I have to acknowledge you, Member, that I never, ever mentioned or the name of that brother anywhere in any documentation. So, and I never, even aware if anybody mention that and I only said, yes, my brother passed away. I may have said, like, it's the brother, M, but I never mentioned Ali anywhere.
MEMBER: I'm just wondering how we can account for M being noted as deceased.
INTERPRETER: Because when he passed, it was not (indistinct). The point is that, yes, because I said my brother and maybe that's why it prompted them to think that M is a brother, so I said my oldest brother. So, they put M as a deceased, that could be the case. Because the one who is actually deceased, like troublemaker with the mental health problem, he - when I was in detention centre, at the time of my detention, he was about 40, 42, 45 years of age. He was much older than me.
But because my parents, my dad never wanted to consider him as a child, as a family member because of his involvement with troublemaking, so we never even dared to pronounce his name and that's why I never put his name anywhere in my application. However, I said my oldest brother passed away, it could prompted them to put deceased in front of the M's name, not that I know.
INTERPRETER: Yes, actually, I have to tell you because, unfortunately, he was well known, but not well known as of he of good character, as quite a scary character. I remember, if the guys where they're playing football or volleyball on the streets, as soon as his name was heard, they were disappearing, because he was always carrying a knife with him. And that is actually I came to know that my brother passed away, it was through the older detainees because most of them they were Kurdish, Feyli Kurd and they were from Sirvan and Badreh in detention centre. So, my brother was quite known to all of them and they were the ones that they broke the news to me that your brother passed away. That's how I came to know about it.
That he is my brother because I'm thinking that they would consider, I'm the same like him and I'm a mental psychosis person. That's why I never wanted to mention his name. And even if I was going to the village further up or a village further down, I would never say anything about my brother.
However, those people that they come from the same area that I come from, they all knew about him and even in detention centre, I was so hurt and annoyed when they are talking about my brother and that he's deceased and they thought (indistinct) so bad. And I know and hurt and that's why I wanted to mention his name because I never wanted people judge me and consider me the same person only as him as I am not. (Indistinct) visualisation of him, still I get that.
I remember, when I was a child, one morning he woke up, he had (indistinct) six sheeps to (indistinct). One morning we got up and we found all the sheeps, they were killed and slaughter and it was such a horrible scene and yes, and I get that, like a flashback (indistinct). And that's why I could so scared and terrified of him.
The Applicant contended that he had not considered that the details of his family members would be important, as he had no intention of ever sponsoring his family members to come to Australia.
INTERPRETER: I have to tell you, I was never consider it or put any attention to these details because I never knew that these sort of details are very important for my application. Because at no time I had the (indistinct) I never have the intention to bring my family here and I thought it's mainly about myself, the form about the citizenship. So, that's why I never considered them as an important piece of information.
The Applicant has consistently maintained that he never attended formal schooling, he originally worked assisting his parents with their livestock, then when he moved to Tehran, he had numerous illegal jobs selling T-shirts and also as a mechanic repairing bikes.
The Applicant provided a consistent narrative about his journey from Iran to Australia. He advised he met people in the mountains who had suggested he could get out of Iran. He borrowed money from family and friends to pay for the journey which he has now repaid with his earnings in Australia. He said he left everything to the people smugglers who arranged his journey from Iran to Australia:
MR ZHANG: Okay. CFYJ, can you explain and describe in some detail how did you leave Iran, and in particular how did you go through Tehran Airport, please?
INTERPRETER: You get a passport and this passport is not a fake passport, however, they take your photo from you, and they remove the photo of that original passport and they put your photo on it, and this is what they do in Kuchamarvi. And then you are told to remember the name and the details on the passport, and because at the airport they may call your name and you have to know, and if you're asked about your details and your name, and so you have to know about it, whatever it is in the passport.
MR ZHANG: Okay. Can you perhaps describe what happened at Tehran Airport, please?
INTERPRETER: I get through with this passport.
MR ZHANG: Okay. So on the day of departure, you arrived at the airport. What did you do?
INTERPRETER: I don't remember really. But I knew that I use this passport to get out. I was so stressed and fearful because they could put me in jail, and that's all.
The Applicant’s friend provided evidence to the Tribunal in support of the Applicant’s claims about where he was born. The Applicant’s friend advised that he had known the Applicant in Iran and met him again in the detention centre where he recalled attending a ceremony which was held for the Applicant’s deceased bother.
The Applicant’s friend’s evidence to the Tribunal was:
WITNESS: At the time we would go for a holiday to the village and - and I was living in Tehran. We would go to - for holidays to the village and then we would play football in the schoolyard. There was a football field, or soccer field, and there we were playing together and then later on I saw him during his youth, or when he was young, and he would come to Tehran looking for a job or working in Tehran, looking for work in Tehran. I also know him from that as well.
MR ZHANG: You said that you used to live Tehran, do you know the village that CFYJ lived in; do you know the name of that village?
INTERPRETER: Yes, he says he can’t remember the name of his village because they were living a couple of villages further down or up the road from his father’s village but if you want to he could contact his father and ask for the name of that village.
MR ZHANG: Do you remember the name of the city, for example?
WITNESS: Yes, it’s Ilam.
MR ZHANG: That’s the province, isn’t it, but what about the city?
WITNESS: That’s a city, Ilam is the city, the big city.
MR ZHANG: What’s the name of your village?
INTERPRETER: Yes, he said the name of his village was, and is, Roodbar those three villages all - or he remembers as three villages next to each other which was Roodbar (Foreign language spoken) and Roodbar(Foreign language spoken), which means Roodbar up and Roodbar down and the other one he thinks could Roodbar Arab and these are people who always speak Arabic as well and maybe they - all three of them, maybe they’re called Roodbar Arab but they all have similarities in language but they speak to each other.
The Applicant’s friend’s evidence to the Tribunal was that he considered the Applicant to be of Kurdish descent:
WITNESS: … I call myself Persian because even I couldn’t speak Kurdish because I would grow up in Tehran and we just talking Farsi, not any other language.
…
WITNESS: That’s why anybody asking us and we say Persian but if you ask my father he say Kurdish.
Respondent
The Respondent contended that the Applicant’s claim that he is an undocumented stateless Feyli Kurd is a fundamental aspect of his identity. The Applicant claimed that his identity as an undocumented stateless Feyli Kurd caused significant challenges for him in Iran, which is why he departed Iran, and it was on this basis that he was granted a protection visa in Australia. The Respondent contended that the information the Applicant has provided in relation to his living conditions in Iran is inconsistent with, or appear implausible in light of, the country information relating to living conditions of undocumented stateless Feyli Kurds in Iran. This casts significant doubt not only on his credibility, but also a critical aspect of his claimed identity, that he has lived in Iran for some 25 years as an undocumented stateless Feyli Kurd, a claim which has underpinned all his interactions with Australian immigration authorities to date.
The Respondent contended that if the Tribunal were to place any weight on the rental agreements submitted by the Applicant, the fact that the Applicant was able to produce official rental agreements under his name suggests that it was likely that he had some form of identity document, casting doubt on his claim that he is an undocumented stateless Feyli Kurd.
The Respondent submitted the Applicant has provided translations of four official rental agreements dated variously between 1997 and 2006 (originals not provided). The Applicant is named as the tenant on each of these rental agreements. The fact that the Applicant was able to enter into rental agreements, particularly in the form of an official rental agreement with a serial number, suggests it was likely that he had a form of identity document that enabled him to do so. Country information suggests that an undocumented Feyli Kurd would be unable to access rental properties. The reverse side of the white card sets out the following 'This card is for identity purposes and is valid in the issuing province for opening savings accounts, issuing health insurance booklets, issuing rental contracts …'. The Applicant claimed at the entry interview that he has never held a white card and only had a green card for a period of one year in or around 2008 and has not had any other documents that could prove his identity. It therefore appears implausible that the Applicant was able to enter into official rental agreements over a period of some ten years between 1997 and 2006 without any official identity document such as a white card.
The Respondent contended that the declarations from the Rural Islamic Council of Darbaloot submitted by the Applicant, also cast considerable doubt over his claims that his family were stateless Feyli Kurds. The Respondent submitted the fact that the Applicant has been able to obtain a letter from the Islamic Council of the village was at odds with his claim that his family 'signed the paper saying we would leave the village because they don't want us to stay there', casting doubt on whether the Applicant and his family in fact had a poor relationship with the local authorities.
The Respondent submitted that the declarations from the Rural Islamic Council of Darbaloot state that the Applicant's parents migrated to Sirvan in 1986 'due to his parent's business of livestock in Badra, Iraq, the above named migrated to the city of Sirvan in the Arab district of Roodbar in 1986'. It appears from these declarations that the Applicant's parents migrated to Iran for reasons relating to their livestock business and they do not appear to support the Applicant's claim that his parents were deported by the Saddam Hussein regime. The Applicant has not been able to satisfactorily explain the circumstances under which his parents settled in Iran or how they became stateless.
The Respondent submitted the Applicant's employment contract also did not support his claims of being a stateless undocumented Feyli Kurd, noting that country information suggests that undocumented Feyli Kurds are not legally permitted to work in Iran. In the 2009 World Refugee Survey for Iran, the United States Committee for Refugees and Immigrants referred to the Iranian government 'increasingly fines or imprisons employers of undocumented foreigners, including registered Afghan refugees although they were more lenient with Iraqis'. Whilst country information suggests that government officials in Iran sometimes tolerated the practice of employing Feyli Kurd refugees, it is difficult to conceive that, in light of the potential fines and penal sanctions, that the Applicant's employer would have entered into a formal agreement for the purposes of his employment and document that agreement in writing. This casts doubt on the veracity of this document. Alternatively, it is likely that the Applicant had identity documents that conferred him with work rights such that his employer would have been inclined to enter into a written agreement with him.
The Respondent submitted the Applicant's claims that he departed Iran in or around November 2010 via Imam Khomeini International Airport in Tehran on a fraudulent Iranian passport was implausible. Further, the Respondent submitted the Applicant’s claim to have transited through Dubai and Indonesia and paid a total of approximately $9,000 USD to cover the cost of his travel to Australia cast doubt on his life story.
The Respondent notes that country information from the Immigration and Refugee Board of Canada in relation to Tehran airport departures as at 2006 states:
… a United Nations High Commissioner for Refugees (UNHCR) official provided the following information based on consultations with UNHCR personnel in Tehran:
Verification of passports and documentation at departure points at land borders and airports is carried out in the last phase of exit procedure. This means that in airports, after the tickets are checked and the luggage is delivered to the airline and before getting into a waiting area for departure, the passports shall be checked by a Disciplinary Forces officer who verifies in [the] NAJA [law enforcement] database whether the passport is fake and whether the person standing in front of the officer is the same person whose name and photo appears on the passport.
…
departure procedures are still such that it would be highly improbable that anyone with a forged passport in which name and number do not tally would be able to leave the country. Security officials at the airport possess lists of suspected or wanted persons and it is not unusual that passengers wishing to leave are prevented from leaving and told to refer to the security department. In general, the security checks at Tehran airport are still very strict and it is doubtful that anyone with a security record and convictions in Iran for political offences would be able to leave the country legally by air.
Information from the Danish Immigration Service indicates that there are a number of checks in place when a passenger departs from the Imam Khomeini International Airport, as at 2008:
The first security check takes place upon entry from the public area into the terminal area for travellers only. The passenger's luggage will be checked at this point. The luggage goes through a scanner and if anyone looks suspicious, the Immigration Police will take the person aside and open the suitcase. The passport of the person travelling is checked and the person passes through a detector (women and men go through separate detectors). This check is the responsibility of the Immigration Police.
After passing through the luggage check the passenger goes to the check-in counter. At the check-in counter, flight personnel will check in the passenger's luggage, check the visa and issue a boarding pass. If anything is wrong in terms of visa or passport, the flight personnel will contact the Immigration Police.
After check-in, the passenger goes to a counter where Immigration Police conducts a third security check. The Immigration Officer sits inside a booth behind a glass window. He checks the passport and personal information on a computer system.
The passport and exit visa are verified. The data of the passport holder appears on the screen, together with a photograph of the traveller. If the person is married and has children, the photos and names of his wife and children will also appear on the screen. If the passport holder is registered on a list of individuals who have an outstanding issue with the government or for other reasons are not allowed to leave Iran, this information will appear on the screen.
When the Security check is completed, and if the person is allowed to leave Iran, an exit stamp will be stamped in the passport. The person travelling now enters the duty free zone.
Before entering the area with flight gates, yet another security check is conducted. This is a physical check where the hand luggage is scanned and the passenger goes through a metal detector. This security check is conducted by the Revolutionary Guards. The Immigration Police and airline personnel conducted the previous checks.
The very last check is done just before boarding, where the traveller shows his or her boarding pass. Airport personnel conduct this check.
An investigation into the Feyli Kurds cohort by the Department includes the following information:
An April 2012 report by the Department of Immigration and Citizenship (DIAC) noted that according to an official at the Dubai International Airport “detection of fraudulent Iranian documents by Iranian nationals inbound from a port in Iran was rare, as the capabilities of Iranian immigration to detect fraudulent Iranian passports at their own ports was high …
The Department of Foreign Affairs most recent assessment is that:
… it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. DFAT agrees with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visa, Additionally, many Iranians travel to Turkey where there is no visa requirement for Iranians and from there travel onwards using forged documents. Forged visas or visas obtained through false information are common but exit from the Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved.
DFAT assess as credible reports that state Iran's land border with Turkey provide an easier way to exit Iran illegally. Borders to Turkey and Iraq are porous and there are well-established smugglers' routes. DFAT is not aware of any recent cases where Iranian customs officials have received punishment for taking bribes in relation to entry or exit procedures.
The Respondent contended that the Applicant's account of his departure from Iran appears to be implausible in light of country information relating to departure procedures from Iran. The Respondent submits that having regard to the five security checks implemented at Imam Khomeini International Airport, it appears unlikely that the Applicant was able to depart from that airport with a fraudulent Iranian passport, particularly as using a fraudulent Iranian passport, as opposed to a fraudulent foreign passport, would have significantly increased the risk of detection by Iranian authorities.
The Respondent submitted the fact that the Applicant was able to transit through Dubai and Indonesia without difficulties further suggests that it was likely that he departed on a genuine passport granted to him. His entitlement to a genuine passport casts doubt on his claims of statelessness. This in turn casts doubt on the Applicant's claimed life story in Iran.
The Respondent submitted the Applicant claimed at the entry interview that he paid approximately 9 million tomans, which was equivalent to approximately $9,000 USD to facilitate his travel to Australia. He claimed that he paid the money to a Haji who travelled to Indonesia with him. Considering the fact the Applicant claimed that on at least one occasion his employer had refused to pay him, that he was harassed by the Basrj for money, and inflation rates fluctuated between 10% and 50% per annum between 1990 and 2010, the Respondent contends that it was unlikely that the Applicant would have been able to have sufficient savings to pay for his departure from Iran as he claims.
The Respondent contended much of the Applicant’s evidence at the hearing was contradictory which created a significant level of uncertainty surrounding his identity, particularly relating to his place of birth and his family composition. The totality of the inconsistencies with country information and the lack of credible evidence of the Applicant’s identity, creates serious doubts surrounding the Applicant’s identity. Accordingly, the Respondent submitted that the Tribunal could not be satisfied one way or another as to a number of these inconsistencies, such as his place of birth and his family composition and whether he is a stateless Feyli Kurd.
The Respondent contended that in matters of citizenship, the Tribunal must be positively satisfied of the Applicant’s identity and the authorities suggest that the Tribunal should reach a high level of satisfaction in circumstances where the conferral of Australian citizenship leads to a number of rights that would be conferred, and the explanatory memorandum suggests that where a person’s identity is unclear the citizenship application should be refused. As such, based on the Applicant’s evidence, the Tribunal could not reach the requisite level of satisfaction of the Applicant's identity under subsection 24(3) of the Act.
COUNTRY INFORMATION
The DFAT Country Information Report on Iran from 14 April 2020, provides the following:
Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates (see Refugees and Undocumented Afghans). Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons denaturalised by the former government have their Iraqi citizenship restored). DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran.
Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have single out Faili Kurds for mistreatment, regardless of the category to which they belong.
CONSIDERATION
The Tribunal notes the Policy indicates that assessment of a person's identity must take an evidenced-based approach, which seeks to establish a person's identity from birth. Also, it cannot be satisfied of a person's identity at one point in time, as a person's identity is not a point in time concept but must be verified incrementally throughout a person's life and considered historically. When assessing a person's identity, the objective is to determine whether inconsistencies are identified with any aspect of a person's life story, biometric data and documentary information.
Further, the Policy clearly identifies that individuals seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arriving in Australia. In this situation, the Policy articulates that an informed assessment is necessary, based on research of country of information and weighed against the evidence provided by the Applicant.
At the outset, the only thing the Tribunal can be positively satisfied of is the Applicant’s life story since his arrival in Australia.
The Tribunal was troubled by much of the Applicant’s inconsistent evidence. On the one hand, much of what the Applicant claimed was not implausible. Yet on the other hand, there were numerous inconsistencies and contradictory evidence which seemed implausible. This created a significant level of uncertainty for the Tribunal about his identity.
On the issue of the Applicant’s place of birth, the Tribunal can accept that the Applicant was not aware of his actual place of birth. The Tribunal can also appreciate the question of ‘where are you from?’ and ‘where were you born?’ can mean different things. The Applicant’s description of the region where his family lived is supported by open-source information of the area and the Google Map screenshots supplied by the Applicant. His account that he believed he was from Ilam, Iran, is plausible, especially as his family moved around the remote mountainous region a great deal tending to their flock. Again, it is also plausible that the Applicant only became aware of his actual place of birth when he needed it verified for official travel documents, particularly as the actual location of his birth had been of no consequence prior and birth certificates do not appear to be commonplace.
The Tribunal accepted the Applicant relied heavily on others to complete his numerous application forms and that information had simply been copied from one form to another, which added to the confusion over his various claims of where he was born.
The Tribunal could accept that the Applicant attempted to clarify and rectify where he was born and his assertion that his attempt to be honest about where he was born had created many headaches for him. The Tribunal also notes the letter from the Islamic Council supports the Applicant’s claim that he was born in the Badra province of Iraq and migrated to the city of Sirvan, Ilam Province, Iran.
The Tribunal found the evidence of the Applicant’s friend that he had known him from childhood holidays to be credible, and corroborated the Applicant’s claims about the area compromising of many small villages in a mountainous region.
The Tribunal also accepted that the languages spoken by the Applicant and his parents was supportive of his claim that he was a Feyli Kurd.
Whilst the Tribunal could be satisfied of the Applicant’s name, date of birth and place of birth, the added confusion of his family composition was a bridge too far for the Tribunal. The Tribunal found the Applicant’s convoluted story about his dead brother implausible. As with his place of birth, the Applicant has muddied the waters of his identity by providing numerous explanations and assertions about his family composition.
The Tribunal was not convinced about the Applicant’s story that he had a brother who he had never mentioned because of the shame he brought to the family. This did not seem to align with his original claim that his ‘parents were still alive, he had one brother aged 18 (another one aged 21 deceased a few weeks ago) and one sister aged 20’. Nor did it fit the claim that his brother had been killed by the Basra trying to obtain medicine for his mother. The Tribunal found this explanation implausible in light of the claim his brother was not recognised by the family. The Applicant had asserted he could provide proof of his claims but has provided no such corroborating evidence.
The Applicant did produce his brother’s marriage certificate, the brother he original claimed was dead, which the Tribunal accepted as corroboration of proof of his identity, but this in isolation was insufficient to be positively satisfied of his identity.
The Respondent dismisses the Applicant’s claims that he is an undocumented stateless Feyli Kurd based on DFAT Country Information, other reports, and an investigation of the Feyli Kurds cohort by the Department. The Tribunal does not share the delegate’s or Respondent’s belief that the Applicant’s story of his life and departure from Iran is implausible. The delegate stated in the 11 September 2019 decision:
I find that it is very unlikely that you would have been allowed to remain undocumented for 27 years and after 2002 considering your life story. It is more likely that you were issued a white card in or around 2002 to ensure that Iranian registration records were current. At a minimum, I find it likely that you or one of your family members has at least one overseas identity document in their possession and/or that a genuine effort could be made to obtain one. It is therefore reasonable to expect that you have a level of documentation attesting to your identity that you deny being able to provide. For the purposes of satisfying Citizenship requirements, a form 80 in which you state that you cannot provide any overseas documents is insufficient.
The Tribunal is troubled by what appears to be a double standard by the Departments in the process of assessment of identity. On the one hand, the delegate determines identity based on assumptions about an individual’s claims based on country information, without corroborating evidence for each individual case. Likewise, the Respondent contends that key aspects of the Applicant’s life story are implausible and/or inconsistent relying upon country information. On the other hand, the Applicant’s claims about his life story and identity are dismissed by both the Respondent and delegate as he has provided no corroborating evidence. The Tribunal does not consider assumptions made by the delegate based solely on country information to be a determinative in assessing an individual’s identity.
On balance, the Tribunal accepts the evidence given by the Applicant as to his life story and does not find any implausibility or inconsistencies of substance in the Applicant’s life story. The Tribunal finds the Applicant’s claims of being an undocumented stateless Feyli Kurd to be plausible. The Tribunal does not agree with the Respondent that the Applicant must have some form of identity documents because of country information. Nor does the Tribunal find the Applicant’s story of his departure from Iran to be inconsistent or implausible, considering the country information.
The Tribunal notes other reports which document the difficulty for Feyli Kurds to gain access to identity documents, such as the European Network on Statelessness and the Institute for Statelessness: ‘Statelessness in Iraq – Country Position Paper’ (November 2019):
There are approximately 1.5 million Faili Kurds in Iraq. They are “considered a cross-border population” between Iraq and Iran. A majority of the Faili Kurds in Iraq reside in Baghdad, the border regions and the Kurdistan Region of Iraq. Unlike a majority of Kurds, Faili Kurds are identified as Shia Muslims and have historically been victims of hostility and mistrust by the Iraqi authorities. For example, pursuant to Decree No. 666 of 1980, the Revolutionary Command Council declared, “Iraqi nationality shall be dropped from any Iraqi of foreign origin if it is appeared that he is not loyal to the homeland, people, higher national and social objectives of the Revolution.” This applied directly to Faili Kurds, who were perceived to be loyal to Iran following an assassination attempt on the Deputy Prime Minister, Tariq Aziz, in April 1980 by a Faili Kurd from Iraq. As a result, “Faili Kurds were systematically rounded up, and various state agencies cooperated in compiling lists of names for deportation” to Iran, with estimates ranging from tens to hundreds of thousands of individuals. Even before the issuing of Decree No. 666 of 1980, Faili Kurds experienced persecution in Iraq and “[w]hile forced deportation and the questioning of Faili Kurds’ citizenship was not a new phenomenon, the mass deprivation of citizenship was.” The number of those affected subsequently increased due to the hereditary nature of this stateless status.
Following the fall of Saddam Hussein’s regime in 2003, many Faili Kurds returned from Iran to Iraq, as many had limited rights or access to nationality in Iran, as they were considered Iraqi. Pursuant to Article 17 of Law No. 26 of 2006, “Decision No. 666 of 1980 issued by the (defunct) Revolutionary Command Council shall be repealed and Iraqi nationality shall be restored to all Iraqis deprived of their Iraqi nationality under the said as well as all other unfair decisions issued by the (defunct) Revolutionary Command Council in this respect”. This law was intended to enable Faili Kurds, among others, to reacquire their Iraqi nationality. However, the requirements for re-acquisition of nationality were regarded as imposing a high threshold, predominantly the requirement to prove nationality before 1980. For example, UNHCR stated that it “...is aware of reports that the process of reinstatement is long and cumbersome, and applicants are often required to travel from their place of residence to the nationality directorate in Baghdad to follow up on their applications. Some Faili Kurds started the process but could not complete it due to documentary and financial requirements (including for repeated travel to Baghdad).” In addition, “...the process [to reacquire nationality] can be administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin.”
While reports suggest that many Faili Kurds have been able to reacquire Iraqi nationality, UNHCR “...has no updated information on how many Faili Kurds have benefited from the 2006 Nationality Law and have been issued with nationality certificates, as the Government of Iraq has not released relevant data in recent years.” Additionally, many remained in displacement and never attempted to reacquire their Iraqi nationality. As a result, there is still today an unknown number of Faili Kurds who have not regained their Iraqi nationality. Statelessness therefore remains an issue of concern for this group.
…
In 2019, UNHCR confirmed that “A number of Faili Kurds...also remain stateless and consequently without official documentation, resulting in restrictions on access to public services and formal employment, as well as on their freedom of movement due to difficulties to pass checkpoints.”
The Tribunal also notes other reports which call into question the belief that the Applicant could not have departed Iran as he described, for example in the decision of Deputy President J Sosso in the matter of Taei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4728:
an article in the Christian Science Monitor of 8 February 2010 entitled “How Iranian dissidents slip through Tehran’s airport dragnet”. The article points out that in 2010 the boarding gate security at the Airport was run by the Revolutionary Guards and passengers entering and leaving Iran were checked against two watchlists issued by the Ministry of Intelligence and Security and the Revolutionary Guards. The following comments were made about security at the Airport:
“the Turkish constructed IKIA is a ‘middle-level security standard international airport like a Turkish or Egyptian one.’ Although cameras are fitted, it is unknown whether they are equipped with facial recognition technology or the equipment to machine read passports. Officers tap names and passport codes manually into computers.”
May 2005 DFAT Report (Exit Procedures from Iranian airports – 24 May 2005, CX 124083) contained the following observation:
“A.C.1 Passport officials use a computerised database to track the movement of Iranian and other individuals through Iran’s international airports. We have heard of some trouble operating the system at the newly opened Imam Khomeini International Airport south of Tehran.”
Rather than a smoothly operating system, the security operations at Imam Khomeini International Airport in the years leading up to 2010 were, it appears, less than optimal, and it would also appear that there was a significant amount of counterfeit Iraqi documents in circulation at the time.
In these circumstances, and also having regard to the precarious position of Faili Kurds in Iran and the discrimination they faced, the Applicant’s version of events is plausible and the Tribunal accepts, on the balance, that it is the more likely version of events.
The Tribunal found the Applicant’s life story and explanation of his departure from Iran had remained consistent since his first interview on Christmas Island, and are strikingly similar to numerous other accounts of life in Iran and the operations of people smugglers from Iran.
The Tribunal found the Applicant made attempts to obtain documentation to provide his identity from his life in Iran and has lodged numerous documents which accord with his life story.
The Tribunal therefore did not concur with the Respondent that the Applicant’s situation was analogous to that of CDNB. In CDNB, the Applicant claimed to be a stateless Feyli Kurd and the Tribunal concluded that it was unable to be satisfied of CDNB's identity in circumstances where:
(a)CDNB had provided inconsistent information relating to his place and country of birth and had failed to provide an adequate explanation for the inconsistencies;
(b)CDNB had made no effort to obtain documents relating to his identity; and
(c)CDNB's evidence regarding his life in Iran as an undocumented person, and the fact that he did not persist in seeking to obtain official documentation was 'unconvincing'.
In this case, the Tribunal has found the Applicant:
(a)Provided inconsistent information about his place of birth and family composition and had not been able to adequately explain all these inconsistencies;
(b)Attempted to obtain documentation relating to his identity; and
(c)His explanation of his life as an undocumented Felyi Kurd was plausible.
The Tribunal considers the Applicant’s situation is more analogous to that of the Applicant in Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267 at [99]-[103], in which the Tribunal confirmed that where there are doubts as to the Applicant's identity, their citizenship application should not be approved:
On the evidence before it, it is not possible for the Tribunal to come to a definitive conclusion on all of those questions, although it does find that the First Applicant was married to Mohammed Ali by way of a sighted arrangement.
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.
The Tribunal accepts the point made in Dhayakpa that:
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.
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.
The Tribunal concludes, based on the evidence, that it is not able to be positively satisfied of the Applicant’s identity as required by the Act. As discussed, both the Applicant and Responded have put forward theories of the identity of the Applicant. The Tribunal was not persuaded by the Respondent that all of the Applicant’s claims were invalid. The Tribunal finds some of his evidence plausible, such as his place of birth, life story and departure from Iran. However, without further proof to clarify the confusion created by the Applicant over his family composition, the Tribunal is not in a position to be positively satisfied of his identity.
The Tribunal found the Applicant to be an overall reliable witness who genuinely desires to become an Australia citizen. The Tribunal would like to assure the Applicant that this decision does not deprive him of any rights he currently holds, nor does it prevent him from making a further application for citizenship by conferral. However, the Tribunal is not positively satisfied of his identity at this point in time. The Applicant would need to provide additional evidence to clarify the numerous inconsistencies identified.
DECISION
The Tribunal, having considered all the evidence placed before it, is not satisfied of the Applicant’s identity and affirms the decision under review.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, AO Member
..............[sgd]..............................................
Associate
Dated: 12 January 2022
Date of hearing: 3-4 May, 1 November 2021
Applicant: Self-represented
Advocate for the Respondent: Mr Alex Zhang
Solicitors for the Respondent: Clayton Utz Lawyers
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