Haevary and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 445

Haevary and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 445 (15 March 2024)

Division:GENERAL DIVISION

File Number(s):      2021/3403

Re:Ali Haevary  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:15 March 2024  

Place:Perth

The decision of the delegate of the Minister dated 3 May 2021 to refuse to approve the Applicant becoming an Australian citizen is set aside and the matter is remitted for reconsideration with a direction that the prohibition in s 24(3) of the Australian Citizenship Act 2007 (Cth) does not apply to the Applicant.

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Deputy President Boyle

CATCHWORDS

CITIZENSHIP – refusal of a delegate of the Minister to grant the Applicant’s application for conferral of Australian citizenship – delegate not satisfied of the Applicant’s identity – Applicant claims he is a citizen of Iran – conflicting primary documentation – Tribunal satisfied of the Applicant’s identity – prohibition under s 24(3) of the Citizenship Act does not apply – reviewable decision set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(1), 24, 24(1), 24(3), 52(1)(b)

Migration Act 1958 (Cth) s 189(3)

CASES

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865

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

GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245

Hneidi v Minister for Immigration, Citizenship and Multicultural Affairs (2010) 182 FCR 115; [2010] FCAFC 20

SECONDARY MATERIALS

Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) <

Department of Home Affairs, ‘Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act’ (2019)

REASONS FOR DECISION

Deputy President Boyle

15 March 2024

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 3 May 2021 pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (Act) to refuse to approve the Applicant becoming an Australian citizen.[1]

   [1] R1/10-21.

2. The delegate refused the Applicant becoming an Australian citizen on the basis that the delegate was not satisfied of the Applicant’s identity and that, accordingly, the prohibition on approval under s 24(3) of the Act applies.

3. The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of a decision made under s 24 of the Act.

   BACKGROUND

4. The following facts are taken from the Minister’s Statements of Facts, Issues and Contentions (Minister’s SFIC) and cover the period after the Applicant’s arrival in Australia.

5. The Applicant was detained at Christmas Island on 17 November 2010 under s 189(3) of the Migration Act 1958 (Cth). The Applicant identified himself as a 28-year-old male, who was born in Iran but was a stateless Faili Kurd, by the name of Ali Haevary. His wife, Zahra Garaki, aged 27 years, also identified herself as being a stateless Faili Kurd. They were travelling with their three-year-old son, Erfan. They claimed to be Shi’a Muslims and spoke Farsi during their entry and refugee status assessment interviews.

6. They claimed to be holders of “white cards” in Iran but did not have any other identity documents from Iran other than high school certificates, a driver’s licence and an “unofficial” marriage certificate. They claimed to be unable to provide any other documents because they were stolen in 2010.

7. On 7 April 2011, a Departmental officer accepted the Applicant’s claimed identity “without evidence to the contrary” for the purposes of the Refugee Status Assessment. This was not disturbed by the Independent Merits Review on 3 November 2011, which found that the Applicant was a refugee on the cumulative basis of his claims to be a stateless Faili Kurd who had been discovered transporting satellite dishes, it was also found that as a returned asylum seeker who had been of interest to the Iranian authorities previously and because of his Kurdish ethnicity and statelessness, he would have “no recourse against any arbitrary treatment he may be subjected to if he were to return”.

8. The Applicant was granted a Protection (subclass 866) visa on 29 November 2011 on the basis of the above claims and the positive Refugee Status Assessment.

9. On 21 January 2016, the Applicant applied for Australian citizenship by conferral under s 21(1) of the Act.[2] The Applicant maintained that he did not have any documentation related to his birth because of his status as a stateless Faili Kurd.[3]

   [2] R1/76-95.

   [3] Applicant’s statutory declaration made 6 January 2016; R1/93.

10. In June 2019, following a request from the Department of Home Affairs, the Applicant was able to provide a copy of his secondary school grades from 1996-1997.[4]

    [4] R1/129-134.

11. In January 2022, the Applicant provided the Department (through AGS), and the Tribunal, with further material in support of his identity, including a purported death certificate for his mother, dated 15 May 2021, from the State Organization for Registration of Civil Status in Shiraz.[5]

    [5] A1/33.

12. The Minister says that the Department sought to verify this Iranian death certificate through its Tehran office in September 2022 and was informed by telephone by an Iranian official that the death certificate was not genuine because it was purportedly signed by a “Mr Gholami” who was not in the employ of the relevant authority, and they had no record of the serial number on the certificate.

13. The Applicant’s application for Australian citizenship was refused on 3 May 2021.

    THE ISSUE

14. The parties agree that the sole issue for determination is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.[6] I agree that that is the sole issue for determination.

    [6] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) para 25 and Minister’s SFIC para 12.

    THE HEARING AND THE EVIDENCE

15. The application was heard on 14 November 2023. Ms A Graziotti appeared for the Applicant and Mr J Papalia appeared for the Minister. The Applicant was the only witness to give oral evidence at the hearing. The Applicant’s evidence was given through an interpreter. The following documents were admitted into evidence:

    (a)Statement of the Applicant dated and received 28 September 2023 (A1);

    (b)Statutory Declaration of the Applicant dated 11 April 2022, received 12 April 2022 (A2);

    (c)Statutory Declaration of the Applicant dated 13 January 2022, received 19 January 2022 (A3);

    (d)Applicant’s Bundle of Documents, received 19 January 2022 (A4);

    (e)Applicant’s Bundle of Evidence, received 28 September 2023 (A5);

    (f)BBC Online article titled ‘Corona Virus Iran Cover-Up of Deaths Revealed by Data Leak dated 3 August 2020, received ex tempore (A6);

    (g)Minister’s Section 37 T Documents, received 25 October 2023 (R1);

    (h)Minister’s Tender Bundle, received 25 October 2023 (R2); and

    (i)Witness Statement of Jehanzeb Chohan dated 24 October 2023, received 26 October 2023 (R3).

    LEGAL FRAMEWORK

16. The Preamble to the Act states that:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a) by pledging loyalty to Australia and its people; and

    (b) by sharing their democratic beliefs; and

    (c) by respecting their rights and liberties; and

    (d) by upholding and obeying the laws of Australia.

17. Section 21(1) of the Act provides that:

    A person may make an application to the Minister to become an Australian citizen.

18. Section 24(1) of the Act provides that:

    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.

19. Section 24(3) of the Act provides that:

    The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

    THE PARTIES’ CONENTIONS

    The Applicant

20. The Applicant’s SFIC made submissions to the following effect:

    (a)In assessing identity, the decision-maker is assisted by the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (CPIs) published by the Department and the National Identity Proofing Guidelines published by the Department of the Attorney-General.

    (b)The CPIs and the Guidelines are to assist the decision-maker but not to constrain their right to make any decision lawfully open to them to make, based on the material before them.[7]

    (c)The CPIs identify the “Three Pillars” of establishing identity based on biometrics, documents and life story.

    (d)There is no indication that any inconsistencies exist within the biometric information available to the Department or Tribunal in relation to the Applicant’s identity.

    (e)The Applicant has provided consistent documentary evidence of his identity (“Ali Haevary” born 9 September 1982) being used in the Australian community.

    (f)He also provided a school record issued for the school year 1996-97 by the Education Department in Iran (the school record), an affidavit from neighbours attesting to his identity and screenshots of SMS messages exchanged between himself and his parents’ friends in relation to money transfers.

    (g)The Applicant has provided a consistent life story which is supported by third party, government and non-government sourced information.

    (h)Insofar as there is a lack of documents, both in relation to the Applicant and other members of his family (his parents and his son), the Applicant has explained why he does not have the documentation and the near impossibility of now obtaining documentation. This lack of documentation is supported by Department of Foreign Affairs and Trade (DFAT) country information, particularly relating to Kurdish refugees.

    [7] Citing Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    The Minister

21. The Minister’s SFIC made submissions to the following effect:

    (a)At para 20, the Minister referred to CPI 16 and to Mortimer CJ’s judgment in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs in which,[8] according to the Minister, her Honour held that “it was irrational for the Tribunal in that matter to have accepted that the applicant was granted a protection visa on the same material that was before the Tribunal (without subsequent adverse evidence), but then find itself not satisfied of the applicant’s identity”.[9]

    (b)The only document relevant to the Applicant’s identity, and which originates from his life in Iran, is the Applicant’s secondary school record from 1996-1997, which contains a photograph and indicates that the bearer’s name is Ali Haevary, son of Taleb. The Minister accepts that this supports the Applicant’s claimed identity.

    (c)The Applicant has subsequently provided the Tribunal with an Iranian death certificate for his mother that appears to have been fraudulently issued. In this respect, note Mortimer CJ’s observation in BQG21 at [35] that a finding that a document is false or has been forged may form the basis of an adverse identity finding.

    (d)The Applicant’s mother obtained the Applicant’s school records. Because the Applicant’s mother’s death certificate was counterfeit, the Tribunal should be slow to accept the authenticity of the school record in the absence of corroboration.

    (e)The Minister accepts that the Applicant has adduced an affidavit dated 2 June 2021 from four Iranian nationals claiming to have known the Applicant “for more than 15 years”. They collectively depose to the Applicant being called “Ali Haevary, son of Mr Taleb Haevary and Mrs Janeh Jaderi, born on 09/09/1982, is the only child of his family, his place of residence is …. Shiraz, Fars province, Iran, his ethnicity is Feli Kurd, and he doesn’t have citizenship of any country.” It is not clear whether they are testifying to knowledge of the Applicant prior to his arrival in Australia in 2010 or whether the 15 years referred to in the affidavit means their knowledge of the Applicant is from about 2006.

    (f)It is not implausible that Faili Kurds may struggle to obtain official documentation in Iran (see DFAT Report July 2023, [2.59] and [2.61]). This does not mean that fraudulent documentation can be relied upon to fill that gap.

    [8] [2023] FCA 865.

    [9] Note: I do not take her Honour, in effect, to be saying that the Tribunal cannot find that it is not satisfied of an applicant’s identity when the applicant had been issued a protection visa. What her Honour found at [45] was that it was irrational for the Tribunal, in that matter, to “accept as accurate all the applicant’s Iraqi documentation” and “to have accepted all the documentation put forward by the applicant, and the supporting testimony, and impliedly accept the validity of the grant of the protection visa to him on that basis, and then find itself not satisfied of his identity”. The issue that her Honour had was with the tribunal accepting all of the applicant’s documentation as being authentic, and upon which a protection visa had been granted, and the oral testimony at the hearing, but, without explanation or further adverse information being presented, not being satisfied of the applicant’s identity. She is not saying that the issue of a protection visa per se prevents a subsequent decision-maker from not being satisfied of the visa holder’s identity. I also note Mr Papalia’s correct observation in closing submissions that identity is not a (primary) criterion on a protection visa application and that the rigor applied in a citizenship application is different to that applied when considering whether a person is owed protection (Transcript at 56-57).

    CONSIDERATION

22. In deciding whether to grant Australian citizenship under the Act, decision-makers can be guided by government policy.[10] Relevant polices are set out in the Australian CPI 16 - Assessing Identity under the Citizenship Act and the Guidelines.

    [10] Hneidi v Minister for Immigration and Citizenship ((2010) 182 FCR 115; [2010] FCAFC 20 at [41]: GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245.

23. Paragraph 5 of CPI 16 describes three pillars of identity comprising biometrics, documents, and life story, as the foundation on which assessments of identity may be made. It states that:

    Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence-base to establish identity.

24. Paragraphs 2.1.1–2.1.2 of the Guidelines relevantly provide as follows:

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.

    ... For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.

25. Chief Justice Mortimer at [32] of BGQ21 described the process of determination of identity for the purposes of the Act as follows:

    Ultimately, the concept of “identity” is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application.

26. I am also mindful of the President the Honourable Justice Kyrou’s observation at [28] of GJDB that:

    The three pillars approach set out in CPI 16 can provide a useful, common sense framework for assessing the facts of a particular case to determine whether one can be satisfied of the identity of an applicant for citizenship. Accordingly, the approach set out in CPI 16 can be adopted by the Tribunal to the extent that the Tribunal considers that the approach may be of assistance in determining whether it is satisfied of the identity of an applicant in a particular case.

27. In the present case the Applicant has produced a significant amount of evidence in the form of documents and statements supportive of the three pillars of identity referred to in CPI 16. The Applicant provided a number of documents with photographs (first pillar). These were mainly documents issued by Australian governments or instrumentalities (South Australia proof of age card,[11] New South Wales heavy vehicle driver’s licence,[12] and Titre de Voyage issued by the Australian Government on 4 November 2014).[13] The weight that can be placed on these documents is tempered by the fact that they were issued on the basis of information provided by the Applicant as to his identity. With that caveat, however, they do still show a consistency in the Applicant’s claim as to his identity.

    [11] R1/88.

    [12] R1/89.

    [13] R1/91.

28. The Applicant also produced a number of documents which pre-dated his arrival in Australia (second pillar). The most significant of these documents are his secondary school records for the years 1996-1997 which did also include a photograph of the Applicant.[14] While the photograph is obviously of a much younger Applicant, I accept that it is a photograph of the Applicant and I do not understand the Minister to dispute that (see [21(b)] above).

    [14] R1/131-134.

29. While apparently accepting that those school records support the Applicant’s claim as to his identity, the Minister asserted that less or no, it is not clear, weight should be given to the school records because the Applicant subsequently provided a fake death certificate for his mother and it was his mother who obtained the school records. I do not accept the Minister’s argument.

30. Firstly, I am not satisfied that the Minister has established that the Applicant’s mother’s death certificate was fake. The Minister’s claim is based on a witness statement of Jehanzeb Chohan dated 24 October 2023.[15] I do not accept that that statement (Mr Chohan was not called to give evidence) establishes that the death certificate is fake. Mr Chohan stated that he is employed as the Principal Migration Officer (Integrity) Consul (Immigration) in the Australian Consulate General in Dubai and that he has been employed in that position since 3 July 2023. He stated that his evidence is based on discussions that he had with an unnamed “locally engaged officer from the Tehran office”. The thrust of Mr Chohan’s evidence was that the locally engaged officer of the Tehran office spoke to someone who did not give their name at the State Organisation for Registration of Civil Status in Shiraz which is apparently the instrumentality responsible for issuing death certificates. That unnamed person at the State Organisation for Registration of Civil Status in Shiraz supposedly told the unnamed officer from the Tehran office that they had not employed anyone by the name of the officer identified as the issuing officer of the death certificate and that there was no record of the serial number H12/142222 (which was written on the death certificate) in their records. Mr Chohan advised that a copy of the death certificate was then forwarded to the State Organisation for Registration of Civil Status in Shiraz and that “The official responded with advice that the death certificate was non-genuine”.

    [15] R3.

1. Mr Chohan does concede that “formal verification (of the death certificate not being genuine) has not been received”.

2. In closing I suggested to Mr Papalia that the Minister’s argument that it had been shown that the death certificate of the Applicant’s mother was fake was not supported by particularly strong evidence. I do not accept that the statement of Mr Chohan comes close to proving that the death certificate, which is not a critical identity document in any event, was fake. I had the following exchange with Mr Papalia:[16]

   TRIBUNAL:  There’s been evidence of it being fake. The fact that a person of that name was not known to the unknown person on the end of the telephone. So the only challenge, or the minister’s argument, is that in relation to the reliance that can be placed on these school records is that because there is evidence that the death certificate – which came of course through a different route – is questionable, then we shouldn’t place any weight on the school (records).

   MR PAPALIA: Yes. Yes, and I accept that that’s an argument that I’m having to push uphill rather than –

   [16] Transcript at 58.

3. As I noted in the above exchange with Mr Papalia, the death certificate came to the Tribunal by a different route to the other documents in that, as explained by the Applicant in his statement and in his evidence at the hearing, he had only relatively shortly before the hearing been sent a copy of the death certificate by Reza, one of his mother’s former neighbours in Tehran. I accept that the Applicant had no role in obtaining the duplicate of the death certificate or that, if it is not genuine, he had any knowledge that it was not genuine.

4. Secondly, I also do not accept the leap by the Minister that the Applicant producing a fake death certificate for his mother (which I do not accept has been shown to be fake) somehow means that less or no weight should be given to the Applicant’s school records which, apparently, the Minister concedes are genuine, because they were obtained by the Applicant’s mother. The Minister’s argument is non sequitur. The provision of a fake death certificate for a person can have not impact on what that person did or what credit can be given to that person. I note the Minister’s reference in this regard to [35] of Mortimer CJ’s judgment in BQG21 (see [21(c)] above). That paragraph does not support the Minister’s contention and, in fact, deals with a different issue.

5. The third pillar, the Applicant’s life story, insofar as it is relevant to the Applicant’s identity, is set out in statements provided by the Applicant (A1, A2 and A3) and statements provided by his neighbours and associates from his days in Tehran. As the Minister conceded, these statements (see [21(e)] above) support that prior to his arrival in Australia the Applicant has been known as “Ali Haevary, son of Mr Taleb Haevary and Mrs Janeh Jaderi, born on 09/09/1982, and that he is the only child of his family, his place of residence is …. Shiraz, Fars province, Iran, his ethnicity is Feli Kurd, and he doesn’t have citizenship of any country”.

6. The only issue that the Minister takes with these statements from those who knew the Applicant in Iran is that it was not clear whether, when they referred to having known the Applicant for 15 years, that meant 15 years up to the time that he left Iran or 15 years from the date of their statements, that is since 2006. Either way, the statements from those who knew him in Iran are supportive of the Applicant as having been known to be who he claims to be from well before he arrived in Australia.

7. The Applicant’s statutory declarations A1, A2 and A3 are comprehensive and consistent with the documentary evidence and with the statements made by others. The Applicant’s cross-examination did not disclose any material inconsistency or falsity in the Applicant’s life story.

8. The Minister submitted that I should draw an adverse inference from the Applicant’s failure to call or provide a statement from his former wife. The Applicant’s evidence at the hearing was that since their divorce in 2015, he has had no contact with his former wife.[17] Given those circumstances I am not prepared to draw an adverse inference from the Applicant’s failure to provide a statement from her. Even without her evidence, I am satisfied that the Applicant’s statements and his evidence at the hearing, supported by what documents have been produced, provide a truthful life story.   

   [17] Transcript at 46.

9. There is cogent and consistent evidence, in many cases accepted or not disputed by the Minister, to support each of the three pillars of identity referred to in CPI 16. I am satisfied that the Applicant is who he claims to be, and I am, accordingly, satisfied of his identity.

   DECISION

10. For the above reasons, the decision of the delegate of the Minister dated 3 May 2021 to refuse to approve the Applicant becoming an Australian citizen is set aside and the matter is remitted for reconsideration with a direction that the prohibition in s 24(3) of the Act does not apply to the Applicant.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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Associate

Dated: 15 March 2024

Date(s) of hearing:	14 November 2023
Solicitors for the Applicant:	Ms Alice Graziotti
Solicitors for the Respondent:	Mr Jon Papalia