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

[2021] AATA 3988

DKCK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3988 (1 November 2021)

Division:General Division

File Number(s):      2019/6523

Re:DKCK

APPLICANTS

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:1 November 2021

Place:Sydney

The decision under review is set aside, and the matter is remitted to the Minister for reconsideration with the direction that the Minister be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).

.

.........................................[sgd]..............................

Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether satisfied of identity of applicant – various dates of birth provided – Australian Citizenship Procedural Instructions – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 24

CASES

Bebe Beyan and Minister for Immigration and Border Protection [2015] AATA 256

CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act (reissued 26 February 2021)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

1 November 2021

Introduction

1. In May 2010, the Applicant arrived in Australia by boat with two other people.  They claim they are brothers.  I will refer to the latter two people as the oldest and middle brother respectively.  They claimed to be members of a persecuted ethnic group, Faili Kurds, in their country of origin (CoO), Iran, who are stateless.  In 2012, they were granted protection visas after an independent merits review process.  In 2016 they applied for citizenship by conferral.  Their applications were refused on 13 September 2019, in separate decisions, on the basis that the delegate was not satisfied of the Applicants’ identity under s 24(3) of the Australian Citizenship Act 2007 (the Act).  The Applicants sought review of those decisions in this Tribunal.  Their cases were heard together.  A direction was made was that evidence in one was evidence in the other matters.  Separate written decisions are being published.

   The issue

2. The issue is whether I am satisfied of the Applicant’s identity under s 24(3) of the Act.

   The legal framework

3. The following summary of the legal framework was provided by the Respondent.

4. Section 24(3) of the Act provides that the Minister must not approve an applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the applicant.

5. In applying s 24(3) of the Act, the Tribunal may be assisted by policy that is relevant to the administration of the Act.  In this case, the Minister relied principally on Citizenship Procedural Instruction 16 - Assessing Identity under the Citizenship Act (CPI 16). Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

6. As set out in CPI 16, in order to comprehensively test and evaluate a person’s claims with regard to identity, each of the three pillars of identity should be considered, namely biometrics, documents, and life story.  When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent.

7. In Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999 at [12], the Tribunal stated that:

   The decisions of the Tribunal recognise that the issue of identity is of particular importance because of the very significant benefits conferred by Australian citizenship. The Tribunal has also emphasised the need to consider each case on its individual merits, including considering particular impediments to obtaining documents related to identity.

8. The Respondent accepts that the production of documentation supporting the claimed identity is not essential to satisfying a decision-maker of identity in every case.  However, as found in CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9]:

   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.

9. Where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought be rejected: see Dhayakpa and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 310 at [117].

   The Parties’ contentions

10. The Respondent contended as follows.

11. A certificate of Australian citizenship is a legal document of extraordinary significance.  The Tribunal should not accept an outcome which could lead to a certificate being issued in circumstances where the Applicant’s identity if far from clear.[1]

    [1] Bebe Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38]. See also

12. The Applicant has provided several dates of birth which he admits were not correct, and in one case was given intentionally to mislead.  The lack of documentation supporting his identity from the CoO weighed heavily against him.  The Respondent also pointed to other inconsistencies in the Applicant’s evidence and relied on country information about the circumstances of Faili Kurds in the CoO, most of whom are Iranian citizens, the difficulty of forging identity documents, including passports, and the difficulty of leaving the CoO through Imam Khomeini International airport using a fraudulent passport. 

13. The Applicant contended that he was and is unable to obtain identity documents from his CoO for himself or any member of his family, including those who remain there, because he is a Faili Kurd who is unregistered in the CoO.  He gave examples of being harassed and assaulted by nationals of the CoO from childhood on, including by members of the Basij, a paramilitary organisation that operates in the CoO.  He and his brothers claimed to have left Iran through Imam Khomeini International airport using false passports.

    Country information

14. The Respondent relied on a number of country information reports about the CoO. 

    The DFAT Country Information Report – Iran dated 14 April 2020 (the 2020 report) acknowledges that there are Faili Kurds who are undocumented with the government and are not legally entitled to work, access government services or obtain birth, death and marriage certificates.[2]  The 2020 report refers to various pieces of information and reports about the difficulty of manufacturing identity documents for fraudulent use and concluded that the likelihood of a person leaving through the Imam Khomeini International airport with a fraudulent passport is extremely low.[3] 

    [2] At [3.25].

    [3] At [5.41] to [5.45].

15. The 3 December 2014 DFAT Thematic Report -- Faili Kurds in Iraq and Iran states the following.  Reliable estimates of the number and location of unregistered Faili Kurds in the CoO are not available.  Information is difficult to access but DFAT had not seen evidence of widespread official discrimination or harassment.  In relation to registration, expired cards cannot be replaced.  Government officials may show some leniency in individual cases.  Officially, unregistered members of the group would be deported if detected, but that rarely occurs.  A person has to have a valid registration document to get a child registered.  There is difficulty if it has lapsed, or the person has failed to comply with regulations relating to registration, including annual re-registration.  Citizenship is required to register the birth of a child and receive an Iranian birth certificate.  An official or unofficial birth record is issued if a child is born in hospital, depending on whether certain documents have been provided. 

16. Unregistered refugees and those without documents do not generally enjoy access to services, although access to education for children is theoretically possible because of an Iranian Government policy allowing all children access to education.  In practice, undocumented children usually miss out on available places, because Iranian citizens and documented refugees are prioritised.  In some cases, a hospital birth record and separate vaccination book may be sufficient to secure schooling for a child.  Also, attendance at school risks bringing undocumented family members to the attention of Iranian authorities. 

17. Normally, identity documents would be required to buy a house, car, mobile phone or establish a utilities account.  A legally recognised lease would also require identification, but it is possible that private, undocumented arrangements could be made between a lessor and lessee that would avoid the requirement to provide identification.  Accessing healthcare services without identification is possible but requires payment without drawing on health insurance.  Faili Kurds without identification would not normally be able to access the formal education system.

18. Formally, unregistered refugees in the CoO, of whatever origin, have no right to work.  It is unlikely that a Faili Kurd could apply for a work permit.  Sources have said that in practice, many Faili Kurds, whether registered or unregistered, have informal access to employment.  This is normally tolerated by authorities.  Some members of the ethnic group are self-employed while others might find employers prepared to disregard the law.  Faili Kurds are frequently employed in low-paying manual labour.  Their conditions and pay and are often significantly worse than for nationals doing the same work.  Harassment, detention, or physical assault is not widespread but cannot be ruled out in individual cases.

19. The majority of Faili Kurds is probably registered.  Many could produce nationality documentation when pressed, for example when applying for visas for family members.

20. It is possible that individual members of the Basij discriminate against ethnic and religious minorities.  In Tehran, the Basij patrols, usually late at night.  Identity cards may be checked.  Inspections are infrequent and are not a normal part of everyday life.  However, the frequency of inspections fluctuates, and the presence of security forces varies.

21. A 2009 report included the following.[4]  The human rights situation for Kurds had been deteriorating over the past few years, with increasing difficulties with government authorities, including discrimination and harassment solely on the grounds of ethnicity.[5]  There was in increased presence of the Basij in the streets of Tehran in 2008.  They operated arbitrarily.[6]   A western embassy stated that it was very difficult to leave Iran illegally through an airport because of the security checks, although it may be possible to bribe airport personnel but that would involve a lot of airport staff because there are several check points.[7]  Two sources said that some people managed to leave through the airport on forged documents.  A small number of specific cases were mentioned.  In such cases bribery might be involved.[8]  Before departing Imam Khomeini International Airport, a number of security checks are conducted which include checks of the individual’s passport.[9]

    [4] Danish Refugee Council Report – Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc. April 2009

    [5] At [2.2].

    [6] At [5.1].

    [7] At [7.5.1].

    [8] At [7.5.2].

    [9] At [7.9.2].

22. The report from the Immigration and Refugee Board of Canada dated 3 April 2006 included the following information about Iranian passports.[10]  A UNHCR official stated that while counterfeit Iranian passports can be purchased rather easily on the black market with prices fluctuating “according to the quality of the counterfeit work”, authorities were “generally adept” at identifying false passports.  It referred to a 2003 report which had stated that “in the past, forged or fraudulent Iranian passports have been abundantly encountered”.  In August 2005, the director general of the Iranian Police Passport Department was reported in the press as stating that since the creation of a new passport application system in March 2005, there had been no reports of forged passports.  

    [10] Canada: Immigration and Refugee Board of Canada, Iran: The passport; its features and procedures for application including whether an applicant who was refused a passport would be notified and have recourse; the use and prevalence of fraudulent or counterfeit passports to exit Iran; ease of illegal entry into and exit from Pakistan, Turkey, and Azerbaijan overland, and Oman and the United Arab Emirates by sea; whether authorities seize passports from certain individuals to prevent their departure from the country (2004 - February 2006), 3 April 2006.

    Various dates of birth

23. The various birth dates given by each of the applicants was central to the Respondent’s argument.  The Applicant has provided several different dates of birth to Australian authorities.  They are listed in chronological order.

24. In the biodata document completed with the assistance of a Persian interpreter (the biodata document) on arrival in Australia in May 2010, the Applicant gave his date of birth as 29 January 1987.

25. In July 2010, the Applicant completed an unauthorised arrival interview with the assistance of a Kurdish interpreter.  He said that he did not know his date of birth exactly but was 16 years old and that the data on the Biodata form was false.

26. On 6 August 2010, the IAAAS interview was undertaken with the assistance of a Kurdish interpreter.  That resulted In the Form 80 – Personal particulars for assessment document (Form 80), a typed statement and another form under the IAAAAS[11] Interview Cover sheet.

    [11] The Immigration Advice and Application Assistance Scheme.

27. In the Form 80, the Applicant gave his date of birth as 31 December 1994.  He claimed that the middle brother was his twin brother and that the oldest brother was born in 1993.

28. On 4 January 2011, the Department wrote to the Applicant to advise him that they had reached the view that he was over 18 years of age.  He had been invited to attend for a second health opinion but refused to do so.  Consequently, the date of birth he originally provided, 29 January 1987, would be used unless he could show why another date should be recorded.

29. On 5 January 2011 a detention client interview was conducted with the assistance of a Kurdish interpreter.  In response to the question: Are there any other issues concerning you at this time, the Applicant ticked Yes and wrote I’m scared & stressed, it is difficult to stay here because I am underage.  Later in the form, he is recorded to have said:

    I am 16 years old & have been transferred to an adult camp with my brothers – I am afraid & stressed about being accommodated here.

30. On 17 January 2011, Serco received a People in Detention – Request Form written in Farsi with a translation.  The authors were the oldest and middle brothers.  They said that they had not declared their true ages when they arrived at Christmas Island and pretended to be underage because they did not want to be separated.  When they were transferred to the main camp, they realised that the Applicant was not happy and were told by others that if they stated their true ages they might be separated and so to say they were underage.  They said that now that we are here, our brother is not happy.  Before they left their mother gave the younger brother into their care.  They apologised and were sorry for the lie and asked to be forgiven.  They were concerned about their younger brother.

31. On 21 March 2011 the Applicant was notified that it had been determined that he was not a refugee.  He requested independent merits review in which he gave his birth date as 29 January 1987.

32. A psychological assessment report dated 15 August 2011 gave his date of birth as 3 April 1994.  The Applicant explained to the psychologist that he said that he was older than he was when he arrived in Australia because he was told that as a minor he might be separated from his brothers.  He found life in detention unbearable because he was the only young person there with very little to do to occupy himself.  He admitted his real age and was told he would be moved to another camp.  His brothers, fearing being separated from him, then reported that they were minors as well.

33. The Applicant had given a similar account to the merits reviewer in June 2011 and stated that their mother wrote a letter verifying their real ages and explaining that they lied in order to stay together.

34. The protection visa application, signed by the three brothers on 24 May 2012, listed the three brothers’ birth dates as 19 June 1983 (the oldest brother), 29 January 1987 (the Applicant) and 27 March 1990 (the middle brother).

35. The Applicant provided with his citizenship application a current driver licence and a copy of his visa that showed his birth date as 29 January 1987, as well as his Medicare card that has no date of birth.  He nominated that date in his citizenship application.

36. At the hearing of the present application, the Applicant gave a date he claimed was his actual date birth (the claimed date of birth).  He explained that when the three brothers got their visas, a case manager at Villawood told them whenever they needed to give their date of birth to use the date on their visas which were the dates the Department had decided to give them at the beginning of 2011.  In the Applicant’s case, that was the first date of birth he gave to Australian authorities.

37. Having found the reference to a letter from the Applicants’ mother in the decision of the Independent Merits Reviewer dated 22 February 2012 at [33] which was possibly consistent with the evidence of one of the brothers near the end of the hearing that the Applicants had provided a letter from their mother which set out their dates of birth, I requested the Respondent to provide a copy, which was done.  It had not been translated.  It was very brief.  In response to my further request, the Respondent obtained and provided a translation of that letter which had been written in Persian.  

38. The dates of birth were the same as those each of the brothers claimed was their actual date of birth at the hearing.  The mother wrote that she gave birth to her children at home.  The letter stated that the Applicant’s sister wrote the letter because the mother is unable to read and write.  The mother’s signature was a thumb print, which was consistent with the evidence of the brother who remembered that the letter had been sent. 

39. In a written submission, the Respondent argued that I should give the mother’s letter limited weight because

    (a)The applicants did not appear to be aware of it and had not relied on it in the proceedings.

    (b)It did not demonstrate on what basis she considered they were the applicant’s dates of birth and whether she has some other documentary record of those dates and she was not cross-examined.

    (c)Directions had been made on 13 October 2020 in each matter that the Applicant were to ensure the availability of their mother as a witness “at the hearing as re-listed”. 

    (d)On the first day of the hearing, the applicants advised that she would not be giving evidence without providing cogent evidence why not.  The applicants said that they contacted their mother, she was ready to give evidence, but then the family was not agreeable with that because of security and matters like that.  The Respondent claimed that it was unclear what security issues would have arisen as she had already provided “various written statements” for the applicants.

    (e)The letter has limited probative value compared to genuine identity documents from the CoO.

    (f)The letter shows that she would have been a critical witness about dates of birth and circumstances in the CoO, including obtaining identity documents, and their schooling.  I may infer that they decided not to call her because her evidence would not have been helpful to their case.

    (g)The fact that the applicants had previously obtained evidence about their dates of birth from their mother shows that they did not take all possible steps in these proceedings to obtain identity information.  It was only through the requests from the Tribunal that the document was identified.  The applicants appear either to be not making attempts to obtain information from Iran about their identity, or to be deliberately obscuring further conflicting information about their identity. 

1. Contrary to the Respondent’s submissions, I give the letter considerable weight.  At the hearing, each of the applicants gave a different date of birth from almost all the dates previously given, which increased concerns about their credibility.  Those dates were consistent with the dates in their mother’s letter.  I find that that letter was probably provided after the Department had assessed their ages and before the independent merits review process began in 2011.  I infer that because no translation was provided, it was not considered.  I draw no adverse inference from the fact that the applicants did not rely on it at the hearing.  Considering all the evidence, I find that they are unsophisticated people and generally truthful.  I do not know why they did not mention it earlier in the hearing.  Perhaps they had forgotten about it until questioning caused one of them to recall it, given that it was provided at least 10 years ago in very stressful circumstances.  It had not been included in the documents provided by the Respondent.

2. For each of the applicants to give a different date of birth at the hearing from the dates previously given and referred to in the Respondent’s Statements of Facts, Issues and Contentions, was not consistent with the conduct of applicants who are scheming for a positive outcome.  An alternative possibility, that they are unintelligent or lack common sense, is not the assessment I have made of each of the applicants.  Rather, each was truthful.

3. I am not prepared to infer that the applicants decided not to call their mother as a witness over the telephone because her evidence would not have been helpful to them.  I accept that there were security concerns about her giving evidence over the telephone, that is, that she might be overheard or recorded by the regime of the CoO giving sensitive evidence that may adversely affect her family.  I also do not accept that because she does not demonstrate the “basis” on which she gave those dates, little weight should be given to her evidence.  As a matter of common experience, I doubt a mother has to refer to a birth certificate to recall a child’s date of birth.  If there is no birth certificate, memory would be more important.  I accept that the Respondent did not have the opportunity to cross-examine her. 

4. I found the Applicant’s explanations about giving the wrong dates of birth convincing.  When he arrived, he was a minor.  He wanted to stay with his brothers who were adults and so gave a date of birth consistent with being over 18. When the Applicant found it difficult to cope in an adult environment, the brothers changed all their dates of birth so that they were minors and again could stay together.  Their priority was the Applicant’s wellbeing.  The Department found the inconsistencies of concern and determined dates of birth for each of the applicants which they adopted thereafter until the hearing of this matter.  

5. The Respondent contended during closing submissions that a date of birth is an important part of identity and the provision of different dates of birth being provided on multiple occasions was central to the Respondent’s contention that the applicants were not credible.  For the reasons set out above, I have found that there was a satisfactory explanation for the applicants’ providing different dates of birth on different occasions and I accept the dates of birth they provided at the hearing are their dates of birth.

   Lack of documentation from the CoO

6. The Applicant has provided no documentation from Iran to confirm his identity.  The Respondent’s case is that country information suggests that the majority of Faili Kurds In the CoO are either Iranian citizens or documented refugees, and given the Applicant’s vague explanation for his family’s undocumented status, the Tribunal should have doubts as to whether the Applicant’s claimed identity from birth until his arrival in Australia is true.

7. The country information before the Tribunal is that there is a group of unregistered Faili Kurds in the CoO of whom the Applicant claims to be one, along with his two brothers.  I find that an unregistered Faili Kurd would be unable to provide identification documents from the CoO, including from family members.

8. The Respondent relied on information in the 2020 report about birth registration generally to suggest that the Applicant would be entitled to a birth certificate.  That is inconsistent with the information in the report specifically about undocumented Faili Kurds.  Further, the Applicant claimed to have been born at home.  I accept that unregistered Faili Kurds in the CoO do not have access to identity documents the Respondent referred to.

9. The Applicant was aware that his family was given a Green Card after being released from detention in the CoO but was vague about what happened after that.  He said that he was unable to get documents issued by the Government.  Given that he was only about sixteen when he left the CoO, and the second youngest of the children, I do not find surprising his lack of knowledge about what happened in 2001 to 2002 or subsequently.  I infer that he was not in a position of responsibility within the family.  His two older brothers who remain in the CoO became responsible for the family after their father died.  The information in the report about the current registration and re-registration requirements is consistent with the Applicant’s claim that he was unable to obtain documents from the government. 

10. The evidence of his mother was contained in a letter written by her daughter and signed with a thumb print.  She wrote that after being in detention they received a green card which had no value: she could not work or access a hospital and her kids could not enrol in school.  She had been waiting for the White Card forever.  That is consistent with the country information for unregistered Faili Kurds.

11. I do not accept the Respondent’s criticisms of the Applicant that he has not given an explanation for not providing any document from the CoO Iran bearing his name or the name of any of his family members and has not tried hard enough to do so.  His explanation is that he a Faili Kurd from the CoO who is not registered.  The country information is consistent with his explanation.  

12. In addition to the Australian identification documents provided with the citizenship application, the Applicant provided a number of references from people he has come to know in Australia, including in employment.  That information is of little assistance because the issue is his identity when he was in the CoO.

    Other aspects of the Applicant’s life story

13. The Respondent contended that the Applicant’s family circumstances in the CoO were inconsistent with not being registered.  Those circumstances included that the family rented a home that was connected to electricity and family members had mobile telephones.  I accept that Faili Kurds who are unregistered find ways of living in the CoO, such as informal rental agreements, as is acknowledged in the country information.  Similarly, they do work, which is also acknowledged in the country information. 

14. There were no photographs of the Applicant or the middle brother in Iran.  He did not appear in the photograph of his older brother, parents, sister, and younger brother in the CoO.  Nor did his two older brothers who remain in Iran.  They also did not appear in the recent photographs of his mother, sister and younger brother.  The evidence about the composition of the family was consistent.  I draw no adverse inference from the lack of family photographs that include the Applicant and the middle brother.

15. In the biodata document completed on arrival in Australia, the Applicant claimed to have had five years of primary education from 1994 at a “Mytham” school.    

16. In the Form 80 the Applicant described his education as “informal…in the neighbourhood – 4/5 years – off and on” from 2003 to 2006.

17. In the IAAAS form, he indicated that he could speak Kurdish and could speak, read and write Farsi.

18. In the detention client interview on 5 January 2011, the Applicant wrote that he could read and write in Kurdish and that he had no formal education qualifications.

19. The Applicant told the merits reviewer in June 2011 that he and his brothers were taught basic reading and writing skills by a neighbour and they were not allowed to attend government schools because they did not have any identification.

20. In a statutory declaration dated 14 May 2019, the Applicant claimed that he could not go to school or get any certificates.

21. In a statement 30 July 2020 provided to the Tribunal, the Applicant maintained that he was not allowed to go to school.

22. When asked about the name “Mytham” during cross-examination, the Applicant said that the title of the teacher was general, and he was asked to give a name.  “Mytham” was the name of the teacher’s son.

23. In the record of interview dated 17 June 2010, the Applicant’s oldest brother gave the following information:

Dates	School/University	Qualification
(1991-1995 crossed out)	METHAM	5YRS  (2 words crossed out)
2001-	Private tutoring Neighbour taught

1. I infer that the dates 1991-1995 were crossed out because they were inconsistent with the oldest brother’s then claimed age of 17½.

2. When questioned about the reference to “Metham” during his oral evidence, the oldest brother said that the interpreter spoke a different dialect and did not understand when he told him the term they used to refer to their teacher.  The interpreter said that he had a son called Metham, and to write that down.  The oldest brother explained that they had just got off the boat, the form was put in front of him, it was not his handwriting and there was a lot of crossing-out on the form.  He had signed the document because the interpreter told him to.  He did not know what was in it.

3. This form was filled in after the brothers had been in Australia for about a month.

4. The oldest brother was recalled and cross-examined after the middle brother and the Applicant had given evidence.  When the inconsistency between his and the Applicant’s explanations for using similar names was put to him, the oldest brother initially obfuscated and then said that they did not know the teacher’s name, but used a respectful title given to ladies in the CoO.  They knew her son’s name and wrote that.  His explanation for the change in his evidence was not persuasive. 

5. In the Form 80 dated 6 August 2010, the oldest brother claimed that from 2000 to 2005 he had had an “informal education in the neighbourhood – 4/5 years – off and on”.

6. The evidence raises a doubt about their credibility and whether the oldest brother and the Applicant were taught informally by a neighbour or formally in an institution.  The Applicant maintained that he did not attend a school.

7. The country information indicates that some unregistered members of the ethnic group may attend school.  It is likely that both brothers attended some form of educational institution for five years.  That is not a lengthy period of formal education.  Given his actual date of birth, the oldest brother’s education would have occurred prior to the change from Green Cards to White Cards in 2001/2002.  The Applicant’s education was likely to have overlapped both periods.  The country information does not specifically address the access to education by unregistered Faili Kurds during the period when Green Cards were in use.  However, I infer that if unregistered Faili Kurds may have got access to education as described in the country information when White Cards were in force, the same access applied when Green Cards were in force.  

8. Both the oldest brother and the Applicant were apparently conscious that admitting that they had attended an educational institution may adversely affect their case and sought to conceal that fact, although unconvincingly.  I infer that they became aware of that while they were in immigration detention because the information disclosed in documentation after the first few months referred to informal education by a neighbour and both the brothers maintained that position thereafter.  When confronted with the inconsistent adverse evidence from 10 years ago, both tried to explain it away, but unconvincingly.  This evidence does not cause me to change my assessment that they have not been scheming for a positive outcome.   

9. The Respondent contended that the three brothers’ history of low paid employment was inconsistent with having the capacity to fund $US23,000 to pay people smugglers to leave the CoO.  In support of that contention, the Respondent referred to the Applicant telling a psychologist in August 2011 that there was never enough money in the house, and they were barely managing to pay rent and buy food.

10. During cross-examination of the oldest brother, the Respondent asked how he was able to transfer more than $100,000 to the CoO from 2012 to 2020 to two different people.  The oldest brother said that one was his mother’s friend and another her friend’s brother.  Those people in turn gave his mother the local currency.  I do not find that implausible.  The oldest brother was also challenged about his capacity to obtain that amount of money.  He explained that he and his brothers worked and before that received Centrelink benefits.  They were trying to help the family.  I accept that is so.  Such a capacity to save money supports the evidence that the family was able to live frugally and save money while working in CoO.  During an interview on 6 June 2011 for the merits review, the Applicant said that his brothers borrowed money from relatives and used savings and organised everything and he thought money was to be paid back.  Remitting money to the CoO, even while on Centrelink benefits, is consistent with having to repay money.

11. The final matter the Respondent relied upon was the three brothers’ claim to have travelled from the CoO to Indonesia using false passports which included their photographs.  The Respondent contended that the country information which is summarised earlier in this decision shows that it was unlikely that the three brothers could have left together from Imam Khomeini International Airport.

12. It is of some significance that the older brother or brothers of the three applicants organised their departure. They remain in the CoO.  That the applicants did not know details of the arrangements, such as bribery, is not inconsistent with their evidence.

13. I accept that the weight of the country information suggests that it was unlikely that the three applicants left the CoO together through Imam Khomeini International airport using fraudulent passports, but it also demonstrates that it was possible.  Country information is not definitive.  For example, the 2009 country information report lists the sources of the information obtained and states:

    It is not exhaustive; if some information is not included, this should not be taken to imply that it does not exist; simply that it was not obtained by the mission team.

14. I conclude that it is possible that the three applicants left the CoO using fraudulent passports as they claimed.

    Conclusion

15. This is an unusual case.  I accept that the Applicant and his brothers are unable to provide documentation from the CoO confirming their identity because they are unregistered Faili Kurds in the CoO.  Such documentation would include biometrics.  I accept the Applicant’s life story.  I have found the three to be generally truthful witnesses.  At times, they have not been truthful for good reason, for example when they changed their dates of birth while in detention because of concern for the Applicant, but they did try to provide correct information from their mother when the issue arose, as discussed earlier in this decision.  The evidence of the Applicant and the oldest brother about their education was evasive and their attempted explanations unpersuasive.  However, I have formed the view that their conduct has not been consistent with the conduct of Applicants who are scheming for a positive outcome by concealing their true identity.

    Decision

16. The decision under review is set aside, and the matter is remitted to the Minister for reconsideration with the direction that the Minister be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.....................................[sgd]...................................

Associate

Dated: 1 November 2021

Date(s) of hearing:	15 & 16 February 2021 4 March 2021
Date final submissions received:	25 April 2021
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor

the Explanatory Memorandum, Australian Citizenship Bill 2005, stating “There may be cases where
identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot

approve the person becoming an Australian citizen.”