Khairollah and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 154
•15 February 2023
Khairollah and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 154 (15 February 2023)
Division:GENERAL DIVISION
File Number(s): 2020/4318
Re:Mohammad Ebrahim Khairollah
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:15 February 2023
Place:Sydney
I affirm the decision under review.
...............................[SGD].........................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
CITIZENSHIP – application for Australian Citizenship by conferral – identity requirement – where approval is prohibited unless identity requirement is satisfied – where applicant claims to be a stateless Feyli Kurd – concerns about the Applicant’s departure from Iran – conflict in names – insufficient documentary identification – three pillars of identification – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Kahzadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1137
Briginshaw v Briginshaw [1938] HCA 34
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Secondary Materials
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
Country Advice Iran– IRN40260 – Afghans in Iran – green cards and other cards – 1986-88, 11 May 2012
Country Information Service Iran, Department of Foreign Affairs and Trade (DFAT), April 2020.
Country Information Service, Iran: Faili Kurds 19 March 2010
Country Information Service, IRAN: Response to IRN 11487 27 April 2011
Country Information Service, UNHCR Views on Current Developments Affecting Afghans, 11 May 2001
Country of Origin Information Section (COIS), Green and white cards issued to Iraqi refugees in Iran, 1 December 2009
Country Research Section, Status of Faili Kurd refugees and documentation issued to them in Iran, 19 October 2011
Danish Refugee Council, Human Rights, Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc 2009
Department of Foreign Affairs and Trade, Country Information Report: Iran, April 2020
Home Office, Country Policy and Information Note Iran: Illegal exit Version 6.0 May 2022
Immigration and Refugee Board of Canada, Iran: The passport; its features and procedures for application…, 3 April 2006
Macquarie Dictionary
May, Natasha, Mystery of Somerton man’s identity solved after 73 years, researchers in Australia say, 2022
National Identity Proofing Guidelines 2014
Sumar Film Productions, The Man Who Never Was, 1956
UNICEF, Birth Registration in Iran, An analysis of the state of relevant laws in Iran 2005UNHCR, COI Request on certain groups vis a vis Iraq: Draft Law of Iraqi Nationality, 6 April 2004
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
15 February 2023
INTRODUCTION
On 17 July 2020, Mohammad Ebrahim Khairollah (the Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) to review a decision made on 2 July 2020 by the Minister’s delegate, to refuse his application for Australian citizenship by conferral (the reviewable decision).[1] The delegate was not satisfied as to his identity.[2]
[1] T1, 1. On 17 July 2020, the Applicant applied for an extension of time to 27 August 2020, on the basis that he was waiting for documents from Iran: T1, 10. His application for an EOT was unnecessary and has not been dealt with in these proceedings.
[2] T2.
Under subsection 24(3) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. The present application is concerned solely with the issue of identity. The decision-record makes it clear that the issue of character was not assessed by the delegate.[3]
[3] T2, 20.
LEGAL AND POLICY FRAMEWORK
The rule that a person cannot be approved for citizenship unless the Minister is satisfied as to their identity is stated in categorical terms in the Citizenship Act. The Minister is prohibited from approving such an application. This applies to all claims to citizenship, whether by descent, adoption, conferral, or resumption.[4] A person cannot sit the citizenship test,[5] obtain a notice that they are an Australian citizen,[6] or indeed, renounce their citizenship,[7] unless the Minister is satisfied as to their identity. The concept of identity is therefore of foundational importance, but it is not defined in the Citizenship Act.
[4] For descent, subsection 17(3); by adoption: subsection 19D(4); by conferral, subsection 24(3); on resumption, subsection 30(3).
[5] Citizenship Act, subsection 23A(4).
[6] Citizenship Act, subsection 37(4).
[7] Citizenship Act, subsection 33(4).
A grant of citizenship provides many advantages for those seeking to remain in this country permanently. For many refugees, the right to travel internationally under the notional protection of the Australian government is of vital importance, as is the removal of the possibility that one’s visa might be cancelled on character grounds. Other aspects include the obligation to vote and participate in the processes of representative democracy.
It is vital that, at the time of approving a citizenship application, a solid judgment can be made about an individual’s identity, regardless of any change, variation, or uncertainty about their name or lineage. Is a person who they say they are? Is a person lying about their past? Is a former identity being concealed? Does the Department have a complete picture, or as complete a picture as the circumstances allow? These are the sorts of questions with which a decision-maker is concerned in approving a citizenship application.
An approved identity enables a person to be seen as the same individual at various points in time, and to be distinguished from other similar individuals within a group. The Macquarie Dictionary refers to ‘identity’ as ‘the condition of being oneself … and not another’ and ‘the state or fact of being the same one’. Identity refers to ‘[t]he sameness of a person or thing at all times or in all circumstances; the condition of being a single individual…’.[8] It is the means by which an individual may be uniquely identified in different historical contexts, linked inalienably to their personal history. This is why a decision-maker must be satisfied as to a person’s identity as a precondition for the grant of citizenship.
[8] Kahzadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1137, (Kahzadi) at [17], per Puplick SM, citing the Oxford English Dictionary (OED) (online edition).
The Citizenship Procedural Instruction 16 (CPI 16)
The Department has developed various policy documents to assist decision-makers in the processing of citizenship applications. It is generally accepted that the Tribunal is bound to apply Government policy unless there are cogent reasons not to do so.[9]
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
Identity is explained in the key document, CPI 16, as follows:
A person's identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.[10]
[10] Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16), at [4]. This decision refers to the latest iteration of CPI 16, rather than the superseded version contained in the T-documents.
The CPI 16 refers to the ‘three pillars of identity’, being biometrics, documents, and life story. Biometrics refers to 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. Even a cadaver with a fabricated identity may be identified by appropriate research as a specific individual with a known history.[11] The process of identification may take a long time, indeed, 73 years in the case of the mystery Somerton man found dead on a beach-wall in Adelaide.[12]
[11] The famous wartime story about a man who never was, involving an ingenious deception plot called Operation Mincemeat, comes to mind: >
Documents are used, in most bureaucratic contexts, to establish identity. These will frequently involve documents issued in foreign languages by other state actors, and may need to be translated. In the migration context, identity documents are frequently lacking, given the chaos and confusion that often accompanies irregular migration. Other means may be used to establish a person’s continuity through time.[13]
[13] The Citizenship Act includes definitions of ‘identifying information’ (section 3) and ‘personal identifiers’ (section 10). The former is information of a specified kind that could be used to discover a particular person’s identity or to get information about a particular person; while the latter includes certain kinds of information including, importantly, a photograph or other image of a person’s face and shoulders. Division 5 contains ‘identity provisions’ about requesting, accessing, disclosing, and destroying identifying information, and various offences, but there is no overarching definition of identity. The Division 5 identity provisions are referred to in connection with the Ministerial prohibition on approving citizenship applications without proof of identity: see subsections 17(3); 19D(4); 24(3); 30(3), 33(4), and 37(4).
The third pillar is a person's life story. This is a narrative of the events that happened to them from birth to present. A person's life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
The CPI 16 provides decision-makers with advice as to how to assess identity within each of the three pillars:
In many cases, an applicant's identity can be confirmed by assessing whether the information provided during their interactions with the Department throughout the period of time leading up to their citizenship application has remained consistent.
Where a case presents as more complex, delegates may find the creation of an identity timeline will assist in linking the applicant’s birth identity to the identity or identities provided at visa and citizenship application. When creating an identity timeline, delegates are to have regard to each of the 'three pillars' of identity in order to create a complete picture of the person’s identity from birth to present.
When assessing a person's identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person's life story, delegates must consider:
·the significance and corresponding weight of the inconsistencies in the broader context of the person's claimed identity; and
·what further research, or information, is necessary in order to be satisfied of the person's identity.
If it is determined that the inconsistencies are relevant and critical to the identity assessment, the applicant must be provided with natural justice so that they have an opportunity to explain the inconsistencies.
While delegates must make every effort to inform themselves of an applicant's identity, the onus is on the applicant to provide information or evidence to support their identity. Applicants are encouraged to take every opportunity to disclose information about their identity and informed that if contradictory material becomes known, this may influence the credibility of their claims. [14]
[14] CPI 16 at [11].
Paragraph 5.1 of the National Identity Proofing Guidelines 2014 establishes that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include:
·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; and/or
·a detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
STANDARD OF PROOF
I note that in proceedings under the Administrative Appeals Tribunal Act 1975 (Cth), the civil standard of proof is generally applied, that is, satisfaction on the balance of probabilities.
The Respondent referred to a decision of the Tribunal in Kahzadi, where it is suggested that the standard of proof ‘must be to the highest level possible’.[15] These words may be taken to imply something akin to the criminal standard of proof beyond reasonable doubt. With respect, in my view there is no requirement that the Tribunal be satisfied beyond reasonable doubt, as in criminal cases before courts. Nor is an applicant required to satisfy some intermediate standard between the criminal and civil standard, although, as Dixon J noted in Briginshaw, ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’.[16]
[15] Kahzadi at [93], per Puplick SM.
[16] Briginshaw v Briginshaw [1938] HCA 34.
BACKGROUND
The Applicant arrived in Christmas Island as an irregular maritime arrival in early September 2010.[17] He was interviewed by immigration officials on 18 September 2010.[18] He did not speak English. He gave his name as Mohammad Ebrahim Khairollah. He said he was born in 1989 and was 21 years old. He grew up in Iran and was Shi’ite Muslim. He had no visa or identity documents. He claimed to be ‘stateless’.
[17] RSFIC para 5; RTB, 50.
[18] ST13, 124-141.
The interview Form contains the question: Why did you leave your country of nationality (country of residence)? He stated that his brother had told him to come to Australia where he could get an identity.[19] He stated:
My brother told me to come to Australia as I can get an identity here. I have further reasons. I didn’t have a birth certificate and I want to study. Love (sic) is the most important thing. I cannot get married because I don’t have a birth certificate. I could not do conscription because I do not have a birth certificate. I do not have a birth certificate because I am a Faili Kurd. My mother were (sic) born in Iraq and my father was born in Ilam. My parents were expelled from Iraq twice. They were told they were Iranian. My parents do not have Iranian residence documents. They were told they are Iraqi and that is the situation for Faili Kurds. I want to be with my brother and want to be in a place to study. I cannot study in Iran because I have no identity documents and I cannot even work due to no identity documents. I do not have any further reasons. I have not been harmed in Iran. I am discriminated against because I am a Kurd.[20]
[19] ST13, 130.
[20] ST13, 133.
He gave his brother’s name as Mehdi Ibrahim Kheirollah.[21] A man by the name of Mahdi Ebrahim Khairullah arrived on Christmas Island with his wife in September 2009 and was granted a protection visa on 30 November 2009.[22] Despite minor difference in the spelling of his proper and surname, it is assumed that this is the person to whom the Applicant was referring.
[21] ST13, 130.
[22] ST11, 111.
In November 2010, the Applicant completed a statutory declaration to advance his asylum claim.[23] He stated that he left Iran on a false passport in the name of ‘Mohammad Khizan’, arranged by a man called Naser, who had helped his brother. He met this person in a public square in Tehran. He left Iran on a normal scheduled flight, travelling through Tehran’s Imam Khomeini International Airport (IKIA). He flew to Indonesia and then travelled on a refugee boat to Christmas Island.[24] At some point in transit, the smugglers removed his passport.[25]
[23] Dated 13 November 2010: ST14, 144-148.
[24] ST13, 138 - 139.
[25] ST14, 146.
On 6 March 2013, he was granted a subclass 866 (Protection) visa.[26] This visa enables him to remain indefinitely in Australia and bestows all the rights and responsibilities of other permanent residents. He is allowed to work without restriction and has access to a range of services.
[26] T8, 84.
INTERNAL PROCESSING
On 31 July 2017, he applied for Australian citizenship by conferral.[27] He provided copies of various cards issued by Australian agencies, and three letters relating to his health and accommodation.[28] None of these documents related to his time in Iran.[29]
[27] T3, 31.
[28] Applicant’s Bundle, 32 et seq.
[29] The Australian documents provided included: (a) Commonwealth Health Care Card (front and back); (b) Commonwealth Medicare Card; (c) Provisional Driver’s Licence (NSW); (d) Proof of Age Card (Victoria); (e) Photo Card (NSW); and (f) Visa evidence card.
On 18 June 2018, the Department asked him to provide identity documents issued by a country other than Australia.[30]
[30] T4, 50.
On 17 April 2019, he requested a status update on his application. He said that he could not provide any documents from Iran. He only had his Australian issued drivers’ licence and ID.[31] He reiterated that he was a refugee and a stateless person. He emailed the Department again on 29 April 2019, stating that he was unable to provide any documents because he was stateless.[32]
[31] T5, 54.
[32] T7, 57 – 58.
On 3 May 2019, following a citizenship interview, he informed the Department that he was suffering from depression. He said that he was so affected by the interview that he had become depressed and lost his job and his accommodation.[33] He provided supporting documentation from a clinic in East Sydney specialising in alcohol and drug addiction, stating that he had been receiving medical and psychosocial assistance since March 2019.
[33] T8, 79 – 30.
On 2 March 2020, the Department sent an email[34] to him inviting him to comment on certain matters.[35] The attached letter states:
Departmental information suggests there is no evidence of reluctance on the part of Iranian authorities to document refugees within their borders, and there are considerable benefits to obtaining and maintaining identity documents.
You have not provided any supporting statements from your family members confirming their status as Faili Kurds living in Iran (which would in turn assist in verifying your claims). I consider it unlikely that your family members continue to reside in Iran without identity documentation.
At a minimum, I consider it likely that you or one of your family members has at least one overseas identity document in their possession and/or that a genuine effort could be made to obtain one. For the purposes of satisfying Citizenship requirements, a statutory declaration of limited length and detail that states you cannot provide any overseas documents is considered insufficient.[36]
[emphasis added]
[34] T9, 90.
[35] The letter dated 2 August 2020, but should be dated 2 March 2020: see T9, 89, T2, 18.
[36] T9, 92 – 93.
The letter also stated:
Based on Departmental information held with regards to your extended paternal family, it is now the Department’s position that your father is an Iranian citizen and that he passed on Citizenship to one other family member. Consequently you would also be an Iranian citizen by birth, as your father is an Iranian citizen, and therefore you are not stateless.
This information suggests that you have made a number of false and misleading claims to conceal this fact. This raises significant character and identity concerns with regards to you.[37] [Emphasis added]
[37] T9, 93.
The letter did not provide any detail on his ‘extended paternal family’. However, I note that the materials before the Tribunal contain an undated Identity Assessment Report, relating a person by the name of Mahdi Ebrahim Khairullah (presumably, the Applicant’s brother).[38] The assessor concluded that this man’s true family name was ‘Khezan’,[39] and that he was related to at least one Iranian citizen who had sought protection, and that he was an Iranian citizen withholding relevant Iranian identity documents.[40]
[38] ST11, 109.
[39] ST11, 117.
[40] Mahdi is spelt with an ‘a’ rather than an ‘e’; and Khairullah with ‘ul’ rather than ‘ol’. According to the translated copy of their father’s birth certificate (Ebrahim Kheiran), the father’s name (their grandfather) appears as Kheirollah: see A8,3. There was also a discrepancy between Kheiran (with an ‘r’) and Kheizan (with a ‘z’). According the translator, in Farsi the difference was a tiny dot. It is impossible to say whether these minor discrepancies are a sign of fabrication, or merely translation or transcription errors. A translator’s note on these discrepancies suggest the latter: A11, 2.
The Applicant sent various documents to the Department in response to the invitation to comment. He provided a statutory declaration dated 4 March 2020, stating that he was a refugee and stateless, did not have overseas ID documents, and did not have anyone from overseas to help him with such documents.[41] He provided an identity declaration,[42] and resent photocopies of his Australian identity documents.[43]
[41] T10, 105.
[42] T10, 101.
[43] T10, 106 – 109.
On 26 March 2020, he sent an undated letter about his lack of Iranian identity documents, stating that ‘one of the reasons we didn’t get an ID card was the fear of government’. His parents were over 80 years old and did not have power and money or a lawyer for an ID. He said that the Amayesh card was only issued to Afghani citizens after 2001. Some people had ID but they had been with the army. He said that ‘We didn’t look for ID for fear of the army’.[44] He did not want to do anything illegal. He had asked the Iranian Embassy for help many times ‘but [they] have no help’. He asked for help because he was not in good physical and mental condition.[45]
[44] T10, 99 – 100.
[45] Ibid.
He provided various documents from third parties, including:
(a)an undated letter by the Case Manager of Foster House, operated by the Salvation Army, stating that the Applicant has good living skills and has displayed no issues while residing at Foster House;[46]
(b)a letter by a registered nurse at the Langton Centre, dated 12 March 2020. The letter states that the Applicant first came to the service after experiencing depression for several months, and that he related his depressive symptoms to trauma around having to flee his home country. The letter notes that the Applicant had done remarkably well since presenting to the Langton Centre, and was linked to various services that had improved his mental health, and was able to take an active role in his health care;[47]
(c)a letter by a psychiatrist at St Vincent’s Hospital, dated 1 June 2020, stating that in his ‘clinical belief’ the granting of Australian citizenship would be in his best interests in terms of mental and physical health. It would ‘provide a sense of identity, and enable his motivation to integrate and provide service’, noting that it is his wish ‘to contribute and serve the country he feels so much a part of’;[48]
(d)a letter by a psychologist of the Cognitive Assessment Clinic dated 25 June 2020, relating to his substance use disorder and homelessness in 2017, and that he had been abstinent from all drugs for the past 14 months, that he had no forensic history and worked in construction.[49]
[46] T10, 103.
[47] T10, 104.
[48] T12, 116.
[49] T14, 119.
He also provided a letter dated 1 June 2020 stating that he required citizenship to become a member of the Australian Defence Force or NSW Police.[50]
[50] T12, 115.
None of these documents addressed the request to provide identity information relating to his life in Iran.
INFORMATION PROVIDED AFTER ADVERSE DECISION (2 JULY 2020)
After the refusal decision, he provided a number of important documents relating to his identity in Iran.
On 19 January 2021, he provided enrolment information relating to his schooling, and an Iranian vaccination card.[51]
[51] A2, A3.
On 23 April 2021, he provided a written statement by Ebrahim, son of Khairollah, dated 11 April 2021 (duplicated) with certified English translation.[52] The translation includes a photograph of the same person as appears in the ID documents relating to Ebrahim Kheiran (see below)
[52] A4.
On 14 July 2021, he provided copies of the following identification documents, with certified English translations and photographs:
(a)Birth Certificate issued 1 June 1989 for Mohammed Kheizan by the National Organisation for Civil Registration (NOCR),[53] and
(b)National ID card for Mohammed Kheizan issued by the Department of Personal Status Registration of the Country (DPSRC), expiry ;1912/2014’.[54]
[53] A6.
[54] A7. Probably 19 December 2014.
On 19 October 2021, he provided copies of the following documents issued by the NOCR, with English translation with accompanying photographs:
(a)Birth Certificate for Farideh Heidary (born 28 March 1955); and
(b)Birth Certificate for Ebrahim Kheiran (born 1 October 1942).[55]
[55] A8.
On 22 June 2022,[56] he provided copies of the following identification documents (with English translation and photographs), namely:
[56] A12.
(a)Birth Certificates (issued by NOCR) for:
(i)Mohammed Kheizan (born 24 May 1989);
(ii)Ebrahim Kheiran (born 1 October 1942); and
(iii)Farideh Heidary (born 28 March 1955);
(b)ID Cards for:
(iv)National ID Card for Mohammed Kheizan expiring ‘1912/2014’[57] (issued by DPSRC);
(v)Smart National ID Card for Ebrahim Kheiran expiring 3 November 2023 (issued by NOCR), and
(vi)Smart National ID Card for Farideh Heidary expiring 3 November 2023, (issued by NOCR).
[57] Probably 19 December 2014.
I also note that he provided two statements:
(a)On 19 October 2021, he provided a handwritten statement in English;[58] and
(b)On 6 March 2022, he provided a typed undated letter (translated on 3 March 2022).[59]
[58] A9.
[59] A11.
THE HEARING
The matter was heard on 8 September 2022. The Applicant was self-represented but had the assistance of an interpreter. The Respondent was represented by Ms K. Gawidziel, solicitor from the Office of the Australian Government Solicitor.
RESPONDENT’S MATERIALS
The Respondent provided the following materials:
(a)The Respondent’s Statement of Facts, Issues and Contentions (RSFIC), dated 6 July 2022 (13 pages);
(b)T-documents (169 pages);
(c)Supplementary T-documents (STdocs, 148 pages); and
(d)Tender Bundle (RTB, 137 pages).
The STdocs include important insights into the demography, politics and social life of Iran. Much this material is more than a decade old, and given the dynamic situation in Iran, some caution should be exercised.
· ST1. Country of Origin Information Section (COIS), Green and white cards issued to Iraqi refugees in Iran, 1 December 2009
· ST2. UNHCR, COI Request on certain groups vis a vis Iraq: Draft Law of Iraqi Nationality, 6 April 2004
· ST3. Country Information Service, UNHCR Views on Current Developments Affecting Afghans, 11 May 2001
· ST4. Country Information Service, Iran: Faili Kurds, 19 March 2010
· ST5. Country Information Service, IRAN: Response to IRN 11487, 27 April 2011
· ST6. Country Research Section, Status of Faili Kurd refugees and documentation issued to them in Iran, 19 October 2011
· ST7. UNICEF, Birth Registration in Iran, An analysis of the state of relevant laws in Iran, 2005
· ST8. Country Advice Iran – IRN40260 – Afghans in Iran – green cards and other cards – 1986-88, 11 May 2012
· ST9. Danish Refugee Council, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc, 2009
· ST10. Immigration and Refugee Board of Canada, Iran: The passport; its features and procedures for application…, 3 April 2006
The RTB documents included material relating to the Applicant’s protection visa application, as well as the most recent Country Information Report on Iran, provided by the Department of Foreign Affairs and Trade (DFAT), April 2020.
THE ORAL EVIDENCE
The Applicant was affirmed and gave oral evidence. The actual process was laborious, involving word for word translation by the Farsi interpreter.
He said that when he arrived in Australia in 2010 he chose to call himself Mohammad Ebrahim Khairollah. He adopted his grandfather’s family name Khairollah as his family name, and his father’s first name Ebrahim as his middle name. He kept his original first name (Mohammad). He said that this was in keeping with customary practice and he did not think that it was wrong to do so in a free country like Australia.
He denied that he adopted the name Khairollah to disguise the fact that his real name was Kheizan and that he was an Iranian citizen. He maintained that he was a Feyli Kurd.
When asked about an entry in his original interview that his father was born in Iraq, he said that this was probably an error by the interpreter. His mother was born in Iraq, his father in Iran. As to his own place of birth, he had always thought that he was born in Ilam province but he accepted that he was born in Tehran and grew up in Ilam province.
He admitted he went to school in Iran and had provided school enrolment information, but he did not resile from his previous assertions of discrimination as the child of displaced persons.
His claimed manner of departure from Iran was the subject of vigorous cross-examination. He said that he was driven to the airport by someone he knew, and that he did not have any issue checking in, going through customs or getting on the plane. He used a passport that was provided to him. He took USD$500 with him. When he went through security he was asked to take his shoes off and open his mouth. He travelled alone. He did not encounter any difficulties.
He was insistent that he departed Iran on a false passport. He thought he was undetected because the people smugglers had people at the airport and bribes had been paid. He was sure that if you paid money you could get through. He did not personally bribe anyone. He was certain that the passport was false because he had not done military service. He would not have been able to get a passport because he had not served in the army. He was only 21 when he left.
As to the delay in providing documents, he said that it was complicated because of COVID, but also his parents were elderly and did not want to help him. They seemed to believe that such documents would not be helpful. He said that he talked to them and asked them to put their feelings aside and help him. He received the documents a month or two later.
In terms of credibility, the Applicant admitted that he had provided false information in the past but was now telling the truth about his identity. He said that he made several mistakes when submitting his documents, which he put down to a lack of experience, maturity and fear. He had no money to employ a lawyer.
Finally, he seemed to accept when it was put to him that he was in fact an Iranian citizen, although I am not certain that he fully understood this concept.
In assessing his evidence to the Tribunal, I take into account the evidence relating to his depression and difficulties with opioid addiction.
RESPONDENT’S CONTENTIONS
The final submissions of the Respondent fall into two categories: direct and circumstantial.
In terms of direct evidence, the Respondent drew attention to minor variations in spelling. For example, in his original arrival interview in 2010, the Applicant said that he born in a village called Zeifal, [60] in the province of Ilam,[61] on the north-western border with Iraq. In a later statutory declaration, he said that he did not have any formal identity papers and therefore remained in Zayful.[62] In later statements, he spelt his birthplace Zeyful,[63] or Zaifol.[64] This variation was troubling.
[60] ST13, 125.
[61] The region of Ilam appears to be about 500 kilometres south west of the capital Tehran.
[62] Statutory declaration, 13 November 2010: ST14, 144.
[63] Application for citizenship: T3, 31.
[64] Form 80 – Personal Particulars for Assessment including Character Assessment, 29 April 2019: T7, 61.
The Respondent also noted that there was some confusion as to his claimed father’s birthplace. In his application for citizenship, he stated his father was born in ‘Zeyfol’, in Ilam province.[65] In the Form 80 signed on 29 April 2019, he declared that his father was born on the Ilam/Iraq border.[66] His Iranian birth certificate records a birth place of Darreh Shahr, an Iranian city located in the south eastern part of Ilam province.
[65] T3, 39.
[66] T7, 73.
The Respondent also pointed to an international money transfer the Applicant had made for $500 on 21 September 2018 to a woman by the name of Minou Kheiran in Indonesia.[67] This tended to suggest that the name Kheiran was related to the Applicant.
[67] See RTB, 52 – 64.
In terms of circumstantial evidence, the Respondent also contended that it would not be possible to transit the IKIA with a false passport. Either he used a different route, or he had a valid passport, which meant that he was a national.
He had consistently maintained that he could not provide any documents from Iran, and then in mid-July 2021, he provided copies of an Iranian birth certificate and national ID card in the name of ‘Mohammad Kheizan’. On 19 October 2021 he provided his mother and father’s identity documents.
As to his alleged statelessness, the Respondent suggested that such identity documents would only be given to Iranian nationals. This pointed to the Applicant being an Iranian national and not a stateless Feyli Kurd by the name of Khairollah.
The Respondent questioned his ethnic status as a Feyli Kurd born in Iran, but says that even if he is a Feyli Kurd, this would not automatically lead to a lack of identification documents or citizenship. The Tribunal was invited to find that he was not stateless, but an Iranian citizen. It would then follow that the narrative provided in 2010 was false, and there would be uncertainty as to his identity.
DEPARTING IRAN BY AIR THOUGH AIRPORT
The Respondent relies on the 2020 Country Information Report on Iran produced by DFAT, which states:
5.45 Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.[68]
[68] DFAT, Country Information Report – Iran, 14 April 2020: RTB, 65, at 137.
The Department considers that as shown in this Report, it is very difficult if not impossible to transit IKIA on a false passport. On the basis of this Report, the Respondent contends that, if the Applicant transited through IKIA, as he claimed he did, he must have held a valid passport.
Therefore, assuming he left Iran by air, he had to have an authentic passport. Therefore, his claim to being stateless is bogus, in which case, his entire narrative must be questioned.
The 2009 report by Danish Refugee Council (also tendered by the Respondent) is relevant to the circumstances prevailing at the relevant time (2010).[69] The Report states:
[69] Danish Refugee Council, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc (Copenhagen, 2009) ST9/88
7.5 The use of bribery and forged documents when exiting Iran
7.5.1 Bribery
A western embassy (3) stated that Iranians abroad might be misinforming foreign authorities by saying that they have left Iran illegally through an airport, as this is very difficult due to thorough security checks.
However, it was elaborated that it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally. This, though, will include bribing of a lot of airport staff members since there are several check points in the airport...
Sajdrabi [Said Hamid Sajdrabi, in charge of passport border control at Imam Khomeini Airport (IKA) Immigration Police] at first rejected that it is possible for anyone to bribe his or her way through the airport. It was explained how the Immigration Police does not have influence on who can exit Iran, as it is the information in the computer system that will provide information as to who is prohibited from leaving Iran. However, it was later stated that in cases where a person does manage to leave Iran illegally this is not due to flaws within the computer system but rather a human error – i.e. a person has been bribed.
7.5.2 Forged documents
According to the airline liaison officer and document advisor at the embassy (3), some Iranians manage to leave through the airport on forged documents. The embassy has recently come across three false Schengen visas. In such cases bribery might also be involved.
People caught by the airport authorities attempting to leave Iran on forged documents face serious questioning at the airport. The person may be fined. It was added that it is unclear whether the person may also be detained or imprisoned for trying to leave the country on false documents.
Sajdrabi explained that if a person is caught trying to leave Iran on a forged document he or she will not be allowed to board the plane. The person will be held back in the airport and the authorities will try to find information on how the forged document has been obtained. It was added that anyone trying to leave on forged documents might receive a fine. This will be for the court to decide. Sajdrabi was unable to confirm whether a person would be detained or imprisoned for using false documents.
[emphasis added]
The Immigration and Refugee Board of Canada provided a report in 2006, which touched on the ease of illegal departure through the airport on a false passport:[70]
Fraudulent or counterfeit passports
Based on consultations with UNHCR personnel in Tehran, a UNHCR official stated that, while counterfeit Iranian passports can be purchased rather easily on the black market with prices fluctuating "according to the quality of the counterfeit work," authorities are generally adept at identifying these documents via a "double check" mechanism in the law enforcement database which tracks passport issuance (UN 31 Mar. 2006). Under Article 15(1) of the 1988 amended Passport Act, individuals found guilty of making fraudulent or counterfeit passports face 18 months in prison (ibid.). However, the UNHCR official also added that the "Islamic Penal Code prescribes other punishments for those who are involved in forgery activities" (ibid.). For example, under Article 525(2) of the Islamic Penal Code, anyone caught using a "fake stamp" in a passport can be "subject to one to ten years of imprisonment" (ibid.).
The report of the Danish Immigration Service's 2000 fact-finding mission partially corroborated the preceding information, stating that, according to Iranian authorities at Tehran airport, passport control officers used stringent control procedures and "technical equipment for scrutinizing travel documents in cases of suspected forgery" (Denmark 1 Oct. 2000). In addition, the report stated that passport control authorities at the airport and border areas had been trained to recognize false travel documentation (ibid.).
According to the Citizenship and Immigration Canada (CIC) Passports and Travel Documents training manual, however, "[i]n the past, forged or fraudulent Iranian passports have been abundantly encountered" (Canada 12 Mar: 2003). The CIC manual further advises officers to refer to appropriate enforcement manuals in order to verify suspect passports (ibid.).
In August 2005, the director general of the Iranian Police Passport Department noted that, since the creation of a new passport application system in March 2005, there have been no reports of forged passports (Iran Daily 21 Aug. 2005).
[emphasis added]
[70] ST10, 102, at 103.
The Tribunal is unable to find as a positive fact on the basis of these reports that the Applicant did have a valid Iranian passport when he departed Iran, assuming that he left via the IKIA. The current 2022 report by the Home Office notes that bribery may account for some of the illegal trade in arms, narcotics and smuggling through IKIA.[71]
[71] Home Office, Country Policy and Information Note Iran: Illegal exit Version 6.0 May 2022 (not tendered by Respondent), see 3.5- 3.7.
CONSIDERATION
The Applicant’s arrival interview records that his name is Mohammad Ebrahim Khairollah, and that he was born on 24 May 1989 in Zeifal village, Dareh Shareh Road, Ilam, Iran, and that he was ‘stateless’. His gave his father’s name as Ibrahim Kharollah Mohammad, born 1942, and his mother’s name as Fariden Ali Haidar. He stated he went to school in Zeifol (sic) village from 1996 to 2004 but had no qualifications. He had no identity documents.
He was approved for a protection visa and moved into the community, living first in Melbourne and then in Sydney. He duly received various cards and documents from state and federal agencies, including an Immigration Card, a Medicare card, a NSW driver’s licence, and a Victorian Proof of Age card. He provided health records and testimonials from various Australian sources.[72]
[72] Applicant’s materials: A1.
During the course of processing his application for citizenship, he provided more information from Iran about his identity. He was able to obtain an Iranian Birth Certificate[73] and a National ID Card,[74] each with photo ID, which were duly translated into English. In these documents his surname name appears as Kheizan, born on 24 May 1989. He also provided birth certificates for his parents, with photographs, showing his father’s surname as Kheiran, and his mother’s name as Farideh Heidary.[75] He was also able to provide information about his schooling over several years, including subject selection and enrolment information, with accompanying photographs, as well as a Measles vaccination card.[76]
[73] Applicant’s materials: A6, A12.
[74] Applicant’s materials: A7.
[75] Applicant’s materials: A8.
[76] Applicant’s materials: A2, A3.
The surname recorded in his Iranian birth certificate and ID document (Kheizan) is different from the surname provided upon arrival in Australia (Ebrahim Khairollah). The latter name is reflected in a number of Australian documents and indeed, in his application for citizenship.[77] His given name, Mohammad, is the same. His birthplace is recorded as Tehran, far from the village in Ilam province on the border of Iraq previously indicated as his birthplace. There were minor discrepancies in the spelling of this village: Zayful,[78] ‘Zeyful’,[79]or ‘Zaifol’.[80]
[77] Form 80 – Personal Particulars for Assessment including Character Assessment, 29 April 2019: T7, 61.
[78] Statutory declaration, 13 November 2010: ST14, 144.
[79] Application for citizenship: T3, 31.
[80] Form 80 – Personal Particulars for Assessment including Character Assessment, 29 April 2019: T7, 61.
The Applicant told the Tribunal that various discrepancies could be put down to translation error from Farsi to English (Kheizan vs Kheiran), administrative error (his recorded place of birth), cultural practices (his family name including elements of his father and grandfather’s name) or were just trivial (the variations of spelling of the village).
The Applicant said that his parents had left Iran and were now in the United Kingdom. He said that he had difficulty obtaining identifying information from his parents.
Proof of foreign citizenship by producing a passport is not an absolute requirement in order to satisfy the identity requirements under the Citizenship Act. There may be ample evidence of identity, based upon credible evidence as to his life story, which establishes his identity.
The absence of a passport is not fatal to this application, even if there is reason to believe that he is entitled to such a document. The requirement to provide every available document should not be elevated to an absolute requirement. This applies especially to a passport, which can be an expensive document, often beyond the limited means of a refugee.
The question is whether there is sufficient evidence in the material before the Tribunal, including that contained in his oral evidence, to reach a state of satisfaction as to his identity.
CONCLUSION
There is no doubt that the Applicant provided false information to the immigration officials at the time of his arrival and maintained the deception that he was persecuted by reason of his ethnic status.
His claim for asylum was put on the basis of serious discrimination in education and employment because of his ethnicity and lack of identity. The school enrolment information before the Tribunal suggests that the Applicant’s claims of persecution and harassment in Iran were at the very least exaggerated.
For example, in his statement in support of his asylum claim he said that by reason of his ethnic background he was denied all educational opportunities in Iran, but this was clearly not the case.[81] He suggested that he was so fearful that he could not leave the house, although he conceded in evidence that he had not been physically harmed in Iran, and that he had not been harmed by the morality police, the Basij.
[81] Statutory declaration dated 13 November 2010: ST14,145.
Some elements of his asylum claim may be questioned. He had a powerful motive to exaggerate the hardships he faced in Iran. In essence, there were some restrictions on his life but fundamentally, it appears that he was driven by the very human desire to join his brother in Perth.
The provision of false information on a previous occasion is clearly relevant to credibility, but the Tribunal is not spared the task of evaluating his identity claim on the merits, which means taking into account all the available evidence.
There is no dispute that the person before the Tribunal is the same person as the refugee applicant processed on Christmas Island some 13 years ago. He goes by the name he gave the authorities, and his various documents and cards are issued accordingly.
There is however a clear discrepancy between his stated name (Mohammad Ebrahim Khairollah) and his name as recorded on his Iranian birth certificate and ID document (Mohammad Kheizan). There are also differences between his Iranian ID surname (Kheizan) and his claimed father’s surname (Kheiran).
There may be some substance to the Applicant’s claim to be entitled to use whatever names he pleases, especially if it accords with the customary practices of his ethnicity. In that sense, if he chooses to be known as Mohammad Ebrahim Khairollah, there is no impediment to using such a name.
However, in the applying for citizenship, an individual has an obligation to provide information about any change of name or status.
The Tribunal is invited by the Respondent to find, on the basis of the produced documents, that his real identity is Mohammed Kheizan and that he is not a stateless Kurd by the name of Mohammad Ebrahim Khairollah.[82]
[82] I note that according to the birth certificate of his claimed father (Ebrahim Kheiran) Kheirollah would be his grandfather, and Mehrijan would be his grandmother: A12.
The Respondent contends that the Tribunal should find that he is an Iranian citizen, because of the inherent difficulty of departing the country illegally via IKIA. The Tribunal is invited to find that he left Iran on a valid Iranian passport which has not been produced at any time to Australian authorities.
I am not satisfied, on the basis of the relevant 2020 DFAT Country Information Report and related agency reports, that it was impossible to transit IKIA in 2010 by using a false passport or by means of bribery.
The Applicant addressed the situation regarding his father’s place of birth. Darreh Shahr and Zeyful are both located in Ilam Province.[83] Ilam is on the border between Iraq and Iran. In 2010 he stated in a statutory declaration that his parents were born in Iraq, but he was now convinced that while his mother was born in Baghdad, Iraq, his father was born in Iran.[84]
[83] Applicant’s Statement, 6 March 2022.
[84] ST14, para 9.
The small spelling differences in place names and proper names may well arise because of difficulties associated with the translation into English of foreign place names, and the fact that English is not his home language. It appears that just about every combination of vowels was used for the name of his home village: Zeifal,[85] Zayful,[86] Zeyful,[87] and Zaifol.[88] I do not attach much significance to these minor spelling variations, which are most likely down to translation error.
[85] ST13,125.
[86] Statutory declaration, 13 November 2010: ST14, 144.
[87] Application for citizenship: T3, 31.
[88] Form 80 – Personal Particulars for Assessment including Character Assessment, 29 April 2019: T7, 61.
To sum up, all these concerns raised by the Respondent may be explained away. However, the letter dated March 2022 purporting to be from the Applicant’s father has given the Tribunal considerable disquiet. This letter purports to be written in April 2021 by his father. I set it out in full:[89]
[89] A4.
From: The Islamic Council of Talkhab-Bala Vilage
To: Administrative Appeals Tribunal
Subject:
My name is Ebrahim, son of Khairollah. I am a resident of Talkhab-Bala Village in Ilam Province. I was born in1942.
In the year 1979, I was arrested by the order of the then Iraqi dictator Saddam Hossien for being a Kurdish national. After all my life’s belongings and my little savings were confiscated, I was forcefully sent to the Khorsravi border in Kermanshah Province of Iran without any immigration documents/papers in my possession.
In Iran, I lived in with my spouse in a refugee camp for a while. At the time of admission to the refugee camp, I was given a Green Card which was valid for five years. Upon expiration of the card, I visited the authorities several times to have it renewed or extended. But no one was accountable for this as it coincided with the pre and post-Islamic Revolution chaos in the border towns, as well as the invasion of Iran by the Saddam regime.
They always told us “You are an Iraqi and we are fighting Iraq at this time.”
During the war, the bombings and the destruction of the houses and our appliances, I lost the expired card as well.
After the 8-year war was over, for the fear of being sent back to Iraq and the chaotic situation in Iran, I never pursued the Green Card. Therefore, at the moment, I have no immigration documents in my possession.
The letter is dated 11 April 2021. It is ‘verified’ by the Board of Trustees of Imam Zaman Mosque, Chenar-Bashi Village, and by the Islamic Council of Talkhtab-Bala Village, Badreh Town. It was translated by a NAATI credentialed translator on 21 April 2021.
The author claims to be the son of Khairollah. He says nothing about being the real father of the Applicant. He was writing as a resident in Talkhab-Bala Village in Ilam Province, Iran. It provides a contact mobile telephone number.
The author states that he had a green card for a while but did not renew it (for fear of being sent back to Iraq) and that he does not currently have any immigration documents.
In his letter of 3 March 2022, the Applicant stated:
In the last meeting, I was asked to prove the authenticity of my identity documents. My parents immigrated to the UK with these identity documents several years ago. You can make an enquiry about the names of my parents from the British embassy. By making an enquiry through the British Embassy, you can confirm the identity of my parents. Once you ascertain their identity, then you can confirm my identity accordingly… [90]
[90] A11.
In mid-2021 and 2022 the Applicant provided copies of his parent’s birth certificates and national ID cards. It is possible (although unlikely given the reference by the Applicant to them going to the United Kingdom ‘several years ago’) that his parents left for the UK not long after writing the letter in question in April 2021. But it is very hard to imagine them emigrating without ‘immigration documents’, which presumably would mean, at the very least, a refugee booklet, Green Card, Laissez Passer,[91] or perhaps a full passport. As the Applicant noted, they are in their eighties.
[91] A Laissez Passer is a temporary document issued in lieu of an ID card and valid for a fixed period of time, usually one or two months. However, in reality they are often extended. Sometimes Laissez Passers are converted to residence permits: see ST1, 3.
I consider that the letter lacks authenticity. It has a generic feel. There is nothing to suggest that it is a response to the Applicant’s plea for assistance, whether by telephone or email. The Applicant said in evidence that he had asked his parents to put aside their feelings and help him. This suggests that there was some divide to overcome. The letter is addressed to the Tribunal but makes no reference to the Applicant at all. There is no acknowledgement that the letter is written at the request of the Applicant, the author’s supposed son.
The Tribunal cannot be satisfied as to the Applicant’s identity on the basis of the information currently before the Tribunal. To refer back to CPI 16, this appears as a case that is ‘more complex’. Given the discrepancies that exist, the Applicant might reasonably be expected to provide a more cogent account of his family background, his relationship with siblings, and the current whereabouts and disposition of his parents. This would enable the current uncertainties to be resolved. For example, in 2018, he transferred $500 to a person in Indonesia with the same name as his father (Kheiran). He identified that person as a family relative, but there was an antipathy between them, and he denied that he sent money to her.[92] No explanation has been offered for this transfer.
[92] See RTB, 57.
This decision is not made on the basis that any claim to exit Iran via IKIA on a false passport must be false; or on the basis that Feyli Kurds as a group are unable to acquire legitimate travel documents. For the avoidance of doubt, this decision does not require that the Applicant must produce an Iranian passport in order to prove his identity.
On balance, I cannot be satisfied as to his identity at this time, and therefore the Tribunal is prohibited by reason of subsection 24(3) from approving the application. I recognise that the inevitable delay will cause some hardship to the Applicant, who appears to be in a fragile state. The Applicant is perhaps aware that a fresh application for citizenship can be made at any time, and this will provide an opportunity to address the missing gaps in his history.
DECISION
For these reasons, I affirm the decision under review.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..................................[SGD]......................................
Associate
Dated: 15 February 2023
Date(s) of hearing:
8 September 2022
Applicant:
Self-Represented
Solicitor for the Respondent:
Ms K Gawidziel, AGS
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