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

[2022] AATA 1334

Helali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1334 (27 April 2022)

Division:GENERAL DIVISION

File Number(s):      2019/8574 and 2019/8379

Re:Muhsen Helali and Fatma Hussaini

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:27 April 2022

Date of written reasons:        25 May 2022

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decisions under review.

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

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – refusal of application for citizenship by conferral – whether each Applicant has satisfied identity requirement under s. 24(3) of Australian Citizenship Act 2007 – identity requirements not satisfied – decisions under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

Alimoradi v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] AATA 2054
Sakhi Zada v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at 65

REASONS FOR DECISION

Mr A Maryniak QC, Member

25 May 2022

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

4.       I certify that the following forty-one (41) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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

Associate

Dated: 25 May 2022

Dates of hearing:

11, 12, 13 and 14 April 2022

Advocate or the Applicants:

Amir Hassani

Solicitors for the Applicants:

Advocate for the Respondent:

Victoria Immigration Lawyers

Oliver Morris

Solicitors for the Respondent:

Clayton Utz

ANNEXURE A

1. MEMBER:  The Applicant in each of the two applications seeks review of a decision by the Respondent's delegate, dated 29 November 2019, refusing to approve each Applicant's application for Australian citizenship on the basis of non-satisfaction of identity pursuant to section 24(3) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). The two applications were listed and heard together. 

2. The sole question in issue is that of each Applicant's identity pursuant to section 24(3) of the Act enabled by section 52(1)(b) of the Act.

3. During the hearing oral evidence was given by each Applicant and each was cross-examined. In addition to the oral evidence, documentary evidence has been considered by the Tribunal comprising exhibits A1 to A10 and R1 to R5, together with the submissions of the parties.

4. The following background facts are not in issue. Each Applicant arrived in Australia as an irregular maritime arrival on 23 September 2011. Following an entrance interview each Applicant applied for and was granted a protection visa on 28 August 2012.

5. On 22 September 2017 each Applicant applied for citizenship by conferral. On 29 November 2019 the Department of Home Affairs (‘the Department’) wrote to each Applicant in respect of their respective application for citizenship.

6. The Department put each Applicant on notice of its concerns in respect to each Applicant's identity and requested further information from each Applicant. Inter alia, what was requested in that context was:

   ‘You are required to provide documentary evidence of your identity issued to you in Iraq, Iran and/or Kuwait by the Iraq, Iran and/or Kuwait Government, or by an organisation that is responsible for issuing documentation that may be used as evidence of your identity from birth.

   You may not have had an Iraq, Iran and/or Kuwait issued documents when you arrived in Australia.  However, departmental information suggests that Applicants such as yourself can reasonably be expected to obtain such documents through family members.

   If you are unable to present any of the above documents, information in support of your claimed identity, please provide a written statement on a statutory declaration and provide an extensive and detailed explanation of what attempts you have made to obtain the documents, and the reasons why you are not able to present them.’

7. In response to this letter each Applicant provided no further identity documentation, or any explanation as to what attempts had been made to obtain further documentation. Rather, each Applicant provided a ‘Form 80’ on 21 October 2019, again, setting out each of their background details.

8. On 29 November 2019 a delegate of the Minister decided to refuse each Applicant's application for citizenship by conferral as the delegate could not be satisfied of each Applicant's identity.

9. Mrs Hussaini and Mr Helali sought review of those decisions by this Tribunal on 18 and 23 December 2019 respectively.

10. The relevant principles to be applied by the Tribunal have been set out recently by the Tribunal as presently constituted in Alimoradi v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] AATA 2054.

11. In addition to those principles, the fact that an Applicant's identity has previously been assessed in a protection visa context does not relevantly assist in determining whether their identity is established for the purposes of section 24(3) of the Act. See Sakhi Zada v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at 65.

12. The Applicants each claimed that they are stateless people; that their parents originated from and were then expelled from Iraq and arrived in Iran as Iraqi refugees. They claim that where errors have occurred with factual information given to Australian authorities in the past, such errors are the result of both their lack of knowledge of certain dates, and of the importance (at that time) of giving the correct information to government authorities, together with mistakes made by interpreters, migration agents, and other third parties assisting them.

13. The Applicants submit that essentially such evidentiary inconsistencies in their life stories are addressed by their responses in the table of inconsistencies lodged with the Tribunal, being exhibit R3. However, these responses need to be balanced against the body of oral evidence given by the Applicants.

14. At the outset the Tribunal observes that the oral evidence of each Applicant has not assisted in resolving the long-standing difficulties with the life stories of each Applicant, of which each Applicant has been on notice for a substantial period of time.

15. As to the first pillar of identity, the Tribunal looks to the documents relied upon by the Applicants, which predate their arrival in Australia. Documents which postdate their arrival and are produced in Australia do not really assist the identity issue.

16. Exhibit A7 is an Amayesh document regarding a date of visit on 20 September 2002, together with a translation into English. Upon considering the body of acceptable evidence before the Tribunal, this document can do no more than speak for itself. It simply reflects a visit to an Amayesh scheme office in Qom Province and is headed, “For Foreign Nationals”.  It can do no more and does not establish the statelessness (save to suggest an absence of Iranian nationalism) or necessarily support the life story of either Applicant in the absence of further acceptable evidence.

17. Exhibit A9 includes a photo ID card described as the Applicant's (Mr Helali) old identity card issued by the Iranian Government Office of Foreign Nationals and Migrant Affairs which was valid for one year. Mr Helali's initial oral evidence did not allude to his later claim in oral evidence (and in exhibit R3) that this card was fake. He said it was a very old card which had expired.  In any event, as a fake card this does not assist to satisfy the documentary pillar aspect of identity.

18. Exhibit A10 is described as “the Applicant's birth certificate issued by the Ministry of Public Health Kuwait”. Again, this was later said in oral evidence to be fake, which is consistent with exhibit R3.

19. Mr Helali's evidence as to why he created this document, as with most of his evidence, was not persuasive. Further, as a fake document, it does not directly assist the resolution of the document pillar aspect of identity which is in issue.

20. Exhibit A5, the burial permit for Mr Helali's father, dated 9 April 1984, which predated exhibit A6, being the death certificate for Mr Helali's father, dated 10 April 1984, are both problematic. There is simply no acceptable explanation regarding the seals on the burial permit, and the relevance of vegetable oil and sugar cubes related seals which were affixed to such certificate.

21. Mr Helali's oral evidence provided no assistance as he indicated that he only saw those seals for the first time in the witness box. Mr Helali was unable to provide any direct evidence as to the provenance or authenticity of either document, and there was no independent third party or other evidence at all before the Tribunal to assist in establishing the validity of these documents.

22. Further, there is no biometric evidence predating the Applicants' arrival in Australia to satisfy the biometrics pillar. Hence, in the absence of biometric and persuasive reliable documentary evidence, those pillars are left unsatisfied.

23. In those circumstances, the life story pillar becomes critical. Unfortunately, Mr Helali's oral evidence did not assist his case. Whilst accepting that giving evidence is a difficult task, contrary to the numerous attempts by the Tribunal to assist him and underscore the importance and nature of that task, Mr Helali continually adopted a pattern of giving evidence comprising of - stating that he remembered a fact, then being shown a contrary fact in cross-examination and then abandoning the earlier evidence and/or stating that he could not actually remember, or he would then go further and give contradicting evidence.

24. A prime example is inconsistent evidence regarding what name he used on his passport to get out of Iran. There were other problematic aspects to his evidence including the evidence he gave regarding Hossom and Hassan and how each were said to be an integral part of his life story, and the fact that that evidence that they were two separate individuals was only really clarified during cross-examination.

25. The Tribunal finds that Mr Helali's oral evidence is unsatisfactory. Unfortunately, little weight can be assigned to it in circumstances where Mr Helali substantially failed to provide responses to questions informed by his actual memory and knowledge.

26. In the circumstances, such oral evidence did not assist in resolving the inconsistencies and implausibilities in his life story nor provide any real evidentiary foundation to it.

27. After considering the totality of the evidence with respect to Mr Helali's identity, on balance, none of the necessary three pillars are satisfied, thus the Tribunal cannot be satisfied as to his identity as required by section 24(3) of the Act.

28. The unfortunate aspects and findings in respect of the quality of Mr Helali's oral evidence apply equally, if not to a greater degree, to Ms Hussaini's oral evidence. 

29. Putting her statements made to the Tribunal during cross-examination to one side, she was not a persuasive witness, and mostly did not properly engage with the process of cross-examination. Her answers were often either non-responsive or anticipatory.  The oral evidence she did give, again, did not assist in supporting or validating her life story. 

30. The Tribunal finds that her evidence did not assist in resolving the numerous inconsistencies and implausibilities in her life story nor did it provide a foundation for it.

31. Her approach to giving evidence also reduces the weight which the Tribunal can allocate to her statutory declaration, being exhibit A1. 

32. As to Ms Hussaini's difficulties with identifying her actual date of birth, whilst it may be that an error occurred in the translation of the date from the Persian calendar to the Gregorian calendar, it is troubling that this error was only discovered during the final hearing day.

33. Such error may not be critical in itself, but it does provide a useful indicator of the undisciplined approach which has been taken by the Applicants in their attempt to establish their life stories.

34. As for Ms Hussaini's exam results, being exhibit A2, against a backdrop of inconsistent evidence before the Tribunal regarding her schooling, the document itself presents inconsistencies in relevant years and grades, which were not satisfactorily explained.  Further, there is no independent evidence to establish the provenance of this document.

35. As for Ms Hussaini's identity card, exhibit A9, again, the evidence was totally unsatisfactory and contradictory. For example, her ‘certainty’ in oral evidence as to the name she used in the passport to leave Iran was later retracted after she was taken to contradicting documents.

36. Upon considering the totality of Ms Hussaini's evidence and the unfortunate approach she took in providing such evidence, the Tribunal finds that it can give little if any weight to such evidence. In the circumstances, the letter from Ms Hussaini's mother is also of limited weight.

37. The preponderance of evidence relied upon by Ms Hussaini and its limited weight ultimately does not enable the Tribunal to be satisfied of her identity pursuant to the three pillars and as required by section 24(3) of the Act.

38. The Tribunal finds that neither documents or biometric pillars are satisfied, and there is insufficient evidence of any weight to persuade the Tribunal to accept the life story pillar is established to the requisite degree for Ms Hussaini's identity to be determined.

39. Finally, whilst there is some evidence of limited weight that the Applicants may have attended the Iranian Embassy in Canberra in an attempt to obtain some Iranian documents to assist in establishing their identity, even if the Tribunal were to accept that element of the Applicants' evidence, such an attendance without more is not sufficient.  Further reasonable efforts should have been made by the Applicants to attempt to satisfy the documents pillar of identity, particularly due to the distinct lack of any reliable identity documents in support of the Applicants' claim.

40. It may be that, at some time in the future, the Applicants may wish to make a new application for Australian citizenship once they have obtained a greater body of evidence of more substantial weight and more carefully and thoroughly prepared any such future application to satisfy identity as required pursuant to section 24(3) of the Act, but that is a matter for them.

41. In all the circumstances, the correct and preferable decision is to affirm the decisions under review.