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

[2021] AATA 1018

Karimi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1018 (26 April 2021)

Division:GENERAL DIVISION

File Number(s):      2019/7744

Re:Neamat Karimi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr. A. Maryniak QC, Member

Date:26 April 2021  

Place:Melbourne

The Tribunal affirms the decision of the Respondent made on 24 October 2019.

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

Mr. A. Maryniak QC, Member

Catchwords

CITIZENSHIP – citizenship by conferral application – section 24(3) of the Australian Citizenship Act 2007 (Cth) – Identity – identity requirements not satisfied – Iranian Kurd – stateless Applicant and family – life story inconsistent – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Ahamad v Minister for Immigration and Border Protection [2019] AATA 7
Briginshaw v Briginshaw (1938) 60 CLR 336
CDWB and WLVM v Minister for Immigration and Border Protection [2018] AATA 757
Dhayahpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579

Secondary Materials

Attorney-General Department’s ‘National Identity Proofing Guidelines’ 2016
Australian Citizenship Policy Statement, Citizenship Procedural Instruction 16; see also Chapter 13

Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Mr. A. Maryniak QC, Member

26 April 2021

1. This is an application for review of a decision of a delegate of the Respondent to refuse the Applicant’s application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The issue for determination by the Tribunal is whether it is satisfied of the identity of the Applicant pursuant to s. 24(3) of the Act.

3. The Tribunal has considered the documentary evidence before it, together with the oral evidence of the Applicant, who was cross examined. The Tribunal has also considered all of the written submissions lodged by the parties.

4. The documentary evidence comprised of various documents tendered by the Applicant and the Respondent, including:

   (a)Statutory Declaration of the Applicant dated 19 March 2020;

   (b)A joint or group witness statement from family members;

   (c)A joint or group witness statement from friends of the Applicant;

   (d)T-Documents, Supplementary T-Documents and Further Supplementary T-Documents; and

   (e)An Identity Analysis Report.

5. The Respondent, and hence this Tribunal, must not approve an Applicant becoming an Australian citizen unless it is satisfied of the identity of the Applicant pursuant to s. 24(3) of the Act. In applying this section of the Act, the Tribunal may be assisted by the Australian Citizenship Policy Statement including the Citizenship Procedural Instruction 16; see also Chapter 13.

6. Three pillars of identity are to be considered, being biometrics, documents and life story.

   BACKGROUND

7. By way of background, the Applicant arrived in Australia as an unauthorised maritime arrival on 21 December 2010. In his Biodata form of December 2010, he stated he was born on 28 September 1977 in Shiriwan, Iran, indicating his citizenship was Iranian Kurd, he had a Green card and completed “J. High” at school.

8. In his Unauthorised Arrival interview on 31 December 2010 he said he was born in Iraq (unsure where) in August 1975 and was stateless, he and his family were expelled from Iraq in 1978 and moved to Ilam, Iran, and he did not have a Green card.

9. The Applicant said he was home schooled for three years between the age of 10 to 13 (primary only), worked as a farmer/ farmhand from when he was a child to age 28, from 1998 until 2010 he was self-employed as a labourer, delivery man and trolley man. He married in 1999, had a daughter in 2001 and son in 2005. He travelled to Australia with his family on fake Iranian passports (with fake names) provided by a people smuggler. The passports were taken upon arrival in Indonesia. He said he and his family would be seen as spies and killed if they returned to Iran because they left Iran with false passports.

10. On 5 March 2011 in a statutory declaration he declared that he was born in Iraq, and was expelled from Iraq with his family when he was aged two. He stated he had since lived in Iran. He was a stateless Faili Kurd, prevented from obtaining any identity document, birth certificate or passport and had no rights to work, schooling, government healthcare, official marriage, a drivers’ licence, buy or sell property or be part of the Iranian political processes. He declared he would not be allowed to return to Iran as he would be imprisoned or even killed by the authorities.

11. Also on his signed Personal Particulars for Character Assessment (Form 80), he said he was born in Iraq (place unknown) on 27 May 1975, was not paid in money when he worked as a farmer/ farmhand and was paid 400,000 to 500,000 Toman per month when he was a self-employed delivery man. His wife, daughter and son and mother, father, two sisters and brothers were all stateless.

12. On 9 March 2011, he stated in an interview that his parents were born in Iraq and did not have Iraqi citizenship, he and family members had attempted to apply for Iranian citizenship but were not accepted because they were accused of being Iraqi and did not have any ID. His father had a green card originally but “did not ever change to white card”, he had never had a green card or white card in Iran and his children were born at home without professional assistance.

13. In July 2011, the Applicant requested his date of birth be changed from 27 May 1975 to 27 May 1972.

14. The Applicant applied for Australian citizenship by conferral on 24 August 2015, stating he was born on 27 May 1972 in Ilam, Iran, his parents were also born there and were stateless. Various Australian documents were provided but he declared that he was stateless and did not have “a birth certificate or any document for [his] birth” from either Iran or Iraq.

15. On 29 August 2018, the Applicant was granted a Resident Return visa which he continues to hold. He left Australia on 8 November 2018, remaining overseas for more than six months. On 16 June 2019 on his incoming passenger card he stated most time was spent in Iran, “visiting friends or relatives”.

    APPLICABLE LEGAL PRINCIPLES

16. The starting point for this Tribunal to be satisfied (or not) as to the Applicant’s identity for the purposes of granting Australian citizenship is section 24(3) of the Act. Section 24(3) of the Act contains a prohibition to conferral:

    “The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.”

17. The term ‘identity’ is not defined in the Act.

18. The Tribunal notes that the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:

    “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.”

19. Further, the Australian Citizenship Policy Statement (the Policy) provides at Chapter 13:

    “The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.”

20. The Policy makes reference to the Attorney-General Department’s ‘National Identity Proofing Guidelines’ 2016, their purpose being to strengthen the process of identity proofing and creating a standardised and transparent approach. The Guidelines state:

    “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.”

21. Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act, which is part of the Australian Citizenship Policy Statement identifies three pillars of identity: biometric, documents and life story [at 4.4] and provides:

    “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.”

22. Then at 4.16 with regard to being ‘satisfied of a person’s identity’:

    “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 weighed.”

23. 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 probabilities independently 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.

24. 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.

25. Such relevant policies are generally to be applied by the Tribunal unless there is a cogent reason not to.[1]

    [1] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

26. The inter-relationship between the determination of identity and the grant of Australian citizenship is of fundamental importance. Substantial significance and privileges are part of such a conferral. As to the level of satisfaction required of the Tribunal, reference has been made to Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw), apropos the grant of citizenship in Ahamad v Minister for Immigration and Border Protection [2019] AATA 7 at [30].

27. A certificate of Australian citizenship is a legal document of considerable significance. Although the Tribunal is not bound to apply Briginshaw it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian citizenship by conferral is a matter in respect of which the Australian community expects the decision maker, and here the Tribunal, will approve only if the prerequisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.

28. Further, in Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579 the meaning of the statutory term “satisfied” was considered in respect of Australian citizenship applications at [56]:

    “… the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges…”

29. Relevantly, whilst production of documents to establish identity is not legally essential, in their absence a cogent and acceptable explanation is required: CDWB and WLVM v Minister for Immigration and Border Protection [2018] AATA 757 at [9].

30. Where an applicant has failed to show positive steps in obtaining identity or supporting documents or provided an acceptable reason for not doing so, that failure ought to weight against an applicant: Dhayahpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].

    CONSIDERATION

31. Essentially the Applicant contends that he has been truthful in all his dealings with the immigration department since his arrival in Australia, he has endured great hardships, restrictions and humiliations that he suffered as an Iraqi refugee (stateless Faili Kurd) in Iran. He speaks fluent Faili Kurdish and knows a lot about Faili Kurds’ culture and origins. The Applicant submits that his life story is not implausible, and it does not run contrary to the known facts generally about undocumented refugees in Iran.

32. The Respondent contends that having regard to the material before it, the Tribunal cannot be satisfied of the Applicant’s identity.

33. The Applicant has been consistent regarding his full name and the difficulties he faced being an undocumented Faili Kurd. However, numerous inconsistencies in information provided over the years exist. Four different birth dates have been provided, being more than five years apart. He says such errors were due to translation problems with interpreters and calendar conversions.

34. There are inconsistencies in the year he claims he and his family were expelled from Iraq. On the evidence it could be 1976, 1977 or 1978.

35. His place of birth has been variously nominated as Ilam, Iran or Iraq, the Applicant saying on occasion he had nominated the place where he grew up, due to misunderstanding the question. Further inconsistencies exist regarding his parent’s place of birth and as to whether or not his father had a Green card.

36. Without more, the Tribunal would be unlikely to find these inconsistencies a barrier to being satisfied as to the Applicant’s identity. However, the Respondent highlighted other inconsistencies and implausibilities in aspects of the Applicant’s life story, the first concerning his exit from Iran and journey to Australia. As discussed above whilst claiming protection, the Applicant consistently claimed an inability to obtain a well-paid job in Iran and that generally he was uneducated and could hardly subsist.

37. The Applicant’s evidence during the hearing was that he did get paid in money for his farming job – receiving one third of the profit from working on the land. He said that his earlier statement that he was “not paid in money” might have come about because he was “not formally paid on a regular basis”. He said he also did labour work during this period due to the seasonal nature of farming work.

38. He said he was able to save an average of 500,000 to 600,000 Tomans annually since he started working (around US$500 per annum) yet he only decided to travel to Australia about five or six months prior to leaving and paid about US$17,000 to travel to Australia. The Applicant said he paid US$10,000 of his savings and about US$7,000 was borrowed from his mother, father and his brother Vahab. None of those borrowings have been paid back in the last 10 years, no one has asked to be paid back, yet the “debt is still in place”. On balance, on the evidence, the Tribunal finds this aspect of the Applicant’s life story as inconsistent and implausible.

39. As to his departure from Imam Khomeini International Airport using a fraudulently obtained passport with his name but a different family name (Gholami) and his photo, he says that he was instructed to approach a specific person in airport customs. The Applicant said through the interpreter “and I arrived them (sic), I showed them my passport and I was told ‘Okay, go inside’ and that was it”.

40. Against this, the Respondent submits that country specific information on Iran suggests that obtaining a fraudulent Iranian passport of sufficient quality to pass through Iranian departure controls is highly unlikely due to the checking of existing passports against a computer system and multiple persons being responsible for the ultimate authority to board a plane, hence multiple people would all need to be bribed if a person was to leave by a fraudulent passport.[2]

    [2] Supplementary T-Documents (ST) 6, p. 310 and ST3, pp 266-267; ST5 p. 288.

41. Rather than disputing that strict border control procedures were in place he relied in primary contentions, at least, on a 2006 report which states that ”it may happen in practice that individuals who have fraudulent travel documents… resort to pay[ing] bribes to Iranian border officials to pass through the control system unharmed”. However, this is not the method of departure claimed by the Applicant. Again, on balance, considering all the evidence, the Tribunal finds this aspect of the Applicant’s life story, that he left on “seemingly [a] genuine” document implausible.

42. Importantly, the Tribunal needs to also consider the Applicant’s Resident Return Visa and the fact that he recently returned to Iran for a considerable period visiting friends and family, in late 2018 and the first half of 2019. This extended visit is against the backdrop of the body of his earlier evidence to Australian authorities that it would be extremely dangerous, undesirable, difficult and even fatal if he were to attempt any return to Iran.

43. Whilst his stated reasons for such a return visit, namely the death of an uncle and the “fragile” health of his father are both understandable and admirable, the visit itself does not sit consistently with his life story. Not only is it inconsistent, it detracts from the plausibility of this aspect. The Tribunal is of this view, despite the Applicant saying that he was smuggled in and out of Iran for this visit.

44. Such implausibility is amplified by the fact that his wife and children currently live in Iran as undocumented stateless persons and that they voluntarily choose to live in Iran.

45. The Respondent contends and the Tribunal finds that, in such circumstances of voluntary return to a country where he claimed to fear great harm and danger, this undermines the credibility of his claims and is direct evidence which supports this Tribunal inferring and finding that the Applicant’s life story in this regard is implausible. The Tribunal so finds.

46. These findings relating to “life story” considerations take on extra significance because the Applicant has been unable to provide the Tribunal with any documentary evidence regarding his identity since birth, prior to arriving in Australia.

47. The Tribunal notes what the Applicant has said in his statutory declaration on 19 March 2020 at [3] to [6]. However, this was contrary to his evidence during the hearing that relevantly his father previously did have a Green card and he was “not sure” if his mother had a Green card.

48. The Tribunal acknowledges that the Applicant made a telephone call to the Iranian embassy in March 2020 and accepts, as the Applicant submits, that it is unlikely that a stateless undocumented person who fled Iran nearly a decade ago would be able to obtain identity documentation. However, the fact remains that no such identity documentation is in evidence before this Tribunal. Further, no biometrics evidence is available.

49. The end result is that, on the evidence, the Tribunal can only assess the one “life story” pillar of the three pillars of identity. On balance, in light of the considerations and findings above this Tribunal cannot be satisfied, as required under s. 24(3) of the Act, of the identity of the Applicant.

    DECISION

1. The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision of Mr. A. Maryniak QC, Member

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

Associate

Dated: 26 April 2021

Dates of hearing:	29 May 2020
Solicitors for the Applicant:	Amir Hassani of Victoria Immigration Lawyers
Solicitors for the Respondent:	Shauna Roeger of Australian Government Solicitor