Kahzadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1137
•4 May 2021
Kahzadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1137 (4 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6212
Re:Yousef Kahzadi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:4 May 2021
Place:Sydney
The decision under review is affirmed.
................................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – Faili Kurd – meaning of identity – application of Citizenship Procedural Instructions – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Egan and Minister for Home Affairs (Citizenship) [2020] AATA 2632
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Le v Commissioner of Taxation [2021] FCA 303
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Patterson [2001] HCA 51
Shi v Migration Agents Registration Authority [2008] HCA 31
QYKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 627
ZVNT & Ors and Minster for Immigration and Border Protection (Citizenship) [2018] AATA 3045
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Australian Government Department of Immigration and Citizenship, ‘Country Guidance Note – Iran’ (11 July 2011)
Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iran’ (7 June 2018)
Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iran’ (14 April 2020)
Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iran’ (April 2016)
Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iraq’ (17 August 2020)
Australian Government Department of Foreign Affairs and Trade, ‘Thematic Report – Faili Kurds in Iraq and Iran’ (December 2014)
Austrian Red Cross, ‘Iran: Exit procedures for married women’ (12 June 2017)
CPI 16 – Assessing Identity under the Citizenship Act (10 April 2019)
Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.’, 30 April 2009, available at: and Refugee Board of Canada, ‘Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini airport’ (10 March 2020) available at: and Refugee Board of Canada, ‘Iraq: Information on the Kurdish Feyli (Faily/Falli) families, including their main areas of residence and their relationship with other Kurdish groups and the Iraqi regime’, Research Directorate, Immigration and Refugee Board, Canada, 1 October 1996
‘Married women in Iran still need “permission” to travel abroad under Amendment to Passport Law’, Centre for Human Rights in Iran (July 18, 2017)
National Identity Proofing Guidelines
Saeed Kamali Dehghan, ‘Iranian single women might need father’s permission to go abroad’, The Guardian, 16 January 2013
‘Single Iranian Women still banned from foreign travel without father’s consent’, Kayhan Life, 5 October 2018
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
United Kingdom Home Office, ‘Country Policy and Information Note, Iran: Illegal Exit’ (version 5.0, February 2019)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
4 May 2021
Mr Yousef Kahzadi (the Applicant) has applied for a grant of Australian citizenship by conferral. He claims to be a stateless Faili Kurd born in the Islamic Republic of Iran in 1984. His application for citizenship was rejected by a delegate of the Minister (the Respondent) on 13 September 2019 on the basis that the delegate was not satisfied as to the true identity of the Applicant.
On 30 September 2019, the Applicant sought a review of that decision by this Tribunal which heard the matter on 31 March 2021. The hearing was conducted using the “impersonalising, technologically capricious, audio-visual medium of Microsoft Teams”[1] platform in accordance with the Tribunal’s COVID-19 protocols. The Applicant was assisted, as required, by an interpreter in the Farsi language.
[1] Le v Commissioner of Taxation [2021] FCA 303 per Logan J at [9].
CITIZENSHIP
Citizenship is a fundamental bedrock of the Australian polity. “The conferral of citizenship is a privilege”[2] which both confers rights and engenders obligations. It is a thing of legal status[3] and a thing of value. It is not to be bestowed lightly.[4]
[2] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422 at [35].
[3] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
[4] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
For persons not born with Australian citizenship, it may be acquired in a number of ways as specified in the Australian Citizenship Act 2007 (Cth) (the Act).
One of those ways is citizenship by conferral.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may make an application for citizenship by conferral.[5] The Minister must make a decision on the application and either approve or refuse it.[6] An applicant must meet certain qualifications a specified in the Act[7] and, if they do, they must then undertake and pass the Citizenship Test[8] (unless they are exempted from so doing[9]). Once those steps are complete, a qualified applicant must make the Pledge of Commitment[10] before their citizenship is finally granted.
[5] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[6] Act s 24(1).
[7] Act s 21(2).
[8] Act ss 21(2A) and 23A.
[9] Act ss 21(3)(d), 21(4)-21(8).
[10] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[11] They are not relevant in these proceedings.
[11] Act ss 24(4)-24(6).
However, there is a foundational and fundamental matter which precedes all other considerations and requirements for the grant of citizenship.
Subsection 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Two important aspects of this requirements must be noted. The Minister (or, in this instance, the Tribunal) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish their identity.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)[12] makes it implicit in the operation of the Act that:
[t]here may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen [at 41].[13]
[12] The bill which became the Australian Citizenship Act 2007 (Cth).
[13] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth).
ESTABLISHING IDENTITY
As noted, citizenship is a privilege and must not be granted to people whose identity is cannot be established. As the Tribunal said in Gjura:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.[14]
[14] Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 at [32].
Decision-makers are assisted by two documents in the process of determining the identity of an applicant for citizenship by conferral. The first is the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (Citizenship Policy Statement/CPIs)[15] published by the Department administering the Act and secondly the National Identity Proofing Guidelines (ID Guidelines) published by the Department of the Attorney-General in 2016.
[15] Australian Citizenship Policy Statement; CPI 16 – Assessing Identity under the Citizenship Act (10 April 2019).
It is to be noted that these documents are just that – they are not law, and while they must be given utmost consideration by any decision-maker they are not to constrain the right of the decision-maker[16] to make any decision lawfully open to them to make, based on the material before it at the time of its own decision-making.[17]
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[17] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
WHAT IS “IDENTITY”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are “2. the condition of being oneself or itself, and not another: …6. the state or fact of being the same one.”
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
a. The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
b. Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
The relevant sections of the Citizenship Policy Statement[18] provide, inter alia:
The Minister may be required to refuse an application for Australian citizenship by conferral on grounds relating to:
·Non-satisfaction of identity (as per subsection 24(3) of the Act)…
[18] Australian Citizenship Policy Statement.
Regard must also be had to the ID Guidelines which relevantly provide as follows:
1.1 Background
1.1.1 Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the Citizenship Policy Statement and CPIs. The ID Guidelines themselves recognise this (emphasis in original):
5.1 Exceptions processes to confirm a claimed identity
5.1.1 Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
5.1.2 Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents, for example because they were raised in institutional or foster care; people with limited participation in society; and young people or those over 18 who are yet to establish a ‘social footprint’ in the community.
To this list, the Tribunal would add people who have been refugees from conflict zones; victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities, especially those identified as being part of the “Stolen Generations”.
The ID Guidelines continue:
5.1.3 Alternative identity proofing processes that organisations MAY consider for these exceptions cases31 include (note different combinations of these processes may be appropriate depending on the individual circumstances).
1Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2Verification of the person's claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
3Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[19]
[19] National Identity Proofing Guidelines at 5.1.3(1)-(4).
It is also important to note what the ID Guidelines provide in definitional terms. Paragraph 2.1.1 states:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
This definition is restated in the most recent version (10 April 2019) of the Department’s Citizenship Procedural Instructions, CPI 16 – Assessing Identity under the Citizenship Act (CPI 16).[20]
[20] CPI 16 – Assessing Identity under the Citizenship Act at [4.2].
CPI 16 identifies a trifecta of factors used to establish identity:[21]
[21] Ibid at [4.4].
Three pillars of identity Individual characteristics Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. 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 present. Officers 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.
They then go on to make explicit that:
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. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
CPI 16 states clearly at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of possibilities independent of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
THE APPLICANT’S VISA STATUS
The Applicant arrived in Australia (at Christmas Island) on 1 October 2011 as an undocumented Irregular Maritime Arrival. The Applicant subsequently applied for a protection visa which was granted on 24 January 2012.[22]
[22] Respondent’s Tender Bundle (RTB) at 57-70; Tribunal documents at 31.
The Tribunal notes that the Applicant was married in 2008 to Shirin Dakhteh who also claims to be a stateless Faili Kurd. She arrived separately in Australia as an undocumented Irregular Maritime Arrival in October 2010 and, in November 2011 was granted refugee status.[23]
PRELIMINARY OBSERVATIONS
[23] RTB at 59-60.
Faili Kurds
In LHSM v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs[24] I set out in detail the origin, nature and status of Faili Kurds in both Iraq and Iran and the difficulties faced by such people in establishing matters of identity. I noted, inter alia, that:
4. The Faili Kurds are an ethnic minority group historically inhabiting both sides of the Zagros mountain range on the border between Iraq and Iran. They are followers of the Shi’a branch of the Islamic faith. Significant numbers of Faili Kurds are Iranian nationals/citizens and live in Iran.
5. The history of the Kurdish people in general, is that they have been regarded with suspicion and subject to discrimination and persecution by both the secular (Ba’athist) and post-Saddam Iraqi (Sunni) as well as the theocratic Iranian (Shi’a) regimes for many years.[25]
In 1980, the Saddam Hussein regime stripped most Faili Kurds of their Iraqi citizenship and:
8. …Between 150,000 to 500,000 such Iraqi nationals were deported to Iran and in the process most of them were deprived of both their property and their official papers and documents.[26]
[24] [2020] AATA 4654 at [4]-[16].
[25] Australian Government Department of Foreign Affairs and Trade, ‘Thematic Report – Faili Kurds in Iraq and Iran’ (December 2014) at 5.
[26] Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iraq’ (17 August 2020) at 22; Immigration and Refugee Board of Canada, ‘Iraq: Information on the Kurdish Feyli (Faily/Falli) families, including their main areas of residence and their relationship with other Kurdish groups and the Iraqi regime’, Research Directorate, Immigration and Refugee Board, Canada, 1 October 1996.
These details are relevant to the extent that the Applicant claims that his parents and other members of his family were expelled from Iraq to Iran in around 1981. As such, they would have been citizens of neither Iraq (because their citizenship had been extinguished) or Iran. They would have been issued with certain identity cards (see below) by the Iranian authorities and it would have been on the basis of using such identification that the Applicant’s birth would have been registered in Tehran in 1984.
Iranian Identity Cards
The (then) Department of Immigration and Citizenship issued a Country Guidance Note – Iran in August 2011 in which it stated:
Status of Faili Kurd refugees in Iran – residence and citizenship
Refugees in Iran have been issued with different types of documents, including the so-called blue, green and white cards. The UNHCR reported that Faili Kurds who arrived prior to the 1979 Islamic Revolution were mainly issued with white cards, while the majority of those who arrived in the 1980s received green cards. From 2002 onwards, green cards were replaced by white cards.[27]
[27] Australian Government Department of Immigration and Citizenship, ‘Country Guidance Note – Iran’ (11 July 2011) page 16.
An updated Country Information Report – Iran produced by the Department of Foreign Affairs and Trade states:
Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system.[28] In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates…[29]
[28] An Amayesh card proves legal right of residence and entitles the cardholder access to government services, including healthcare and education.
[29] Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iran’ (14 April 2020) at [3.25].
It was the Applicant’s testimony to the Department when seeking his protection visa that his family arrived in Iran in around 1981 and were issued with green cards and that these were replaced with white cards in 1982.[30]
[30] RTB at 60.
He also went on to say that he commenced primary school in 1991 but was “unable to sit for examinations as he had no identification and was not considered to be officially enrolled” and further, he later married Shirin Dakhteh in 2008 but “[t]hey had no formal identification so they were not entitled to a marriage certificate”.[31]
TESTING THE THREE PILLARS
[31] Ibid.
Biometrics
Obviously, there is no biometric data against which to test the Applicant’s claim to identity and thus the Tribunal must examine the details related to his documentation and the reports of his life story.
An initial assessment of identity claims was undertaken by the departmental officer who considered the Applicant’s claim for refugee status and undertook a Protection Obligations Evaluation (POE). The officer found that the Applicant was a stateless person and a Faili Kurd by ethnicity. He found further that the Applicant had given a generally “credible” account of key elements of his life history in Iran and that he “did not appear to embellish” the details.[32]
[32] RTB at 69-70.
Documents
The documents supplied by the Applicant in support of his citizenship application are all documents generated since his arrival in Australia. They comprise a Medicare and health care card; a Queensland driver licence; details of his protection visa and a Titre de Voyage issued by the Australian government on 10 December 2012.[33]
[33] Tribunal documents at 29-31.
The Applicant has not been able to produce any documentation which establishes his identity prior to his arrival at Christmas Island. He says that he obtained a false passport (in the name of Hossien Taherian)[34] which he used to leave Iran and fly to Indonesia. He says that this passport was then confiscated by the people smugglers who arranged his illegal on-travel to Australia.[35]
[34] Tribunal documents at 41 and 57.
[35] Applicant’s Statutory Declaration (dated 30 November 2011), RTB at 39-44.
He claims that he once held a white card,[36] but he then offers two different explanations as to why he is no longer able to produce it. He agrees that he left the card in Iran but then says:
I hold a white card issued by Iranian authorities. My white card is not currently in my possession and is at my parents’ home in Iran. I have asked my friend Ibrahim MALIKI to collect my white card from my parents. However, my parents will not hand this over to him.[37]
[36] Tribunal documents at 58-59.
[37] Applicant’s Statutory Declaration (dated 30 November 2011), RTB at 39. Mr Maliki is identified as the Applicant’s friend who assisted him after he was assaulted by the Basiji militia, RTB at 42.
or, alternatively:
I held a white card with the Iranian Authorities. I called my parents to check whether they have it with them since it was at my home in Iran. But my parents said that they lost the card. They tried finding it but couldn’t find it.[38]
[38] Applicant’s Statutory Declaration (dated 18 April 2018), Tribunal documents at 58-59.
In relation to documentation about his marriage to Shirin Dakhteh,[39] the Applicant states:
In 2008, l married my wife Shirin DAKHTA. She is also Kurdish Faili. Given that we do not have formal identification documents, we are not entitled to receive a formal marriage certificate. My wife and I were married at my wife’s family’s home and we signed a letter before witnesses confirming our union. The witnesses were my uncle Ahmed KAHZADI and another family member from my wife’s side. My mother-in-law holds the original letter.[40]
[39] Alternately spelled Dakhta and Dakhteh.
[40] Applicant’s Statutory Declaration (dated 30 November 2011), RTB at 41.
The POE report states:
In 2008 the claimant married Shirin Dakhteh who is a stateless Faili Kurd. They had no formal identification so they were not entitled to a marriage certificate.[41]
[41] RTB at 60.
The question then arises in relation to the efforts made by the Applicant to obtain any of the original documentations from either his parents or his mother-in-law. While it is apparent from his earlier statements that the Applicant was in contact with his family about the attempted location of his white card, he told the Tribunal at the hearing that he had been unable to contact his family for some nine or more months despite repeated efforts. He said that he had then been in contact with a cousin in Iraq (the son of his mother’s sister) who had confirmed difficulties contacting the family but had then sent the Applicant some further documents which purported to be copies of the marriage certificate of the Applicant’s parents which had taken place in Iraq and were retained by the Applicant’s aunt. The Tribunal was in no position to accept these documents into evidence in its proceedings as they were untranslated, but it did take note of the fact that the Applicant had been in touch with a family member in an effort to secure some documentation. The Respondent conceded in response to a question from the Tribunal that this effort on the Applicant’s behalf weighed in his favour.
Given what these documents purported to be, they would not however, have had any material bearing in establishing the personal identity of the Applicant himself.
When the Applicant first arrived in Australia, he made contact with his wife (who was in Immigration Detention in Brisbane) and they spoke several times a day.[42] However, in 2013 the couple separated and in December 2014, they were divorced. Since that date, the Applicant has not maintained contact with her. His ex-wife apparently has custody of their son.
[42] RTB at 26.
According to his own Personal Statement Form, the Applicant has a brother (Rahim Kahzadi) who is a permanent resident of Australia.[43] To have achieved this status, the Department must have been satisfied as to the identity of Rahim Kahzadi to the degree required to issue a permanent residence visa.
[43] Tribunal documents at 53.
There is no explanation why the Applicant could not produce evidence from his brother by way of Statutory Declaration or by relevant family-related documentation to assist the Applicant with his proof of identity. The Applicant stated in evidence that he had spoken to his brother about this matter and his brother had advised that he possessed no relevant documentation. This would not, by itself, have prevented his brother from providing some sort of statement to the Tribunal. This is a point to which the Tribunal will return as it determines the weight to be placed upon this matter.
In Dhayakpa, the Tribunal said:
…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.[44]
[44] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].
In ZVNT & Ors the Tribunal stated:
The Tribunal, having considered all the evidence before it, given that the ZVNT and MFYW were issued with pink cards, finds that ZVNT, MFYW and SWQL, should be required to make an attempt to secure certified copies of pre requisite documents required for citizenship. The Tribunal supports the contention of the Respondent that there was no effort made to do so, and consequently, this has impacted adversely on the success of this application.[45]
[45] ZVNT & Ors and Minster for Immigration and Border Protection(Citizenship) [2018] AATA 3045 at [58].
On the other hand, in a recent decision of mine (QYKW) I stated:
The Minister’s representative put to the Tribunal, as she was obliged to do, the proposition that the Applicant should have engaged more fully in attempting to secure personal documentary evidence from the Myanmar government or authorities.
The Minister however, has no right to ask the Applicant to do something which is manifestly impossible. The known history of the persecution of the Rohingya minority in Myanmar is a matter of international scandal and condemnation and the current overthrow of the legitimate, democratically elected civilian government of Myanmar by the armed forces (Tatmadaw) merely compounds the issue.[46]
[46] QYKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 627 at [99]-[100].
The Tribunal does not consider that the Applicant is in exactly the same position as the applicant in QYKW where no realistic prospect existed of obtaining documentary evidence from home or family sources.
However, the Tribunal does not accept the Respondent’s reliance upon the finding of the Tribunal in Confidential and Minister for Immigration and Citizenship,[47] advanced in their oral argument, that it should make an adverse finding on the basis of the Applicant’s failure to contact the Iranian authorities to secure information about his identity. Given his personal experiences with the Iranian authorities and the fact that he left the country on a false passport, it would be something of a quixotic, not to say foolhardy endeavour on his part. It may even result in his remaining family being put at risk.
[47] [2013] AATA 144 at [24] and [29].
The conflicting evidence of his parents’ possession of his white card; the lack of confirmatory material from his mother-in-law and the absence of supporting material from either his ex-wife or his permanent resident brother, must all tell against the Applicant.
On 9 April 2019, the Department wrote to the Applicant to advise him that it required further information from him to satisfy itself as to his true identity.[48] In that letter, it was made clear that if the Applicant could not obtain the relevant documentation he could seek to obtain Statutory Declarations covering such matters as (inter alia): what documents were issued to the Applicant prior to arrival in Australia, what happened to such documents and what attempts had been made by the Applicant to obtain such documents.
[48] Tribunal documents at 33-36.
There are two people who could have provided such information apart from the Applicant’s parents and mother-in-law. The first of these was his Australian-resident brother and the other was Mr Ibrahim Maliki who appears several times in the Applicant’s narrative. It is Mr Maliki who he says attempted to retrieve the Applicant’s white card from his parents. It is the same Mr Maliki to whom the Applicant turned for assistance after he and his wife had been assaulted by the Basiji militia at Ashura 2010.[49] In oral evidence, Mr Maliki was identified as a close friend from whom the Applicant borrowed money to pay for his passage to Australia.
[49] RTB at 39 and 41.
Between them, the Applicant’s brother and Mr Maliki could have provided Statutory Declaration evidence about all the relevant matters – the possession of identity cards, the nature and composition of the family unit, the place of residence and employment history of the Applicant, the details of his marriage and the events which occasioned his fear and departure from Iran.
Accepting the current difficulties for the Applicant to contact his family in Iran, it is the absence of corroborative material from the brother and Mr Maliki which leads the Tribunal to be satisfied that the Applicant has not exhausted all reasonable avenues of inquiry in his efforts to secure documentary support for his claim of identity.
Life story
The life stories of refugees or those who have fled persecution or fear of persecution are often chaotic and confused. Incidents occur during the course of escaping or making the perilous journey to Australia which people either cannot recall in detail or have sought to erase from their memories.
In order to use details of a life story to establish identity, regard must be had to elements such as consistency and plausibility. Doubts arise when different versions are given of the same incident or where there is more than one version offered of relatively simple matters such as where a person went to school or where they lived. Equally, there are some claims associated with a life story which strain credulity and cause doubt to arise about the veracity of the tale being told.
In relation to this application, the Respondent has raised a number of matters which it claims undermine the credibility of the Applicant.
Place of residence
The first matter concerns where the Applicant lived in Tehran. He claims, in a Personal Particulars form (30 November 2011), that from birth in 1984 until he married in 2008 he lived at Level 1, Plak 106, Kochai 9, [REDACTED], Masudia, Tehran. From 2008 until August 2010, he resided with his spouse at Level 1, Plak 9, Kochai 9, [REDACTED], Masudia, Tehran. He then moved in August 2010 and, until his departure in August 2011, he lived at No 11, [REDACTED], Chshma St, [REDACTED], Masudia, Tehran.[50]
[50] RTB at 54.
In his Application for Citizenship (21 June 2016) the Applicant gives his address as Masodieh – Koche 9, Tehran, Plak 76, Iran[51] and states he lived there from 1 January 1990 to 1 January 2010.
[51] Tribunal documents at 17.
The Respondent states:
22 …Accepting that ‘Koche’ and ‘Masodieh’ are spelling variations of ‘Kochai’ and ‘Masudia’, the reference to Plak 76 is inexplicable.
23. These inconsistencies are significant because they reflect poorly on the applicant’s ability to provide a consistent account about his life history…[52]
[52] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [22]-[23].
The Tribunal cannot understand the logic of the Respondent’s objection. It accepts on the one hand that there may be variations in spelling but hangs its objections on the “inexplicable” inclusion of the notation “Plak 76”.
“Plak” in this context means simply “number” and it was the Applicant’s evidence that he moved several times within the same district but that it was an error on his part to include reference to “Plak 76”.
There is also an inconsistency in the Applicant’s evidence about his place of residence between 1990 and 2010 which was given variously at one address in his Citizenship Application[53] and at a series of others in his Personal Particulars form (Form 80).[54]
[53] Tribunal documents at 17.
[54] RTB at 54.
The Tribunal finds it equally concerning that the address at Chshma Street is elsewhere given as the address of the Applicant’s employer: Pack Iran.[55] This is indicative either of some confusion on the part of the Applicant or that he was living at the packing company premises while he worked there from August 2010 to August 2011.
[55] The Irregular Maritime Arrival Entry Interview (27 November 2011), RTB at 4.
Educational history
The second matter raised by the Respondent is the Applicant’s recall of his educational history. In his Personal Particulars form the Applicant notes “Primary School” under which he noted “date to” the year “1991” as his educational record.[56] In his application for Protection status, the Applicant states that he was at “Ayatollah Sadr” primary school in Tehran from September 1991 to June 1993.[57]
[56] Tribunal documents at 45.
[57] RTB at 55.
The Respondent states:
21. In the Form 80 completed by the applicant on 15 April 2019, he declared that his primary school education ended in 1991: TD 45. This is drastically different to the answer he provided in the request for POD. Any suggestion that the applicant did not understand that he was required to provide a date range for his primary school education ought to be rejected.[58]
[58] RSFIC at [21].
All the Tribunal can say on this point is that its understanding of the term “drastically different” as used by the Respondent to characterise this inconsistency, is drastically different from its own. It places no significant weight on this discrepancy.
Family history
The Applicant has provided details of the names and dates of birth of members of his immediate family. There appear to be a number of discrepancies given in the years of their births (with the Applicant unable to recall precise birth dates). It may well be that this has arisen from the Applicant’s own conversion of dates from the Iranian calendar to the Gregorian calendar. Such an error would be understandable. However, as the Respondent was at pains to point out, a more serious matter arises in the fact that the Applicant has given differing accounts in his written[59] and oral testimony as to the birth order of a number of his siblings, a matter which should not be one of confusion or inconsistency.
[59] Tribunal documents at 52-55 and RTB at 53.
Reasons for departure from Iran
The Tribunal accepts, as did the interviewing officer dealing with the claim of refugee status, that the Applicant had every reason to wish to leave Iran. It accepts that the position of Faili Kurds is one of being subject to systemic discrimination and disadvantage, as outlined in LHSM. The Tribunal also accepts the Applicant’s description of both himself and his wife as having been assaulted by the Basiji militia and the consequences of this.[60] The couple were also subject to harassment by the Basiji and his wife subject to sexual harassment – in all cases because of their status as Faili Kurds.
[60] Applicant’s Statutory Declaration (30 November 2011), RTB at 41-42.
They had every right to be fearful for their continued safety. This is a point accepted by the Respondent during the Tribunal hearing.
There is a degree of inconsistency, again between the written account[61] and the oral testimony in relation to the length of stay which the Applicant required in the hospital after being assaulted by the Basiji militia resulting in a broken leg. In the written account it is some two or three weeks, in oral testimony either one day or one week followed by several weeks’ recuperation at home. This is certainly an inconsistency in the life story but not one which the Tribunal regards as demonstrating a degree of dishonesty or deliberate deception on the part of the Applicant.
[61] Applicant’s Statutory Declaration (30 November 2011), RTB at 42.
Finding the money to pay for passage
Serious questions were raised about how the Applicant could find the necessary amounts of money to pay for his passage to Australia and indeed to contribute to the cost of his wife’s earlier passage. The figure given by the Applicant was that, in his case alone, this amounted to some US$5,700 (in which was included the cost of the fake passport). The initial documentation provided by the Applicant dealing with his employment history and his wages[62] led the Respondent to conclude that his income in the period 1999 to 2011 amounted to no more than just over half a million Iranian rials while the cost paid to the people smugglers was in the order of 60 million rials[63] and this would have been very difficult for the Applicant to amass given his other claims of financial hardship and deprivation.[64]
[62] RTB at 55-56.
[63] RSFIC at [24].
[64] RTB at 41.
In his evidence to the Tribunal, the Applicant clarified the details of his income by advising that where his income was shown at (hypothetically) 700-800 tomans[65] for the period August 2010 to August 2011, this should be read as 700,000-800,000 tomans. The Tribunal accepts that this is probably correct and that common usage in Farsi of “700 tomans” means “700,000 tomans”. If the former figure (700 tomans) was accepted it would be ridiculously low and would indicate that the Applicant was earning a derisory amount – less than US$9 in a year. If the higher figure is accepted, then during the year in question the Applicant’s income would have been in the order of US$9,700.
[65] A toman is ten rials.
If he had to pay $5,700 for his own passage and a certain (similar) amount for that of his wife (who had fled earlier), he might have found himself short of money given that he had to pay all his own living expenses during the year. When this was put to him, the Applicant explained that he had indeed found himself several thousand dollars short, but he had borrowed this from his friend Mr Maliki.
Given the consistency in both written and oral evidence of the Applicant’s employment history and rate of pay, the Tribunal is prepared to accept that the Applicant was in a financial position, from his own resources and a loan from his friend, to finance his passage (and that of his wife) via payments to the people smugglers.
From Tehran to Christmas Island
Of greater significance than the inconsistences of address and educational details, is the narrative of the Applicant’s departure from Iran and his eventual arrival in Australia.
This narrative follows a well-worn and well-established pattern: departure from Imam Khomeini Airport (Tehran) using a false passport for a short flight to some Middle East destination (UAE, Qatar, Bahrain) followed by a long flight to Jakarta.[66] A meeting at Jakarta Airport or alternately a taxi ride into some motel-hostel style accommodation with a stay of some few days. Thereupon, collection by an agent of the people smugglers – a hazardous trip across Java to some unnamed beach and from there, after surrendering any (false and other) passports or documents, departure in a generally unseaworthy vessel until (if lucky) rescued at sea by Australian maritime authorities and transferred to Christmas Island. At some stage in the process, the appalling people smugglers have to be paid.
[66] Occasionally via Kuala Lumpur.
It is the Applicant’s evidence that he followed this pattern, departing Iman Khomeini airport using a passport in the name of Hossien Taherian. There are no details of how or when the Applicant obtained this passport or how much he paid for it. The Applicant’s testimony is that the US$5,700 he paid to the people smugglers included costs of false documentation.
The Tribunal found it more than curious that the Applicant said that he could not provide details of the route by which his wife travelled to Australia, that being a matter which it would naturally assume any husband would have been aware of and concerned about.
In the Delegate’s initial consideration of this application, doubt was expressed about the likelihood of the Applicant being able to depart Iman Khomeini Airport on a false passport “due to the strict border control procedures in place”.[67]
[67] Tribunal documents at 12.
There are various international reports outlining procedures and practices in place at Imam Khomeini International airport which emphasise that the principal interest of the controlling authorities is to prevent the departure of Iranian citizens who are subject to some form of interest to the Iranian government.[68]
[68] Immigration and Refugee Board of Canada, ‘Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini airport’ (10 March 2020) Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.’, 30 April 2009, available at: >
As he informed the hearing, the Member presiding in this matter has personal experience of travelling, on at least three occasions, through Imam Khomeini airport (and flying with the designate carrier, Iran Air) and appreciates that such an experience can be chaotic and that departures, especially in this case, of foreign Faili Kurdish nationals, may not be subject to the level of rigorous scrutiny that constitutes best practice. However, the Tribunal accepts the assessment in DFAT’s 2016 Country Report on Iran that “[f]orged visas or visas obtained through false information are common but exit from Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved”.[69]
[69] Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report – Iran’ (April 2016).
This level of scrutiny might have been considerably greater had the Applicant’s wife been travelling with him at the same time. However, the departure of the Applicant’s wife also raises some questions as there are considerable restrictions on women leaving Iran. If Ms Dakhteh were known to be married, she would not have been able to depart without evidence of the permission of her husband.[70] In this instance, non-registration of their marriage may have assisted her as travel abroad as a single woman was, at least between 2010 and 2011, possible without the permission of their father or a male guardian.[71] It appears that these procedures may well have been subject to more recent restrictions.[72]
[70] Australian Red Cross, ‘Iran: Exit procedures for married women’ (12 June 2017); United Kingdom Home Office, ‘Country Policy and Information Note, Iran: Illegal Exit’ (version 5.0, February 2019); Australian Government Department of Foreign Affairs and Trade, ‘Country Information Report, Iran’ (7 June 2018) page 48.
[71] “At the moment, unmarried women and men above the age of 18 can leave the country if they have a passport” Saeed Kamali Dehghan, ‘Iranian single women might need father’s permission to go abroad’, The Guardian, 16 January 2013.
[72] ‘Single Iranian Women still banned from foreign travel without father’s consent’, Kayhan Life, 5 October 2018; ‘Married women in Iran still need “permission” to travel abroad under Amendment to Passport Law’, Centre for Human Rights in Iran (July 18, 2017).
Of far greater significance is the acceptance by the Indonesian authorities of the documentation allowing foreign Faili Kurdish nationals to enter at Jakarta International airport on forged documents. There is no obvious or satisfactory explanation as to how this might have occurred.
There are thus aspects of the Applicant’s life story connected with this phase of his life which raise a number of questions, none of which admit of any degree of satisfactory answer.
THE STATUTORY TEST FOR THE TRIBUNAL
In his evidence to the Tribunal, the Applicant appeared honest and forthright. The Respondent itself states that “the Minister is not suggesting that the applicant has purposely provided false or misleading information to the Department”[73] and the Tribunal agrees with this assessment.
[73] RSFIC at [23].
However, the establishment of identity in relation to the specific task which faces any decision-maker dealing with questions of citizenship (in this instance, the Tribunal) goes beyond what might be expected in ordinary day-to-day living. In ordinary day-to-day living people are generally accepted, prime facie, as being who they say they are, and proof of their identity is rarely required. Even when some form of identification is sought, the production of a driver licence, a Medicare card or some other simple document usually suffices.
However, proving the actual details of a person’s identity for the purposes of a grant of citizenship is a different matter and requires a higher level of “satisfaction” for any decision-maker. It is inherent in the nature and importance of citizenship as a concept and as a legal identity that the standard of proof must be to the highest level possible.
Establishing the requisite degree of “satisfaction” is an objective test.
In Egan, Deputy President Pascoe outlined the authorities of the High Court in establishing what might constitute “satisfaction” as far as the Minister is concerned in terms of making decisions, such as those related to identity.[74] He drew attention to the decision of then-Chief Justice Gleeson in Patterson as follows:
Obviously, the precondition that the Minister be satisfied that the refusal or cancellation is "in the national interest" cannot be met simply because the Minister subjectively had such satisfaction. If, objectively, there is no reasonably arguable foundation for it, the precondition will not exist.[75]
[74] Egan and Minister for Home Affairs (Citizenship) [2020] AATA 2632 at [137]-[140].
[75] Re Patterson [2001] HCA 51 at [333].
Similarly, then-Acting Chief Justice Gummow and Justice Kiefel (as Her Honour then was) in SZMDS noted that there must always be adequate material before a decision-maker for them to come to an objective decision:
the inadequacy of the material before the decision maker may support an inference that the decision maker has applied the wrong test or was not “in reality” satisfied of the requisite matters...[76]
[76] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [34].
The documents supplied by the Applicant in this matter are unsatisfactory in that none of them is a primary document establishing identity and none of them pre-date the Applicant’s arrival in Australia. The Tribunal is not persuaded that greater efforts involving the Applicant’s parents, his mother-in-law, his friend Mr Maliki and his ex-wife and brother, both of whom are resident in Australia, could have been made to source some more reliable evidence of the Applicant’s personal identity.
The Tribunal also notes some significant degree of inconsistency in some aspects of the Applicant’s life story, although these alone would not necessarily have proved fatal to the application itself. Most of the inconsistencies are relatively minor or could be accounted for by reasonable memory lapses and the fact that many of the documents were completed by people on behalf of the Applicant who is not functionally capable of reading or writing English.
CONCLUSION
As already stated, the Applicant struck the Tribunal as a person of credibility. He has been in steady employment for the last five years in Tamworth (NSW) and he was able to articulate his reasons for seeking to become an Australian citizen.
Despite all of that, the necessary level of “satisfaction” cannot be reached by this decision-maker.
This decision does not preclude the Applicant from making a further application for citizenship by conferral.[77] Were he to do so, and were he to demonstrate either more positive steps in seeking to obtain relevant documentation (as perhaps via his cousin in Iraq if he continues to be unable to make contact with his family) or else to provide detailed statutory declarations from his brother and perhaps Mr Maliki based upon the advice given in the Department’s letter of 9 April 2019, his chance of success might well be enhanced. However, it should be noted that the Tribunal cannot be definitive on this point and it is something which would need to be tested at the time.
[77] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................................[sgd]..................................
Associate
Dated: 4 May 2021
Date(s) of hearing: 31 March 2021 Applicant: In person Solicitors for the Respondent: Mr M Gao, Australian Government Solicitor
4
16
0