LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 4654

LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4654 (19 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7291
Re:LHSM
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:19 November 2020
Place:Sydney

The decision under review is set aside, and the matter remitted to the Minister with a direction that the Minister be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).
..........................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – Faili Kurd – applicant claims to be stateless – whether applicant citizen of Iraq – meaning of identity – application of Citizenship Policy – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2), 24(3)
Evidence Act 1995 (NSW)
CASES
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4205
Amiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 763
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Fox v Percy [2003] HCA 22
Kodari Securities Pty Ltd v Tran [2020] FCAFC 164
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Rooney v AGL Energy Limited (No 2) [2020] FCA 942
Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579
YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Government Department of Home Affairs, Australian Citizenship Instructions (Cth), CPI 16 - Assessing Identity under the Citizenship Act, 10 April 2019
Australian Government Department of Home Affairs, Australian Citizenship Policy, 1 June 2016
Australian Government Attorney General’s Department, National Identity Proofing Guidelines (Identity Guidelines), 2016
Australian Government Department of Immigration and Citizenship: ‘Iraq – Issues Paper: Kurds in Iraq’ (January 2010)
Australian Government Department of Immigration and Border Protection: ‘Green Cards – White Cards – Iraqi Refugees – Faili Kurds’ (November 2013)
Australian Government Department of Foreign Affairs and Trade: ‘DFAT Thematic Report – Faili Kurds in Iraq and Iran’ (December 2014)
Australian Government Department of Foreign Affairs and Trade: ‘Country Information report – Iran’ (April 2016)
Australian Department of Foreign Affairs and Trade: ‘Country Information Report, Iran’ (7 June 2018)
Austrian Red Cross: ‘Iran: Exit procedures for married women’ (12 June 2017)
Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.’, (30 April 2009)
Explanatory Memorandum to the Australian Citizenship Bill 2005
European Network on Statelessness and the Institute on Statelessness and Inclusion: ‘Statelessness in Iraq – Country Position Paper’ (November 2019)
Internal Displacement Monitoring Centre: ‘Iraq: Challenges of forced displacement within Iraq – A profile of the internal displacement situation’ (29 December 2008)
Immigration and Refugee Board of Canada: ‘Iraq: Information on the Kurdish Feyli (Faily/Falli) families, including their main areas of residence and their relationship with other Kurdish groups and the Iraqi regime’, Research Directorate, Immigration and Refugee Board, Canada, 1 October 1996
Immigration and Refugee Board of Canada: ‘Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini airport’ (10 March 2020)
Constituteproject.org, Iraq’s Constitution of 2005
National Legislative Bodies/National Authorities, ‘Iraq: Resolution No. 666 of 1980 (nationality)’, 26 May 1980
Iraqi Nationality Law [Iraq], Law 26 of 2006, 7 March 2006
Minority Rights Group International: ‘Assimilation, Exodus, Eradication: Iraq’s minority communities since 2003’ (2007)
United Kingdom Home Office: ‘Country Policy and Information Note, Iran: Illegal Exit’ (version 5.0, February 2019)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
19 November 2020
The Issue

This is an application by LHSM (the Applicant) for the Tribunal to review a decision by a delegate of the Minister (the Respondent) rejecting his claim for Australian citizenship by conferral on the basis that the Applicant cannot properly satisfy the requirements of subsection 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act) and establish his true identity.
LHSM claims that he is a stateless person. The Minister claims that he is a citizen of Iraq.
There is agreement that the Applicant is a member of the minority Faili (Fayli/Feyli) Kurdish ethnic community and the Tribunal must preface its determination in this matter with a consideration of the relevant recent history of that community.
Faili (Fayli/Feyli) Kurds
The Faili Kurds are an ethnic minority group historically inhabiting both sides of the Zagros mountain range on the border between Iraq and Iran. They are followers of the Shi’a branch of the Islamic faith. Significant numbers of Faili Kurds are Iranian nationals/citizens and live in Iran.
The history of the Kurdish people in general, is that they have been regarded with suspicion and subject to discrimination and persecution by both the secular (Ba’athist) and post-Saddam Iraqi (Sunni) as well as the theocratic Iranian (Shi’a) regimes for many years.[1]
[1] Australian Government Department of Foreign Affairs and Trade: ‘DFAT Thematic Report – Faili Kurds in Iraq and Iran’ (December 2014) at page 5.
Information about the persecution of the Faili Kurds has been published by:
·Minority Rights Group International: ‘Assimilation, Exodus, Eradication: Iraq’s minority communities since 2003’ (2007)
·Internal Displacement Monitoring Centre: ‘Iraq: Challenges of forced displacement within Iraq – A profile of the internal displacement situation’ (29 December 2008)
·Australian Government Department of Immigration and Citizenship (DIAC) (as it then was): ‘Iraq – Issues Paper: Kurds in Iraq’ (January 2010) {2010 DIAC Report}
·Australian Government Department of Immigration and Border Protection (as it then was): ‘Green Cards – White Cards – Iraqi Refugees – Faili Kurds’ (November 2013) {Cards Report}
·Australian Government Department of Foreign Affairs and Trade: ‘DFAT Thematic Report – Faili Kurds in Iraq and Iran’ (December 2014)
·European Network on Statelessness and the Institute on Statelessness and Inclusion: ‘Statelessness in Iraq – Country Position Paper’ (November 2019); and
·United Kingdom Home Office: ‘Country Policy and Information Note, Iraq: Internal relocation, civil documentation and returns’ (Version 11.0, June 2020).
In May 1980 the secular (Ba’athist) regime of the dictator Saddam Hussein enacted Iraq: Resolution No 666 of 1980 (Nationality) as follows:
In accordance with the provisions of para (a) of Article 42 of the Interim Constitution,
The Revolutionary Command Council have decided in their session held on 07.05.1980 the following:
1.The Iraqi nationality shall be dropped from any Iraqi of foreign origin if it is appeared that he is not loyal to the homeland, people, higher national and social objectives of the Revolution.
2.The Minister of Interior must order anyone whose Iraqi Nationality has been dropped under para 1 unless he is convinced according to sufficient reasons that his stay in Iraq is a matter required by judicial or legal necessity or for preservation of the rights of other persons which are officially authenticated.
3.The Minister of Interior shall undertake to execute this resolution.
Saddam Hussein
Chairman of the Revolutionary Command Council[2]
[2] National Legislative Bodies/National Authorities, ‘Iraq: Resolution No. 666 of 1980 (nationality)’, 26 May 1980, available at:
As a result of the passage of this decree, members of the Faili Kurdish community were systematically stripped of their Iraqi citizenship and a large number of them were forced into exile, primarily in Iran. Between 150,000 to 500,000 such Iraqi nationals were deported to Iran and in the process most of them were deprived of both their property and their official papers and documents.[3]
[3] Australian Government Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iraq’ (17 August 2020), page 22; Immigration and Refugee Board of Canada: ‘Iraq: Information on the Kurdish Feyli (Faily/Falli) families, including their main areas of residence and their relationship with other Kurdish groups and the Iraqi regime’, Research Directorate, Immigration and Refugee Board, Canada, 1 October 1996.
In his evidence the Applicant stated, in relation to his father: “… so the only thing I know is that he told us that they took all the documents we had”.[4]
[4] Transcript of evidence (Transcript), 21 October 2020, page 8.
After the overthrow of the Saddam regime in 2003, Iraq proceeded to adopt a new Constitution, the Preamble of which formally recognised the persecution of the “Fayli Kurds” along with other designated minorities under the previous regime. Article 18 of the new 2005 Constitution[5] provides:
[5] Iraq’s Constitution of 2005, Constituteproject.org.
Article 18
First
Iraqi citizenship is a right for every Iraqi and is the basis of his nationality.
Second
Anyone who is born to an Iraqi father or to an Iraqi mother shall be considered an Iraqi. This shall be regulated by law.
Third
A. An Iraqi citizen by birth may not have his citizenship withdrawn for any reason. Any person who had his citizenship withdrawn shall have the right to demand its reinstatement. This shall be regulated by a law.
B. Iraqi citizenship shall be withdrawn from naturalized citizens in cases regulated by law.
Fourth
An Iraqi may have multiple citizenships. Everyone who assumes a senior, security or sovereign position must abandon any other acquired citizenship. This shall be regulated by law.
Fifth
Iraqi citizenship shall not be granted for the purposes of the policy of population settlement that disrupts the demographic composition of Iraq.
Sixth
Citizenship provisions shall be regulated by law. The competent courts shall consider the suits arising from those provisions.
In due course a new Nationality Law was promulgated on 7 March 2006.[6] Relevantly, it provides:
Article 3:
A person shall be considered Iraqi if: a. he/she is born to an Iraqi father or an Iraqi mother; b. he/she is born in Iraq to unknown parents. A foundling found in Iraq shall, in the absence of proof to the contrary, be considered to have been born therein.
Article 4:
The Minister may consider Iraqi any person born outside Iraq to an Iraqi mother and an unknown or stateless father, if he chooses the Iraqi nationality, within one year from coming of age (reaching the age of maturity), unless he fails to do so, due to difficult circumstances, provided that he is residing within Iraq at the time of application for the Iraqi nationality.
Article 5:
The Minister may consider Iraqi anyone who was born within Iraq to a non-Iraqi father, who was also born in Iraq, had come of age and had been habitually residing therein at the time of child's birth, provided the child will apply for the Iraqi nationality.
[6] Iraqi Nationality Law [Iraq], Law 26 of 2006, 7 March 2006.
Article 18 then provides:
Article 18
I - Any Iraqi, who was denaturalized on political, religious, racist or sectarian grounds, shall have the right to restore his Iraqi nationality, subject to submission of an application to this effect. In the case of his death, his children, who have lost their Iraqi nationality consequent to his father's loss of nationality, shall have the right to submit an application to restore Iraqi nationality.
II - Excluded from the benefit item I of this Article shall be those Iraqis who had lost their nationality pursuant to Law No. (1) Of 1950 and Law No. (12) Of 1952.
It is to be noted from the above that Iraqi nationals (citizens) deprived of their citizenship by the Saddam decree of 1980, provided they meet the requirements of Articles 3, 4 or 5 of the Nationality Law, have the right to restore their Iraqi nationality but they must do so “by application to this effect”. In other words, the restoration of citizenship is not enacted or deemed to have occurred automatically. It requires positive action by an applicant.
The 2010 DIAC report states:
A cable response received from the DFAT Baghdad post in November 2009 reiterates UNHCR advice of May 2008 that reacquiring nationality for Faili Kurds returning from Iran is a ‘long and complicated’ process. A local newspaper article in May 2009 reported that the Iraqi ministry of Immigration and Immigrants restored Iraqi citizenship cards to more than 3500 Iraqi citizens who had returned from Iran, the majority of which were Faili Kurds.
According to UNHCR advice from 2008, an applicant for Iraqi citizenship ‘needs to provide the nationality certificate of their father, brother, paternal grandfather or uncle. If this is not possible, the nationality officer will record the testimony and confirmation of the applicant’s clan members to verify information and documents provided by the applicant.’
In 2005, the UNHCR highlighted the case of Faili Kurds and that they may be unable to provide the necessary documents due to being stripped of all documentation when deported from Iraq. It is noted that some local authorities have established ways to review such cases however there are continuing difficulties due to a lack of staff and training of staff and limited access to legislation. The 2008 advice from UNHCR also highlights that people who had their citizenship revoked and do not have documents to prove their status are required to apply in person in Baghdad ‘thus incurring financial costs and security risks due to transportation costs and the unstable security situation in Central Iraq.’[7]
[7] Footnotes omitted.
On 17 August 2020 the Australian Government’s Department of Foreign Affairs and Trade (DFAT) published its most recent Country Information Report on Iraq. It reports:
Faili Kurds
3.8 Faili Kurds are an ethnic group historically inhabiting both sides of the Zagros mountain range along the Iran-Iraq border, living in both Iran and Iraq. Today, the estimated 1.5 million Faili Kurds in Iraq live mainly in Baghdad, as well as the eastern parts of Diyala, Wasit, Misan and Basra governorates. A sizeable population can also be found in the KRI. Faili Kurds speak a distinct dialect of Kurdish, which is a sub-dialect of Luri. Unlike the majority of Kurds, who are generally Sunni Muslims adhering to the Shaf’i school of Islam, Faili Kurds are Shi’a.
3.9 Faili Kurds’ dual Shi’a and Kurdish identity has historically exposed them to stigmatisation and persecution. During Ottoman times, some Faili Kurds acquired Persian nationality as a means of avoiding conscription. In 1924, an Iraqi Nationality Law distinguished between descendants of Ottoman citizens, who were considered ‘original’ Iraqis and automatically granted Iraqi nationality, and citizens of Persian origin, who had to acquire Iraqi nationality. Faili Kurds were put in the latter category, even though the community had been in Iraq for hundreds of years. The initial distinctions introduced by the 1924 Nationality Law served as the basis for increased repression after the Ba’ath Party came to power in 1963. A new Nationality Law introduced that year built upon the discriminatory provisions of the 1924 law, and led to many Faili Kurds losing their citizenship. After the second Ba’ath coup in 1968, the government began large-scale deportations of Faili Kurds to Iran. Further deportations occurred after the 1979 Iranian Revolution, particularly after a Faili Kurd was blamed for a failed assassination attempt on Deputy Prime Minister Tariq Aziz (which helped spark the Iran-Iraq War). Estimates of the total number of Faili Kurds who were denationalised and deported range from 150,000 to 500,000. During this period, authorities also reportedly offered payments to Iraqi nationals who divorced their Faili Kurd spouses and allowed them to be deported. In addition to the deportations, authorities also detained thousands of military-age young men, and allegedly subjected them to torture and, according to some reports, tested chemical and biological weapons on them. The estimated number of disappeared young men, whose bodies have never been found, ranges from 10,000 to 20,000.
3.10 State-sanctioned persecution of the Faili Kurds officially came to an end after 2003, and many Faili Kurds have returned from Iran. The preamble to the Constitution recognises the Faili Kurds as victims of oppression and massacres. The National Assembly unanimously passed a resolution in 2011 recognising the crimes perpetrated against the Faili Kurds as genocide, and the Iraqi High Tribunal convicted four Ba’ath Party officials in connection with their roles in the deportations. The Iraqi Nationality Law (2006) established the right to regain Iraqi nationality for those previously denationalised on political, religious or ethnic grounds, and many Faili Kurds have been able to have their Iraqi nationality reinstated. However, the process of reinstatement is reportedly slow and bureaucratic, sometimes taking years to complete, and often requires applicants to pay bribes to officials. Moreover, the documentary requirements are onerous, requiring applicants to provide a copy of their registration from the 1957 census, among other documents that many Faili Kurds are unlikely to possess. While the Iraqi government claims that 97 per cent of expelled Faili Kurds have regained citizenship, community activists claim thousands of families remain stateless.
3.11 Without nationality documents, Faili Kurds cannot access public services such as education and health care. They are also unable to obtain other documents such as birth, death and marriage certificates. Faili Kurds who have managed to obtain nationality documents have reported that the identity cards issued are a different colour than those of other Iraqis, or show them as citizens of ‘Iranian origin,’ which could open them up to discrimination. Reportedly, Faili Kurd files and records are still being kept in the foreigners’ section of the General Nationality Directorate. Some community members have reported facing insults, harassment and humiliation when visiting government offices.
3.12 Another major challenge facing Faili Kurds denationalised during the Ba’ath era is the issue of recovering their confiscated properties. Upon returning to Iraq, many Faili Kurds found other people had occupied their homes. While the Property Claims Commission established after the fall of Saddam Hussein was mandated to resolve Ba’ath-era disputes, the process of compensation has reportedly been inefficient, and incapable of dealing with cases in which property deeds had been confiscated, and there have been few reports of compensation actually being transferred to families. There has also been little progress on implementing the Law on Compensation for Persons Affected by the Ba’ath Regime (2010).
3.13 There is currently one Faili Kurd member of parliament, representing Wasit province. Due to their unique minority status, Faili Kurds do not fit in neatly in either the Kurdish or Shi’a blocs, and neither of these dominant groups has taken up their cause. Many Faili Kurds reportedly aligned themselves with Arab tribes for protection during the Ba’ath era and have subsequently lost their identity and status as Faili Kurds. During the 2017-18 Kurdish independence referendum there were reportedly some instances of threats being made against the Faili Kurd community. DFAT is not aware of any cases in which these threats were carried out.
3.14 DFAT assesses Faili Kurds without nationality documents face a moderate risk of official discrimination as the absence of these documents means they are unable to access government services or obtain other important identification documentation. Faili Kurds face a low risk of societal discrimination based on them being considered foreign nationals, although this is unlikely to include being subjected to violence.

Similarly, the European Network on Statelessness reports:
4.1 Faili Kurds[8]
There are approximately 1.5 million Faili Kurds in Iraq. They are “considered a cross-border population” between Iraq and Iran. A majority of the Faili Kurds in Iraq reside in Baghdad, the border regions and the Kurdistan Region of Iraq. Unlike a majority of Kurds, Faili Kurds are identified as Shia Muslims and have historically been victims of hostility and mistrust by the Iraqi authorities. For example, pursuant to Decree No. 666 of 1980, the Revolutionary Command Council declared, “Iraqi nationality shall be dropped from any Iraqi of foreign origin if it is appeared that he is not loyal to the homeland, people, higher national and social objectives of the Revolution.” This applied directly to Faili Kurds, who were perceived to be loyal to Iran following an assassination attempt on the Deputy Prime Minister, Tariq Aziz, in April 1980 by a Faili Kurd from Iraq. As a result, “Faili Kurds were systematically rounded up, and various state agencies cooperated in compiling lists of names for deportation” to Iran, with estimates ranging from tens to hundreds of thousands of individuals. Even before the issuing of Decree No. 666 of 1980, Faili Kurds experienced persecution in Iraq and “[w]hile forced deportation and the questioning of Faili Kurds’ citizenship was not a new phenomenon, the mass deprivation of citizenship was.” The number of those affected subsequently increased due to the hereditary nature of this stateless status.
Following the fall of Saddam Hussein’s regime in 2003, many Faili Kurds returned from Iran to Iraq, as many had limited rights or access to nationality in Iran, as they were considered Iraqi. Pursuant to Article 17 of Law No. 26 of 2006, “Decision No. 666 of 1980 issued by the (defunct) Revolutionary Command Council shall be repealed and Iraqi nationality shall be restored to all Iraqis deprived of their Iraqi nationality under the said as well as all other unfair decisions issued by the (defunct) Revolutionary Command Council in this respect”. This law was intended to enable Faili Kurds, among others, to reacquire their Iraqi nationality. However, the requirements for re-acquisition of nationality were regarded as imposing a high threshold, predominantly the requirement to prove nationality before 1980. For example, UNHCR stated that it “…is aware of reports that the process of reinstatement is long and cumbersome, and applicants are often required to travel from their place of residence to the nationality directorate in Baghdad to follow up on their applications. Some Faili Kurds started the process but could not complete it due to documentary and financial requirements (including for repeated travel to Baghdad).” In addition, “…the process [to reacquire nationality] can be administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin.”
While reports suggest that many Faili Kurds have been able to reacquire Iraqi nationality, UNHCR “…has no updated information on how many Faili Kurds have benefited from the 2006 Nationality Law and have been issued with nationality certificates, as the Government of Iraq has not released relevant data in recent years.” Additionally, many remained in displacement and never attempted to reacquire their Iraqi nationality. As a result, there is still today an unknown number of Faili Kurds who have not regained their Iraqi nationality. Statelessness therefore remains an issue of concern for this group.
In 2019, UNHCR confirmed that “A number of Faili Kurds…also remain stateless and consequently without official documentation, resulting in restrictions on access to public services and formal employment, as well as on their freedom of movement due to difficulties to pass checkpoints.”
[8] European Network on Statelessness and the Institute for Statelessness: ‘Statelessness in Iraq – Country Position Paper’ (November 2019). Extensive footnoting omitted.
Agreed Facts
The following personal matters are not in dispute in relation to the Applicant:
·He was born in Baghdad, Iraq in 1976.
·His parents, AH (father – deceased) and SPH (mother) were both born in Iraq.[9]
·He has three brothers, EMA (born 1973), AYA (born 1978,) and REZ (born 1981) and two sisters, RAS (born 1979) and RAN (born 1989).
·He married an Iranian citizen, AA in 1997 in Tehran.
·Mrs AA obtained Australian citizenship on 2 August 2017.[10]
·The Applicant’s mother and all his siblings currently reside in Australia as do his wife and children.
·The Applicant and his wife have two daughters (born 2011 and 2014) who were born in Australia.
[9] Most family details are found in the Tribunal documents at [181]-[186].
[10] Australian Citizenship Certificate, 2 August 2017.
It was also not challenged that the Applicant and his siblings EMA, AYA and RAS were born in Iraq whereas his younger brother REZ and his youngest sister RAN were born in Iran, after the family was expelled from Iraq in about 1980.
His Australian visa history is as follows[11]:
·The Applicant (together with other members of his family, including his wife and mother) arrived in Australia in October 2010 as Irregular Maritime Arrivals. They had departed from Indonesia by boat and were intercepted at sea by Australian authorities and taken to immigration detention on Christmas island.
·On 1 September 2011 the Applicant was granted a Protection Visa (Class XA -subclass 866).[12]
·On 11 March 2016 the Applicant applied for Australian citizenship by conferral.
·Between April and September 2019, the Department of Home Affairs (the Department) sought further information from the Applicant in support of his citizenship application and this was provided by him on 3 October 2019.
·On 31 October 2019 the Minister’s delegate made the reviewable decision not to grant the application for Australian citizenship on the basis that the delegate was not satisfied of the identity of the Applicant.[13]
·The Applicant lodged an appeal against that decision with this Tribunal on 8 November 2019 and the matter was heard on 21 and 23 October 2020.
·The hearing was conducted in accordance with COVID-19 restrictions using the Microsoft Teams platform and the Applicant and witnesses were provided with the assistance of a Farsi language interpreter.
[11] Respondent’s Statement of Facts, Issues and Contentions.
[12] Tribunal documents at [209].
[13] Respondent’s Statement of Facts, Issues and Contentions.
The Applicant’s journey to Australia
This narrative is derived from the oral testimony of the Applicant and his wife,[14] together with the records of interviews with the Applicant and members of his family:
·Sometime in 2010 the Applicant departed from Iran (Imam Khomeini Airport, Tehran) on a flight bound for Kuala Lumpur, Malaysia. He was accompanied on this flight by his mother, his brother REZ and two cousins.
·On arrival in Kuala Lumpur, an agent/people smuggler took them to a hotel where they remained briefly (a matter of hours). They were then met by another person who drove them to a coastal destination on the Malaysian coast where they boarded a boat which took them to the east coast of Sumatra (Indonesia).
·From there they were driven to an airport where, with pre-arranged tickets, they flew to Jakarta.
·In Jakarta they met up with the Applicant’s wife who had flown directly from Tehran to Jakarta.
·From Jakarta they were driven overland to a place on the Indonesian coast where they embarked on a vessel which held some 12 people (including the Applicant, his wife, mother, brother REZ and two cousins) and headed for Christmas Island.
·The Applicant and his party spent approximately one week in Indonesia between their arrival from Malaysia and departure for Australia.
·As already noted, they were intercepted by Australian authorities and transferred to Christmas Island, arriving there in October 2010.
[14] See particularly Transcript, 23 October 2020 pages 58 - 61 .
There does not appear to be any serious dispute about the route taken by the Applicant between Iran and Australia, although details of events within the journey are open to some dispute.
The matters in dispute revolve around the nature of the travel documents possessed by the Applicant, his mother and brother REZ which allowed them to travel from Iran to Kuala Lumpur. The travel documents regarding his wife are not in dispute as it is not contested by the Minister that she held a valid Iranian passport which facilitated her travel. These matters are discussed below.
Life history
The Applicant states that, as a child of about 4 years of age (that is, around 1980), he and the members of his family were expelled from Iraq by the Saddam Hussein regime because of both their membership of the Faili Kurdish ethnic minority and their adherence to the faith of Shi’a Islam.
The Applicant goes on to claim that his family were expelled into Iran and eventually settled in Tehran where his father was able to establish his trade as a butcher and to operate out of rented premises in that city. However, that was not without its problems and his father’s business was forced to close on a number of occasions.[15] On the death of his father[16] the butcher’s shop ceased to operate, and the Applicant obtained some sort of employment in a shoe-making factory.
[15] Transcript, 21 October 2020, pages 19 - 21.
[16] Further Supplementary Tribunal documents at [374].
The Applicant stated that he attempted to take his father’s body back to Iraq for burial in their home community but was prevented from doing so and he regrets that he had to bury his father in the foreign soil of Iran.[17]
[17] Transcript, 21 October 2020 page 48.
In Tehran he met an Iranian girl (then aged about 14 years[18]) who was a neighbour of his and eventually they formed a romantic relationship. She was an Iranian citizen and a Shi’a Muslim but not a member of the Kurdish community. They were married several years later, having to overcome the hostility of his wife’s father. His wife’s evidence was to the effect:
You know, actually, he proposed for several years and because my father was not approve of him actually, that’s why. My father used to say, ‘They don’t - they are Iraqis. They don’t have any type of documents. They have been kicked out of their own country’, but eventually, because, you know, that he asked over and over and over, my father got to know that he really loves me and he agreed to - he agreed actually for us to get married, but he - he told me, ‘You know what? You’re going to go through a hard time. You’re going to bear all the difficulties on your own because, you know, even in Iran they have difficulty, you know, to get these marriage registered’, because of his identity. He had only one Iranian identity card.[19]
[18] Transcript, 23 October 2020 page 66.
[19] Ibid page 66.
Indeed, in answer to a question at the hearing, Mrs AA was adamant not only that she was not a Faili Kurd but, emphatically, that “and I don’t want to be either”.[20] The couple decided to marry despite the opposition from what appears to be both families to what was an inter-ethnic union.
[20] Ibid page 65.
It was the Applicant’s evidence, supported by testimony from his wife, that a number of obstacles were placed in the path of their marriage as the Iranian authorities discourage the marriage of Iranian citizens to non-Iranians and Iraqis in particular. As a result, they entered into a sigheh marriage. This is a form of “temporary” marriage recognised by Shi’a (but not by Sunni) Muslims and may be contracted for any period of time, from a few minutes up to 99 years. The Applicant and his wife stated that they “contracted” for 99 years.[21]
[21] Transcript, 21 October 2020 page 17.
Sigheh marriages are not recorded in the same way as official Islamic marriages and as such documentation showing details of the marriage are often not created or available.[22] However it was the Applicant’s testimony that there was a document recording the sigheh marriage and that he had provided a copy of it to “my lawyer” who was supposed to pass it on to his representatives for this matter but had failed to do so.[23]
[22] Sigeh is the Persian/Farsi term. The arrangement is known in Arabic as Mut’ah and details may be found under the entry for Mut’ah in Oxford Encyclopedia of the Modern Islamic World (OUP, 1995) volume 3 page 212. The Tribunal itself has discussed sigeh marriages in Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267 at [53]-[55]. For further details re status and registration see Department of Home Affairs: ‘Iran – Unregistered Religious Marriages – Legal Status of Unregistered Marriages – Marriages between Iranian Men and Foreign Women – Process to Register Marriages in Iran’ (30 October 2020).
[23] Transcript, 21 October 2020, page 18.
Although there is no documentary corroboration of this claim, the Tribunal accepts the testimony of the Applicant and his wife in relation to their sigheh marriage.[24]
[24] Transcript, 23 October 2020 page 71.
Both LHSM and his wife gave testimony to the effect that they attempted to register details of their marriage with the Iranian authorities but were prevented from doing so, both because they were treated in a discriminatory fashion by the authorities and because there was general disapproval of the inter-ethnic nature of their marriage.[25]
[25] Transcript, 21 October 2020 page 9; page 13; pages 16 - 17.
The Applicant states in his evidence that he and his wife found living in Iran hard and that he was the victim of continued discrimination because of his ethnic background and that his wife suffered as a consequence. He reports regularly being discriminated against and suffering verbal abuse when trying to access services from the Iranian authorities. This is consonant with the reported findings of the Immigration and Refugee Board of Canada’s Report of October 1996 to the effect that: “According to the representative, the Feylis deported to Iran have difficulties in that country as they do not belong to the Iraqi Shia groups supported by Iran”. [26]
[26] Immigration and Refugee Board of Canada: ‘Iraq: Information on the Kurdish Feyli (Faily/Falli) families, including their main areas of residence and their relationship with other Kurdish groups and the Iraqi regime’, Research Directorate, Immigration and Refugee Board, Canada, 1 October 1996.
On entry into Iran he was originally provided with a “Green” card which allowed him access to a limited range of benefits from the Iranian government given his effective status as a refugee. In due course the Green card was withdrawn and replaced with a “White” card which afforded fewer benefits but retained its status as an official identity document.[27]
[27] Details from Cards Report.
Eventually the Applicant decided that he would seek to leave Iran and try to make his way to Australia, about which he had heard positive reports. He made preparations to obtain some form of identity documents which would allow him to travel.[28]
[28] Transcript, 21 October 2020 pages 29 - 30.
It is his story that he returned to Iraq, surrendering his White card on exit from Iran.[29] He travelled to Baghdad where he remained for some 30 to 35 days[30] and obtained a passport for himself, as well as passports for his mother and his brother REZ. He claims that he did this through a well-connected and known intermediary who performed this service of obtaining passports on a regular basis.
[29] Ibid page 30.
[30] Ibid page 31.
When questioned by the Respondent about what he did during that 30-35 day period, his response was that he stayed with relatives and did not venture outside because of the dangerous security situation in Baghdad at the time. He indicated that this was the length of time necessary to obtain the required passports and that had they been produced earlier, he would have left Baghdad earlier.[31]
[31] Ibid page 31; page 35.
The Applicant states that he has never been entirely sure whether the passports were official passports obtained irregularly or forged passports. He stated: “So I am not sure if the passport was fake or if it was real. I don’t know anything about that status of it…”.[32]
[32] Ibid page 36.
In his reported statement to immigration officials, the Applicant indicated that the Iraq passport may have been genuine but that it was obtained with “an official stamp and all after pay enough money (suggest proper passport)”.[33]
[33] Supplementary Tribunal documents at [273].
This matter becomes of critical moment later in the determination.
Having obtained the passports, the Applicant returned to Iran, entering the country at the Mehran crossing[34] using his new passport. Shortly after his return to Tehran, he and his family undertook the trip to Australia as outlined above.
[34] The Shahid Soleimani or Mehran border crossing is the closest Iranian border crossing to Baghdad. In 2016 some 90,000 Iranian pilgrims returning from the holy city of Karbala passed though the checkpoint. Passport(s)
Central to the Respondent’s position is the assertion that the passport on which the Applicant (and presumably his family members) travelled was a genuine Iraqi passport, obtained by the Applicant on his return to Baghdad when he (re-)established his Iraqi citizenship.
In support of this the Respondent asserts that there were at least three occasions when the passport would have been subject to scrutiny and would have been identified as false or forged. The first of these was at the border crossing when the Applicant returned from Iraq to Iran; secondly, when he departed Imam Khomeini Airport in Tehran; and thirdly when he arrived in and was granted entry to Malaysia at Kuala Lumpur airport.
Consideration of what might have occurred at these various checkpoints must necessarily be speculative and may also depend on the “quality” of the document in issue, whether a valid passport or a sophisticated but false/falsified one.
The Applicant’s position is that there was little checking at the Mehran crossing or at Imam Khomeini airport. As to the former, it is obviously possible that border authorities may have taken documentation at face value and in any event they may have ascertained that the Applicant was previously the holder of both Green and White cards and thus eligible for (re-)entry into Iran. As this is the principal crossing-point for land travel between Iran and Iraq it is possible that border checking was merely cursory. This of course is only a matter of speculation and does not in any way constitute anything resembling evidence.
There are various international reports outlining procedures and practices in place at Imam Khomeini International airport which emphasise that the principal interest of the controlling authorities is to prevent the departure of Iranian citizens who are under some form of interest to the Iranian government.[35] The general nature of the procedures were set out by the Respondent in their Statement of Facts, Issues and Contentions, with emphasis placed on the thorough nature of those procedures.[36]
[35] Immigration and Refugee Board of Canada: ‘Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini airport’ (10 March 2020) Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.’, 30 April 2009, available at:
[36] Respondent’s Statement of Facts, Issues and Contentions at [50]; Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.’, 30 April 2009, available at: type="1">
As he informed the hearing,[37] the Member presiding at the Tribunal has personal experience of travelling, on at least three occasions through Imam Khomeini airport (and flying with the designate carrier, Iran Air) and appreciates that such an experience can be chaotic and that departures, especially in this case, of foreign Faili Kurdish nationals, may not be subject to the level of rigorous scrutiny that constitutes best practice. However, the Tribunal accepts the assessment in DFAT’s 2016 Country Report on Iran that “Forged visas or visas obtained through false information are common but exit from Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved”.[38]
[37] Transcript, 21 October 2020 page 11.
[38] DFAT: ‘Country Information report – Iran’ (April 2016) CIS38A8012677.
This level of scrutiny might have been considerably greater had the Applicant’s wife been travelling with him at the same time. Her association with him, as an Iraqi Faili Kurd and she as an Iranian citizen/passport holder may well have triggered greater attention and it may well not be without significance that the parties deliberately chose to travel separately to meet up in Jakarta.
However, the departure of the Applicant’s wife also raises some questions as there are considerable restrictions on women leaving Iran. If Mrs AA were known to be married, she would not have been able to depart without evidence of the permission of her husband.[39] It may well be that the non-registration of her sigheh marriage allowed her to travel as a single woman as it appears that single women were, at least in 2010, allowed to travel abroad without the permission of their father or a male guardian.[40] It appears that this may well have been subject to more recent restrictions.[41]
[39] Austrian Red Cross: ‘Iran: Exit procedures for married women’ (12 June 2017); United Kingdom Home Office: ‘Country Policy and Information Note, Iran: Illegal Exit’ (version 5.0, February 2019); Australian Government Department of Foreign Affairs and Trade: ‘Country Information Report, Iran’ (7 June 2018) page [48].
[40] “At the moment, unmarried women and men above the age of 18 can leave the country if they have a passport” Saeed Kamali Dehghan: ‘Iranian single women might need father’s permission to go abroad’, The Guardian, 16 January 2013.
[41] ‘Single Iranian Women still banned from foreign travel without father’s consent’, Kayhan Life, 5 October 2018; ‘Married women in Iran still need “permission” to travel abroad under Amendment to Passport Law’, Centre for Human Rights in Iran (July 18, 2017).
Of far greater significance is the acceptance by the Malaysian authorities of the documentation allowing those same foreign Faili Kurdish nationals to enter at Kuala Lumpur airport. There is no obvious or satisfactory explanation as to how this might have occurred.
The financing of the passport and travel arrangements
There is considerable doubt about the level of payments which the Applicant (and his family) had to make for both the acquisition of the passports and the operations of the people smugglers.
When the Applicant was first interviewed by the Department on arrival in Australia he stated that the costs paid to the people smugglers was in the order of $US10,000[42], a figure which appears to be confirmed by a statement of his mother at the same time.[43] In his oral testimony the Applicant replied to a question as follows:
MS LIANG (for the Respondent)[44]: Mr LHSM, you have said that you spent US$10,700 per person to pay to the smuggler for your fake passport and for your flights. How were you able to save that much money on your wage?
INTERPRETER: So, no, no, I paid 1,800 to the person who made the passport for us, and then I paid another 5,000 – another 5,000 for the person who brought us from Jakarta to Australia by boat. So and the money that I – I don’t know what the 10,000 thing comes from. So this money we all borrowed from other people and we paid them back once we got to Australia, we sent the money back to them.[45]
[42] Supplementary Tribunal documents at [272].
[43] Further Supplementary Tribunal Documents at [396].
[44] Solicitor for the Respondent.
[45] Transcript, 21 October 2020, page 23.
After some discussion the Applicant settled on a figure closer to $7,500.[46] The Respondent strongly challenged these assertions and pressed the question of how, on modest incomes in Iran, either the Applicant or his wife could afford such expenditure.[47] Both of them replied that the trip was financed by the sale of his wife’s gold and jewellery, by sale of their household goods and appliances and by seeking loans from friends, subsequently repaid.[48]
[46] Ibid page 25.
[47] Transcript, 23 October 2020.
[48] Transcript, 23 October 2020, pages 55 - 56; page 69.
Similarly, there was confusion as to the costs involved in obtaining the passports ranging from claims of $7,000[49] to $1,800 or (according to Mrs AA) 100,000 – 150,000 tomans,[50] (which would have been in the vicinity of $US6,000 at then prevailing official exchange rates[51]).
[49] Transcript, 21 October 2020, page 23.
[50] Transcript, 23 October 2020, page 69.
[51] This is before the July 2019 introduction of the toman as the principal unit of Iranian currency. Prior to that one toman was the equivalent of 10 rials. The new rate is 10,000 rials.
There is no way of knowing for certain what cost was involved in this transaction, either in the way in which the Applicant describes or in terms of the costs of obtaining a legal or illegal document.
Although the Respondent pressed the Applicant hard on this matter, it does not appear to the Tribunal that the cost paid to the people smuggler is relevant to the question of the Applicant’s identity. Admittedly, it may go to matters of credibility or honesty, or matters of memory, but those are different questions. There is no challenge to the fact that the Applicant arrived as an Illegal Maritime Arrival and that he would have had to pay the people smuggler whether he had a valid passport (as his wife did) or not.
The matter of REZ
The Respondent placed before the Tribunal certain documentation related to the Applicant’s brother REZ and made the following submissions which need to be quoted in full:[52]
[52] Respondent’s Statement of Facts, Issues and Contentions. Footnotes omitted.
35. On 18 July 2019, information was received by the Department from DFAT in relation to the Applicant and his family. In particular, this information was provided by Iraqi authorities and was described by the relevant DFAT Post as follows:
1. If REZ is an Iraqi Citizen: The Iraqi authorities have confirmed that this client is Iraqi citizen and was born in Iran. He is married to Ms SAB who is an Iraqi citizen. They are both registered with Iraqi civil status directorate – Ministry of interior as Iraqi citizens.
2. What is the nationality status of REZ in Iraq: he is registered with Iraqi records as an Iraqi citizen.
3. Family composition/list of [the Applicant’s] family: same family composition as provided in the family tree attachment. There Might be other siblings who got separated from the family record because of marriage and moved to spouse records with Iraqi authorities.
4. If possible, please confirm nationality status of all the 11 applicants in Iraq: according to the records that [redacted] managed to obtain from the Iraqi authorities which confirm that REZ, his parents and siblings are all Iraqi citizen.
…
Based on the above and the information we received from the Iraqi authorities, we can confirm the following: -
- Ms SPH is an Iraqi citizen and the last Iraqi document was issued for her is an Iraqi ID card issued in 2009.
- Mr AH (the Deceased husband for Ms SPH) and all the sons and daughters are registered with Iraqi authorities as Iraqi citizens and they have the right to obtain any documents from the Iraqi authorities to prove their identity, marital status and citizenship.
36. As noted in the diagram above, REZ is the Applicant's brother, while SPH and Mr AH are the Applicant's parents. Based on the information received from the relevant DFAT Post, REZ and all his siblings, including the Applicant, are all registered as Iraqi citizens. The Respondent contends that the Tribunal should place significant weight to this intelligence, having regard to the source of the information. This information directly contradicts the Applicant's claim that he is stateless.
37. Second, while the Applicant has continued to assert his statelessness, he has also stated in his entry interview that he used a genuine Iraqi passport to depart Iran. This is inconsistent with his claims of statelessness and suggests that he had, in fact, acquired Iraqi citizenship and therefore departed using a genuine Iraqi passport.
38. Third, the Respondent notes that on 13 May 2014, the Applicant's brother REZ lodged an Offshore Spouse (UF-309) application with the Australian embassy in Jordan as a sponsor for his wife SAB. In support of this application, Reza submitted his Iraqi marriage certificate, Iraqi citizenship certificate, and his Iraqi national ID. Relevantly, the Respondent notes that:
(a) while it was asserted that these documents were forged, forensic analysis of REZ’s Iraqi National ID Card showed that it was 'legitimately manufactured' and there was no finding that the photograph or the information recorded on the card had been substituted. The Iraqi National ID Card is evidence of Iraqi citizenship; and
(b) REZ provided his Iraqi marriage certificate which he confirmed was a genuine certificate. The marriage certificate displays the same serial number as his Iraqi National ID Card, further suggesting that the Iraqi National ID Card is genuine.
What this statement from the Respondent fails to establish clearly is the date upon which the members of the Applicant’s family were “registered” with the Iraqi authorities. There is no doubt that the parents of the Applicant were born in Iraq and were Iraqi citizens. They would have been on the citizen register prior to the passage of Decree 666. It is also true that any of their children born in Iraq would have been similarly registered, including the Applicant.
What is less clear is how the children born in Iran (REZ – born 1981 and RAN – born 1989) would have been registered with the authorities in Iraq. Given that there was no official representation of Iraq in Iran during the Iraq/Iran war (1980 – 1988) there was no way that these children could have been registered at any official office in Iran and there is no suggestion that any family members travelled back to Iraq prior to 2010 for the purposes of completing such a registration. Generally, such registration would not be likely. All such registrations take place at the local daa’ira (civil registration office) where it would be entered on the “family page” maintained for each Iraqi family.[53]
[53] United Kingdom Home Office: ‘Country Policy and Information Note, Iraq: Internal relocation, civil documentation and returns’ (Version 11.0, June 2020) at pages [23]-[24].
Having had their “citizenship” stripped from them by Decree 666 they would not have been eligible to be registered until passage of the 2005/6 Constitution and Nationality Laws and then would only have been registered if they had made a specific application for re-registration. There is no evidence of this having occurred.
The Respondent drew attention, during the hearing to two particular documents. The first was REZ’s Certificate of Iraqi Nationality which lists his place of birth as “Wasit/1981”.[54] Wasit is a governorate in eastern Iraq. The second is REZ’s Personal Identity document issued by the Iraqi Ministry of Interior. It lists REZ’s birth of place as Iran and his date of birth as 1981.[55]
[54] Transcript, 21 October 2020, page 43. Tribunal documents at [370].
[55] Transcript, 21 October 2020 pages 42 - 43. Tribunal documents at [364].
The Respondent agreed that these are purported to be two official Iraqi government documents in relation to REZ, one of which shows him born in Iraq and the other in Iran.
The overwhelming weight of evidence is that REZ was born in Iran – his brother, the Applicant, was even ready to name the hospital in Tehran.[56] He was born there after the family were expelled and the weight of evidence is to the effect that Tehran was his place of birth.
[56] Ibid page 43.
How then did he come to be registered as an Iraqi citizen as the Respondent claims?
There are two obvious possibilities. The first is that during the 30-35 day period which the Applicant and his family members spent in Baghdad, REZ, separately from and according to the Applicant’s testimony, without his knowledge, contacted the Iraqi authorities and took advantage of the Nationality Law to re-apply for and be granted his Iraqi citizenship. This is at least consonant with the date of the issue of the Certificate of 23 August 2010.
If so this would have been quite a remarkable feat given that he had no papers to prove his Iraqi identity; could not produce any of his father’s documentation and would have had little time to complete the complex procedures of re-registration which are described in the DIAC Report (2010) as “long and complicated” and in the DFAT Report (2020) as “slow and bureaucratic”. They are also reported by the European Network on Statelessness as “imposing a high threshold, predominantly the requirement to prove nationality before 1980” and by the UNHCR as “administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin”.
The second is proffered in the Applicant’s testimony as follows:
MS LIANG (for the Respondent): Yes. Well associate, would you mind going to page 370, which I believe is the translated version of this document. Now [LHSM], the translated version of this document says that the certificate of Iraqi nationality is dated 23 August 2010. Mr [LHSM], doesn’t this certificate – this document show that your brother is an Iraqi citizen?
INTERPRETER: So yes, it does, but it has been obtained with the help of money. And first of all my brother REZ is born – has been born in Tehran in [redacted]. He doesn’t have any sort of records with the Iraqi government, so no certificates. And when I took him to Iraq, and because he did not have any documents, I got his passport with the help of money. So in the journey that we went – we had, my brother fell in love with my cousin, and when we came to Australia and got the permanent visa, he got a travel document, an Australian travel document, and went to see his girlfriend. And so I was not aware of this because I had cut contact with him at that time because of some personal issues, so I became aware later that they had forced my – they had forced my brother to obtain Iraqi documents, and he himself did not have any documents before. So with the help of money, they have managed to obtain this document. As you can see here, it shows that he was born in Iraq, where in fact he had been born in Iran. So when I found out about this issue, I really – it made me really angry and I told him, why has he done this action, because it can jeopardise everyone’s position? And I asked my mother, why did you let him – why did you let him go pay money and get that document, even though that you knew that he was born in Iran. And he said that, “That’s none of your business, it’s my (indistinct). I wanted to marry her.” So you know, this is just a result of love, and – yes, love.[57]
[57] Ibid pages 39 - 40.
Even if the Tribunal were to accept that REZ was able to complete the necessary re-registration process, without any primary documents of his own and obtain a Certificate (incorrectly) showing his place of birth as Iraq, and even if, as the Respondent asserts, a similar process was undertaken by the Applicant, this would still leave the question of how their youngest sister, came to be registered as an Iraqi citizen as per the Respondent’s claim above.
She was born in Iran, there is no evidence that she was ever in Iraq, she would have had no Iraqi documents either for herself or her father and yet “REZ and all his siblings …… are all registered as Iraqi citizens”.
Taking all the reasons together, the Tribunal declines to give this statement proffered by the Respondent “weight” as it was invited to do.[58]
[58] Transcript 23 October 2020, page 83.
The Tribunal notes the comment in Amiri to the effect that where there are inconsistencies in challenged documentation involving more than one member of a family, all such documents should, in the absence of strong evidence to the contrary, be taken to be of doubtful validity.[59]
[59] Amiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 763 at [43].
It is not possible, nor indeed, necessary for this Tribunal to make any sort of determination about the exact position of REZ, other than to say that, like the Respondent, it takes note of the fact that there are significant contradictions in the documentary evidence relating to his identity. The Respondent made no effort to present the Tribunal with any written or oral evidence from him.
These concerns are compounded by the fact that there is obviously some bad blood between the brothers.
The Applicant at one stage stated:
So yes, it does, but it has been obtained with the help of money. And first of all my brother REZ is born – has been born in Tehran in [redacted]. He doesn’t have any sort of records with the Iraqi government, so no certificates. And when I took him to Iraq, and because he did not have any documents, I got his passport with the help of money. So in the journey that we went – we had, my brother fell in love with my cousin, and when we came to Australia and got the permanent visa, he got a travel document, an Australian travel document, and went to see his girlfriend. And so I was not aware of this because I had cut contact with him at that time because of some personal issues, so I became aware later that they had forced my – they had forced my brother to obtain Iraqi documents, and he himself did not have any documents before. So with the help of money, they have managed to obtain this document. As you can see here, it shows that he was born in Iraq, where in fact he had been born in Iran. So when I found out about this issue, I really – it made me really angry and I told him, why has he done this action, because it can jeopardise everyone’s position? And I asked my mother, why did you let him – why did you let him go pay money and get that document, even though that you knew that he was born in Iran. And he said that, “That’s none of your business, it’s my (indistinct). I wanted to marry her.” So you know, this is just a result of love, and – yes, love.[60]
[60] Transcript, 21 October 2020, pages 39 - 40.
In his concluding remarks the Applicant stated:
You know as of that moment - as of that moment I haven’t had any contact with the family whatsoever. I don’t know what they have been doing and it was yesterday when Ms Liang showed me something that by the sound of it my brother has been to Iraq and got married and I can tell you I couldn’t get any sleep last night because of what I was told yesterday. And sorry he also said I don’t know why he did it or he went there.[61]
[61] Transcript, 23 October 2020 page 88.
What is “identity”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are: 2.the condition of being oneself or itself, and not another; and … 6. the state or fact of being the same one.
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
a. The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
b. Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.

There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
Although the Act gives no definition, guidance as to the meaning of the term is found in the Citizenship Policy.
The relevant sections of Chapter 13 of the Citizenship Policy[62] provide, inter alia:
[62] Citizenship Policy, Chapter 13.
ln addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person's identity.
…
Concept of identity
The concept of identity is as described in the Attorney-General's Department's National Identity Proofing Guidelines.
…
On 10 June 2015, the ANAO tabled in Parliament the performance audit "Verifying Identity in the Citizenship Programme" (the identity audit). The identity audit made five recommendations covering development of guidance on establishing identity, programme management and notification tools for use in tracking how the programme manages its cases where there are questions about an applicant's identity. The department agreed to these recommendations. To this end the department is developing an Identity Assessment Framework for Citizenship which will apply to all applicants.
Name to be used
The application must be made in the most recent name that the applicant has been known by according to acceptable identity documents, the applicant's 'current full name'...
For citizenship purposes, the applicant's current full name would be the most recent name that appears on acceptable official forms of identifying documents.
The allowable identity documents relating to the applicant's name for the purposes of a citizenship application would include officially issued documentation such as:
·birth and adoption certificates
·official change of name documentation
·marriage, divorce or other relationship status certificates or entry records
·official passports.
…
Changes to name or other identity information
If the applicant has changed their name, date of birth, sex or gender they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.
In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage.
However, a change to personal/biographical data is a serious matter if the change leads to a different identity.
A change of identity (changes to component(s) of the person's identity) diminishes the usefulness of the results of the security and criminal checks.
…
In reaching a finding of fact about the person's identity, decision makers are expected to consider issues such as:
·the reason that the person provided the original personal information relating to their identity when they applied for citizenship
·the reason for changing their personal information
·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes
·the documentation that was provided to support the change of personal information.
In assessing matters of identity, regard must also be had to the National Identity Proofing Guidelines (Identity Guidelines) issued by the Attorney General’s Department in 2016. 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.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the Citizenship Policy. Instances of this have arisen in relation to people who have been refugees from conflict zones; victims of natural disasters; unauthorised maritime arrivals (back to the days of the Vietnamese “boat people”); victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities. The Identity Guidelines establish that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include (emphasis in original):
1.    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).
2.    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.
3.    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).
4.    A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[63]
[63] Identity Guidelines at 5.1.3 (1-4).
It is also important to note what the Identity Guidelines provide in definitional terms. Paragraph 2.1.1 states:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
This definition is restated in the most recent version (10 April 2019) of the Department’s Citizenship Procedural Instructions, CPI 16 – Assessing Identity under the Citizenship Act (Citizenship Instructions).[64] The Citizenship Instructions establish a trifecta of factors used to establish identity:[65]
[64] CPI 16 – Assessing Identity under the Citizenship Act at 4.2.
[65] Ibid at 4.4.

Three pillars of identity Individual characteristics

Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

It then goes on to make explicit that:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
The Citizenship Instructions state clearly at [4.16]:
“Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of possibilities independent of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
Citizenship dependent upon establishment of identity
Approval of applications for Australian citizenship by conferral can be granted only if an applicant satisfies certain criteria which are laid out in the Act in subsection 21(2). Once the requirements of subsection 21(2) are met there are further requirements before citizenship can be granted, including the passing of the Citizenship Test (section 23A) and the taking of the Pledge of Commitment (section 26).
However, subsection 24(3) states explicitly:
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
There is no discretion available to either the Minister or any other decision-maker, in this case the Tribunal, to grant citizenship unless that decision-maker is satisfied as to the identity of the applicant. In the absence of that satisfaction, the application must be refused.
The Explanatory Memorandum to the Australian Citizenship Bill 2005, which became the 2007 Act makes it clear that:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen. (at 41)
Tribunal decisions on identity in citizenship cases
Questions of identity and identification, together with their relationship to determination of matters of good character have been considered in several Tribunal decisions. So have questions about the integrity of documents presented to the Australian authorities.
All Tribunal decisions are conscious of the significance of the granting of citizenship. In Beyan and Minister for Immigration and Border Protection the Tribunal made clear that:
"... a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear”.[66]
[66] [2015] AATA 256 at [38].
In Dhayakpa and Minister for Immigration and Border Protection,[67] Deputy President Nicholson said:
117. Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
118. I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
119. It is also the name under which he holds a humanitarian visa entitling him to reside permanently in Australia.
120. It was not put to the applicant in cross-examination that the name Tenzin Dhayakpa was a false name.
[67] [2015] AATA 310.
In Confidential, the Tribunal had found that, with reference to requirements related to the completion of forms on behalf of an applicant for citizenship under the age of 16 years:
[34] I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.[68]
[68] Confidential and Minister for Immigration and Citizenship [2013] AATA 144.
Dhayakpa was followed in YMPL[69] where the Tribunal said:
[34] Relevantly, the test for establishing identity is outlined in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 where the Honourable R Nicholson, Deputy President was satisfied that the applicant in that matter had established his identity to the best of his ability. The Deputy President stated at [117]: “Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.
[35] Having carefully considered the evidence and the relevant circumstances, the Tribunal is reasonably satisfied that YMPL’s identity is that which he claims it to be.
[69] YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458.
It went on to conclude:
[61] The Tribunal finds that YMPL’s identity is that which he claims it to be. The Tribunal also finds that YMPL is of good character for the purposes of satisfying the relevant eligibility criteria to become an Australian citizen.
Similarly, in Al Temimi and Minister for Immigration and Border Protection[70] the Tribunal considered conflicting evidence about identity documents, which after consideration led it to state:
[32] … the Tribunal is “satisfied of the identity” of the applicant, within the meaning, and for the purposes, of s 24(3) of the Act.
[70] [2014] AATA 97.
It should be noted, however, that in this case the Tribunal went on to find that although identity was established, the applicant was not a person of good character under paragraph 21(2)(h) of the Act and the refusal decision was affirmed.
A similar outcome resulted in Sinnathamby where the Tribunal accepted that the applicant had genuinely lost his identity documents in the capsizing of a boat en route to Australia but that the inconsistencies in his other evidence and the bogus nature of some documentation gave rise to a conclusion that he was not a person of good character.[71]
[71] Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579 at [48]; [65] and [67].
In Gjura, the Tribunal found that the applicant’s evidence regarding how he obtained a Yugoslavian/Kosovan birth certificate was “vague and opaque” and that the applicant was “unable to confirm whether other documents were genuine or fake, nor was he able to give specific, transparent details of how they were obtained”.[72] As a result, the Tribunal was not able to be satisfied of the applicant’s identity.
[72] Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 at [75].
In Ali the Tribunal stated:
The Tribunal accepts the submission that absence of documentary evidence does not mean that an applicant cannot establish identity. It is understandable that people living as refugees may not have the opportunity or motivation to ensure that each stage of their life is documented.[73]
[73] Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4205 at [111].
The case most apposite to this instance is MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)[74] decided by Deputy President J W Constance just a few months ago. Detailed discussion of it appears below.
[74] [2020] AATA 2576.
Where issues about the genuineness or otherwise of documents submitted in support of migration, visa or citizenship applications have been called into question, the Tribunal has been very clear in its findings.
In Nguyen[75] I came to a conclusion, affirming a denial of citizenship, in the following terms:
[82] Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.[76]
[83] Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
[84] Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[75] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
[76] See Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Similarly, in Fang, I said, in relation to the use of false documents:
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.[77]
[77] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686 at [103].
The Tribunal notes that in this matter there is no claim by the Respondent that matters of forged documentation submitted to the Department require analysis or consideration.
In considering a case which shares many characteristics with this matter, I examined the claims of a mother and son, Boshra and Danayal Al-Hussaini. I concluded that the decision to reject Boshra Al-Hussaini’s application for citizenship should be affirmed because there was a real possibility that she was in fact, another person, whereas the decision in relation to her son should be set aside because, although he had no primary Iranian identity documents, and limited efforts had been made to secure any, there was other strong evidence to establish critical details such as his place and date of birth, consistency of name, parenthood, life story and recognition by others in his family and community.[78]
[78] Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267.
Credibility of evidence from the Applicant
In cases such as this, much may turn upon the presentation and credibility of the applicant as he or she appears before the Tribunal. In cases where, as a result of the COVID-19 restrictions, hearings are conducted remotely by use of sometimes less than reliable video-conferencing, such issues become more acute.
In its approach to the issue of credibility, the Tribunal finds useful guidance in the definition of “credibility” given in the Dictionary of the Evidence Act 1995 (NSW):
credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation.[79]
[79] Evidence Act 1995 (Cth) Dictionary pt 1.

The Tribunal appreciates that there is authority on both the utility of seeing a witness directly, especially where an original decision-maker has not[80] and, equally, caution about preferring assumptions drawn therefrom over documentary evidence.[81] The difficulty of assessing evidence and credibility issues, particularly in the context of using remote/video technology, has been highlighted in several recent cases.[82]
[80] Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.
[81] Fox v Percy [2003] HCA 22, [30]-[31].
[82] See Adam Zwi and Aaron Irving, ‘Practice and procedure: Cross-examination by video in the COVID-19 context’ (2020) 70 Law Society of NSW Journal 76, 76-77.
In Rooney, Snaden J said, albeit in the context of trial and adversarial proceedings:
…Plainly, there are aspects of the trial - openings, closings and secondary witnesses, for example—in respect of which remote hearing technology will likely suffice. Other aspects, however - principally, the oral evidence of the applicant and the key decision makers within the respondent - don’t as easily qualify in that regard. As all parties rightly appreciate, the present matter will turn largely upon contested questions of fact. As with most general protections matters, the court’s assessment of the witnesses who are called to give evidence (or at least the key witnesses amongst them) will be paramount.
…………..
Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit.
Moreover, there is a sense of solemnity - perhaps even intimidation - that attaches to the receipt of oral evidence from a courtroom witness box that not even the best technology can replicate. When all witnesses (or crucial witnesses) in a matter are subjected to that same stage, the truth is less easily spun, and unsuccessful parties are less inclined or less able to find fault with the process that delivered their defeat.[83]
[83] Rooney v AGL Energy Limited (No 2) [2020] FCA 942, [17]-[19].
In Kodari the Full Federal Court, citing High Court authority regarding the acceptance of the credibility of witnesses based upon direct observation, concluded that there was an “obvious advantage” for a decision-maker to be in a position of “having seen and heard the witnesses give evidence”.[84]
[84] Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 at [65].
The Tribunal was able to observe the Applicant over two days of hearing and to take note of the way in which he answered questions, recalled details of his previous statements regarding his life history, detail the nature of his life in Iran and explain issues related to the severing of family ties and the inferences which arise therefrom.
The Tribunal formed the strong impression that the Applicant was a person of honesty and credibility and that the evidence which he gave under affirmation should be accorded significant weight.
Evidence of other witnesses
Mrs AA, the Applicant’s wife, gave evidence to the Tribunal.
There are some difficulties surrounding Mrs AA’s date of birth. Her Australian Citizenship Certificate shows it to be 21 March 1977;[85] the Applicant’s citizenship application shows it to be 21 March 1978.[86]. In her evidence Mrs AA stated her marriage was in the “Iranian calendar, first month of the year, 1377”.[87] This date, Farvardin 1377, would roughly equate to April 1998. The difference is not a material matter.
[85] Australian Citizenship Certificate, 2 August 2017. This is also the date shown in her Statutory Declaration of 29 May 2020.
[86] Tribunal documents at [181].
[87] Transcript, 23 October 2020, page 66.
The relevant parts of her oral testimony were to the effect that:
·She was born in Iran and is, and always has been, an Iranian citizen. She held a valid Iranian passport with which she travelled from Tehran to Jakarta and she had that passport with her when she arrived on Christmas Island.
·She is not a member of the Faili Kurdish community and would not want to be.
·She knew from her mother-in-law that the Applicant’s family had no documentation of their status in Iraq, because this was lost at the time they were “kicked out at night” from Iraq to Iran.
·She first met the Applicant when she was some 14 years of age as they were neighbours. She formed a relationship with him of which her father did not approve, because of her husband’s ethnicity.
·She and the Applicant entered into a sigheh marriage which she tried to register officially but was prevented from doing so by the hostility of the Iranian registration authorities.
Two family friends of the Applicant, both Australian citizens, gave evidence. Mrs RBK stated that she was close to the Applicant and his wife. In her written statement she described the Applicant and his parents as “an (sic) Iraqi citizen who lived in Iran…after being expelled from Iraq”.[88] In her oral testimony she stated that she had not been told by any member of the family that they were Iraqi citizens, only that they had had a miserable life in Iran as Iraqi refugees.[89]
[88] Statutory Declaration of 29 May 2020.
[89] Transcript, 23 October 2020, page 80.
Mr BK’s written statement was also to the effect that the Applicant and his parents “were born in Iraq and were citizens of Iraq” and had suffered under the Saddam Hussein regime,[90] but as with Mrs RBK when asked in oral evidence if he was sure of the Applicant’s status as an Iraqi citizen he indicated that he was not sure. Neither was he aware if the Applicant had ever reapplied for Iraqi citizenship.[91]
[90] Statutory Declaration of 29 May 2020.
[91] Transcript, 23 October 2020, page 76.
Although the Tribunal accepts that both Mr BK and Mrs RBK are friends of the Applicant and his wife and have provided evidence in the form of very similar statutory declarations and given similar oral evidence, largely contrary to their written statements, the Tribunal is not inclined to place any significance or weight on this material. Their limited knowledge of the prior history of the Applicant, his life in Iraq and journey to Australia are deficient to the extent that, although it was given honestly and genuinely, not much reliance can be placed on their testimony.
The case of MDQK[92]
[92] MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576.
In early 2020, Deputy President J W Constance dealt with a matter which has many similar features to this application. In this instance the applicant was a Faili Kurd who had been born in Iran and arrived on Christmas Island by boat in 2010 as an irregular maritime arrival. At the time of his arrival he claimed to be a stateless person. The applicant’s parents had been born in Iraq but were expelled to Iran in 1980. Initially he had been the holder of an Iranian Green card which was subsequently converted into a White card. The applicant (through an intermediary) obtained a genuine Iranian passport, in a name other than his own, which was altered to include the applicant’s date of birth and photograph. The cost of this passport was in the order of US$6,000. With the false/altered passport the applicant departed Shiraz International Airport (Iran) and flew to Jakarta where he paid bribes to facilitate his passage through the airport. He then engaged the services of a people smuggler to be taken to Christmas Island and en route he threw his passport into the ocean.
Thereafter there are differences in the applicant’s life history which are not of relevance here, but which entail the use of an Australian Titre de Voyage to make two illegal return visits to Iran.
His identity was called into question by the Respondent when refusing his Australian citizenship by conferral application. In particular, issue was taken with the circumstances of his departure from Iran, the issuance of his White card, his failure to produce documents in support of his life story and the truthfulness of his statements to immigration officers made after his arrival in January 2011.
Deputy President J W Constance, in considering the question of what goes to constitute “identity” stated:
[77] The set of characteristics which distinguish the Applicant at all times and in all circumstances from others include:
(a) his date of birth;
(b)his place of birth;
(c) that he has no siblings of the same age;
(d) the name by which he was first known;
(e) his ancestry; and
(f) his ethnicity.
He then went on to make the following findings:
[111] For the reasons stated I find that the Applicant’s identity is that:
·he is male;
·he was born on [day and month redacted] 1982 in a refugee camp in Yazd, Iran;
·he has been known by the name [given name and family name redacted] since his birth;
·he is the eldest of three siblings;
·he is the son of [name redacted] and grandson of [name redacted];
·his parents were born in Iraq;
·his ethnicity is Feyli Kurd.
[112] These are the relevant characteristics of the Applicant in relation to his application for Australian citizenship. I do not suggest that the above is a definitive list. The determination of the identity of others will depend on facts exclusive to a particular individual, including that individual’s own life story.
On the basis of these findings, the Tribunal set aside the refusal decision and remitted the matter to the Minister with a direction that the Minister is satisfied of the identity of the applicant for the purposes of subsection 24(3) of the Act.
Significance and impact of decisions
The Tribunal accepts the Respondent’s submission that:
… a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.[93]
[93] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
It also accepts the Respondent’s submission that:
However, where an Applicant for citizenship has not provided any primary source documentation as to his identity, the Tribunal has stated that they must provide instead a "cogent and acceptable explanation as to why no such evidence has been provided" (CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9]) (CDNB). The Tribunal has also previously stated that "it is not sufficient for the Applicant merely to state that such documents are not able to be produced in order to satisfy the Tribunal" (Ater and Minister for Home Affairs [2018] AATA 4677 (Ater) at [72]).[94]
[94] Respondent’s Statement of Facts, Issues and Contentions at [16].
The Tribunal itself in Al-Hussaini, upholding a refusal decision on identity grounds, stated:
[99] On the evidence before it, it is not possible for the Tribunal to come to a definitive conclusion on all of those questions, although it does find that the First Applicant was married to Mohammed Ali by way of a sigheh arrangement.
[100] The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions…”.[95]
[95] Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267.
The issue thus has to be whether the Tribunal accepts or not that the Applicant has provided an acceptable explanation as to why certain documents have not, or cannot, be produced and whether or not (in the absence of biometric evidence), the Applicant’s life story as presented is credible.
Discussion
Having reviewed the history of the treatment of the Faili Kurds and their relationship with the various governments of Iraq over the last two generations, and having examined the details of the life history as advanced by the Applicant, the Tribunal has come to the conclusion that the life story as presented by the Applicant is credible and should be accepted as true. It accords with available evidence dealing with the treatment of Faili Kurds by the Saddam regime and with the evidence about discrimination against such people by the authorities in the Islamic Republic of Iran.
The testimonies of the Applicant and his wife had an air of credibility about them, notwithstanding that there remain questions about the checking procedures for passport control at Imam Khomeini and Kuala Lumpur airports. Those are unresolvable, at least in this matter.
The Tribunal ultimately arrives at a similar position to that reached in MDQK. It finds that the Applicant is:
·A male person born in Baghdad, Iraq in 1976 whose name is LHSM.
·The son of two Iraqi parents, AH (father – deceased) and SP (mother).
·A sibling who has three brothers, EMA (born 1973), AYA (born 1978) and REZ (born 1981) and two sisters, RAS (born 1979) and RAN (born 1989).
·By ethnicity a Faili Kurd and by profession of faith a Shi’a Muslim.
The precise details of his and his family’s expulsion from Iraq; his life, employment and marriage in Iran and details of his travels from Iran to Christmas Island do not impact upon the establishment of his personal identity.
The fact that the Applicant does not have the standard documentation to “prove” these matters may be reasonably explained by the way in which he and his family were treated in both Iraq and Iran and the responsibility for their absence does not lie upon him.
The Tribunal is also troubled by what might appear to be an obvious question – why would the Applicant deny his Iraqi citizenship if he was able to prove it – or even if he were to assert it and then claim loss of documentation?
If he possessed any “proof” of identity to the requisite satisfaction of the Respondent, given all his circumstances and the grant of his Protection Visa in 2011, taken together with the fact that he has no known criminal or other record which would otherwise disqualify him from applying for Australian citizenship, why would he claim to be stateless? If he claimed to be an Iraqi citizen, but just lacking documentation, his path to Australian citizenship might have been as relatively easy as that of his Iranian wife’s.
The Tribunal finds that the most logical explanation of this conundrum is simply that the Applicant is telling the truth and is a stateless person.
DECISION
The decision under review is set aside, and the matter remitted to the Minister with a direction that the Minister be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).
The Applicant’s application for Australian citizenship by conferral should now be assessed in accordance with the other relevant criteria.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..........................[sgd]..........................................
Associate
Dated: 19 November 2020

Dates of hearing: 21 & 23 October 2020

Advocate for the Applicant:
Mr H Gash, Request International Migrant Services

Solicitors for the Respondent: Ms J Liang, Clayton Utz

Three pillars of identity	Individual characteristics
Biometrics	Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents	Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life story	A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

Dates of hearing:	21 & 23 October 2020
Advocate for the Applicant:	Mr H Gash, Request International Migrant Services
Solicitors for the Respondent:	Ms J Liang, Clayton Utz