HJPB and Minister for Home Affairs (Citizenship)

[2019] AATA 5247

HJPB and Minister for Home Affairs (Citizenship) [2019] AATA 5247 (2 December 2019)

Division:GENERAL DIVISION

File Number:          2018/6421

Re:HJPB

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:2 December 2019

Place:Perth

The Tribunal affirms the decision under review.

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

Brigadier AG Warner, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – Applicant claims to be stateless – Tribunal declines to consider character - whether Tribunal satisfied of identity – Tribunal not satisfied of identity – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21(2)(h), 24(1), 24(3)

CASES

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

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

SECONDARY MATERIALS

Attorney General Department National Identity Proofing Guidelines (2004)

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Brigadier AG Warner, Member

2 December 2019

INTRODUCTION

1. By application dated 5 November 2018, the Applicant, HJPB seeks review of the decision of a delegate of the Minister of Home Affairs (the delegate) dated 22 October 2018 made under s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse HJPB’s application for Australian citizenship by conferral (T2).

2. HJPB attended the hearing and gave evidence.  Ms A Copeland represented HJPB.

3. Mr A Burgess of Sparke Helmore Lawyers represented the Respondent.

4. An interpreter, Mr Khalil Albawy, assisted the Tribunal.

5. The citizenship applications of HJPB’s two children are also before the Tribunal (2018/6457 and 2018/6458).  The parties and the Tribunal accept that these applications are dependent upon the disposition of HJPB’s application. Accordingly, the Tribunal will not consider these applications separately in the present proceedings, other than to note the Respondent’s submission that the delegate correctly applied policy to the matters (Exhibit R1, para 5).

   BACKGROUND

6. HJPB is a 38 year old woman born in Iran who claims to be stateless. HJPB arrived in Australia as an irregular maritime arrival on 13 October 2010 (T15/123). HJPB was subsequently granted a Protection (Class XA) visa on 25 May 2011 (the visa) (T15/123).

7. On 9 July 2015, HJPB made an application for Australian citizenship by conferral (T4/12). In support of the application, HJPB provided the following identity documents:

   ·A travel document issued by Australia (T5/25);

   ·A Western Australian learner’s permit (T5/26);

   ·A gas bill issued on 22 April 2015 (T5/28);

   ·Birth certificates of her children born in Australia (T5/29-30); and

   ·An Australian issued Titre de Voyage issued on 24 March 2016 (T6/34).

8. On 13 April 2017, the Department asked HJPB to provide further information relating to her identity (T7/39-43).  HJPB responded, noting that she was unable to obtain any identification documents from “back home” (T9/50) and provided further documents relating to her identity in Australia (T9/69-92).

9. On 13 October 2017, the Department again requested further information in relation to identity (T10/94-97).

10. On 6 June 2018, HJPB was invited to comment on adverse information (T15/123-126).

    
    

    On 22 August 2018, HJPB provided a further statement and submissions (T18/134-141).

11. On 22 October 2018, a delegate refused HJPB’s citizenship application. The delegate was not satisfied as to HJPB’s identity and found that the prohibition in s 24(3) of the Act applied. In so finding, the delegate considered that HJPB had provided no evidence (either primary or secondary) to establish her identity prior to 2010. The delegate also found that HJPB had provided no information or explanation as to what avenues she had sought in order to establish her identity (T19/143-153).

12. On 5 November 2018, HJPB applied to this Tribunal for a review of the delegate’s decision (T2). HJPB claimed that the delegate’s decision was wrong for these reasons:

    The DHA’s decision was made contrary to recent AAT decisions on the proof required to establish identity. The Applicant (and her dependents) is a Fayli Kurd, as she is an ethnic minority in a disrupted society and she does not have any identification documents. Honourable R Nicholson, Deputy President in Dhayaakpa and Minister for Immigration and Border Protection [2015] AATA 310 stated at [117]: “Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society.” The Applicant here has established her identity to the best of her ability (T2/8).

    ISSUE

13. The issue before the Tribunal is whether it is satisfied of HJPB’s identity so that s 24(3) of the Act does not apply to require refusal of the application. If the Tribunal is not so satisfied, then it must affirm the decision under review.

14. HJPB also requests that the Tribunal determine whether she meets the requirements under s 21(2)(h) of the Act.

    LEGISLATION AND POLICY

15. 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 that person. Identity is not defined in the Act.

16. The Australian Citizenship Policy (the Policy) provides, in Chapter 13:

    The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.

    In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.

17. The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2004) (the Guidelines). Relevantly, Chapter 2.1 of the Guidelines provides 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.

    A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.

18. The Guidelines provide that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives listed in Part 4:

    1.    Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another…

    2.    Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created… through evidence of commencement of identity in Australia.

    3.    Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community…

    4.    Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder.

    5.    Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used.

    (Original emphasis.)

19. The statement by Deputy President, the Honourable R Nicholson, in the matter  Dhayakpa and  Minister for Immigration and Border Protection [2015] AATA 310 at [117] is relevant to the consideration of the level of satisfaction required for a decision maker to be satisfied of an applicant’s identity:

    Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.

    EVIDENCE

20. The Tribunal had before it the following evidence:

    ·The ‘T-Documents’ (T1-T20, pp1-184);

    ·The Supplementary ‘T-Documents’ (ST1-ST9, pp1-108);

    ·The 2018/6457 ‘T-Documents’ (T1-T18, pp 1-182);

    ·The 2018/6458 ‘T-Documents’ (T1-T20, pp 1-194);

    ·Applicant’s Statement of Facts, Issues and Contentions dated 1 March 2019 (Exhibit A1);

    ·Index to Applicant’s Supplementary ‘T-Documents’ (ST1-ST10) (Exhibit A2);

    ·Authorities for the Applicant dated 13 June 2019 (Exhibit A3);

    ·Google maps of Iran (four) dated 13 June 2019 (Exhibit A4);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 24 May 2019 (Exhibit R1);

    ·“The Stateless Project: Feyli Kurds”  pp1-28, version 1, dated 1 February 2013 (Exhibit R2);

    ·The oral evidence of Mr Faridi by telephone conference from Iran;

    ·The oral evidence of HJPB’s husband; and

    ·The oral evidence of the Applicant.

    CONSIDERATION

    HJPB’s character

21. Ms Copeland invited the Tribunal to consider HJPB’s character during the present proceedings, even though the refusal decision was made only on identity grounds.

    
    

    Ms Copeland submitted that it seemed unfair that the Department had not yet turned its mind to a consideration of character despite HJPB’s citizenship application being made in 2015.

22. The Respondent accepts that the Tribunal is not limited to ruling only on HJPB’s satisfaction of s 24(3) of the Act and that it is open to the Tribunal to determine whether HJPB meets the requirements of s 21(2)(h) of the Act, however submits that it is not appropriate to do so at this time as:

    a.The respondent is best placed to consider the issue of the applicant’s character and no such assessment can be undertaken in the absence of satisfaction as to the applicant’s identity.

    b.There is insufficient material before the Tribunal relevant to the applicant’s character, particularly: no penal certificates have been provided from countries in which the applicant has lived in the past; no evidence has been provided in relation to attempts to obtain such documents; and there is no other evidence relating to the applicant’s character prior to her arrival in Australia

    
    (Exhibit R1, para 30).

23. The refusal decision record clearly indicates that HJPB’s character was not assessed (T19/147-148). The Tribunal considers the Department best-placed to obtain the information relevant to an assessment of character and to conduct the assessment. 

    
    

    The appropriate relevant material is not before the Tribunal in these proceedings, and consequently the Tribunal takes the issue of character no further.

    HJPB’s identity

24. The Respondent does not dispute that HJPB’s Australian identity documents

    
    

    (see paragraph [7] above) record a consistent identity since arrival in Australia, however submits “that there remains insufficient evidence for the Tribunal to be satisfied of the applicant’s identity – particularly so in circumstances where she arrived in Australia without documentation. In that regard the respondent notes that there remains no official documentary evidence of the applicant’s identity prior to her arrival in Australia”

    
    

    (Exhibit R1, para 25).

25. HJPB’s testimony before the Tribunal included the following evidence relevant to her lack of identity  documentation prior to her arrival in Australia:

    ·HJPB’s family was poor and had no documents so she was unable to attend school. A Kurdish-Iranian lady in her village taught them basic reading and writing.

    ·HJPB and her husband were married by a clergyman who read from the Koran and said “you are husband and wife now” (Transcript p16). There was no marriage record or certificate. She subsequently moved to her husband’s village, Islamia, and was accepted as his wife.

    ·On advice from a maternal aunt HJPB travelled to Tehran for the birth of her two children under the care of a private nurse known to the aunt. The births were not registered. HJPB subsequently moved to Tehran with her husband.

    ·Because she was stateless, her children could not attend school in Tehran and she was not able to go to government public hospitals. The family could go to private clinics which were very expensive, or seek help from a pharmacy.

    ·In Tehran HJPB worked for her neighbours on domestic tasks

    ·

    Prior to her marriage, HJPB worked for a man called Reza for some years.

    
    

    She has not contacted Reza to assist her in establishing her identity because the village is poor in terms of facilities.

    ·When her husband decided to go to Australia and left Tehran, HJPB returned to her husband’s village where as a stateless person she experienced difficulties with and harassment by the Basij – a non-official organisation which used its alleged authority to take advantage of stateless, poor and weak people.

    ·At this time HJPB worked for a good elderly man called Amir who allowed her and her children to live in his small house. Amir lent HJPB money to assist her move to Australia. Amir passed away.

26. HJPB’s testimony before the Tribunal HJPB included the following evidence relevant to her failing, since her arrival in Australia, to obtain documentary evidence of her identity prior to arrival in Australia:

    ·HJPB has three brothers who remain in the area of HJPB’s village and she has spoken with them at different times since her arrival in Australia. She speaks to one brother regularly but has never asked him to provide a statement because no one would believe it, despite agreeing with the Respondent’s contention that for these citizenship proceedings HJPB needed to identify who she was back in Iran.

    ·The aunt mentioned in the preceding paragraph in relation to the birth of HJPB’s children in Iran was married to an Iranian who held a driver’s licence. HJPB never sought identity support from the aunt as she was sure she would not be able to get relevant documents. This was based on her brother being refused documents when HJPB was very young, and after her marriage her husband also being refused. HJPB did not know what type of documents had been sought on those occasions. 

    ·HJPB has not asked any of her former neighbours for a letter of support, and replied to the Respondent’s related question “do you think anyone - or the court or anyone would believe that letter?” (Transcript p40).

    ·When reunited with her husband on Christmas Island, the issue of supporting documents did not arise. They told the authorities that they were Kurdish and explained their life story.

27. The oral evidence provided by HJPB’s husband included the following:

    ·He was born in Iran but his birth was not registered because his parents were not educated and did not have documents.

    ·After he married he approached the authorities seeking identity documents and was told “We are not able to help you because you don’t have any original document or something to prove who are you” (Transcript p46).

    ·He was registered for one year at the village school when he was seven years and was then told “’You’re not allowed to continue because you don’t have any document’” (Transcript p45). From age 15 or 16, he worked fulltime in labouring and farming jobs for which documents were not required.

    ·During the month of Ramadan he was arrested for eating during daylight and held without charge for five days because he did not have documents to prove who he was.

    ·He maintained a little contact with family members in Iran and confirmed that they knew HJPB, however he has not asked them to provide a statement to verify HJPB’s identity.

    ·He confirmed that he knew Mr Assad Faridi, a well-known teacher in the area of his village. He said that Assad was ready to “…tell anyone, in any part of the world, that [HJPB], yes, is my wife” (Transcript p53).

28. Mr Assad Faridi provided evidence by telephone conference from Iran. Mr Faridi’s oral evidence was generally consistent with his witness statement dated 5 February 2019 (Exhibit A2, ST3). He confirmed that he had known HJPB and her husband in Iran and that he had known her husband’s father and grandfather. He said HJPB and her husband did not have citizenship and did not possess documents.   

29. The Respondent relevantly cites the Explanatory Memorandum to the Australian Citizenship Bill 2007 in relation to s 24(3) of the Act: “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.” (Exhibit R1, para 20).

30. Ms Copeland submitted that this case was about HJPB having no documents and that two questions therefore arise for the Tribunal. Firstly, is it consistent with the country information that she might not have any documents? And secondly, did she fail to avail herself of an opportunity to get identity documents when that opportunity reasonably existed? (Transcript p64)

31. The Tribunal accepts the evidence detailing HJPB’s life story and that the country information establishes the difficulties HJPB would have faced in attempting to obtain official documentation.

32. In Exhibit A1, HJPB submitted that:

    …the level of proof the Respondent applies to Australian citizens, or citizens of other countries, simply cannot be applied to groups of people who have suffered severe discrimination which has caused them to become Stateless. As the Applicant is Fayli Kurd and Stateless, she is unable to produce the identity documents requested by the Respondent (Exhibit A1, para 64).

33. The Tribunal is sympathetic to this submission but does not accept that being stateless necessarily precludes obtaining documents, providing proof of attempts to obtain documents, or seeking corroborating statements from persons familiar with HJPB – siblings still resident in Iran, aunty, nurse, doctor, neighbours, employers.

34. Having regard to the oral and written evidence, the Tribunal accepts that HJPB should not be required, and would be unlikely to be able to produce official documentation appropriate to an established society. In HJPB’s case, there is no official documentary evidence of her identity prior to arrival in Australia in 2010. The only evidence of that identity over time is that provided by her husband and Mr Faridi, and in the absence of any official identity document, the Tribunal considers that evidence insufficient for the present purpose. Having regard to the country information and the evidence pertaining to HJPB’s circumstances, the Tribunal considers it reasonable to expect HJPB to produce some documentation or statement in support of establishing her identity, or evidence of attempts to obtain such material.

35. HJPB’s evidence is that she never personally attempted to obtain identity documents prior to moving to Australia. The evidence is that since then, HJPB has been in contact with her brothers and has had some limited contact with her sisters, but has not requested statements from these family members. HJPB submitted that this failure to seek statements was because of serious flooding in her family’s area in May 2019 (Transcript p23), but there is no evidence before the Tribunal of attempts to establish her identity prior to that event.

1. Exhibit A1 submits:

   a.    The Applicant has attempted to contact her doctor who treated her in Iran.
   The doctor said that she could not provide any evidence as the Applicant's visit to her was more than 12 months ago. In fact, she was very reluctant to provide a statement, as she feared that the Iranian authorities would find out and she would be persecuted. The Applicant provided the Respondent with a telephone number in her Statutory Declaration dated 6 November 2017 (T docs, T12, p103). It appears that the Department officer did not contact the doctor as there is nothing in the correspondence from the Respondent indicating that they had made any attempts to contact the doctor (Exhibit A1, para 57a).

2. Before the Tribunal the Respondent confirmed that there was no evidence of a call by the Department and that “It’s a matter for the applicant to provide that evidence” (Transcript p63).

3. In carefully weighing all the information before it, the Tribunal has regard to the matter of Beyan v Minister for Immigration and Border Protection [2015] AATA 256 in which Senior Member Walsh relevantly stated at [38]:

   [38]…a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.

4. In relation to HJPB’s identity, the Respondent concludes as follows:

   Accordingly, the respondent contends that there is simply insufficient information to enable the Tribunal to be satisfied as to the applicant’s identity. The respondent does not invite the Tribunal to draw a negative inference regarding the applicant’s identity from the difficulties she might face in procuring reliable identity documentation. However, a certificate of citizenship would become the foundational document of the applicant’s identity. Verification of her identity is a matter of considerable import. The respondent submits that where the Tribunal is required to reach a state of satisfaction as to the applicant’s identity, any sympathy which the applicant’s position might attract is not a relevant consideration.
   The respondent submits that there is an insufficient basis to support the applicant’s identity and that this is one of those “cases where identity is unclear or cannot be satisfactorily ascertained” (Exhibit R1, para 29).

5. The Tribunal agrees.

6. Before the Tribunal the Respondent further made clear that:

   …the Minister doesn’t, in this case, ask the tribunal to draw any adverse inferences about the applicant providing false information. It is simply that the applicant hasn’t provided the information and hasn’t exhausted all of the avenues (Transcript p77).

   CONCLUSION

7. Having regard to all the evidence, the Tribunal finds that HJPB has not taken sufficient steps to establish her identity over time. The Tribunal is not satisfied of HJPB’s identity to the level required for conferral of Australian citizenship.

8. It follows from all above that the correct and preferable decision is to affirm the decision under review, that is, the decision of the delegate dated 22 October 2018 to refuse HJPB’s application for Australian citizenship by conferral.

   DECISION

9. The Tribunal affirms the decision under review.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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

Associate

Dated: 2 December 2019

Date(s) of hearing:	2 October 2019
Counsel for the Applicant:	Ms A Copeland
Solicitors for the Applicant:	SCALES Community Legal Centre
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore