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

[2021] AATA 4780

JHLD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4780 (22 December 2021)

Division:GENERAL DIVISION

File Number:          2020/7908

Re:JHLD

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:22 December 2021

Place:Melbourne

Pursuant to section 43(1)(ii) of the AAT Act, the Tribunal –

1)sets aside the decision of the delegate dated 29 October 2020; and

2)remits the matter to the Respondent with the following directions:

(i)the Applicant satisfies the good character requirement in section 21(f) of the Australian Citizenship Act 2007; and

(ii)the Applicant’s identity under section 24(3) of that Act is satisfied.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – citizenship by conferral – applicant former resident of Iran – no evidence applicant has citizenship of any country – applicant holds protection visa - applicant applied for citizenship - certain requirements satisfied – delegate of minister not satisfied of applicant’s identity therefore prohibited from approving – other considerations not assessed – consideration of evidence – applicant has provided copies of several documents carrying photographs of him over the years – applicant has provided copies of other documents sourced from Iran – satisfaction as to identity of applicant – satisfaction as to good character of applicant – decision set aside and new decision substituted with directions

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A, 37, 38AA
Australian Citizenship Act 2007 (Cth), ss 21, 24, 45A, 52

Migration Act 1958 (Cth), s 5

Cases

Briginshaw v Briginshaw (1938) 60 CLR 336
Confidential and Minister for Immigration and Citizenship; Re: [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection, Re: [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs; Re: (No.2) (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) 266 FCR 569

Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86

Secondary Materials

Bahman Clinic, Iran – website accessed 15 December 2021 (bahmanclinic.ir)
Department of Foreign Affairs and Trade, DFAT Country Information Report Iran (dated 7 June 2018)
Department of Foreign Affairs and Trade – Consular Service Charter ( accessed 15 December 2021
Department of Home Affairs, Citizenship Policy Instructions – CPI 16 – Assessing identity under the Citizenship Act (updated 10 April 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

22 December 2021

PRELIMINARY

1. The Applicant in this matter currently holds a protection visa. As the decision before the Tribunal only relates to one aspect of his application for Australian citizenship, whatever the Tribunal decides does not affect his holding of that visa. Consistent with the practice of the Tribunal, the identity of a holder of a protection visa should not be disclosed in a published decision. The Tribunal therefore of its own motion issued an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) on 3 November 2021, which means he will be known by the anonym ‘JHLD’. Certain other personal detailed relating to the Applicant will be disguised.

2. JHLD was born in Iran in 1983 and claims to be stateless. He first arrived in Australia as an irregular maritime arrival in 2012. In 2013 he was granted a Protection Visa (subclass 866).  In February 2018 JHLD applied for Australian citizenship by conferral. On 29 October 2020, a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Minister’), refused the application because the delegate was not satisfied of JHLD’s identity, or that he is of good character.

3. JHLD has brought this refusal decision to the Tribunal for review, as he is entitled to do under section 52(1)(b) of the Australian Citizenship Act 2007 (‘the Act’).

   HEARING

4. A hearing was held on 3 and 12 November 2021 by video, owing to the current public health restrictions, and as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Mr Ehsan Jahanandish of Smart Migration Group. JHLD gave evidence and was cross-examined by Mr Vince Murano of counsel, instructed by Ms Charlotte Saunders and Ms Emily Hill of Minter Ellison, representing the Minister. The Tribunal was assisted by an interpreter in the Farsi language.

5. The Respondent lodged the following documents which were admitted into evidence:

   (a) Volume of documents lodged under section 37 of the AAT Act (‘TD’) (Exhibit R1);

   (b)Volume of documents lodged under section 38AA of the AAT Act (‘STD’) (Exhibit R2);

   (c)Affidavit of Andrew Michael Farr, dated 29 October 2021 with attachment (Exhibit R3); and

   (d)Audiotape of interview conducted on 12 September 2012 (Exhibit R4).

6. The Applicant lodged the following documents which were admitted into evidence:

   (a)       Statutory declaration of JHLD, dated 3 November 2021 (Exhibit A1);

   (b)       Applicant’s submissions, dated 22 April 2021 (Exhibit A2);

   (c)Temporary resident (Amayesh) card of AJ, translation date 2 December 2021 (Exhibit A3); and

   (d)Temporary resident (Amayesh) card of MJ, translation date 2 December 2021 (Exhibit A4).

7. The Applicant  lodged a Statement of Facts, Issues and Contentions (‘ASFIC’), as did the Respondent (‘RSFIC’), which were referred to during the hearing. 

8. At the conclusion of the hearing, leave was given to each party to lodge written closing submissions, which they did. The Applicant also lodged a short submission in reply to the Minister’s closing submissions.

   LEGISLATION AND POLICY

9. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24 of the Act provides that the Minister must approve or refuse to approve the person becoming an Australian citizen.

10. The Minister’s delegate found that JHLD satisfied certain requirements of the Act. He was aged 18 years or over at the time of his application (section 21(2)(a)); he was a permanent resident at the time of the application and the decision (section 21(2)(b)); he satisfied the general residence requirements in section 22 (section 21(2)(c)). The delegate halted assessment of the other requirements when they decided they were not satisfied of the Applicant’s identity, nor was the delegate satisfied JHLD was of good character under section 21(2)(h) of the Act.

11. Section 24(3) of the Act relates to identity:

    Identity

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

12. Division 5 of the Act sets out in detail the identity provisions.

13. In considering JHLD’s application for Australian citizenship, the Minister’s delegate consulted a document produced by the Department titled Citizenship Policy, DIBP (‘the Policy’) and dated 1 June 2016.  Chapter 13 of the Policy provides guidance to departmental officers in relation to the provisions of Division 5 of the Act:

    The identity provisions prohibit the approval of a citizenship application 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.

14. The Policy goes on to state that the concept of identity is as described in what was then the Attorney-General’s Department’s National Identity Proofing Guidelines of 2004, and provides a website link to those guidelines. The successor of that document is the National Identity Proofing Guidelines, published by the Department of Home Affairs in 2016 (‘the Guidelines’).

15. The Policy provides guidance to decision-makers (Department officers who hold the Minister’s delegation) as to how they should arrive at a state of satisfaction about the identity of a person applying for Australian citizenship. Whilst the Policy is not binding on the Tribunal, standing in the shoes of an original decision-maker, the approach taken by President Brennan of this Tribunal in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has received the approbation of the Courts:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular  case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

16. Consequently, the Tribunal is guided by the Policy in considering whether it can be satisfied of the identity of the Applicant in terms of his application for Australian citizenship. However, two important things must be kept in mind. First, where the Policy has content which appears to conflict with the Act, the latter prevails. Secondly, where rigid application of the Policy would result in an injustice or tend to lead to a perverse result, common sense must be applied according to the circumstances of the case to prevent such a result.

17. The Full Court of the Federal Court of Australia made the status of the Instructions and the Citizenship Policy clear in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ) in observing, at [54]:

    There is no power conferred by the Australian Citizenship Act to make the Instructions.  Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.

18. And at [58]-[62]:

    It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-make to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...
    
    An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.

    However, as Brennan J sated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’....

    An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations...

19. Where the contents of the document are not inimical to the purpose of the Act, and are intended to ensure general consistency in decision-making and thereby promote objectivity in considering the circumstances of a person applying for citizenship, it is appropriate that the guidance offered by the Policy is followed.

20. It is relevant to note that the delegate who refused JHLD’s application in October 2020 considered the Australian Citizenship Policy. That policy was revoked on 27 November 2020 and replaced with a new document, the Australian Citizenship Policy Statement, effective from that date. As the Tribunal is deciding whether the prohibition applies at the time of this decision, the Tribunal should apply the new document in considering this matter, and should consider the Australian Citizenship Procedural Instructions (‘CPIs’) and the Guidelines which remain in force.

21. The Tribunal notes that CPI 16 – Assessing identity under the Citizenship Act (‘CPI 16’), states that it incorporates the principles of the Guidelines.

22. If the Tribunal makes a decision in favour of the Applicant, the matter would be remitted to the Department with a direction. JHLD would still have to satisfy the remaining requirements for the grant of Australian citizenship which have not yet been assessed, because these requirements are not before the Tribunal for review.

    THE PARTIES’ POSITIONS

    Summary of the Respondent’s position

23. The delegate who made the decision under review made certain findings. Two of these findings were expressly not contended by the Respondent at the hearing. They were that the delegate made some findings on the erroneous belief that JHLD is a Faili Kurd, when he is in fact, Arabic. Secondly, the Respondent accepted that no adverse finding should be made because JHLD held a Youth Red Crescent card but claimed not to be permitted to donate blood in Iran. The Tribunal takes it that, regarding the second finding, the Respondent did not contest JHLD’s claim that he held this Youth Red Crescent card because he had completed a first aid course at school when a young boy, not when he was of age to potentially donate blood.

24. However, the Respondent maintained that JHLD’s account of his departure from Iran is implausible. The Respondent stated it was not plausible that the Applicant could have departed Iran by air at Imam Khomeini International Airport without detection by authorities if using a lawfully obtained exit permit and a fraudulent passport. The Respondent submitted that it is: “highly probable that the Immigration Police would have detected the applicant’s fraudulent Iraqi passport when verifying the passport and exit visa” (RSFIC, p 9).

25. Secondly, the Respondent submitted that the Tribunal cannot be satisfied of JHLD’s identity based on the documentary evidence he has provided, in circumstances where he arrived in Australia without documentation, and the Iranian documents that he has since provided ‘do not reveal any consistent narrative’. The RSFIC goes on to submit:

    While the Minister does not dispute that the applicant’s Australian identification documents record a consistent identity, this only means that he has maintained a consistent narrative since arriving in Australia.

26. The Respondent further contended that various Iranian documents that JHLD had provided bearing his name are inconsistent in respect of the identification numbers they contain, and that the Applicant has not put forward credible evidence which might allay concerns about the discrepancies in his identity documents. Nor has he provided any official birth registration document or application submitted to relevant Iranian authorities in any unsuccessful attempt to obtain a birth registration.

27. Finally, the Respondent submitted that JHLD had given inconsistent evidence about his marriage to a woman in Iran, which may or may not have been a “muta”, or “temporary marriage.”

28. The Respondent submitted (RSFIC, p 7) that:

    the matters that give rise to the assessment of the applicant’s character are based on the inconsistencies in his evidence about his identity’ and did not specifically address character issues in his written submissions, urging that the Tribunal ‘may draw the necessary inferences from its findings about identity.

    Summary of the Applicant’s position

29. The Applicant submitted that the delegate misunderstood many aspects of JHLD’s claims and mistakenly assessed his identity documents. Mr Jahanandish submitted at the hearing that JHLD had provided all the identity documents that he had and contended that he had proved his identity before he arrived in Australia. The Applicant accepted that there were some discrepancies in the birth certificate number, but that these were outside the control of JHLD because he was not an Iranian citizen and therefore did not have a formal birth certificate.

30. In respect of the Respondent’s submissions that there were no statements from family members, Mr Jahanandish said that the Applicant now submits Amayesh cards held by JHLD’s father and brother, which are still valid and show that they are living in Iran as foreigners.

31. Mr Jahanandish submitted that the RSFIC makes clear that any questions about JHLD’s character are fully dependant on issues relating to satisfaction of his identity. He noted that the Applicant has no criminal record in Australia and there have been no adverse submissions relating to his conduct in this country.

    The material the Applicant has provided

32. The Applicant provided documents issued by Australian authorities and entities since his arrival in this country, namely:

    ·Titre de voyage, issued by Department of Foreign Affairs and Trade, on 17 June 2016;

    ·Victoria driver licence, expiry 4 July 2019;

    ·Utility bill in the name of JHLD and his wife;

    ·Certificate of Marriage issued under Marriage Act 1961 (Cth) in the names of JHLD and his wife in April 2015; and

    ·Lease agreement for a residence in Melbourne.

33. JHLD also provided the Department with documents issued by Iranian government authorities and other entities in Iran, several of which have photographs of him (TD, pp 101-120):

    (a)Bureau of Aliens and Foreign Immigrants (‘BAFIA’) card, giving permission to reside in the city of Yazd until 7 October 2007 (translation and copy);

    (b)The Youths’ Red Crescent Organisation card issued in 1994, at Qods School, Yazd (translation and copy);

    (c)Medical Treatment Insurance Organisation for Yazd Province, valid to 13 November 2003 (translation and copy);

    (d)Family Services Card (referring to JHLD in his family household), issued 1991 (translation and copy);

    (e)Eman Ali Computer Training Centre certificate of completion, dated 17 July 2004 (translation and copy);

    (f)          Competition Participants card (Soccer) (translation and copy);

    (g)Physical education card (Membership), issued 4 April 2007 (translation and copy);

    (h)National Technical and Vocational Training Organisation, Yazd Province – Assessment ID card, dated 14 September 2005 (translation and copy);

    (i)         Accident Insurance card for 1993-94 for primary school in Yazd (translation and   copy); and

    (j)Document (translation and copy) headed Bahman Maternity Hospital which reads:

    This is to certify that on [day and month redacted] 1983 a boy was born from [name of Applicant’s mother redacted] at Bahman Maternity Hospital in the city of Yazd. 

    Father’s name: [father’s name redacted] 

    Date issue of this certificate: [day and month redacted 1983] 

    Dr. Javad Mahjavadi, Hospital Director.

1. JHLD also provided the Department with documents issued by the Iranian government authorities and other entities in Iran, several of which have photographs of him (TD, pp 101-120).

   SUMMARY OF THE APPLICANT'S ORAL EVIDENCE

2. JHLD told the Tribunal that he was born in 1983 and arrived in Australia by boat in 2012, having come from Iran via Malaysia and Indonesia. He said that he had a “fake Iraqi passport”. JHLD said he was not involved in the procurement of the passport. He said his uncle knew someone and the uncle obtained the passport for him. He said he never met this person, nor did he know their name.

3. When asked whether it was a fake passport or a genuine passport that had been fabricated, JHLD said:

   To be honest, in all my life, I have never seen this passport, so I cannot distinguish between the fake passport and the genuine passport.

   ….

   The only thing I heard from my uncle was that I can obtain the passport for you so you can leave Iran, that’s all.  I don’t know anything else.

4. JHLD said he also knew to go to the Foreign Ministry to obtain a travel document to leave Iran, which he did.  He said that he knew that when this document was issued it would mean that his ‘white card’ would be cancelled. He said that he had a white card that had expired about four years before which he had not renewed.

5. JHLD was referred to his initial interview, conducted on Christmas Island in connexion with his application for a protection visa. A transcript of the interview was before the Tribunal (Exhibit R3). He said in that interview that he formerly had a green card which had been taken away 12 years before the interview, and replaced with a white card which had a one-year validity.

6. He said that he would go to the Bureau of Foreign Aliens each year and surrender the old card, then get photographs and return to provide them and pay a fee. He would then return and collect the new white card. JHLD said that he renewed the white card every year until four years before he left Iran. A copy of the white card was before the Tribunal (TD, p 60).  JHLD said that he routinely made laminated copies of the cards to preserve them, and he surrendered the original. JHLD said he had shown this card to the Australian authorities each time he was interviewed, and they took copies and returned it to him.

7. JHLD said that he never claimed it was a real card because it does not have a hologram. In terms of his departure, JHLD said:

   So as I mentioned before I left Iran I went to the Bureau of Aliens and Foreign Immigrants and I handed in this - handed over this card to them and they asked me from which border I'm going to depart, and I mentioned the airport. And so not handed in to that department, just showed this card to them and they just, you know, gave me a piece of paper and I took that to the airport. In the airport the Bureau of the Aliens and Foreign Immigrants had an office in the airport, so I went to their office, they collect this card and they took that piece of paper or letter that they had issued before, and the card got, you know, cancelled and I left.

8. When asked directly by the Tribunal whether he went to a BAFIA office in Tehran, JHLD said: “I first went to the office in Yazd, and they referred me to Tehran for this purpose”.  He said that the piece of paper he was given was a form of exit permit. He could not remember whether he had to tell them the date he was departing the country.

9. JHLD said that the work he did in Iran was as an electrician, and for a short time marketing different food products. He said his monthly income on average was about $450 to $650 in US dollars at that time, which was about ‘350,000 to 400,000 in Iranian currency’. He said he lived with his parents before he departed and did not have rent expenses, and they also provided him with meals. He said he saved most of his income.

10. JHLD could not remember exactly how much he gave his uncle to obtain the passport but thought it was between 3.5 to 4 million toman, which he told the Tribunal equates to about USD$4,000. He accepted this was about seven- or eight-months income, taking into account incidental expenses he had. JHLD said:

    Yes, I'm not 100 per cent sure. I'm not exactly sure but as I remember the ticket from Tehran to Malaysia cost me between $600 to $700. From Malaysia to Indonesia $2,000. Yes and from Indonesia to Australia I paid $6,000 three times to three different people and I had mentioned in my interviews that the first guy's name was [redacted], the first time I paid $500, and then I paid the remaining as total $6,000 to him. And then second time I paid $6,000 to another guy which he took the money – my money and went away. And finally I paid another $6,000 to the guy who arranged our, yes, transport to Australia.

11. JHLD said his mother assisted him by contributing around USD$9,000.  He told the Tribunal his mother works organising religious gatherings and that she had a “good income.”

12. Mr Jahanandish asked JHLD directly, given the outlay was substantial, how did he afford the trip. The Applicant responded:

    As I mentioned, I was an electrician, I was working as an electrician in Iran and then like any other country, electricians earn good money and they have a good income and, as I explained, I didn't have any living expenses. Like, yes, and I was working as an electrician for a long time, seven to eight years. Yes, after I got my diploma when I was 18 years, after (indistinct) years I tried to go to the university but because I was holding the white card I was not able to enrol. So then I had different jobs and altogether I worked nine to 10 years and I could save a fair amount of money. Yes, I had a good savings amount. Yes, when I was in Indonesia and I used up my savings, well, my family helped me financially a bit.

13. JHLD said when growing up in Iran he attended a local boxing club and participated in soccer for many years, as a member of a district club in Yazd.  He said he did a short course in a computer application. JHLD was asked whether he had provided official and unofficial documents as part of proving his identity. He responded: “Whatever I had, I provided.”

14. JHLD was asked about a document (TD, p 110) which referred to his birth certificate with a three-digit number and was asked where that number came from. He responded that it was taken from one of his white cards that he had that year. JHLD was asked about the family services card (TD, p 108) and confirmed that was a card issued to his father, which was numbered with a five-digit number and JHLD’s name was listed as the third member of the household. Mr Jahanandish noted that some of the other documents the Applicant had submitted carried the same five-digit number with the number ‘3’ as a suffix. JHLD said that is the number that indicates his green card number. A translation of that card was at TD, p 61. The soccer card JHLD submitted records a birth certificate number as the same five-digit number, suffixed with ‘3’. JHLD said: “Yes, at that time I was holding a green card, and this was the green card number.”

15. When asked directly by his representative whether he has provided any document to the Department which was a false document, JHLD responded, “No”.  He said all the documents he had provided were obtained properly and he did not provide a document to which he was not entitled and had obtained through some other means, except for the Iraqi passport.

16. In respect of the document from Bahman Maternity Hospital (TD, pp 113-114), JHLD confirmed that the date of birth on this document was correct. He said:

    When the Australian Department of Immigration asked me for the birth certificate and I asked my parents about that, they just gave me this one. They told me, this is the only certificate or piece of paper that they have that the hospital has given them, but they could go and apply for the green card. 

17. He said he was not aware of any other document he could rely on as a certificate of birth.

18. JHLD said all his family are living in Iran – his parents, his brother, and his sister. He said that he had provided their names on the ‘Form 80’ sent to him in connexion with his citizenship application. When asked about his sister, F being an Iranian citizen, JHLD said: “My sister is married to an Iranian guy and through him she has been able to obtain Iranian citizenship”. He said all the other members of his family “are known as aliens and foreigners.  They have only white cards.”

19. JHLD was asked about the Amayesh cards relating to his father and brother (Exhibits A3 and A4); and he confirmed his father and brother had sent him an email with a colour image of the cards a few days before the hearing when he asked for evidence of his status.

20. JHLD said he had never been to Iraq, and none of his family to his knowledge had been (back) to Iraq. He said he had never made inquiries about obtaining Iraqi documents in Iran.  Mr Jahanandish asked the Applicant whether he knew what the process was to obtain or regain Iraqi citizenship. JHLD responded:

    I'm not aware about the exact process of obtaining the citizenship, but I know that I have heard from different sources that this has to happen in Iraq and I have never, you know, think about this because I didn't have any documents to go and just put the claim. And because of the safety issues, my dad and my - my father and my mother never thought to go back and yes, apply for this, regain their citizenship.

21. The Applicant also said his parents would have to go back to Iraq with their marriage certificate. Mr Jahanandish asked whether JHLD’s family had decided not to take the risk of returning to Iraq because of the current security situation, which JHLD agreed was the case.

22. Under cross-examination, JHLD was asked about an interview on Christmas Island in August 2012 (STD, p 132). JHLD agreed that there was an interpreter in Farsi, but said that he had no knowledge at all of English at the time, so while he was not contending that the interpreter was inaccurate, he could not know at the time whether they were interpreting what he said.

23. Mr Murano asked JHLD about his statement (TD, p 126) and put it to him that it would be fair to say that he did not know whether the passport on which he left Iran was a fake document, or whether it was a genuine passport but issued fraudulently. JHLD responded: “Yes, generally I wasn’t aware.”

24. Given that the Applicant had said his uncle organised a ‘fake passport’, the Tribunal asked JHLD whether that suggests he knew it was fake. JHLD responded: “In this way, yes, but in the other way, that if the passport belonged to someone else and they have changed it to my name, I wasn’t aware about that.”

25. JHLD said he had talked about the passport in successive interviews with the Department and had said that he did not know if it was a fake or a genuine passport. He said that the uncle who arranged the passport for him died about two or three months ago. JHLD said, in terms of leaving Tehran:

    When I entered airport, I just first got my boarding card, then I went to the immigration office and they directed me to the Bureau of Aliens and the Foreigners. And as I explained before, I just handed over that piece of paper that I had on the city office, plus my white card for cancellation and then I went to the gate for the passport get stamped.

26. He said, in total, he showed the passport to four people: to obtain his boarding pass, at Immigration, at the airport BAFIA office, and to the officer who stamped him through the gate. He then went to the waiting area and the flight was called.

27. JHLD was referred to a report of the Immigration and Refugee Board of Canada (STD, p 278) which refers to the procedures followed at Imam Khomeini International Airport for departing passengers, and whether anyone detected he had a fraudulent passport. The Applicant responded:

    There are possibilities that people go through these steps for the Iranian citizens.  But for me as a non-Iranian citizen, I am not sure if they would have any details in the system that I had the right passport and, you know, if they had any information about me in the system or not [for an Iraqi passport].

28. Mr Murano asked JHLD about his statement relating to his application for a protection visa where he said, “We could live like human beings”.  JHLD then agreed he returned to Iran in 2016 after being granted a protection visa to visit his family. Mr Murano asked: “What happened to your fears of Iran?” JHLD responded: “In all my interviews…I have said these are the possibilities, I haven’t said that this is going to happen definitely.”

29. JHLD said he stayed for about 60 days (STD, p 236), and in response to a direct question from the Tribunal said he had a return ticket with a set date for return, but he could not remember the precise date.

30. JHLD was asked about the copies of documents he had provided to the Department. He said that his usual practice was, when he obtained a card, to have a copy laminated and keep one in a safe place so that, if he lost the card he was carrying around, he would have a copy as proof.

31. Mr Murano asked the Applicant if he had ever approached the Iranian authorities to try and register his birth. He responded:

    I have tried multiple times to approach the Iranian government to just obtain the birth certificate. Because as I know based on the Iranian laws that are based on the civil law. However, it is born in Iran and has lived there for 5 years could be eligible to obtain the birth certificate. But unfortunately we have the multiple tries and still it was unsuccessful.

32. When pressed as to whether he applied, JHLD said:

    I didn’t get into the stage to apply or to put the application through. 10 to 15 years ago in Iran, it was not like we’d be able to, you know, apply online.  We used to just use the hard copy of the forms.  And I went to the office and asked for the application, the hard copy application for this registration.  And they told me that don’t bother, because you are not eligible… because I was not Iranian.

33. Mr Murano read to the Applicant part of a document titled Statelessness in Iran – Country Position Paper November 2019, prepared by the European Network on Statelessness and the Institute on Statelessness and Inclusion (STD, p 368):

    If a person reaches the age of majority (18 years old) and their birth in Iran has not been registered, there is a procedure for late birth registration through which the individual may file a request to the National Organisation of Civil Status (NOCS) to register their birth.  However, the burden of proof is on the individual to substantiate their claim through witnesses and other means: in practice, the process of often time-consuming and complex, and many people face barriers to providing their birth in Iran.

34. Mr Murano asked whether the Applicant was suggesting the procedure outlined is not accurate. He responded: “It is not my experience.”

35. JHLD was asked about the form of marriage he went through with a young woman in Iran (Exhibit A1). The Applicant agreed that her family were against the arrangement because he was stateless and living as a refugee in Iran; and in the end, they decided to separate because they “didn’t want to trouble the family.”

36. He agreed that it was correct to say that it was not only her family that were against the marriage, but also his own. Mr Murano noted that in his protection visa interview, JHLD said “No one knew of the marriage”, and asked, if this were true, how could the families be against it. JHLD responded: “No one else other than the families knew we were married.”

37. Mr Murano took JHLD through what he said in the protection visa interview in 2012 and what he stated in more recent statements, about this marriage. He said: “The temporary marriage was not an official marriage. In some degrees it was acceptable but if the man is not an Iranian citizen, that person can face trouble. We used to see each other rarely.”

38. When asked whether it was the fact that the woman already had a child that was the problem, rather than the attitude of his parents and her parents, JHLD said: “Both are correct.”

39. In answer to direct questions from the Tribunal, JHLD said he did not have any document from a religious person who conducted the marriage. He said this was because he thought the Basij (i.e., an auxiliary part of the Revolutionary Guard which enforce public morals), might question him, because he was not an Iranian citizen. JHLD confirmed to the Tribunal that he has since married in Australia and his wife is an Australian citizen.  They have a son born in Australia in 2019 (TD, p 81) and another child due early in 2022.

    CONSIDERATION

40. Section 24(3) of the Act means that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity.  It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied regarding this requirement.

41. This Tribunal has frequently considered what is meant by the statutory phrase that a person is “satisfied” of a requirement.  So have the Courts.  Briginshaw v Briginshaw (‘Briginshaw’) (1938) 60 CLR 336 is the leading authority, and that it is still good law has been frequently re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86, by Toohey J for the Court, at [2]). In Briginshaw, Dixon J (as he then was) said:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

42. The Tribunal therefore must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

43. The Parliament has decided that being reasonably satisfied of the identity of a prospective candidate for Australian citizenship is essential because, once citizenship is conferred, the citizen becomes entitled to a range of significant rights and privileges and has certain responsibilities. For instance, an Australian citizen can enrol to vote, serve on a jury, be appointed as a permanent Australian Public Service officer, and can be issued an Australian passport.  If travelling on such a passport, a citizen may call in aid consular assistance when necessary and has the protections available in international law to a citizen of this country.

44. The Tribunal accepts that in a case like that of JHLD, who has claims for protection accepted by the Australian Government, there are challenges to proving identity.

45. At paragraph 4.4, CPI 16 sets out the ‘three pillars’ of identity as follows:

    Biometrics - Personal identifiers such as fingerprints, facial images, and signatures. Biometrics can be used for comparison with, for example, facial images held by the Department or other domestic or international agencies.

    Documents – Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality and/or citizenship, and may also contain biometric information.

    Life story – A person’s life story is a narrative of the events that happened to them from birth to [the] present. Offices should consider the events that happened to the person, and the information and detail correlating to the events.  A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

1. In respect of the biometrics pillar, several of the documents referred to above and in the documents before the Tribunal contain photographs of JHLD. Photographs of JHLD on documents from Iran at various ages of his life are on documents reproduced at TD, pp 60, 92, 106, 110, 112, 116, 118 and 120. While these are copies and not original documents, I am satisfied on examining them that they appear to show the same individual, at different ages. There is no glaring or troubling inconsistency in these photographs. These photographic images are also consistent with contemporary photographs of the Applicant taken in Australia. Australian-source photographs of JHLD are at TD, pp 28, 42 and 43. I am satisfied that these depict a person who is identifiably the same individual as on the earlier images.

2. In respect of the documents pillar, I note that the Applicant has been unable to provide original documents which could be examined by the Department, which employs expert document examiners who have experience in detecting whether documents have been altered or doctored in any way.

3. The Australia-issued documents that show JHLD, such as the Titre de voyage issued by the Department of Foreign Affairs and Trade, carry some weight.  But these documents, like others issued to the Applicant since his arrival in Australia have not been created based on the provision of an original document issued, in this case, by the Iranian Government or another competent national authority. There is no ‘chain of provenance’ which would lend significant weight in terms of establishing identity. Their relative weight is affected by this.

4. JHLD has provided several personal documents. They include a copy of the green card issued to his father, which shows him as a member of the household and lists his parents and siblings. He has also provided copies of certain documents related to him growing up, such as his soccer card, his Youth Red Crescent card (which he said was for completing a school first aid course), a certificate of completion of a computer course, a document relating to health insurance at a primary school.  He has also provided copies of Amayesh cards of his father and brother, and a document from the maternity hospital where he claims to have been born.

5. In respect of the life story pillar, JHLD gave evidence at the hearing that I am satisfied was in most respects consistent with what he said at the initial protection visa interview conducted on Christmas Island.  Because there were suggestions during the first day of the hearing that there may have been inconsistencies with the transcript provided by the Respondent and the audiotape, the Respondent offered to provide the audiotape of the interview. That offer was accepted, and the audiotape was provided to the Applicant’s representative and to the Tribunal. I listened to it, and am satisfied that, apart from one or two very minor slips which are not material, that the transcript accurately reflects the exchange between the interviewing officer and JHLD as interpreted, noting the Applicant’s evidence that, at the time, he did not have any knowledge of the English language at all.

6. The Respondent sought to raise doubt in the Tribunal’s mind about different numbers on various documents provided by JHLD, some of which made reference to a ‘birth certificate’.  I am satisfied on reviewing all these documents that, where numbers are quoted, they often refer to the green card number where the Applicant was the third member of the listed household, or are numbers referring to the white card he held at the time, which changed annually. While there were minor inconsistencies, they were not such that I was persuaded there was any attempt at subterfuge or misrepresentation.

7. In respect of the temporary ‘marriage’, JHLD may have contracted with a young woman in Iran, on a fair reading of what he said at the 2012 interview and his later statements, what inconsistency there may be is not, in my conclusion, reflective of any attempt to mislead. I think it was reasonable for the Applicant to say that “no one knew of the marriage” to mean that no one outside the family knew; i.e., that it was not a public marriage represented to friends and others.

8. The Tribunal takes account that the Australian Government, in issuing JHLD a protection visa in 2012, accepted then that he is owed protection and, by the issuance of a Titre de voyage, accepts that JHLD cannot provide proof of citizenship.

9. CPI 16 relevantly states:

   Officers should not rely on a single pillar to establish a person’s identity.  Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity.

10. And further:

    There may be cases where one pillar may be given more weight than the others.  For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity.

11. I am satisfied this is a case where more weight should be given to the Applicant’s biometrics and life story ‘pillars’, and that this is consistent with the approach urged by CPI 16 in cases where a person claims to be stateless. I find that the quality of personal documentary information provided in this case by JHLD is not a determinative barrier in terms of the assessment of the Applicant for Australian citizenship by conferral. In so doing, I note that the Respondent no longer presses two erroneous bases for the reviewable decision, that JHLD claims to be a Faili Kurd (which he has never claimed, as clear from his 2012 interview on Christmas Island) and that the Youth Red Crescent card cast doubt on his claim that he was barred from donating blood, which I find it does not.

12. In terms of the documents ‘pillar’, in Re: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 Deputy President Nicholson said [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 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. …

13. The case of Re: Confidential and Minister for Immigration and Citizenship [2013] AATA 144, (‘Confidential’) to which Deputy President Nicholson referred, was a decision by Deputy President McDermott. In reading that case, the facts were that the applicant had been given opportunities by the delegate to obtain ‘lower level’ identity documents from China but had not done so. 

14. In this case, JHLD had provided copies of many Iran-source documents and, in preparation for the hearing, obtained copies of the Amayesh cards of his father and brother, and translations of the same. I consider this is not a case where an applicant has had opportunities to obtain further useful documents supporting his identity claims and has merely ‘sat on his hands’ and failed to do so.

15. In respect of the document from Bahman Maternity Hospital, the Tribunal has made its own investigations, as it is entitled to do under section 33(1)(c) of the AAT Act. It has ascertained from an independent source that Bahman General and Maternity Hospital was established in the city of Yazd in 1931 as a general and gynaecological hospital under the auspices of the Iranian Zoroastrian Anjoman. The hospital operated as a hospital in that city until late in the 1990’s when its main surgical, obstetric and ward functions were transferred to a new hospital attached to Yazd University of Medical Science. The site continues to operate as a psychiatric and rehabilitation clinic, called the Bahman Clinic. I am inclined to accept, therefore, the veracity of the contents of the document recording JHLD’s birth and the name of his parents (which appear on the green card). I note the document (a) is a copy and a translation and (b) that it is not an official birth certificate issued by a government.

    The departure from Iran

16. In respect of JHLD’s departure from Iran, I consider that the lack of clarity about whether the Applicant was carrying a ‘fake’ passport or a ‘genuine’ passport, improperly obtained, is of significance. If the latter, the relatively robust security procedures in place at Imam Khomeini International Airport, as detailed in the Country Information Report of the Department of Foreign Affairs and Trade, would not be likely to sound any alarm bells, because the Applicant was travelling on an unremarkable passport.  The fact that it was an Iraqi passport is also significant because any metadata that would be expected to be in the Iranian Government immigration system for their own citizens would not flag any concerns.

    The return visit to Iran in 2016

17. In respect of the Respondent’s submissions about JHLD returning to Iran in 2016 using an Australian Government Titre de voyage, and how this should be seen in the context of him claiming protection on arrival in Australia in 2012 (which led to the issue of his protection visa), I note the Applicant’s oral evidence was that, as he held an Australian travel document, he thought Australian authorities would help him if he got into trouble in Iran. In his closing submissions, the Respondent provided an extract of the Department of Foreign Affairs and Trade Consular Service Charter. That Charter relevantly states:

    We only provide consular services to Australian permanent residents in the event of a crisis overseas. This may include government assisted evacuations when provided to Australian citizens.

18. I accept that JHLD’s views that, because he held an Australian Government-issued Titre de voyage, he might be entitled to call on consular help from the Australian Government if needed was misplaced. However, it is also reasonable to conclude that, having left on an Iraqi passport and returning on an Australian travel document, provided he did not do anything to come to the notice of the authorities, there would be no particular reason why he would not reasonably think he could leave the country using the same travel document.  It must be remembered that his evidence was that he did not have an open airline ticket, his ticket had a fixed departure date. The Tribunal does note, however, that the Titre de voyage issued to JHLD states, in the section marked ‘nationality’ that he is ‘Iranian’, not that he is stateless. Given this, if he did come to the notice of Iranian Government authorities, this travel document would not, on its face, entitle him to call in aid any consular assistance from the Australian Embassy in Tehran.

    Is the Applicant stateless?

19. The Tribunal notes that the delegate was of the view that JHLD was an Iraqi citizen on the basis that he did not obtain an exit permit (TD, p 20), and found it was ‘more likely’ that he obtained a genuine Iraqi passport to depart Iran in 2012. Given JHLD’s evidence about the exit permit at the hearing, which was not particularly contested by the Respondent, I consider this conclusion was infected by the assumption by the Department officer that JHLD was a person claiming to be a stateless Faili Kurd.  I note this assumption also is at odds with the Department of Foreign Affairs and Trade’s recording on the Titre de Voyage that JHLD is of Iranian ‘nationality’.

20. The Tribunal has insufficient evidence to come to a conclusion about whether JHLD is stateless or whether the Iraqi passport he was carrying is genuine. What the Tribunal can make a positive finding about is that the Applicant was born in a hospital in Yazd, Iran, in 1983. There is nothing before me to support the view that he has attained Iraqi citizenship.  For completeness, apart from the Titre de Voyage, there is nothing to support the view that he has Iranian citizenship.

    SUMMATION

21. Applying the standard set out by Sir Owen Dixon in Briginshaw, I have reached a state of satisfaction about the identity of JHLD. I find that the documents he has provided, the consistent accounts of his life story that he has given since being in Australia since 2012, plus the additional documents he obtained relating to his father and brother, all together satisfy me as to his identity and place him in a family unit, with his father and brother, consistent with the historical green card before the Tribunal.  I also find the photographic evidence satisfies me in terms of the biometrics ‘pillar’.

22. Noting the Respondent’s approach that any character concerns about JHLD are directly linked to statements he has made and documents he has put forward in relation to asserting his identity, I further find that on the information before me, JHLD is of good character at the time of this decision. There is no contention by the Respondent that the Applicant has provided bogus documents (as defined in section 45A of the Act, with reference to section 5(1) of the Migration Act 1958.  Nor is there any evidence before me of any criminal or other behavioural conduct of the Applicant, either in Iran or since he has been resident in Australia.

23. Therefore, the correct and preferable decision in this matter is to set aside the decision under review. As there are requirements in the Act which are yet to be assessed by Departmental officers in relation to JHLD’s citizenship application, and these are not before the Tribunal, his application for Australian citizenship by conferral will be returned to the Department for those assessments.

    DECISION

24. Pursuant to section 43(1)(ii) of the AAT Act, the Tribunal –

    1)sets aside the decision of the delegate dated 29 October 2020; and

    2)remits the matter to the Respondent with the following directions:

    (i)the Applicant satisfies the good character requirement in section 21(f) of the Australian Citizenship Act 2007; and

    (iii)the Applicant’s identity under section 24(3) of that Act is satisfied.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate  

Dated: 22 December 2021

Dates of hearing:	3 and 12 December 2021
Advocate for the Applicant:	Mr Ehsan Jahanandish
Solicitors for the Applicant:	Smart Migration Group
Advocate for the Respondent:	Mr Vince Murano
Solicitors for the Respondent:	Minter Ellison