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

[2021] AATA 4684

Kaka Soltani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4684 (9 December 2021)

Division:GENERAL DIVISION

File Number:          2019/8468

Re:Reza Kaka Soltani

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:                9 December 2021

Date of Written Reasons:     16 December 2021

Place:Melbourne

On 9 December 2021, the Tribunal affirmed the decision under review. These are the written reasons for that decision.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – whether the Tribunal is satisfied of the Applicant’s identity – no documents prior to arrival in Australia – significant inconsistencies in life story – unexplained wealth – financial transfers to Iran – Tribunal not satisfied of Applicant’s identity – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634

Minister for Home Affairs v G (2019) 164 ALD 103

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Department of Foreign Affairs and Trade, Country Information Report Iran (21 April 2016)
Department of Foreign Affairs and Trade, Country Information Report Iran (14 April 2020)
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

16 December 2021

INTRODUCTION

1. The Applicant seeks review of the decision to refuse his application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The hearing was held in Melbourne on 9 December 2021. The Applicant was self-represented. The Minister was represented by Mr Sypott from the Australian Government Solicitor. At the conclusion of the hearing the Tribunal affirmed the decision under review and undertook to provide written reasons. These now follow.

   BACKGROUND

3. The Applicant was born in Ahvaz Iran and is currently 36 years of age.[1] He left Iran in March 2011 at the age of 26, travelling first to Indonesia by air and then to Australia by smuggler vessel as an unauthorised maritime arrival.[2]

   [1] Exhibit R1 73 [Q8].

   [2] Within the meaning of s 5AA of the Migration Act 1958 (Cth).

4. In September 2012 the Applicant was granted a Protection (subclass 866) Visa, but in 2017 received a Resident Return (BB 155) Visa.[3]

   [3] Exhibit R1, 7.

5. The Applicant said he has not worked in Australia and claims to have relied primarily on Centrelink payments during the last decade. He is unmarried and has no children.

6. On 3 October 2017, the Applicant applied for Australian citizenship by conferral.[4] On 18 October 2019, the Respondent requested further documentary evidence about his identity[5] but contends the Applicant failed to respond.[6] The Applicant denies receiving this correspondence.[7]

   [4] Ibid 73-90.

   [5] Ibid 99-105.

   [6] Respondent’s Statement of Facts, Issues, and Contentions (RSFIC) 2 [9].

   [7] Exhibit R1, 4.

7. On 29 November 2019 the Minister refused the Applicant’s citizenship application under s 24(3) of the Act (refusal decision).[8]

   [8] Ibid 107-110.

8. On 17 December 2019, the Applicant asked the Tribunal to review the refusal decision. The matter was delayed due to the Applicant’s preference for an in-person hearing and limitations arising from the COVID-19 Pandemic.

   LEGISLATIVE FRAMEWORK

9. The Preamble to the Act states:

   The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

   The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

   (a)       by pledging loyalty to Australia and its people; and

   (b)       by sharing their democratic beliefs; and

   (c)       by respecting their rights and liberties; and

   (d)       by upholding and obeying the laws of Australia.

10. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.

11. Under s 21(1) of the Act, a person may apply to become an Australian citizen and the Minister must approve or refuse to approve the application. Subsections 24(3) to (7) of the Act set out circumstances in which the Minister must not approve a citizenship application, including if not satisfied of the person’s identity. Extrinsic material states in this regard:[9]

    There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.[10]

    [9] Division 5 of the Act sets out identity provisions at ss 40-45.

    [10] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth).

    Citizenship Policy and Procedural Instructions

12. In determining citizenship applications, decision-makers are assisted by executive and departmental policy. This includes the Australian Citizenship Policy Statement (2020), which refers to the description of identity in the National Identity Proofing Guidelines.[11] Revised Citizenship Procedural Instruction 16 (CPI16), titled CPI16 – Assessing Identity under the Citizenship Act, also provides guidance about assessing identity and refers to the AGD Guidelines as relevant when considering s 24(3) of the Act. CPI16 states:

    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.

    [11] These are published by the Commonwealth Attorney-General’s Department (AGD Guidelines).

13. The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion’.[12] Their Honours reasoned that the Act envisaged the existence of such policy, the adoption of which is intended to promote consistency and rationality.[13] Despite each application to the Tribunal being considered afresh, policy is routinely applied unless there is a cogent reason not to do so.[14] No submissions were made by the parties that the Tribunal should disregard the available policy and the Tribunal sees no reason not to apply it.

    [12] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].

    [13] Ibid, [65]; [70].

    [14] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

14. Relevantly in this matter, CPI16 describes three pillars comprising biometrics, documents, and life story, as the foundation on which assessments of identity are made:

Pillar 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.

1. Decision makers are counselled not to rely on a single pillar in isolation, but to comprehensively:

   …test and evaluate a person's claims with regard to their identity, decision-makers should consider each pillar. In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship Applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified.

   Through their reliability and comprehensiveness, identity documents testify to important events in the Applicant’s life story. Through personal identifiers contained in identity documents the Applicant’s biometrics held on departmental records are matched and confirmed.

2. Additional guidance is provided in CPI16 as follows:

   4.12 How do I assess a person’s identity – an evidence based approach

   In order to make an informed assessment of a person’s identity, officers must seek to establish a person’s identity from birth using an evidence-based approach. It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.

   The way in which officers should approach the concept of assessing a person’s identity from birth is to create an identity timeline, thus creating a complete picture of the person’s identity from birth to present. The objective is to link the Applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life. The three pillars are the methodology for establishing a person’s identity, and officers must turn their mind to the individual characteristics in order to piece together a person’s identity timeline and create an ‘identity picture’.

   …

   4.14 Assessing pillar two – documents

   Documents are an important element of the process in establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).

   When assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent, or otherwise, and whether they element support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.

   …

   4.15 Assessing pillar three – life story

   When assessing a person’s life story in the context of a citizenship application, officers should seek to create a complete identity ‘picture’ of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person’s identity, while at the same time considering their life story, is to consider their identity timeline.

   …

   In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, officers should locate the information provided during these interactions, plot it on the person’s identity timeline, and compare it with information provided at the time of applying for Australian citizenship.

   Example – testing information pursuant to the pillars of identity

   A person’s identity story can include, but is not limited to, their age compared to

   their:

   ·education, employment, places of residence, marriage and divorce;

   ·extended family history including:

   obirth of children, births and deaths of siblings and parents, date of marriage.

   Example – the importance of family composition

   Family relationships can be very useful when establishing an individual’s identity. Relationships form an important characteristic of a person’s life story. It is important for officers to compare the family composition provided by the Applicant at various interactions with the Department.

   In order to corroborate information, officers should examine the family composition provided to the Department by the citizenship Applicant’s claimed family members, as well as the particulars of the information. There are generally common elements between family members who travelled to Australia together, or were from the same village. Independent corroborating evidence for a particular fact or interpretation means that the fact or interpretation is more likely to be true.

3. Paragraph 5.1 of the AGD Guidelines establishes that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken, encompassing:

   ·     Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).

   ·     Verification 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.

   ·     Verification of a person’s claimed identity with reputable organisations or bodies known to them…

   ·     A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.

   ISSUE BEFORE THE TRIBUNAL

4. The issue for determination is whether the Tribunal is satisfied of the Applicant’s identity.

   EVIDENCE

   Documentary evidence

5. Section 37 documents from the Respondent numbering 508 pages were admitted into evidence.[15] The Applicant did not lodge any documents prior to the hearing[16] nor tender any documents during the hearing.

   [15] Exhibit R1.

   [16] Pursuant to the Tribunal’s scheduling orders dated 23 March 2020.

   Applicant’s evidence

6. The Applicant gave oral evidence with the assistance of an interpreter and was cross-examined. It quickly became apparent that his application turns almost exclusively on the life story he has presented since arriving in Australia. That is because of the absence of documents and biometric information from his life in Iran. Several concerning inconsistencies were noted in the Applicant’s life story, including:

   (a)Documents. The Applicant claimed he and his family have never been issued with Iranian identity documents. When asked to confirm whether his parents ever received identification cards in Iran, the Applicant responded: ‘I don’t think so’. When asked why he did not know for sure, he said: ‘As far as I remember they were not given one’. The Applicant said he personally ‘didn’t bother’ applying for an identification card despite living in Iran until the age of 26, because his parents ‘were never given one’. The Applicant was referred to a previous Statutory Declaration in which he claimed to have made multiple applications for an Iranian identification card but said ‘government officers’ demeaned him and told him to ‘go away’.[17] The Applicant said this information was wrong and insisted no such applications were made. When asked to explain why the information in the Statutory Declaration was wrong, the Applicant said he was ‘confused’ when making this claim;

   [17] Exhibit R1, 228; 313.

   (b)The Applicant was challenged that his claim about no previous documents conflicted with reports from the Department of Foreign Affairs and Trade (DFAT), that the Iranian Government undertook substantial efforts to document refugees within its borders and provide them with identity cards. It was also put to him there were considerable benefits in holding an identification card. The Applicant insisted he and his family never received an Iranian identification document;

   (c)The Applicant said he was born at home in Iran because: ‘we can’t go to hospital’. He was referred to a previous interview with Departmental officials, however, in which he claimed to have been born in a hospital, was unsure if his birth was registered, and would ‘speak to his mother to confirm’.[18] The Applicant said this inconsistency was a ‘mistake’ he could not explain. The Tribunal has noted country information regarding birth certificates in Iran;[19]

   [18] Ibid 313.

   [19] Ibid 431.

   (d)Financial circumstances in Iran and Australia. The Applicant said his family in Iran did not have much money and experienced challenges after his father died 25 years ago.[20] He claimed to have often borrowed ‘money from friends,’ to pay for the rental property he and his mother lived in. Since his arrival in Australia a decade ago, the Applicant said he tried to help his family financially whenever he could but described his own transition to life in Australia as difficult. Despite arriving here as a young man in his mid-20s, the Applicant has never worked and claimed to have been reliant on Centrelink benefits. He said that on occasions friends loaned him money to help with daily living expenses. When asked by Mr Sypott if he had much money, the Applicant responded: ‘No’. The Applicant said that in or about March or April 2020 he received a one-off compensation payment of approximately $340,000, after costs, relating to injuries he sustained in a traffic accident in 2015. He said about $100,000 of this was left after spending some of it and assisting his family in Iran;

   [20] Ibid 125.

   (e)Mr Sypott properly informed the Applicant about his right not to respond to questions that may tend to incriminate him, before asking about certain financial transfers:[21]

   [21] Ibid 437-507.

   (i)Mr Sypott took the Applicant through records showing he transferred approximately $700,000 during a one-month period from 30 December 2019 to 30 January 2020, which was several months prior to the compensation payment from the traffic accident. Mr Sypott noted many transactions were made to Iranian bank accounts operated by the Applicant’s mother and sister. It was put to the Applicant that their ability to open and operate Iranian bank accounts conflicted with his claims they are undocumented Feili Kurds;

   (ii)The Applicant said he was surprised by the amount recorded in financial transfers to Iran during this period, but agreed he made them. In relation to his family’s bank accounts, he stated: ‘In Iran you bribe people and you can do anything you want’.  When asked to explain the source of the considerable funds he sent to Iran, given his claimed reliance on Centrelink payments during the last decade, the Applicant attempted on several occasions to link his compensation payment to these financial transfers. When pressed, he also referred to receiving ‘money from friends’. It was put to the Applicant that his explanations were implausible because the amounts transferred within a month were more than double the entire compensation payout he received several months later. It was also inconsistent with the financial circumstances of a person claiming to have been reliant on Centrelink payments for the last decade. The Applicant responded: ‘It’s money that I got from my friends and sent to Iran, I know it’s hard for you to believe it’.  

   (f)Parent’s place of birth and personal circumstances. In his 2017 citizenship application and earlier documentary evidence, the Applicant stated his parents were either born in Iran or were citizens of Iran.[22] These earlier claims were made with the assistance of an interpreter [23] and some translated from written responses in his own language. In other material he claimed his parents were born in Iraq.[24] The Applicant accepted responsibility for these inconsistencies, which he characterised as ‘mistakes,’ but was unaware how they occurred. He insisted his parents were Iraqi born.[25] When asked why his parents fled, the Applicant said: ‘I don’t know what their problem was in Iraq…as far as I know Saddam Hussein expelled them’. When asked if his parents received any assistance to cross the border illegally, the Applicant said he did not know. When referred to his previous claims that his parents used a smuggler to relocate to Iran,[26] the Applicant replied: ‘probably’. The Applicant was unaware if his parents had any documents from Iraq, or if they lived in an Iranian refugee camp, or had ever tried to return to Iraq;

   [22] Ibid 80; 115-116; 259.

   [23] Ibid 118-119; 208.

   [24] Ibid 202; 210 [Q23].

   [25] Ibid 329.

   [26] Ibid 313.

   (g)Siblings’ circumstances. The Applicant has consistently stated since 2011 that all his siblings were born in Iran,[27] except for one reference to his oldest sister being born in Iraq.[28] The latter claim was made with the assistance of an interpreter[29] and submitted by his lawyer in May 2011.[30] In oral evidence, however, the Applicant claimed for the first time that four of his siblings were born in Iraq. When asked about inconsistencies in his siblings’ birth dates, the Applicant said these were ‘approximations’ and he was ‘just guessing.’ He claimed to be ‘quite confident,’ however, about the age order of his siblings. When asked to explain why he had stated in written evidence that his only brother was the eldest child, whereas in oral evidence he claimed this brother was the third youngest, the Applicant said the past documentary claims were ‘wrong.’ When asked why, he responded: ‘I didn’t think it was important for these things to be very accurate – I told them it’s approximate’. When challenged that mistakes about dates of birth could be understood, but not so when getting his brother’s place in the sibling age order wrong, the Applicant responded: ‘I can’t really say why; looking at it now, I’m confused’;

   [27] Ibid 202-203.

   [28] Ibid 150.

   [29] Ibid 177.

   [30] Ibid 174-175.

   (h)Reasons for departing Iran. When asked why he left Iran, the Applicant said it was because of ‘no identity,’ being unable to get a ‘proper job,’ or ‘buy a car.’ When asked about problems with Iranian authorities, the Applicant stated: ‘I couldn’t do anything over there, so I came here for a better life’.  When asked if he had any issues with the Iranian police, the Applicant responded ‘No’. When taken to previous claims on arrival in Australia that he was beaten by the Basij,[31] he remembered and claimed his previous answer related to the police and not the Basij;

   [31] Ibid 268.

   (i)Work in Iran. The Applicant was asked about his past documentary claims about employment in Iran.[32] He stated that he worked as a painter for a decade, including for his brother, but his work was intermittent.[33] When asked if he tried to obtain evidence about the work for his brother, the Applicant responded: ‘No…He’s also working illegally – he’s not an official…he couldn’t give me a letter to say I was working for his company…he doesn’t have an office’. The Applicant said that on average he earned between 100,000 and 120,000 Iranian Toman per month from his work in Iran. When asked about previously claiming to earn between 150,000 to 200,000 Toman per month,[34] the Applicant replied: ‘It’s approximate.’

   [32] Ibid 163; 217 [Q38].

   [33] Ibid 228.

   [34] Ibid 331.

   (j)Travel to Australia. The Applicant previously said his mother reclaimed a bond on her rental property to fund his travel to Australia.[35] When asked about this he initially stated: ‘It was a loan rather than a bond.’ Later in his evidence, however, he repudiated the loan claim. Mr Sypott put to him that country information suggested green / white identity cards were needed to access rental properties. The Applicant responded that the rental agreement was ‘not through an agency, but just by dealing with people.’ When asked how his mother could enforce a bond based on an informal arrangement, the Applicant said: ‘people between them they do these things;’

   (k)The Applicant said he was assisted by a smuggler to leave Iran but forgot the smuggler’s name. When asked to describe the smuggler’s physical appearance, the Applicant said he was short with black hair and a build comparable to the Applicant’s (slight). When referred to his previous description of the smuggler in 2011 as tall and big-shouldered,[36] the Applicant stated: ‘believe me I’ve forgotten, it’s 10 years ago’;

   (l)The Applicant said he paid the smuggler seven million Toman to facilitate his travel to Australia. When asked why he claimed in 2011 to have only paid the smuggler five million Toman,[37] the Applicant said two million Toman was paid initially, followed by five million Toman later. When asked how he could afford this amount given his family’s difficult circumstances, the Applicant stated: ‘My mother helped me. She sold household stuff and I had a little bit of money myself’.  When put to the Applicant that the amount he paid was approximately five years of his total income without allowance for other expenditure, he equivocated. When pressed about the specific source of these funds, the Applicant claimed his mother reclaimed a bond on her rental premises of four million Toman, sold furniture and possessions for approximately 1.5 to 2 million Toman, the Applicant had approximately 500,000 Toman himself in savings, and ‘the rest’ came from his brother and sisters;

   (m)When asked if the smuggler provided him with a counterfeit passport, the Applicant said it was ‘most likely’ a ‘fake passport’. When challenged that he previously accepted it was a false passport,[38] the Applicant again equivocated, stating: ‘Yes, it’s probably a false passport’. The Applicant was also asked about the inconsistency in his past documentary claims that he departed Iran from two different airports,[39] which he explained was ‘a mistake’. When asked how he could make such a mistake, the Applicant said this was the first time in Tehran and he ‘was stressed’. The Applicant was asked if it was necessary to bribe anyone at the airport to enable him to leave and he responded: ‘No’. It was put to the Applicant that country information suggested it was very difficult to leave an Iranian international airport unless bribery was involved, but he insisted no bribe was paid;

   (n)The Applicant said he left Iran ‘with a friend who was on the boat with [him]’, who now lives in Sydney. This conflicted with his previous claim that he knew no one on the smuggler’s boat prior to boarding.[40] When asked to explain, the Applicant said he did not consider this person a close friend so decided not to mention him;

   (o)The Applicant’s claims about what became of his fraudulent Iranian passport have differed over time.  In his oral evidence he stated: ‘Smugglers took it off us when we got to Indonesia’. In earlier documentary evidence he claimed the passport was ‘taken away from him on the trip to Australia’;[41]

   (p)Relationships. The Applicant was asked if he had ever been married, engaged, or in a relationship in Australia or Iran. He responded ‘No’ to each question. When later asked about ticking ‘Yes’ to the question: ‘Have you been convicted of, or found guilty of, ANY offence overseas or in Australia…’,[42] the Applicant claimed the ‘Yes’ response to this question was a ‘mistake.’ He was then asked about an explanatory note at the bottom of the same page, which said the ‘Yes’ answer related to ‘Dispute with my girlfriend.’ The Applicant was then able to recall a previous girlfriend in Australia and a court appearance relating to a ‘family violence’ offence. He said this resulted in the imposition of ‘community work’, but he could not recall what he was convicted of. The Applicant was asked about a ‘No’ response to a similar question about charges or convictions in his 2017 Resident Return Visa application,[43] and conceded: ‘I should have said yes’;   

   (q)Education. The Applicant claimed on arrival in Australia he had no rights in Iran, including to education.[44] When asked about evidence that he attended school in Iran to high school level,[45] the Applicant stated: ‘The schools I attended are not government school – they’re private schools…because of that even though I went to school for 11 years I have no documents’. When asked to name the schools he attended, the Applicant referred to two schools not previously referred to in his evidence. When challenged, he claimed to have only spent a year or two at these other schools and did not think it necessary to mention them before. The Applicant stated in oral evidence that as the youngest child in their family he was the only one to receive an education. This conflicts with a claim made in a Statutory Declaration through his lawyer and while assisted by an interpreter, that: ‘All of my siblings…did a couple of years of school’.[46] When asked about a past undertaking to ask his sister in Iran to enquire with schools he had attended about documents,[47] the Applicant said he had not done so because no documents were available;

   (r)Travel to Iraq. In his citizenship application the Applicant disclosed he had undertaken international travel on two occasions in 2014, including for a four-month holiday to Iraq in 2014.[48] He also claimed to have relatives in Iraq. He said the purpose of his travel to Iraq was for a ‘family visit’.[49]  He claimed that his mother and two sisters travelled from Iran to Iraq to meet him. When asked how they could do so as undocumented, stateless people, the Applicant claimed they paid a smuggler to bring them across the Iran-Iraq border.

   CLOSING SUBMISSIONS

   [35] Ibid 229.

   [36] Ibid 133.

   [37] Ibid 134.

   [38] Ibid 223.

   [39] Ibid 169 [Q54].

   [40] Ibid 117 [26]; 126 [Q26].

   [41] Ibid 330.

   [42] Ibid 86.

   [43] Ibid 354.

   [44] Ibid 135; 228.

   [45] Ibid 113; 123; 161; 216.

   [46] Ibid, 228.

   [47] Ibid 315.

   [48] Ibid 85.

   [49] Ibid.

   Applicant

1. The Applicant said he always knew the provision of documents ‘is important’ but claimed he had none to provide. He thought his family members in Iran would provide statements if he asked them.

   Respondent

2. Mr Sypott said the citizenship refusal decision should be affirmed because the Tribunal could not be satisfied of the Applicant’s identity. He said the Applicant provided no documents to establish his identity in Iran, which he had been on notice about since lodging his citizenship application in 2017. Mr Sypott said documents were reasonably expected to exist, but the Applicant had not tried to obtain them. Mr Sypott also referred to substantial inconsistencies in the Applicant’s life story.

   CONSIDERATION

3. Receiving an Australian certificate of citizenship is a significant privilege bestowing considerable rights and obligations. The strict emphasis on establishing identity as a precondition to granting citizenship, differs from visa assessment processes. The focus on identity in citizenship applications is particularly important because it links to the acquisition of valuable identity documents like a passport and other benefits. Thorough assessment of identity claims is therefore inexorably linked to the integrity of Australian citizenship.

   Biometric data

4. The only biometric information in this matter, being photographs of the Applicant, were taken after his arrival in Australia. These are of no use in establishing his identity since birth in Iran because there is no previous biometric information to compare them to.

   Documents

5. The Tribunal accepts that documents are not legally essential when determining identity, but it is reasonable to consider whether they are available and what an applicant has done to procure them. The only documents provided by the Applicant in this matter post-date his arrival in Australia. He said that neither he nor any of his family members have ever received an identity document from Iranian authorities. These claims rest entirely on the Applicant’s assertions alone.  

6. In the absence of biometric evidence and documents, attention necessarily turns to a person's life story. Again, this may not be entirely consistent for a variety of reasons and minor deficiencies or inconsistencies should not attract undue focus.

   Life Story

7. There are significant inconsistencies in the Applicant’s evidence since his first contact with Australian authorities in 2011, many of which are unresolved by his explanations:

   (a)The Applicant’s explanations about the source of the approximately $700,000 he transferred to Iran during a one-month period between late December 2019 and late January 2020 were unpersuasive. The Tribunal is unable to make any findings about the source of these funds, which clearly did not come from employment given the Applicant’s evidence about being reliant on Centrelink payments during the last decade. His claims about how several family members in Iran are able to operate bank accounts in their own names, despite being undocumented and stateless people, were similarly unpersuasive and uncorroborated;

   (b)The Applicant frequently stated he made ‘mistakes’ in past forms or was ‘confused’ about what was required. The Tribunal does not accept this given he was routinely represented by lawyers / migration agents and assisted by qualified interpreters. The frequency and significance of his ‘mistakes’ detracts from his claims;

   (c)Given the critical importance of where the Applicant’s parents were born to his statelessness claims, the Tribunal is concerned about his past references, including in his 2017 citizenship application, that they were born in Iran. It was noteworthy that in oral evidence the Applicant was unsure when or why his parents left Iraq, or whether they received assistance to illegally cross into Iran, or had any documents from their life in Iraq, or if they lived in an Iranian refugee camp, or had ever tried to return to Iraq. One would have thought that the origins of his statelessness would have been more prominent in his memories;

   (d)The Applicant’s purported lack of knowledge about Iranian policies and processes applying to undocumented Feili Kurds, was unpersuasive. As someone claiming to have lived as an undocumented and stateless person in Iran till his mid-20s, it is expected he would be more familiar with the Iranian Government policies applying to this category of people;

   (e)Although the inconsistent dates of birth for the Applicant’s siblings may perhaps be explainable by differences between the Persian and Gregorian Calendars, some dates of birth for his siblings vary by up to a decade. Additionally, his previous documentary claims that his only brother was the oldest sibling, conflict with his oral claim that this brother is the third youngest sibling. As this is his only brother it is difficult to understand how the Applicant made this ‘mistake’, given he was routinely assisted by an advocate and qualified interpreters. The Applicant also claimed for the first time at this hearing that four of his seven siblings were born in Iraq, which conflicts with his previous documentary evidence;

   (f)The Applicant’s claim, that neither he nor any member of his family ever received an identity document from the Iranian Government, and he ‘didn’t bother’ applying for his own as an adult, was unpersuasive. This seems inconceivable given the available country information,[50] and contradicts his previous declaration about making multiple applications. The Tribunal prefers the authoritative and reliable country information in the DFAT Report to the Applicant’s inconsistent and uncorroborated claims;

   (g)It is noteworthy no information was provided by the Applicant from people who know him best, particularly his immediate family in Iran. The Applicant also disclosed at the hearing he travelled from Iran to Australia with a friend who now lives in Sydney, but no statement was provided from this person. This disclosure is also inconsistent with his past claims on arrival in Australia that he did not know any of the people on the smuggler vessel bringing them to Australia;

   (h)It is difficult to understand from the precarious financial circumstances of the Applicant’s family, how they managed to pay for his 11 years of private schooling, passage to Australia, to bribe Iranian officials to open bank accounts, and to pay smugglers for passage across the Iranian-Iraqi border to meet the Applicant during his 2014 four-month holiday in Iraq. Moreover, the Applicant’s claim at the present hearing that he was the only sibling to receive a private education is inconsistent with his past documentary claims;

   (i)The reasons given by the Applicant in oral evidence for departing Iran related to ‘no identity,’ inability to get a ‘proper job,’ practical issues like buying a car, and desire for a ‘better life’ in Australia. Despite several questions seeking to elicit whether he had any issues with the Iranian police or authorities, it was only after being referred to his past documentary evidence about being beaten by authorities[51] that the Applicant recalled;

   (j)The Applicant’s explanations about inconsistencies relating to the cost of his travel to Australia, how he paid for it, what airport he departed from, the description of the smuggler who facilitated his departure, and what happened to the Iranian passport in his name, were unpersuasive at best;

   (k)The Applicant’s evidence about past relationships and his explanation for a ‘Yes’ response to the question: ‘Have you been convicted of, or found guilty of, ANY offence overseas or in Australia…’,[52] did not ring true. It also appears from the Applicant’s oral evidence at this hearing that he did not answer this question truthfully in his 2017 Resident Return Visa application;  

   (l)The Applicant’s evidence that his mother and two sisters illegally crossed into Iraq with the assistance of smugglers, to join him during a four-month holiday there in 2014, was unpersuasive. The Tribunal does not accept his uncorroborated assertion that three undocumented, stateless, and unaccompanied females can travel across Iran and illegally cross into and out of Iraq with relative ease.

   [50] Ibid 430 [3.36-3.39]-431 [3.48].

   [51] Ibid 268.

   [52] Ibid 86.

   CONCLUSION

8. Decision-makers are expressly precluded by s 24(3) of the Act from granting citizenship unless satisfied of an Applicant’s identity. It is for an Applicant to provide evidence relevant to their identity,[53] or to explain the reasonable efforts made to obtain it. The Applicant has failed to provide any documents from his life in Iran, while agreeing that statements and perhaps other materials may be available from his family in Iran. To date, he has not made reasonable efforts to obtain this material and the Tribunal is left with his assertions alone. There are several significant and inconsistent aspects of his life story, both prior to and after arriving in Australia, which are not alleviated by his explanations.

   [53] CPI16 [4.12].

9. The Tribunal is not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act. Accordingly, the prohibition under s 24(3) of the Act applies and his citizenship application must not be approved.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 30  (thirty) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 16 December 2021

Date of hearing:	9 December 2021
Applicant:	In person
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor