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

[2021] AATA 4501

JLNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4501 (3 December 2021)

Division:GENERAL DIVISION

File Number:          2019/6517

Re:JLNL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:3 December 2021

Place:Melbourne

The decision dated 3 October 2019 to refuse the Applicant citizenship is set aside. The matter is remitted to the Respondent with a direction that the Applicant’s identity is satisfied in terms of section 24(3) of the Australian Citizenship Act 2007.

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

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – citizenship by conferral – applicant resided in Iran before travelling to Australia – no evidence of citizenship of any country – applicant granted protection visa – applicant applied for citizenship by conferral – certain requirements satisfied – delegate of minister not satisfied of applicant’s identity – other requirements not assessed – consideration of circumstances of applicant – satisfaction as to identity – decision set aside and new decision substituted with direction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35, 37, 38AA

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

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
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
Department of Foreign Affairs and Trade, DFAT Country Information Report Iran (dated 7 June 2018)
Department of Home Affairs, Citizenship Policy Instructions – CPI 16 – Assessing identity under the Citizenship Act (updated 10 April 2019)
Department of Immigration and Border Protection, Citizenship Policy, DIBP (1 June 2016)

Migration Act 1958 – direction under s 499 – Direction No. 84 – Consideration of Protection visa applications (made 24 June 2019/commenced 25 June 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

3 December 2021

PRELIMINARY MATTERS

1. At the hearing of this application, the Applicant sought an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of his name. Consistent with the Tribunal’s practice relating to persons who hold protection visas, the Tribunal made such an order on 19 November 2021. The Applicant will be known by the anonym ‘JLNL’. Certain other details that might tend to identify him will be disguised.

2. JLNL first arrived in Australia as an unauthorised maritime arrival on 21 July 2010. At his interview with officers of the (now) Department of Home Affairs (‘the Department’) in August 2010, he said that he was born in the village of SN in Ilam Province, Iran and had lived in that place until about two weeks before he departed Iran by air from Tehran. He said that his father was born in Iraq. JLNL claimed to be a Feyli Kurd.

3. In July 2012, JLNL was granted a Protection (Subclass 866) visa, which he continues to hold.

4. In December 2016, JLNL applied for Australian citizenship by conferral.  He provided certain documents in support of his application. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) wrote to JLNL requesting further information and requested that he complete what is called a ‘Form 80’, which JLNL did. 

5. On 3 October 2019, the delegate refused JLNL’s application because the delegate was not satisfied of the Applicant’s identity and therefore found that the prohibition in section 24(3) of the Australian Citizenship Act 2007 (‘the Act’) applied. The right for the Applicant to bring this decision to the Tribunal for review is in section 52 of the Act.

   THE HEARING

6. A hearing was held on 18 November 2021. JLNL was represented by Mr Navid Baghi of Amity Lawyers. The Respondent was represented by Mr Thomas Creedon of The Australian Government Solicitor. JLNL gave evidence and was cross-examined. The Applicant’s wife, Ms ZK, gave evidence in person, as did his brother-in-law, Mr MN, and a friend, Mr FG, both by telephone from Iran as is allowed under section 33A of the AAT Act. The Tribunal appreciates the assistance provided by an interpreter in the Farsi language.

7. The Tribunal admitted into evidence material tendered by both the Applicant and the Respondent. A schedule of exhibits is annexed to this decision.

8. The Applicant lodged a written Statement of Facts, Issues and Contentions (‘ASFIC’) and the Respondent lodged an equivalent document (‘RSFIC’), both of which were taken into account.

   THE LEGISLATIVE AND POLICY FRAMEWORK

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 JLNL satisfied certain requirements. 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 JLNL’s identity.

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 JLNL’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 (officers of the Department 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 Brennan J (as His Honour then was, writing as President 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]:

    58. 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...
    
    59. 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.

    60. 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’....

    62. 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 the guidance offered by the policy is followed.

20. It is relevant to note that the delegate who refused JLNL’s application 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 National Identity Proofing Guidelines.

22. At the end of the hearing, the Tribunal explained to the parties that, if it makes a decision in favour of JLNL, then the matter would be remitted to the Department with a direction. The Applicant 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 Respondent submitted that JLNL’s identity is far from clear. The RSFIC pointed to the absence of identity documents produced prior to the Applicant’s arrival in Australia and what he described as the ‘implausibility’ of JLNL’s account of his departure from Iran.

24. The Respondent submitted that JLNL’s claimed inability to obtain a ‘white card’, or Amayesh card (which is issued to many Iraqi refugees in Iran) stands in contrast to country information regarding the documentation of refugees in Iran and made the submission that “country information collated by the Department indicates that the vast majority of Feyli Kurd refugees in Iran have valid Amayesh cards and there is no reluctance on the part of the Iranian Government to document refugees within Iranian territory.”

25. The Respondent also submitted that the Applicant’s account of his departure from Imam Khomeini International Airport in Tehran, using a false passport, is not explained because JLNL also claims to have had an inability to obtain a job in Iran due to his undocumented status. The Respondent questioned how JLNL could have saved the three million toman (approximately US$3,000) paid to a smuggler to obtain the passport and secure departure from Iran and a further six million toman paid to smugglers in Indonesia for the next leg of the journey (the Applicant arrived in the migration zone by landing at the Australian Territory of Christmas Island).

26. Finally, the RSFIC referred to inconsistencies in the Form 80 in relation to the birthplace of his parents, but in oral submissions Mr Creedon told the Tribunal that the Respondent would no longer rely on that specific submission, in terms of the Minister’s case.

    Summary of Applicant’s position

27. The ASFIC submitted that JLNL’s parents were born in Iraq and they were deported from that country by the Saddam Hussein regime around 1980, owing to their perceived Iranian heritage. They settled in SN, which is a small, deprived village close to the Iran-Iraq border.  It has no educational, medical, or banking facilities. JLNL did not have any formal education and worked as a farmer and shepherd either on farms owned by others, or sometimes on plots of land he leased from other farmers.

28. JLNL’s father had a ‘green card’ which the Applicant believed he had been issued when in a refugee camp shortly after being deported from Iraq. The Applicant’s father surrendered this green card after being advised it would be replaced with another identity document, but this did not occur.  Each time the father asked for a replacement card, the authorities turned him away. The contention was that this green card served as the identity card for the household, including JLNL, as he and his siblings did not have identity cards of their own.

29. Around four years before he left Iran, JLNL married Ms ZK in an Islamic ceremony in SN village but this was not an official registered marriage, because of the groom’s stateless and undocumented status. The ASFIC stated that Ms ZK’s father, who lived on the outskirts of Tehran, had certain connexions, and obtained a fraudulent Iranian passport for JLNL, which had his photo but the name of another person. JLNL departed from the airport in Tehran with the assistance of the people smuggler who obtained the passport and of a uniformed official at the departure gate.

30. The ASFIC referred to the ‘three pillars’ of identity. They are set out in CPI 16 at paragraph 4.4:

    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.

31. In terms of the Biometrics ‘pillar’, the ASFIC stated that no issues had been raised by the Department regarding JLNL’s biometric information and noted that photographs of the Applicant in his home village and open-source information on SN village support his contentions about being born and growing up there, and about the size and characteristics of the village.

32. In terms of the Life story ‘pillar’, the ASFIC said that the Applicant has consistently maintained his status as a stateless Feyli Kurd from his very first interaction with the Department, and parallel interactions of his wife Ms ZK (who arrived separately from the Applicant at Christmas Island, and reunited with him there) do not reveal any inconsistencies in relation to JLNL’s identity.

33. In terms of the Documents ‘pillar’, the ASFIC referred to a decision of Deputy President Nicholson in Re: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (‘Dhayakpa’) where at [117] the learned Deputy President wrote:

    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. …

34. 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. 

35. Mr Baghi submitted that an important question that arises in JLNL’s case is whether opportunities to secure evidence of identity reasonably exist for the Applicant.

36. The Applicant submitted that the CPIs further provide that a single pillar of identity should not be relied upon because it is ‘generally inadequate for providing a reliable basis on which to establish a person’s identity’. The CPIs further say that officers must verify a person’s identity from birth using an evidence-based approach and should be ‘verified incrementally’ throughout a person’s life and considered historically. Finally, the CPIs state that officers may have regard to relevant country information to assess a person’s life story, particularly where the person is unable to provide identity documents.

    The material the Applicant has provided

1. JLNL has provided certain material in support of his case. He provided a translated copy of a ‘Non-official Agreement of Marriage’. The translator has included a remark that the document which was provided for translation is not an official marriage certificate, and he includes a photograph of the document translated. This Agreement records:

   Since [JLNL] does not have any proof of identification, a birth certificate or any ID documents, this document has been written to serve as a proof of marriage for this gentleman. Miss [ZK] has married Mr. [JLNL] at the presence of the elders and senior relatives. The following is the agreement of purchasing the dowry between the two families at the presence of witnesses and consent of the relatives:

   [the document then lists various items]

   This sheet serves as a proof of marriage between Mr. [JLNL] and Miss [ZK]. The following were the witnesses of the marriage.

   [The document then indicates it was signed by the bride’s father and the groom’s father, and other witnesses including, it appears, the clerics who presided.]

2. JLNL also provided a copy of his Victoria driver licence (TD, p 138), two copies of Australian visas issued in his name by the South Australian office of the Department declaring that he is ‘stateless’ (TD, p 111 and 139), a Medicare card (TD, p 110) and a utility bill (TD, p 109). In respect of these documents, they go some way towards assisting the Tribunal in terms of the Applicant’s identity but their weight in making that assessment is affected by the fact that they are all Australia-issued documents. That is, they are documents issued by Australian government agencies and other entities to the Applicant since his arrival in this country. They are therefore based on identity claims he has made, not on a primary source document.  Because there is not what I might term an ‘unbroken chain of provenance’, such documents are not conclusive in terms of establishing the identity of a person.

3. The delegate who decided that they were not satisfied of JLNL’s identity came to this conclusion for two reasons. The delegate was not convinced that the Applicant had not been issued an Amayesh card and they were not convinced that JLNL could have departed the main airport in Tehran in the way he described, based on the Country Information Report – Iran, published by the Department of Foreign Affairs and Trade.

4. In particular, the delegate was not satisfied that JLNL would have been able to navigate the usual activities of adult life without some form of official identity documents, providing examples of these activities as ‘property, rental, banking, and health insurance’.

   Evidence of the Applicant

5. The evidence of JLNL was that he was born in SN village. He described the village as consisting of around 30 houses, made of stone and mud, some of them scattered on surrounding small agricultural holdings.  JLNL said that he was born at home, as were other children in the village.  A local woman acted as a midwife to expectant mothers. His parents were not issued with a birth certificate and his birth was not registered. The Tribunal has seen examples where a hospital will nevertheless provide the parents of an unregistered refugee with a form of notice from the doctor and midwife recording the birth, but JLNL’s was not a hospital birth.

6. JLNL said that he believed he commenced working at the age of seven, at least that is his first memory, he thought it could have been a little earlier. He described to the Tribunal his work assisting his father with growing produce, some of which was sold at a local market or bartered for other goods.  Later, he was able to ‘rent’ allotments from other landowners and grow his own produce and keep livestock, and again he would exchange these with others at the local market for things he required.

7. JLNL said that SN village does not have any medical facilities, nor a bank. He described it thus:

   Remote village in the mountainous area. Two hours from the Iran-Iraq border. 20-30 households. Mud houses. No utilities or phones, no electricity. Main job is agriculture. No banks or schools. Dealings are in bartering or cash.

8. When asked how he learned to read and write, JLNL said that volunteers would come for several years to the village for three-month stints and set up marquees in the centre of the village. They would teach children and adults who were interested to learn, sometimes in the evening when the day’s work was done. He said there was no other formal teaching available in the village.

9. When asked how they would deal with medical issues that may come up in the village, JLNL said:

   There are no medical services as such. If sick, there is a long journey to get some medical attention, or we used herbs. Many young people died because of lack of medical services. I remember two-year olds dying of chicken pox.

10. Mr Baghi asked JLNL about his father’s documentation. He responded:

    They had a green card that I think the Iranian Government gave them. He went to extend it. They wouldn’t. He did this on several occasions. It happened to others, too. Some others later did get new cards.

11. JLNL in response to direct questions from the Tribunal said he did not personally go to the government offices. As a child, he said, his father would travel to these offices, but his father was frightened to go there because of harassment. JLNL said:

    They would treat you in a way that was demeaning. They are against the Kurdish people. They don’t want to reveal that. By not granting the ID card they want your generation to disappear.

12. In terms of how he departed the airport, JLNL said:

    The person who arranged the passport told me when to go. He was present at the airport and the person at the gate left me to go through. From day one he said I can’t send you and your wife together, she is Iranian. As a result, I will send you separately. He personally took me to the gate. The person at the gate knew him. He told me that ‘Ali’ in Indonesia would meet me.

13. When asked about the cost he paid, JLNL said US$10,000, which at the time was equivalent to 10 million Iranian tomans. He said at the time there was a good exchange rate and when he got to Christmas Island, he still had around US$2,000. 

14. JLNL said that he saved some of the funds, and he borrowed from his father and was given some by his friend, Mr FG. Mr FG confirmed this in his oral evidence.

15. Under cross-examination, JLNL said that he worked for some years on other people’s lands working in agriculture, as a shepherd and in animal husbandry. He said once you gain trust you can lease land and grow produce and sell it, and that some of the landowners knew his father, which gave him ‘credit’. He said he leased land on a seasonal basis through oral arrangements.

16. Mr Creedon asked JLNL about the identity card his father had. The Applicant confirmed that he lived with his family until marriage. He said his father was asked to hand back the green card, which was a single card for all the family, in around 2000 or 2001. When he did, he was told, at a government office in one of the surrounding larger towns, that he would not be issued a new household card. JLNL estimated that this town is around one and a half hours’ travel from SN village.

17. JLNL said that his father had subsequently attended government offices in order either to get an identity document or to prove that he had tried to. JLNL said he asked his father to make further inquiries to support the application for citizenship. He said his father, who is aged 80, had asked the officers for a receipt, simply to show he had visited, but they had refused. JLNL said that he recalled his father’s efforts when he was living at home, and later, after he and Ms ZK had married, he said his older brother tried to obtain an identity document at the government office and was told that until the father received one, there would not be one for the others in the household.

18. Mr Creedon drew JLNL’s attention to a reference in the Country Information Report – Iran, which says there is “no hesitation or widespread reluctance to replace Amayesh cards after 2002”.  He asked the Applicant if any reason was ever given to the family. JLNL responded:

    The information they provide sometimes covers them or is incorrect. So many are living in this situation, Afghans as well. Those people who co-operated in the war, they are helped. In our Kurdish culture we don’t support the Iranian Government.  Afghans who fight in Syria will get cards, but not others. I thought Dad could go to Iraq [to obtain identity documents] but was told there was a high risk and people die.

19. JLNL told the Tribunal it was his father-in-law who arranged his passage out of Iran. The father-in-law had certain connexions and was able to obtain a passport for the Applicant, using his photograph but in the name of another person. It was not clear to the Tribunal whether the passport was a fake one, or an authentic one issued to another person but in which JLNL’s photograph had been substituted.

20. In terms of the departure from the airport, the Tribunal closely questioned JLNL as to what he meant by a uniformed person at the ‘gate’. The Applicant confirmed that when he said ‘gate’ he meant the passport control through which a departing passenger goes, but others at the airport, such as people farewelling travellers, cannot pass through. JLNL said that the smuggler, who he named as [Name given but here redacted], took him to a particular officer who stamped the passport and let him through. He was not subject to any further checks and, when he reached the departure gate for his flight, simply joined the queue with other passengers and boarded the flight.

21. JLNL said that when he got to Indonesia, he was met by a collaborating smuggler, called Ali. Ali took the passport from him and he has not seen it since. Ali then arranged for him to board a boat for Christmas Island. JLNL said that his wife started the journey from Iran about 45 days later.

    Evidence of Mr MN

22. Mr MN is an Iranian citizen.  He grew up with the Applicant in SN village.  Mr MN was asked whether there were schools or banks in SN village. He responded:

    No, none of those. No Internet. No drinking water – water comes in tankers. If someone is sick, we put them on a tractor to the main road and then find someone to take them in a car. The school is in the next village if you want to study.

23. Mr MN said it was a “deprived area”. He said he knew that JLNL’s father had a green card but “unfortunately couldn’t get a new one”. He said he knew this because JLNL and his family were neighbours and, years later, he married the Applicant’s sister. He said she was undocumented when they married but she was able to get a National ID card through marriage to him as an Iranian citizen.

24. Mr MN said that he attended a local school in a nearby village, but when asked by Mr Creedon, said that JLNL was not able to, because of his unregistered status as a Feyli Kurd.

    Evidence of Mr FG

25. Mr FG gave evidence that he is Persian, an Iranian citizen, and was from SN village.  He was asked to describe SN village and whether it has schools, clinics, or banks. He responded:

    The facilities are very bad and incomes very low. Living and life is quite difficult.  Unfortunately, none of those exist. There are problems with electricity. Banks normally open where people are making a good income. In regard to a clinic, don’t even talk about it!

26. Mr FG said he retains land in SN village area but does not work it himself. He now works as an insurance broker in a city about one and a half hours’ drive away.

27. When asked whether he provided financial help to JLNL to depart Iran, Mr FG said:

    Yes, in order to save him I decided to help. I paid him around 5 million tomans. I don’t expect him to pay it back. I have done this for God. I am in a good financial situation and don’t need it back.

    Evidence of Ms ZK

28. Ms ZK’s evidence was that she grew up with her family outside Tehran. Her father owned family land at SN village, which was worked by local residents, including JLNL. She and her family would visit the area sometimes for holidays and festivals. She said that it was at a New Year festival that she met JLNL, and they began courting. Ms ZK is an Iranian citizen.

29. Ms ZK said they decided to leave Iran because JLNL did not have identity documents. She said:

    We couldn’t go anywhere together. We could get into trouble with the police. I mean the police generally and the intelligence police. When you go to another area there is a police station in the middle of the road to check people.

30. Ms ZK said that her father was politically active among Kurdish groups, specifically the ‘Iranian Green Movement’ of 2009, in relation to which many of her father’s friends were arrested. She said her father liaised with friends to allow JLNL to leave. Mr Creedon asked Ms ZK whether she used her own passport to leave, and she responded:

    I couldn’t get one because my father had an issue. My father arranged an Iranian passport for me. I don’t know [if it was fraudulent]. He would never explain these things to us. He didn’t want the risk. He might have spent 5 million tomans for me.  There was a person in the airport waiting for me. He let me pass through the gate.  They flew with me all the way to Indonesia.

31. Ms ZK later reunited with JLNL on Christmas Island and they subsequently came to mainland Australia together.

    CONSIDERATION

32. 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.

33. The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is “satisfied” of a requirement.  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.

34. 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.

35. 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.

36. The Tribunal accepts that in cases such as the JLNL’s, where his claims for protection and his claim to being stateless have both been accepted by the Australian Government, there are particular challenges to proving identity.

37. The Tribunal had before it a Department document relating to the Feyli Kurd Cohort. This was largely not on point in this matter because the Government has already accepted that JLNL is a stateless person by virtue of the issue of visas to that affect. However, the document is relevant in cautioning that a person’s claims should not be accepted solely based on their ethnicity or where they say they grew up, in this case Ilam Province.

38. Mr FG and Mr MN both clearly and separately described certain things available to them, such as access to the school in the next town, which were not available to JLNL. Both said this was because of JLNL’s Feyli Kurd heritage. This evidence contributes to my satisfaction that the Applicant not only was discriminated against in this respect, but the consequence in terms of the question before me is that he did not have identity documents or documents such as for school enrolment that would place him at a particular place at a particular time.

39. In the Tribunal’s conclusion, in his submissions, the Respondent has placed too much emphasis on a broader conclusion about the importance of identity documents in daily life (which is acknowledged), and too little emphasis, in the specific circumstances, on the life story of JLNL.

40. The Tribunal has before it several photographs of SN village. It is, as JLNL described, a very small settlement in a mountainous region. JLNL said that there were poor communications.  He wrote in his statement that only one resident had a telephone line and even now telephonic communications are poor, with inadequate mobile phone coverage.

41. The description of SN village the Applicant gave was closely corroborated in the evidence the Tribunal received from Mr FG and Mr MN, speaking from Iran. Both men grew up with JLNL, but they are Iranian citizens, and do have identity documents. Both Mr FG and Mr MN said that once they were of school age, they commuted to a larger village nearby to attend school, but said that JLNL did not, because he was a Feyli Kurd. After they started attending school, they would see him out of school hours and at school holiday time.

42. The Tribunal is satisfied that the Applicant grew up in a small mountainous village in a remote part of Iran. He had not been to Tehran until shortly before he departed the country.  JLNL did not attend a school. SN village, where he grew up, is on his evidence, that of his wife and the evidence of Mr MN and Mr FG, a locality centred on agriculture without any of the modern facilities which are generally taken for granted. On the evidence, SN village does not have reticulated power, or did not when JLNL was growing up. There were no shops, schools, or medical facilities. Trading was done in the local bazaar, much of it by bartering, although some of it was in cash. Persons like JLNL did not need identity documents if they carried on their daily lives in the village. As the Applicant said in his oral evidence, where they did need it was if they want to travel or to move to a larger centre.  This was also the evidence of Ms ZK.  She herself was not hampered as an Iranian citizen in travelling around the country but could not do so with her husband, because of his lack of identity papers. She said this was a major reason why they decided to depart Iran.

43. Apart from photographs and translated copies of documents relating to some of his siblings, the only primary document JLNL has provided for these proceedings is the Non-official Agreement to Marriage document. In such a case where the Tribunal is dealing with a stateless person who was living as an unregistered person, the decision-maker must examine closely:

    (a)Whether the Applicant has been consistent in the information he has provided to the Department or other agencies in Australia and, where there are other persons who refer to the Applicant, whether any information they have relevantly provided that refers to him or her is consistent.

    (b)Whether the information about the issuance of any local identity document, or the lack of one, is plausible and consistent with any known objective information, and whether there is evidence that, in a case where a person does not have an identity document, they have attempted to obtain one.

    (c)Whether there are other persons who can directly corroborate the identity or other claims of the Applicant.

1. Applying these measures to JLNL, I am satisfied that JLNL has provided consistent information to the Department in his initial interview on Christmas Island and in subsequent interactions with the Department and at his hearings before the then Refugee Review Tribunal and the Migrant and Refugee Division of this Tribunal. I am further satisfied that the oral evidence he gave in this hearing continued that consistency. While there was a minor issue in relation to errors about his parents’ place of birth, I consider that Mr Creedon’s submission that this inconsistency would not be relied upon by the Respondent was properly made.

2. While there is no documentary evidence before me that JLNL’s father has indeed attempted to obtain a new identity document, or Amayesh card, or has been given any piece of paper by the Iranian Government authorities stating they would not issue him with such a card, I am generally satisfied with the evidence on this aspect given by JLNL. I also note that this was also the understanding in the corroborative evidence of Mr FG and Mr MN, who knew all the members of the Applicant’s family in SN village.  This is relevant to Deputy President Nicholson’s observations in Dhayakpa, with which I respectfully agree: there is no evidence before me that JLNL has declined to attempt to obtain identity documents. 

3. It is also consistent with the reasoning in that case that account must be taken of the nature of the place from which an applicant has come.  In this case that is a small rural settlement, adjacent to a disturbed society recently governed by a volatile regime from where JLNL’s parents had been expelled, and within which the local government discriminates against people with the Applicant’s ethnic origin.  This case can also be distinguished on the facts from Confidential, referred to above.  There is no evidence on the facts that JLNL had an alternative source of potential identity documents at a ‘lower level’.

4. The National ID cards of Mr MN and his wife, the Applicant’s sister, were also in evidence.  A statement signed by the JLNL’s brother dated 21 December 2019 and signed by two brothers, four sisters and two brothers-in-law, was also in evidence. While these are not primary documents relating to the Applicant, they are from persons identified by him consistently as either blood relatives or relatives by marriage, and they assist the Tribunal in putting together the mosaic of JLNL’s life story. They place him in context in the family unit in Iran.

5. I note that this is not a case where bogus documents have been submitted to the Department by an applicant, and there is no contention to that effect by the Respondent. I note that JLNL has been an apparently law-abiding citizen since his arrival in Australia, learning English and successfully completing a Certificate III in Aged Care (TD, p 137). There is nothing in his conduct, on the evidence before me, which would lead me to the view that he has not been completely disclosive in his dealings with the Department.

6. Regarding the submissions made by the Respondent on the contents of the Country Information Report about security measures at Imam Khomeini International Airport, I place due weight on that as required by Direction No. 84.

7. The Country Information Report – Iran states, at paragraph 5.45:

   Security procedures at Imam Khomeini International Airport in Tehran are robust.  They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land crossings, where immigration authorities deal with a greater number of people and their capacity can be stretched.

8. However, the evidence that JLNL and Ms ZK separately gave about the details of their separate egress from Iran is not inconsistent with there being tight security at the airport, particularly if the passport each was bearing was not in fact a fake travel document but was a real Iranian government passport, with photographs substituted. It is not implausible to me that a people smuggler might have a financial arrangement with a particular passport control officer. The evidence is that the smuggler told both JLNL and Ms ZK precisely when to arrive at the airport. They were then given the passports (whether fake or authentic is not known). They were then directed to go to a specific uniformed officer so that the departure stamp could be applied to their passport. I accept JLNL’s evidence that he did not know the destination until he got to the airport and was given the ticket. The evidence of the Applicant and Ms ZK has been consistent in their interviews with the Department and at this hearing and reflect a tightly controlled operation. In Ms ZK’s case she said a smuggler actually accompanied her on the flight to Indonesia.

9. Overall, the Tribunal’s assessment is that the evidence of JLNL has not only been consistent, but it also has the ring of truth. I am particularly persuaded by the documentary evidence of SN village being a very small hamlet, clearly in a rural area, and accept that many of the usual facilities that might require identity documents for daily living are simply not present. The working life of JLNL and his father and others in the village was centred on agriculture and trading for necessary goods. There were no banks, clinics, or schools.

10. These characteristics of the village in the context of JLNL’s life story are significant, because they paint a picture of a very small place, described by more than one witness as ‘deprived’, with a largely subsistence economy. JLNL started work on the land there as a young boy and on his evidence did not leave the area until he went to Tehran just prior to leaving the country in 2010. He has provided the only ‘identity’ document he had, the Non-official Agreement of Marriage document. While this does not have ‘security features’ referred to in CPI 16, that should not be a fatal disqualification of my taking it into account. It would be absurd to take the approach that SN village and surrounds had the capacity to generate a document of such a nature for an unofficial marriage with an unregistered groom. In addition, there was no contention from the Respondent that this was not an authentic document.

11. JLNL has also called, apart from his wife, two other witnesses who are Iranian citizens, who are not themselves Feyli Kurds, and who have corroborated what he said to the Department and the Tribunal about his life in Ilam Province.

12. 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.

13. It goes on to state:

    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.

14. I am satisfied this is a case where more weight should be given to the Applicant’s biometric 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 or, as in this case, the Australian Government has accepted that claim. I find that the paucity of personal documentary information is not a determinative barrier in terms of the assessment of JLNL for Australian citizenship by conferral.

15. After careful consideration, adopting the jurisprudence in Briginshaw (which I note is also referred to in CPI 16), I have reached a state of satisfaction in relation to JLNL’s identity. I am satisfied, on a holistic view of the evidence, that the prohibition provided in section 24(3) of the Act should not apply in relation to JLNL.

16. The consequence of my findings is that the correct and preferable decision in this matter is that the prohibition in section 24(3) of the Act does not apply. The matter will be remitted to the Department for the remaining considerations necessary for a person to be granted Australian citizenship by conferral to be assessed, with the relevant direction.

    DECISION

17. The decision dated 3 October 2019 to refuse the Applicant citizenship is set aside. The matter is remitted to the Respondent with a direction that the Applicant’s identity is satisfied in terms of section 24(3) of the Act.

97.     I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated:  3 December 2021

Date of hearing:	18 November 2021
Applicant:	Mr Navid Baghi
Advocate for the Applicant:	Amity Lawyers
Advocate for the Respondent:	Mr Thomas Creedon
Solicitors for the Respondent:	The Australian Government Solicitor

ANNEXURE
Schedule of Exhibits

Exhibit No.	Exhibit’s Description
R1	T-documents (’TD’), lodged under section 37 of the AAT Act
R2	Supplementary T-documents (‘STD’), lodged under section 38AA of the AAT Act
R3	Further Supplementary T-documents (‘FSTD’), lodged under 38AA of the AAT Act
A1	JLNL Statutory Declaration, declared on 25 June 2020
A2	JLNL interview transcript dated 22 August 2010
A3	JLNL bundle of photographs, lodged 7 April 2020
A4	Statement of NR, translation date 21 December 2019
A5	Statement of MK, translation date 21 December 2019
A6	Statement of FG, translation date 9 November 2019
A7	Non-official Agreement of Marriage, lodged 7 April 2020
A8	MR National ID card, translation date 7 September 2020
A9	Map of SN Village, lodged 7 April 2020
A10	Letter to the Tribunal’s Registrar, dated 7 April 2020
A11	DFAT Country Information Report Iraq, dated 9 October 2018
A12	DFAT Country Information Report Iran, dated 7 June 2018
A13	UNICEF Iran Information (Birth registration) 2005, lodged 26 June 2020
A14	ACCORD Report, lodged 26 June 2020
A15	Amnesty International article ‘Afghanistan’s refugees: forty years of dispossession’, 20 June 2019
A16	Amnesty International article ‘Human Rights Abuses against Kurdish Minority’, 2008
A17	Dr Jason Tucker article ‘Exploring Statelessness in Iran’, 2014
A18	Iran HRM article ‘Repressive State and Low Quality of Education in Iran’, 22 September 2019
A19	Steven Argue article ‘Kurdish Culture, Repression, Women’s Rights, and Resistance’, 12 June 2007
A20	Minority Rights Group (Faili Kurds), lodged 26 June 2020
A21	Graeme Swincer and Gillian Appleton ‘Faili Kurds and the Basij’, March 2013
A22	Iran 2018 Human Rights Report, lodged 26 June 2020
A23	Iran Adult literacy rate 1960-2019, lodged 26 June 2020

2019/6517 RE JLNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs