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

[2020] AATA 3783

Hossin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3783 (24 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6403

Re:Jalal Hossin

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:24 September 2020

Place:Sydney

The decision made by the delegate on 16 September 2019, refusing the application for citizenship is affirmed.

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Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – eligibility – where application for Australian citizenship by conferral is refused – failure to meet “identity” requirement – where Applicant claims to be stateless – where Applicant is on a protection visa – where the Applicant has provided insufficient material to establish his identity – decision under review affirmed

LEGISLATION

Administrative Tribunals Act 1975 (Cth) – s 37

Australian Citizenship Act 2007 (Cth) – s 24(3)

SECONDARY MATERIALS

Attorney-General’s Department National Identity Proofing Guidelines (2004)

Revised Citizenship Procedural Instructions

Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

24 September 2020

INTRODUCTION

1. On 13 April 2016, the Applicant applied for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act). On 16 September 2019, a delegate of the Minister refused the application, being not satisfied as to the Applicant’s identity as required by s 24(3) of the Act (the Reviewable decision). On 8 October 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

   BACKGROUND

2. On 18 November 2009, the Applicant was received at Christmas Island as an unauthorised maritime arrival. He had no identification papers and applied for a protection visa. He presented as a Kurd of the Faili sub-grouping, and claimed to be stateless, his country of habitual residence being Iran.[1] He said that he had been discriminated against by Iranian authorities by reason of his ethnicity, and repeatedly harassed, beaten and tortured by the basij.[2]

   [1] The spelling varies between “Feyli Kurd” and “Faili Kurd”.

   [2] The basij were a cell formed during the Iran-Iraq war as “human wave” suicide bombers, repurposed at war’s end as vigilantes to enforce the strict morality code of Shi’ia Islam.

3. On 4 January 2010, a Refugee Status Assessment was carried out at Christmas Island Detention Centre,[3] which, in February 2010, determined that he was not a refugee, as defined in the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees (the Refugee Convention).[4] In September 2010, the Independent Merits Review Panel was not satisfied that he was owed protection obligations.[5]

   [3] T11/136.

   [4] T9/98.

   [5] T11/137, 138.

4. In 2011, the Applicant was granted a second independent review. The reviewer determined in April 2011 that he was a person to whom Australia had protection obligations under the Refugee Convention.

5. I set out the findings of the reviewer at some length, as a convenient background to the identity issue in this case.

   FINDINGS AND REASONS

   The claimant is a Faili Kurd, a particular group originally from the mountains along the Iran/Iraq border. Unlike most other Kurds, they generally profess Shi’a Islam and partly for this reason, many of those who had settled in Iraq were expelled by the Saddam Hussein and the Ba’ath Party into Iran in the 1970s and early 1980s…

   The claimant has no birth certificate nor citizenship papers and therefore claims that he is stateless. The claimant’s parents are Iraqi by birth. The claimant states that they had no papers in Iraq, even before the expulsion, to confirm this fact. The claimant’s grandparents were born in Iran and went to the Iraq. Relevantly, in a patriarchal system, the claimant’s paternal grandfather, a Faili Kurd from Iran, did not get Iraqi documents even though he applied for them in 1956. He continued to live in Baghdad without papers, which in turn explains why the claimant’s father did not have any. The claimant has stated, and I have no reason to disbelieve him, that his father had made concerted attempts over the years to acquire any sort of formal documentation, be it Iranian or Iraqi, but has always failed. The claimant himself on attaining adulthood attempted to gain citizenship papers in his own right given that he had been born in Iran and had lived there continuously all his life. Officials indicated that such a quest might be possible but costly. The claimant made certain payments but did not succeed in getting any papers. I note that “Corruption is pervasive” in Iran… and that in November 2009, Transparency International ranked Iran 168^th in the world corruption ranking out of 180 countries…

   ....

   [The reviewer examined the practices of the Iranian government and concluded]

   In short, I find the claimant to be a stateless Faili Kurd and will assess his claims against Iran as the country of his former habitual residence.

   Credibility is difficult to assess and should not be decided upon demeanour or reaction interview alone. However, where there are clear inconsistencies or where some claimed history is fanciful, far-fetched or unrealistic it may be that those claims, after careful consideration, cannot be accepted as being true. The claimant has consistently claimed that his life in Iran is intolerable due to restrictions placed upon (sic) by his lack of citizenship papers – restrictions that amount to human rights abuses of his civil and political rights. He believes that these injustices are for reason of his ethnicity as a Faili Kurd. He has also claimed that he has suffered ongoing harassment including physical and mental abuse at the hands of the basij and that this constitutes serious harm, and for the same reason – that he is a Faili Kurd. Of course, the claimant has not phrased his claims in this way, but nevertheless that is what he has maintained in his own words. The delegate at first instance believed he may have exaggerated the harm he suffered…

   I questioned the claimant at some length about his history and claims. I have not found any evidence of exaggeration. Indeed, persistence was needed to elicit details of any abuse – such as what happens when he was stopped by the basij on the street – and the claimant was unable to discuss the most serious abuse he suffered. I note that he did not discuss it with the earlier reviewer either and I accept the psychologist’s views about why this topic would present such difficulties for him. With reference to his late inclusion of information about his working in a political campaign, I note that he has not based any claims on this action and therefore he cannot be accused of adding extra claims to boost his chances of success in the refugee determination process. In my view, the claimant’s testimony could only be gathered with patience and with some degree of trust over time. I do not regard any of his claims as far-fetched: indeed, I note that the independent evidence supports the thrust of his claims. I do not have doubts about the claimant’s credibility and I accept the testimonial set out above as a realistic account of what has happened to him…

   …

   It is reasonable to represent “stateless Faili Kurds” as a particular social group. Kurds are a race living across an area they described as Kurdestan, sweeping in an arc over Syria, Iran, Iraq and Turkey. Although most Kurds are Sunni Muslims, Faili Kurds, are Shi’a. Faili Kurds, according to the independent evidence… traditionally “inhabit the land along the Iran-Iraq border in the Zagros Mountains” and it is the cross-border nature of their traditional settlement which has caused many problems in modern times, where borders delineate sovereign states are nationality. From the 1970s, the Ba’athist regime in Iraq targeted Faili Kurds living in Iraq and expelled thousands into Iran, claiming that they were really Persian as evidence by their Shi’a religion… This group may have been formally stripped of nationality in Iraq, or they may simply have left without any papers or documents… Hence among the Kurdish minority in Iran, there is a cognisable group – identified by its own members and recognised by the authorities and other observers – of undocumented Faili Kurds. This describes the claimant, and for this reason, I say that he is a member of a particular social group constituted by undocumented Faili Kurds.[6]

   [6] T14, 211-214.

6. On 30 June 2011, the Applicant was advised to lodge an application for a protection visa,[7] and on 1 July 2011 he applied for a protection visa.[8] On 6 July 2011, he was granted a Protection (Class XA) Subclass 866 (PV) visa (Protection Visa) by the Australian Government.[9]

   [7] T15/217.

   [8] T16/227; T17/242.

   [9] T18/245.

7. I note that the independent reviewer found the Applicant’s evidence to be credible and saw no reason to doubt the substance of his claims.

   THE EVIDENCE

8. The Respondent’s evidence consisted of:

   (a)documents filed under section 37 of the Administrative Tribunals Act 1975 (Cth) (the AAT Act), filed on 7 November 2019 (the T Documents); and

   (b)a document entitled “IDBS Identity Analysis Report: Feyli Kurd Cohort” (the Report) in two versions, a redacted and un-redacted version. The redacted version was provided in further documents filed under section 37 of the AAT Act on 20 April 2020 (the Supplementary T documents).

9. On 8 April 2020, the Tribunal gave a Direction restricting the publication of the un-redacted report to, inter alia, the Respondent, its legal advisers, and members of the Tribunal; and prohibiting the Applicant from publishing or distributing or disclosing the redacted report. The Direction was granted, at the request of the Respondent, to protect certain information contained within the Report, including methods used by the Department in reaching various conclusions about the Feyli Kurd cohort.

10. The Respondent also filed a Statement of Facts, Issues and Contentions, dated 19 February 2020.

    LEGISLATIVE PROVISIONS

11. The Respondent referred to section 24(3) of the Act which provides that:

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

12. I also refer to the Attorney-General’s Department National Identity Proofing Guidelines (2004) (the Guidelines);[10] the Revised Citizenship Procedural Instructions; and the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007.

    [10] <accessed 15 September 2020>.

    THE HEARING

13. The hearing was conducted by video conference on 6 May 2020. The Applicant was assisted by an interpreter.

14. As noted above, the Respondent’s solicitor tendered a redacted report relating to the Feyli Kurd. Information contained within the Report suggests that it is fallacious to automatically associate Feyli Kurd ethnicity with statelessness, because it is now understood that the overwhelming majority of Feyli Kurds are Iranian citizens. Therefore, the identification of Feyli Kurds with statelessness should be viewed with caution. The Report states that the overwhelming majority of Feyli Kurds are Iranian citizens and hold valid identity papers.

    Feyli Kurds have been both Iranians and Iraqis as well as stateless; however, the Feyli Kurdish tribes have always been centred around the Iranian provinces of Ilam and Kermanshah, and it is erroneous to assume that the entire people have been rendered stateless when the majority have a long, uninterrupted pedigree of Iranian citizenship.[11]

    And furthermore:

    Decision makers should not consider applicants of Feyli Kurdish ethnicity as stateless solely as a natural consequence of possessing that ethnic identity. There are conservatively, 2.5 million Iranian citizen Feyli Kurds. As the most generous number of Iraqi citizens of Feyli Kurdish heritage expelled from Iraq in 1980 is around 300,000, the most generous of assessments must acknowledge that Feyli Kurds are now, and always have been, overwhelmingly Iranian citizens of Iranian origin.[12]

    [11] Report: ST2, 30.

    [12] IDBS Identity Analysis Report: Feyli Kurd Cohort: ST2, 31.

15. The Respondent’s solicitor was, however, quick to emphasise that an adverse finding in the present proceedings would have no implications for his visa status.

16. Despite this assurance, I presume that as a holder of a protection visa, the Applicant is not beyond the cancellation powers of the Minister if there are grounds to reconsider the basis for his current visa status.

17. However, the Applicant has been granted a protection visa after a lengthy review process and his present application for citizenship is not, and should not, be an opportunity to cast doubt on previous determinations regarding his protection status. In particular, I note the strong positive findings of the reviewer in favour of the Applicant in the protection assessment process which led to the grant of a protection visa.

18. Considerable time was spent at the hearing on the question of whether the Applicant held an identity card in Iran (a so-called White Card). The Applicant was questioned at some length as to what he understood to be the attributes of such a card. It appears that at some point he held such a card. He says that he was obliged to hand the card over to the authorities before leaving Iran and did in fact do so. He says that he was provided by the Iranian authorities with a letter confirming that he had permission to leave which he had to show at the airport when he left. He said that this letter was handed over to the officials at the airport.

19. The Respondent’s solicitor questioned the Applicant at length about the circumstances of his departure from Iran and his various applications for a protection visa. He drew attention to some minor discrepancies. For example, in his original application for a protection visa, the Applicant stated that he left Iran by air on a passport provided by a people smuggler.[13] The passport was in a false name.[14] In the course of these proceedings, he said that the passport was in his own name. When his attention was drawn to the discrepancy, the Applicant was clearly confused. I note that the application for a protection visa was filled out by a Migration Agent and with the aid of an interpreter. I attach little significance to this discrepancy.

    [13] T8/64.

    [14] T8/64.

20. The Respondent’s solicitor argued that the Tribunal should not be satisfied that the Applicant had provided a credible account, consistent with his lack of valid identity documents, regarding his departure from Iran. He referred to the Report, which advises decision-makers to consider certain exit pathways from Iran claims with scepticism, as supporting this submission:

    Exit procedures from Iran:

    The overall impression is that whilst it is possible to get forged documents in Iran, obtaining a forged or fraudulent Iranian passport of sufficient quality to pass through Iranian departure controls is highly unlikely due to the checking of exiting passports against a computer system and multiple persons responsible for the ultimate authority to board, meaning multiple people would all need to be bribed if a person was to leave.

    These departure controls seems to be effective. An April 2012 report by the Department of Immigration and Citizenship (DIAC) noted that according to an official at the Dubai International Airport “detection of fraudulent Iranian documents by Iranian nationals inbound from a port in Iran was rare, as the capabilities of Iranian immigration to detect fraudulent Iranian passports at their own ports was high”.

    The Department of Foreign Affairs most recent assessment is that

    “…it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. DFAT agrees with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visa. Additionally, many Iranians travel to Turkey where there is no visa requirement for Iranians and from there travel onwards using forged documents. Forged visas or visas obtained through false information are common but exit from the Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved.

    DFAT assesses as credible reports that state Iran's land border with Turkey provide an easier way to exit Iran illegally. Borders to Turkey and Iraq are porous and there are well-established smugglers' routes. DFAT is not aware of any recent cases where Iranian customs officials have received punishment for taking bribes in relation to entry or exit procedures.

    In relation to the Kurdish areas especially, a 2013 Canadian report noted the following;

    The source further said that it is impossible to control the border areas in the Kurdish region and that traditionally, Kurdish families living on both sides of the border have travelled back and forth across the border for hundreds of years. It was considered that not all border crossings would be something the Iranian government is equally concerned about.[15]

    [15] IDBS Identity Analysis Report: Feyli Kurd Cohort:: ST2/19.

    CONSIDERATION

21. The Respondent contended that the decision of the delegate should be affirmed on the basis that the Applicant had failed to provide any documentation to establish his identity prior to coming to Australia, that he had made no effort to acquire informal or formal documentation that might assist in the process of identification, and that he had made some inconsistent statements in his dealing with the Australian government.

22. I note the Respondent’s concern about the Applicant’s claim to have left Iran via the Imam Khomeini Airport. Travelling through this airport with a false passport would have been an arduous and risky venture. The Respondent suggests that if he departed by the airport, he must have had valid travel documents, which points to valid citizenship of some country, and therefore he is not stateless and must have an identity. I do not think that the information contained in the Report necessarily invalidates a claim to have departed with fraudulent papers, but it is appropriate to consider the circumstances of such a departure very carefully.

23. The Applicant was closely examined on the processes followed to clear the airport, and he appeared to give a credible account.

24. Nevertheless, the Respondent argues that the lack of documents, together with the lack of a consistent and credible explanation, give rise to a significant doubt as to his identity status. I am inclined to agree.

25. The Applicant has not provided any documentation relating to his time in Iran, a country he left at the age of 28.

26. He went to school in Iran and was employed there. It is improbable that the schools he attended in Iran would have no record of his attendance. It is not unlikely that he will be able to retrieve documents, photographs and testimonials from persons in Iran, including family members, attesting to his identity. His parents live in Iran and he has communicated with them since leaving. They would be able to contribute to his life story and provide a timeline which would support his identity. He has made no efforts to obtain such information, under the impression that only official identity documents from the Iranian government will suffice. He was asked whether this had been the advice he received from an immigration agent and he said that he had not consulted anyone on this specific matter. It appears that he just assumed that such information would be ineffective.

1. I also note that the Applicant has three sisters in Iran. Although he has not maintained strong contact with them, they may be a source of corroborative material. He also has a brother in Iran.

2. The Respondent noted that the Applicant had made very substantial attempts to integrate into Australian society, and that he had taken courses in English, completed an apprenticeship in electrical trades and had been fully employed since arrival. He has also provided various documents issued by Australian authorities, such as a Medicare Card and a NSW Drivers’ Licence, but they do not provide any support for an assessment of his identity prior to his arrival at Christmas Island in 2009. The Citizenship Policy guidelines emphasise the importance of establishing a person’s identity through time.

3. It may be that the Applicant assumed, understandably, that the robust examination of his claims for a protection visa in 2010 would address this issue of his identity. In this, he understandably failed to appreciate the significant differences between the refugee assessment process, and the strict identity requirement as a precondition to the grant of Australian citizenship.

4. I have some sympathy for the Applicant, whether every aspect of the story of departure from Iran is true. Nevertheless, the citizenship approval process is necessarily and desirably strict, and I am mindful of the statutory prohibition upon approving the application unless the decision-maker is satisfied of the identity of the person. Regrettably, in the present circumstances, there is insufficient information upon which to confidently determine the identity of the Applicant.

5. The Applicant is aware that he can make a fresh application for citizenship and is encouraged to do so, having made attempts, hopefully with success, to obtain information of the kind referred to above.

6. The decision made by the delegate on 18 September 2019, refusing the application for citizenship is affirmed.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 24 September 2020

Date(s) of hearing:	6 May 2020
Applicant:	Video conference
Solicitors for the Respondent:	Mr T Hillyard