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

[2021] AATA 3173

Kazim Hassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3173 (3 September 2021)

Division:General Division

File Number(s):2019/8537      

Re:Kawa Kazim Hassan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:3 September 2021

Place:Sydney

The Tribunal affirms the reviewable decision dated 27 November 2019.

..............................[SGD]..........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – Application for citizenship by conferral – Issue of identity – Whether the Tribunal can be satisfied of the applicant’s identity under section 24(3) of the Citizenship Act 2007 – Where limited documentary or biometric evidence of identity provided – Where heavy reliance on applicant’s life story – Decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 24

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Attorney-General’s Department National Identity Proofing Guidelines

Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act

Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc, April 2009

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

3 September 2021

BACKGROUND

1. The Applicant applied to the Tribunal seeking review of a decision made by a delegate of the Respondent refusing to approve his application for Australian citizenship by conferral. The application was refused on the basis that the delegate was not satisfied of the Applicant's identity pursuant to subsection 24(3) of the Australian Citizenship Act 2007 (the Act).

2. The Applicant claims to have been born in Qazvin, Iran in January 1987.[1]

   [1] T-Documents, T1, 11.

3. On 26 February 2010, the Applicant arrived in Australia aboard a vessel named Kardinya.[2]

   [2] T19, 452. T4, 181.

4. On 28 February 2010, the Applicant attended an entry interview with an officer of the Department.[3] At the entry interview, the Applicant claimed that he:

   [3] T4, 181-209.

   (a)was born in January 1987 in "Qazween", Iran;[4]

   [4] T4, 183.

   (b)lived in the same suburb for about 18-19 years;[5]

   (c)had a "green" card that he thinks his father obtained from Tehran, however, the card is with his father in Iran;[6]

   (d)went to school up until level 5, he completed 5 years in a Mosque;[7]

   (e)was employed in a library as a cleaner for one year in 2009, he worked in a supermarket for 1-2 years when he was 17 years old, he worked in a fruit and vegetable shop for 1-2 years when he was about 15 years old and in a supermarket for 1-2 years when he was 12 years old;[8]

   (f)is Kurdish Feyli of Shia religion;[9]

   (g)has a brother and sister that are currently in Iran with his parents;[10]

   (h)wanted to go look for a job in Iran but he could not because he does not have any documents and he was hit in the eye with a rock but he couldn’t complain because he has no documents;[11]

   (i)started arrangements to come to Australia about 2-3 months before arriving, he went to Dubai and then to Indonesia, and that ‘my dad went after my passport - to Kuche Marwi’;[12]

   (j)paid USD$8,000 to get to Australia from Indonesia, USD$660 for the ticket from Iran to Indonesia, USD$300 to be introduced to 'Gardhat' and USD$150 to Indonesian police;[13] and

   (k)the passport his father obtained for him in Kuche Marwi was not genuine, it was a fake Iranian passport, that included the Applicant's picture but had a different Kurdish name.[14]

   [5] T4, 184.

   [6] T4, 185.

   [7] T4, 185.

   [8] T4, 185.

   [9] T4, 186.

   [10] T4, 187.

   [11] T4, 191.

   [12] T4, 195-196.

   [13] T4, 196.

   [14] T4, 197-198.

5. On 2 May 2010, the Applicant made a request for Refugee Status Assessment (‘RSA’).[15] On 25 June 2010, the Applicant was notified that a delegate had determined that he was not a refugee as defined in the Refugees Convention.[16] In the RSA outcome, the delegate noted that the Applicant claimed that he:

   (a)was born in January 1987 in Qazvin, Iran;[17]

   (b)is stateless;[18] and

   (c)is a Feyli Kurd and Shia Muslim.[19]

   [15] T7, 287.

   [16] T7, 287.

   [17] T7, 289

   [18] T7, 289.

   [19] T7, 289.

6. In the RSA outcome, the delegate referred to the Applicant's RSA interview and relevantly noted that the Applicant had stated that:

   (a)he was unemployed after working in a bookshop because he had no identity documents;[20]

   (b)he was issued a green card;[21] and

   (c)his father undertook work in brick masonry/brick laying/construction and agriculture for different people and his brother occasionally undertook agricultural work.

   [20] T7, 293.

   [21] T7, 293.

7. On 2 May 2010, the Applicant lodged an application for a Protection (XA-866) visa.[22] In his visa application, the Applicant relevantly indicated that:

   [22] T5, 210-238.

   (a)his mother, father, brother and sister all remain in Iran;[23]

   (b)the people who assisted the Applicant in his transport to Australia, and that a "smuggler" took his passport;[24]

   (c)he is stateless and has been since 8 November 1987;[25]

   (d)he attended school informally at Nehzad Schooling, Rasol Akram Mosque, Alvand, Albors, Qazvin, Iran for five years;[26]

   (e)his work history is as follows:[27]

   (i)from 1999 to 2000 he was a helper/cleaner in a supermarket;

   (ii)from 2000 to 2002 he was a helper in a supermarket;

   (iii)from 2002 to 2004 he was a helper in a bookstore; and

   (iv)from 2004 to 2010 he was unemployed.

   [23] T5, 216.

   [24] T5, 217, 223.

   [25] T5, 222.

   [26] T5, 228.

   [27] T5, 230.

8. The Applicant included his own statutory declaration, signed on 2 May 2010, in his protection visa application.[28] In his statutory declaration, the Applicant relevantly stated that he:

   (a)was born in Qazvin, Iran, he is Kurdish Feyli, a Shia Muslim and stateless;[29]

   (b)has never entered Iraq;[30]

   (c)had no right to documentation or residency and therefore could not produce them when asked and was subsequently reprimanded and mistreated;[31] and

   (d)was denied basic civil rights such as the right to education, work opportunities and health care.[32]

   [28] T5, 239-240.

   [29] T5, 239.

   [30] T5, 239.

   [31] T5, 239-240.

   [32] T5, 240.

9. On 18 August 2010, the Applicant's representative requested an independent merits review (‘IMR’) of the refugee status assessment.[33] In support of the request for IMR the Applicant's representative filed submissions, relevantly claiming that the Applicant's parents were part of Saddam Hussain's expulsion of Feyli Kurds from Iraq.[34]

   [33] T7, 243-280.

   [34] T7, 243.

10. On 28 March 2011, the Department notified the Applicant of the outcome of the IMR, being that the Applicant met the definition of refugee.[35] On 8 June 2011, the Applicant was granted a Protection (Class XA) Subclass 866 (PV) visa.[36]

    [35] T9, 345.

    [36] ST1, 2-7.

11. On 10 April 2019 the Applicant left Australia.[37] The Applicant claims that he visited Turkey for the purpose of a hair transplant.[38]

    [37] T19, 452.

    [38] T14, 407.

12. On 4 September 2015 the Applicant applied for Australian citizenship by conferral.[39] In his application, the Applicant again claimed that he was stateless. In support of his application, the Applicant provided a number of identity documents that had been issued after his arrival in Australia. In the reasons for not being able to provide documents, the Applicant stated that he:

    (a)contacted his parents but they were not able to find any documents and they are too old to be able to follow up the request further; and

    (b)has some family members in Australia that are Australian citizens and could confirm his identity.[40]

    [39] T10, 370-381.

    [40] T10, 390.

13. On 29 March 2019, the Department wrote to the Applicant requesting that he provide documents relating to his identity prior to his arrival in Australia.[41] The letter provided a list of documents that the Applicant could provide in support of his identity prior to his arrival in Australia. The list included birth certificates, marriage certificates or dowry contracts, overseas driver licences, children's birth certificates or registration of birth, and death and burial certificates of family members. The letter also requested that the Applicant provide a completed 'Form 80 - Personal particulars for assessment' and that he provide further detail in relation to his life story to support his identity.

    [41] T12, 395-398.

14. On 15 May 2019, the Applicant provided further information,[42] including a statutory declaration, a letter from his representative and a letter from Nima Neyshaboury whom the Applicant met in detention in Australia.

    [42] T15, 426.

15. In his statutory declaration the Applicant confirms he received a Green Card but could not recall the detail and as far as he knows his family never received white cards.[43] The Applicant states that his father was in charge of his family affairs and they were never involved in the process. He states that his father is now almost 76 years old, disabled and is illiterate.[44]

    [43] T15, 427.

    [44] T15, 427.

16. On 27 November 2019, a delegate of the Respondent refused to approve the Applicant's application for Australian citizenship[45] on the basis that the delegate was not satisfied of the Applicant's identity.

    [45] T2, 13.

17. On 20 December 2019, the Applicant applied to the Tribunal seeking review of the delegate's decision.[46]

    [46] T1, 4.

18. On 15 and 17 June 2020, the Applicant's representative provided the Tribunal and the Respondent with further material, including:

    (a)a Statutory Declaration made by Zeinab Javadipour, the Applicant's cousin;

    (b)three videos in Kurdish;

    (c)a picture of the Applicant's father; and

    (d)an uncertified "transcript" of the videos translated into English.

19. On 24 June 2020, the Applicant's representative also provided the Tribunal and the Respondent with further material being a statement from the Applicant's father, Kazim Kazim Hassan and a certified translated copy of the statement.

    LEGAL FRAMEWORK

    Relevant legislation and policy

    Citizenship Act

20. The Tribunal has jurisdiction to review the decisions of a delegate of the Respondent pursuant to paragraph 52(1)(b) of the Act.

21. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

22. Subsection 24(3) of the Act provides that the Minister must not approve a person's application for citizenship unless the Minister is satisfied of the identity of the person.

    Government Policy

23. The following policies are published by Australian government departments specifically in relation to decision-making for identity proofing:

    (a)the Citizenship Policy, published by the Department, which contains relevant policy guidance at Chapter 13 in relation to assessing identity under the Act;[47]

    (b)Citizenship Procedural Instruction 16 (CPI 16), published and used by the Department in relation to decision-making under the Citizenship Act, which also contains relevant guidance about assessing an individual's identity, specifically for the purposes of determining whether the prohibition in section 24(3) of the Citizenship Act applies;[48] and

    (c)the National Identity Proofing Guidelines (‘AGD Guidelines’)[49] published by the Attorney-General's Department for the purpose of strengthening identity proofing processes and increasing trust through a standardised and transparent national approach (see [1.2.1] of the AGD Guidelines). The AGD Guidelines are referred to in CPI 16 as being relevant for decision-makers in considering whether the prohibition in section 24(3) applies.

    [47] T3, 92-96.

    [48] T3, 105-118.

    [49] T43, 119-152.

24. The Tribunal in conducting its review should ordinarily consider and apply lawful Government policy unless there is a cogent reason not to: Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

25. CPI 16 (at [4.4]) and the AGD Guidelines provide that when assessing identity, a combination of three elements are relied upon. They are referred to as the 'three pillars of identity'. The pillars were helpfully summarised in a table provided by the Respondent as follows:

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

26.     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. The CPI further provides 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.

   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.

   …

   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’.

   …

   4.15 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.

   …

   There may be cases where one pillar may be given more weight than the others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information. This research will enable the officer to test and verify whether the applicant’s claims, relevant to aspects of their life story, are consistent with the situation in a particular country. Credible country information will support and add weight to a decision, and can be cited in the decision record.

   Example - undocumented arrival: potential avenues of research where one pillar may be given more weight than the others.

   A citizenship application is received from a person claiming: they are stateless, undocumented, and are unable to provide any evidence of their identity prior to arriving in Australia as an Illegal Maritime Arrival (IMA); they exited their country of residence on a bogus travel document; and they previously held an identity card issued to stateless people by the Government of the country they resided in. They do not have the card now.

   Issues

   oNo documentary evidence of the person’s identity from birth to arrival in Australia.

   oNo biometrics which can be used for comparison purposes.

   Potential action

   In order to test the veracity of the above claims and make an informed assessment, it is necessary for the officer to research country information. This research will provide an informed basis on which to assess whether the claims are factually accurate or plausible, and align with country processes.

   Country research can include, but is not limited to:

   oinformation contained in the National Identity Toolbox;

   oreports obtained from CISNET. CISNET also contains information with regard to a country’s exit procedures;

   oinformation obtained from the relevant Post;

   oinformation from IMtel and NIS.

   The officer must then consider, assess, and weigh the country information and evidence provided by the applicant, ensure that natural justice requirements have been met, and make a determination whether they are satisfied of the applicant’s identity. The decision must show the link between the law, facts, clearly explain the reasons they considered and the weight given to the evidence that ultimately led them to reaching their decision.

   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:

   oeducation, employment, places of residence, marriage and divorce;

   oextended family history including:

   §birth 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.

   (emphasis added)

1. The Attorney General's Department's National Identity Proofing Guidelines (AGD Identity Guidelines) (which are referred to in the CPI) have been published for the purposes of strengthening identity proofing processes and increasing trust through a standardised and transparent national approach (see [1.2.1]). They relevantly provide as follows (footnotes omitted and emphasis in original):

   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.

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

   ·'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 (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).

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

   ISSUE

3. The issue before the Tribunal is whether it can be satisfied as to the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).

   EVIDENCE

   The Applicant

4. The Applicant gave evidence that he was born in Iran in January 1987. His parents were Kurdish and had been expelled from Iraq. He had lived in Australia since 2010. He had been granted refugee status but had failed in a number of attempts to be granted citizenship. He said he understood the difficulty in obtaining citizenship, in particular because he did not have identity documents.

5. When talking about his background, the Applicant stated that his parents were very poor, that they were discriminated against in Iran and that his mother was illiterate. His father had worked primarily in the agricultural industry or caring for livestock. His mother had taken care of the family at home. The Applicant gave evidence that his father had suffered a stroke, was unable to speak and was being cared for by his mother. One of the reasons he wanted to obtain Australian citizenship was so that he would be able to travel back to Iran to see his father. He had not seen his family for about 13 years.

6. The Applicant had been unable to attend school because he did not have identity documents and his only education had been in a tent on the grounds of a mosque where he had learnt for about five years as part of an informal charity-run education group. He had attended this informal school with other children of similar disadvantaged backgrounds, including other Feyli Kurd children and Afghani children who were also refugees.

7. When questioned about why he had no documents in relation to his birth or identity, the Applicant said that that was normal for people in his situation. He said his mother was unable to go anywhere to try to get documents for him because she was illiterate and did not know where to go. There was also concern that the authorities would question her about where the Applicant was now living and how he managed to get there. They would also want to know why the Applicant was not present in person to seek the documents himself.

8. The Applicant said that he had left Iran because his family wanted him to have a better life. All of the arrangements for him to come to Australia had been made by his father, including raising money for his travel, organising documents so that he could leave, and generally facilitating his departure from Iran. The Applicant said that he had paid back the money, which his father had borrowed from other family members, bit by bit over time.

9. The Applicant had also tried to support his family by sending money back to them whenever possible. He said that it was not possible to send the money directly to his immediate family because they did not have a bank account in Iran because they did not have Irani citizenship. The Applicant had an account with a money exchange through which he sent money back to Iran. In the course of the hearing, he was questioned extensively about transactions on this account, some of which he said were not his.

10. When questioned further on his life story, the Applicant said that he been had born in the Qazvin Province of Iran. He had not been born in the hospital, but rather he was born at home which he said was normal. He also said that his mother could not go to hospital as she had no identity documents and that he had no birth records. He said that he had relied on his family telling him his age and where he was born. He had only lived in Qazvin Province. He had moved about within that province but could not remember the exact details. He said that he may have moved house three or four times within the province. He said that he had come to Australia from Alvand Village, Qazvin Province.

11. The Applicant said that he and his family had always lived in very cheap housing in rundown areas and that he travelled about by bicycle. He had lived with his mother and father and his brother. For most of his life they had lived in the same house. He said his father wanted to live remotely and away from ‘government eyes’. His father made all the decisions about where the family would live, and his father paid the rent.

12. He had lived in the same house for about 10 years, although he could not remember the exact time, before he left to come to Australia. He was not sure whether his family continued to live at the same address and was not sure of their current address.

13. The Applicant gave details as to his mother’s name, which he clarified was ‘Sajeedah Jawadipoor’. He was taken to examples of how his mother’s name has been spelt differently in various documents. The Applicant said he was not sure of how to write the names and that he got confused between the letters J and G. He also gave evidence that there were many different ways of spelling the name in English and that different interpreters may have used different spellings when he had spoken to people about her in Australia. He said his mother had been born in Baghdad and said that he did not know her date of birth – he only knew that she was 60 years old. He said that his mother was not an Iraqi citizen. Although both of his parents had been born in Baghdad, his father had been in jail for seven years before the Iraqi government sent him and his family to Iran. He said they never had either Iraqi or Iranian citizenship. He said they were Feyli Kurd and that his mother spoke Kurdish and the Iraqi language. She had however never been an Iraqi citizen.

14. The Applicant said that he kept in touch with his mother through friends as she did not have a mobile telephone and he could only speak to her sometimes.

15. In relation to his father, the Applicant confirmed that his father was born in 1943. His father was currently unable to speak as he had suffered a stroke some months ago. He confirmed that his father was not an Iraqi citizen and that he had worked in Iran as an agricultural labourer or looking after livestock. His father had left Iraq with his mother before the Applicant was born.

16. The Applicant gave evidence that he had a sister aged about 32 and a brother aged about 36 and said that none of his family have birth certificates or other identity documents. When asked about disparity with his arrival documents, the Applicant said that he had never told anyone that he had two brothers. He was not sure what his brother in Iran was doing as he did not keep in touch with him, but he thought it may be looking after livestock or farming. He thought his sister had an informal marriage and was living with her husband. He had last spoken to her a few months ago, but had not spoken to his brother for at least a year. He said he had other family in Iran, some in remote areas because of the situation in Iran. He was not in contact with his extended family and was not sure where they were. They had all been expelled from Iraq together.

17. The Applicant’s sister had attended informal schooling with him, but his brother did not attend. Their fellow students were mainly Kurdish or Afghani, but not Iranian, as Iranian children were able to attend a state-run school. The Applicant said that whilst in Iran, he had never tried to obtain identification documents as he did not know what they were or where to get them. He and his family tried to keep a low-profile and to keep away from the authorities and not attract attention. He was not aware that he could have obtained Iraqi citizenship and did not know as a young man what it was.

18. When questioned about his religion, the Applicant said that he was born in an Islamic country with an Islamic background. He said that neither he nor his father went to the mosque as they were both too scared. From the age of 17 or 18 however, he had tried to keep away from religion. He said that in 2011 he changed his religion.

19. In relation to work experience, the Applicant said that he had worked casually in various occupations, including at a shop selling groceries and a bookshop. He worked when possible, but his jobs were short term and his hours varied. He said his employment conditions were very harsh and that he was not necessarily paid proper wages because he did not have papers and could not complain about his working conditions. He said he could not afford good food or clothing and that he also needed to try to help his family.

20. The Applicant said that he had tried to get his family to obtain documents for him in relation to records of education or other identifying documents. He said that his family were unable to assist him. In particular, his mother was illiterate, rarely left the house and did not understand what she needed to do to obtain documentation. His sister had been to a lawyer in order to try to assist, but the lawyer said he could not do anything as the Applicant was stateless. He said he could only write a letter saying that the Applicant was stateless, but nothing more. The Applicant said he did not have relatives or friends who could help.

21. When questioned about his journey to Australia, the Applicant said that his father had made all of the arrangements for him to leave the country, including obtaining a passport for him. He said that his father had made payments to assist and that he had used friends and contacts to arrange everything. The Applicant said that he respected his father’s decisions and that he ‘did what he was told’.

22. The Applicant thought that his passport was issued in a different name but that his photo had been used in the passport. He had left through the main airport in Baghdad and he had transited in Dubai, with the final destination being Indonesia where he said he was met by a people smuggler. He said his passport had never been identified as false. He said that at that time he had been able to pass through all of the airport controls without difficulty and that there were many Kurds who had left Iran in a similar fashion at this time. He said that at the time he left, the Iranian authorities were happy for people to go.

23. The Applicant could not remember all of his travelling companions, although he said one of the Kurdish people he had travelled with had been given Australian citizenship about 5 years ago.

24. The Applicant was questioned at length about a number of financial transactions on his money exchange account, including some very large amounts. The Applicant denied sending some of these monies and said that he had never had sufficient funds to send such large sums to anybody. He said that he had allowed others to use his account. He thought those people could be trusted. Some of them were friends of friends or people who he had met at work. Some of the names recorded on the account he said were unfamiliar to him.

25. On the second day of the hearing, the Applicant said that he had reported to the Australian Transaction Reports and Analysis Centre (‘AUSTRAC’) that unauthorised transactions had been made on his account, but he had only made the report on that day. In particular, the Applicant said he was not aware of either a transaction for $50,000 on his account, or a transaction for $75,000 on his account. He admitted he had made a mistake in allowing others access to his account but said that he did not know any more than that.

26. The Applicant said that he was unable to transfer money directly to his family because they did not have a bank account as they had no identity documents. He was able to transfer money through friends who would then take a fee out of the money for assisting him. He confirmed a number of transactions had been made on his behalf in order to send money to his parents through friends and relatives who did have access to bank accounts in Iran.

27. The Applicant offered to make bank records and other relevant documents available and confirmed that a third party or parties had been using his transaction account.

    The Applicant’s Mother

28. The Applicant’s mother gave evidence by telephone. She confirmed that she was 60 years of age and said that the Applicant is 34. She said she was born in Iraq and that she did not have a birth certificate or any other Iraqi identity documents. She did not know the year she was born; she just knew that she was 60 years old.

29. She said that she had lived in Iran for 40 years. She did not have any Iranian identity documents. She did not attend school and did not have any identity documents at any time.

30. She said for the last 40 years they had initially moved from place to place and finally settled in the town of Alvand. She said she had three children, two sons and one daughter whom she said were in good health. Her husband had had a severe stroke, he was diabetic and has had toes amputated. She looks after him alone. Her husband was unable to get hospital care unless the family was able to pay for it as he did not have any identity documents which would enable him to access a public hospital in Iran.

31. The Applicant’s mother said that her husband had arranged for the Applicant to leave Iran and that they had wanted him to have an opportunity to make a life for himself. She said her husband had borrowed money from family members in order to get the money to make the arrangements for the Applicant.

32. She had not tried to get identity documents to assist her son as she did not know what to do and her husband was very sick. She knew about the problems her son was having with the Australian government but could do nothing to help him as she did not know what was needed.

33. She spoke to her son when he was able to call her neighbours who had a telephone. Her son assisted her financially by sending money to a friend who then passed it on to her. She said she was very dependent on the money from her son.  She said no one in her family had a bank account.

    The Applicant’s Cousin

34. The Applicant cousin has lived in Australia for approximately 15 years since August 2006. She is an Australian citizen. The Applicant is the son of her maternal aunt. She said the Applicant has lived in Australia for 9 or 10 years.

35. She gave evidence that she did not speak with her aunt’s family before the Applicant came to Australia and that she did not know him before he arrived. She had been asked by the Applicant’s father to assist him financially and she had provided approximately 7000 AUD in order to assist. She did not ask what the money was for as it had been requested by an older man. She was not told what the money was needed for.  The Applicant’s father had however promised that the money would be repaid, and it had been repaid over time. She had sent the money to her sister, who gave it to the Applicant’s father.

36. The Applicant’s cousin still has relatives living in Iran, including her mother and siblings. She gave evidence that they were living in Alborz County in the Qazvin Province. When she had lived in Iran, she had a held Iranian citizenship and her own identity documents.

37. The Applicant’s cousin said that she was surprised to hear that he was in Australia, when he initially phoned her from immigration detention.

    DISCUSSION

38. The Applicant gave considerable evidence before the Tribunal as set out above and was cross-examined at very considerable length. The Tribunal was further assisted by a number of statements and documents filed with the Tribunal. These documents span a considerable period of time and include a number of documents relating to various interactions between the Applicant and relevant government departments from 2010 when the Applicant arrived in Australia.

39. The documents are relevant because they reveal a number of inconsistencies which the Applicant was asked to explain in the hearing before the Tribunal. This is important because the Applicant arrived in Australia without evidence of identity and over the ensuing 10 years has failed to take any action in order to obtain relevant documentation as to his identity. Accordingly, the Tribunal has to be otherwise satisfied as to the Applicant’s identity. A proper explanation of inconsistencies in documentation and other evidence is therefore to be carefully explored.

40. It is noted that since arriving in Australia, the Applicant made one overseas trip on 10 April 2019 which he said was to go to Turkey for the purposes of a hair transplant. No explanation was given to the Tribunal as to why it was necessary to undertake such a long journey for the purposes of a hair transplant, which one would assume would be readily available in Australia, perhaps more cheaply given the cost of travel. However, I have no familiarity with the intricacies of hair transplantation or any national differences in approach. It might however, be assumed that whilst the Applicant was in Turkey, he may have used the opportunity to obtain some form of identity documents from Iran, which he said was not possible from Australia. In any event, I do not place any weight on this trip.

41. The Applicant told the Tribunal that he did not have any documents in relation to his birth, schooling or any other aspect of his life and that it was out of his control. He said there was no one in a position to attain documents for him because his mother was 60 years of age, illiterate and did not know where to go or who to ask. He also said that if she were to seek documents on his behalf she would be asked by the authorities, ‘Where is your son? He is an adult’. The Applicant said that the Iranian government had no mercy for its own citizens and none for people like him.

42. In Iran, the Applicant said that his father was in charge of everything and that he relied on his father.

43. In his immigration interview, the Applicant said he had been born in Alvand, Qazvin Province, and had lived there since he was born until he came to Australia.[50] At the hearing, the Applicant said he knew where he had been born because his parents had told him so. He had lived in a number of places within Qazvin Province, but mainly in the village of Alvand. His father rented a house and the Applicant lived there with his father, mother, sister and brother. He said they tried to live remotely and to keep away from ‘government eyes’.

    [50] T4, 183-184.

44. The Applicant’s father did provide a statement in relation to the Applicant’s schooling which provided as follows:

    (a)the Applicant’s school is currently inoperative so he has been unable to obtain records for the Applicant’s schooling; and

    (b)he has inquired with various organisations and failed to access any documents from the Applicant’s school or the library where he was employed.

1. The Applicant’s father also provided a statement as to documentation the family had in Iran, which stated as follows:

   up until 20 years ago, our family had a green card issued by the United Nations however, since then we have not been able to renew or extend it to white card and consequently we moved into a low traffic village [remote area] to have a more secure life

2. Apart from the above statements from the Applicant’s father, there is no evidence to corroborate the accuracy of the information the Applicant provided to the Tribunal in relation to his early life. Although his brother and sister live in Iran, he said they could not assist him in locating any documentation. His father had suffered a stroke and was also now unable to assist in any way.

3. The Applicant’s claim that his father is illiterate seems at odds with the statements that the father has already provided to the Tribunal. There is no evidence that the Applicant ever tried to obtain information from an embassy, either of Iraq or Iran, or that he has fully explored any other options.

4. I note that the Applicant provided a number of videos to the Tribunal which he said were from family members in relation to his identity. A document which purported to be a translation of what was said in the videos was provided to the Tribunal, but there was no independent verification of its correctness or accuracy. The Tribunal can give little weight to this evidence. As there is nothing to verify either that the contents of the videos are true, or that the people making the statements are in fact who they are said to be, little weight can be given to these videos.

5. It is unfortunate that no independent verification as to the identity of the people in the videos or the translation was provided to the Tribunal. If independent verification had been provided, it would have carried weight in the Applicant’s favour. Even if the Applicant’s cousin, who gave evidence to the Tribunal, had verified that the people in the videos were the Applicant’s parents, that would have been useful, particularly if accompanied by independent verification as to what they were saying.

6. The Applicant was questioned about discrepancies in the spelling of his mother’s name, in particular, the fact that it appears differently in various documents.

7. The Applicant said that it was not uncommon for names to be spelt differently, but to have the same meaning. I do not give significant weight to marginal differences in spelling and difficulties in recalling exact details of the past.

8. I am concerned that the Applicant’s father was said to have been able to organise a false passport for the Applicant to leave Iran and that he was able to pay money to relevant officials for such documentation. If he were able to do that, it seems curious that he was not able to obtain relevant registration documents for himself and his family. One could assume that obtaining such documents would be easier than arranging a false passport. The Respondent drew the Tribunal’s attention to the DFAT information, which cast doubt on the feasibility of the Applicant being able to leave Iran on a false passport. However, that information relates to a period much more recent than when the Applicant left and, in this regard, I note the April 2009 report prepared by the Danish Immigration Service which says at page 36 that there are ‘high numbers of Iranians who have left the country illegally’.[51] At the very least, the position in this regard is not clear.

   [51] Supplementary T-Documents, ST7, 50.

9. I also accept the evidence of the Applicant’s cousin who said that she had raised money to send to the Applicant‘s father at around the time the Applicant left Iran, although she said she did not know what the money was to be used for and that she simply responded to the request of an older man for whom she had great respect. There is no independent evidence that the Applicant’s passport was in fact false, but even if I accept that the Applicant travelled to Australia on a false passport, that does not advance his case as to identity.

10. The Applicant’s cousin gave evidence that she knew the Applicant and that he is the son of her maternal aunt. She said the Applicant has lived in Australia for 9 to 10 years.

11. The Applicant’s cousin has lived in Australia since August 2006 (nearly 16 years). She is an Australian citizen and also an Iranian citizen. She said that when she lived in Iran, she had had Iranian citizenship, and was in possession of national identity documents. She said that all of her relatives live in Iran in Alborz County, Qazvin Province. There was no evidence that the Applicant had asked any members of his aunt’s family to assist him with obtaining relevant documentation as to his identity, schooling or any other relevant aspect of his life in Iran.

12. The Applicant’s cousin said that she did not know that the Applicant was coming to Australia and that she first heard from him when he was already in Australia and called her from the immigration detention centre at which he was being detained.

13. She said that she had known the Applicant’s father all her life, but gave no background evidence as to her uncle’s family or their life in Iran.

14. It is of concern to the Tribunal that the Applicant has no identity documents and that he does not appear to have made diligent efforts to obtain such documents either through his immediate or extended family or by any other means. There is little corroborating evidence of his life story. His mother said that she had been born in Baghdad but was not an Iraqi citizen. She said her sister lived in the area where she lived but they did not speak to each other. She said that she was illiterate and that she did not know anything about any entitlement to Iraqi citizenship. She said that she had wanted the Applicant to go overseas to make a better life for himself. She did not know what had been done to help him and said that all of her time was spent looking after her husband. She did not go out and relied upon the Applicant for financial support.

15. The evidence of the Applicant’s cousin relates only to the time after his arrival in Australia. His mother told the Tribunal that his brother and sister were both in good health, whereas the Applicant said that his brother was not in good health and that he had mental health issues. The Applicant said he had asked his sister to help him and that she had been to see a lawyer who said that all he could do was write a letter verifying that the Applicant was stateless. No such letter was put before the Tribunal.

16. The Tribunal can only give limited weight to the evidence said to have been provided by the Applicant’s father, given that he was not available for cross-examination, and there was no independent verification of his evidence.

17. There was evidence of large financial transactions being made on the Applicant’s money exchange account, which he said were not authorised by him. He said he did not know about the transactions until the hearing and that when he became aware of them, he reported them to AUSTRAC. He said he did not know the persons to whom the money had been sent in Iran.

18. In this case, there is little or no documentary or biometric evidence to support the Applicant’s claim. Therefore, his life story is central to the outcome of his claim. For the reasons outlined, and taking into account all of the evidence, there are significant gaps in the Applicant’s life story and although some elements may be true, there is not sufficient evidence for the Tribunal to be satisfied as to his identity. In saying this, I note that the onus is on the Applicant to satisfy the Tribunal as to his identity.

19. In light of the above, it is not necessary for the Tribunal to make any decision as to whether or not the Applicant is of good character.

    DECISION

20. The Tribunal affirms the reviewable decision dated 27 November 2019.

I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD]............................................

Associate

Dated: 3 September 2021

Date(s) of hearing:	5-6 July 2021
Date final submissions received:	6 July 2021
Solicitors for the Applicant:	J Ahmadi, Cambridge Law
Solicitors for the Respondent:	H Anderson, Clayton Utz