MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2576
•30 July 2020
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576 (30 July 2020)
Division:General Division
File Number(s): 2019/4676
Re:MDQK
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:30 July 2020
Place:Sydney
The matter is remitted 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 Australian Citizenship Act 2007 (Cth).
..............................[SGD]..........................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP – citizenship by conferral – identity – alleged inconsistencies in Applicant’s evidence – meaning of identity – identification of characteristics which distinguish the Applicant at all times and in all circumstances from others – Feyli Kurd – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490
SECONDARY MATERIALS
Australian Citizenship Policy
Australian Citizenship Policy Instructions
National Identity Proofing Guidelines 2016
REASONS FOR DECISION
Deputy President J W Constance
30 July 2020
INTRODUCTION
The Applicant arrived at Christmas Island by boat in 2010, having engaged the services of people smugglers in Indonesia.
After the usual enquiries it was decided that the Applicant was stateless and at risk of harm should he be returned to Iran, his country of birth. In 2012 he was granted a protection visa. The Applicant has resided in Australia since his arrival in 2010.
In 2016 the Applicant applied for Australian citizenship by conferral in accordance with the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). His application was refused by a delegate of the Minister on a ground unrelated to the present proceedings. In August 2018 this Tribunal set aside the delegate’s decision and remitted the matter to the Minister for decision on the basis that the Applicant did satisfy the relevant provision of the Act.
After further consideration, on 11 July 2019 another delegate of the Minister refused the Applicant’s application for citizenship on the basis that he was not satisfied of the Applicant’s identity. I will refer to this decision as the reviewable decision.
In 2019 the Applicant applied to the Tribunal to review the reviewable decision.
For the reasons which follow the reviewable decision will be set aside and again the matter will be remitted to the Minister, this time with a direction that the Minister be satisfied of the identity of the Applicant.
LEGISLATION AND POLICY
Australian Citizenship Act 2007 (Cth)
Australian citizenship is conferred by the Minister in accordance with powers granted by the Act.
Subsection 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Australian Citizenship Policy Chapter 13 – Identity
The Policy provides, in part:
The concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines.
Citizenship Policy Instruction 16: Assessing Identity under the Citizenship Act
Instruction 16 provides in part:
1. Purpose
The purpose of this Instruction is to identify the legal requirements, and related policy and procedures that apply when undertaking an assessment of a person’s identity for the purposes of the Australian Citizenship Act 2007.
……………………
However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, citizenship officers workers should give policy documents due weight, but should not apply policy inflexibly and should consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.
…………………….
4.2 What is identity
The concept of identity is described in chapter two of the NIPG.
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.
In the context of the Department’s functions, identity integrity is essential in maintaining Australia’s national security, law enforcement, and economic and social interests.
…
4.4 Three pillars of identity
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
Table 3 – The three pillars of identity
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 informationLife 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. Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on departmental records are matched and confirmed.
National Identity Proofing Guidelines 2016
These Guidelines were issued by the Commonwealth Attorney-General “to strengthen identity proofing processes and increase trust through a standardised and transparent national approach”.[1]
[1] Paragraph 1.2.1.
Paragraph 2.1.1 provides:
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.
EVIDENCE
Evidence of the Applicant
The Applicant regards himself as a Feyli Kurd. He was born in Iran on [day and month redacted] in 1982. He is not a citizen of any country.
The Applicant’s parents were born in Iraq and lived in that country until 1980 when they were expelled to Iran. He has two younger siblings, a brother and a sister, both of whom were born in Iran. His parents and siblings live in Iran.
Until he was 16 years old the Applicant lived with his family in a refugee camp in Yazd, Iran. Each family member held an identity card[2] issued by the Iranian Government. He spoke Farsi as this was the language commonly used in the camp community.
[2] These cards are known as Amayesh cards and are further described in paragraph 58 of these reasons.
The Applicant attended primary school in the refugee camp from the time he was seven. He completed high school at 17, by which time the family had moved out of the camp into rented accommodation. His parents had to rent “privately” as by law they could not rent accommodation.
The Applicant was issued with his first identity card (a green card) in October 1984 when he was three.[3] The document is entitled Identity Card for individuals expelled from Iraq and is shown as having been issued by the Ministry of Interior, Islamic Republic of Iran. It stated that the card was valid for one year from 23 October 1985. Another identity card (a white card) was issued to the Applicant before he enrolled in his university course.
[3] Exhibit R1, 124; a translation appears at 122.
When he was about 19 the Applicant enrolled at a private university, the Islamic Azad University in Yazd. Private universities accepted students who were not citizens of Iran; government universities did not. At the time he enrolled he was required to produce his diploma of graduation from high school and his identity card. He did not have a birth certificate and was not requested to produce one.
The Applicant’s Transcript of Academic Records issued by the Islamic Azad University – Yazd Branch[4] refers to his holding birth certificate number [redacted]. This number is the number which appears on one of the identity cards issued to the Applicant.[5]
[4] Exhibit A11.
[5] Exhibit R1, 94.
The Applicant sat a pre-admission examination before enrolling. Unlike the government universities, students at private universities were charged course fees. The Applicant worked as a storeman in order to pay the fees and received some financial assistance from his mother. He has no records relating to his employment while he was studying at university as he was not being employed legally.
After five years of study he graduated with the degree of Bachelor of Applied Chemistry. This was the only degree course available to him at the time he enrolled.
A translation of part of the Applicant’s academic record[6] includes the following:
Transcript of Academic Records for Mr. [name redacted] – father’s name: [name redacted] holder of birth certificate No.: [redacted] issued in Yazd, born in 1982 – first admitted to this course in 2001, gradute [sic] of 2006 from Bachelor of Applied Chemistry.
[6] Exhibit A11.
As mentioned earlier, the number recorded as being of a birth certificate was that of an identity card issued to the Applicant.
At the time the Applicant graduated, Feyli Kurds working in Iran were discriminated against in employment. They were paid at about half the rate received by Iranian citizens. They were prevented from being employed in some occupations. By way of example, the driver’s licence issued to his father in Iran is a specific type issued to non-citizens.[7]
[7] Exhibit A1.
After he graduated the Applicant worked as a tailor. He never worked in Iran in a position which required a degree in Applied Chemistry.
Before he enrolled at university the Applicant worked with his father delivering tiles in his father’s vanet, which was the equivalent of a utility vehicle. When the Applicant was interviewed by immigration officials after he arrived in Australia, vanet was incorrectly translated as taxi. The Applicant never worked as a taxi driver in Iran and never held a licence to do so.
In 2010 the Applicant obtained a passport issued by the Iranian government. The name on the passport was not his. His photograph appeared on the passport and his date of birth was correctly recorded. The issue of this document was arranged by the Applicant’s father through a friend, known to the Applicant as Mohammad. The Applicant provided his photograph and his date of birth to Mohammad but otherwise took no part in obtaining the passport. He received the document by mail.
The Applicant’s father paid US$6,000 for the passport using funds provided by friends from overseas. The Applicant does not know the source of these funds or whether his father contributed to the cost of obtaining the passport.
Iran did not start issuing biometric passports until 2012.
The Applicant believed that he had no choice but to leave Iran. He had worked with a student union which resulted in his identity card being withdrawn in 2008. It was dangerous for him to remain in Iran as he no longer had any rights in that country. He did not retain all of the identity cards previously issued to him as they were of no use once they had expired.
The Applicant described his involvement with the union as follows:
On 2007 I was involved with a student union, the of the aim union was to make a connection between all university students who had Iraqi back grounds or Kurdish Faily, and I was the coordinator of Yazd branch. During that time I was organizing a meeting between members, distribute the union brochures, invite new members and organized some chemistry classes for some students who had difficulty with this subjects. I sent all information to union head office with pictures of members, forms and pictures of meeting.
The head office told me they are independent organization and had support from some Iraqi businessman however after a while I realised that it was a cover and they are contacted to the Iraqi government. In the end of 2008 I left the union due to some difficulties which the Iranian Intelligent agent in Yazd made me. I could have been charged as a spay for foreign county, because of I had organised meetings without getting approval from the Iranian government, join members and sent information to foreign organization. We mostly discussed in every meeting about the difficulties we had in Iran in our everyday life and use to discuss about solutions.[8] [Errors in the original].
[8] Exhibit A2.
In 2010 the Applicant departed Iran for Indonesia through the Shiraz International Airport, using the passport obtained for him by his father. He did not encounter any difficulty in doing so. He paid bribes in Indonesia to ensure his passage through Jakarta Airport. He engaged the services of people smugglers to travel from Indonesia to Australia.
The Applicant arrived at Christmas Island in October 2010 as an Irregular Maritime Arrival. On the way he threw his passport into the ocean.
In the Personal particulars for character assessment form completed with the assistance of Immigration officials and an interpreter while he was on Christmas Island, the Applicant stated that his parents were born in Iraq.[9]
[9] Exhibit R1, 110.
In January 2011 the Applicant took part in an interview by Immigration officials, during which he said that his grandparents were “min-Iran”. By this he meant to convey that they were “from” Iran, not “born in” Iran. He also said that he speaks Arabic and Farsi and understands, but does not speak, Feyli Kurdish.
The Applicant believes his grandfather was born in Iraq. He identified a photograph of a grave headstone[10] as being that of his grandfather. The inscription indicates that his grandfather came from Kut, Iraq.
[10] Exhibit A9.
In August 2010 the Applicant was granted a protection visa enabling him to remain in Australia. At the time it was accepted that he was stateless. This is reflected in the Titre de Voyage issued to him by the Australian Government.[11]
[11] Exhibit R1, 144.
Since arriving in Australia in 2010, the Applicant has returned to Iran illegally on two occasions. He considers the visits to have been illegal as he left Iran illegally.
In November 2012 the Applicant travelled from Australia to Iraq using his Titre de Voyage. His parents travelled from Iran to Iraq to spend time with him. During this trip he crossed the border into Iran on foot in company with his parents to assist his father who was ill at the time.
The Applicant does not have any records available to him relating to his father’s illness. He denies that he entered Iran using a valid Iranian passport.
Although the protection visa was issued to the Applicant on the basis of the risk to which he would be subject to if he returned to Iran, he chose to take the risk. He remained in Iran for less than a week.
In December 2014 the Applicant again travelled from Australia to Iraq. Again, he entered Iran illegally to visit his grandmother who was ill at the time. He stayed in Iran for approximately 18 days, travelling to Tehran, Mazadaran and Yazd.
Evidence of Dr A., Retired Professor
Dr A. provided a statement dated 17 May 2019[12] and gave evidence at the hearing.
[12] Exhibit R1, 136.
Dr A. lectured the Applicant in physics and chemistry at university during 2002-2003 or 2003-2004.
In his statement Dr A. said that he knew the Applicant when the Applicant was studying at the Azad University of Yazd. He attended two courses (Physical Chemistry I and II) taught by Dr A. in 2002-2003. When he gave evidence Dr A. said that the Applicant may have been in his class in 2004.
Dr A. taught at the University until 2005. There were many refugee students enrolled as they were not entitled to enrol in government-funded universities which did not charge fees. The fees charged at the Azad University at Yazd were not as high as some of the other private universities.
Statement of Mr S. made 4 October 2019[13]
[13] Exhibit A10.
Mr S. is a Feyli Kurd living in Australia. He knew the Applicant’s family from his childhood when they were living in the YazdBaf refugee camp.
THE MINISTER’S SUBMISSIONS
It is argued on behalf of the Minister that I should not be satisfied of the Applicant’s identity as he has failed to produce documents which would have supported his life story and his evidence was at times implausible and inconsistent.
Counsel for the Minister nominated six aspects of the Applicant’s evidence which were said to be implausible and/or contained inconsistencies:
(i)his enrolment at the Islamic Azad University;
(ii)the circumstances of his departure from Iran in 2010;
(iii)the circumstances surrounding the issue of white cards;
(iv)the circumstances of his return to Iran after he was issued with a protection visa in Australia;
(v)his failure to produce additional documents to support his life story; and
(vi)statements made during his interview by Immigration officers in January 2011.
The Applicant’s enrolment at the Islamic Azad University
The Minister argues that the Applicant’s study at a private university which charged fees was inconsistent with the Applicant’s life story of being the son of refugees living in a refugee camp. I was referred to the following aspects of his evidence:
·only part of his academic record was produced;
·his parents were expelled from Iraq in 1982;
·he lived with his family in a refugee camp for 17 years;
·the limitations on his ability to work;
·the lack of opportunity for him to work in his field of expertise following graduation.
I was referred to the ‘Faili Kurds in Iraq and Iran – DFAT Thematic Report’ dated 3 December 2014 which includes:
Faili Kurds registered as refugees have no automatic right to work. Registered refugees in Iran can apply for work permits, but these are subject to conditions and an application fee (in 2014 the cost of a work permit was reportedly similar to that of a refugee registration card, i.e. USD 80 to USD 120). Work permits are generally limited to a small number of work categories, depending on the origin of the refugee. …DFAT has been told that in practice, many Faili Kurds in Iran – both registered and unregistered – have informal access to employment … DFAT has been told that Faili Kurds are frequently employed in low-paying manual labour.[14]
[14] Exhibit R1, Supplementary T Documents, 126.
It was put that the Applicant’s attendance at the Islamic Azad University to study Applied Chemistry was consistent with the lifestyle of an Iranian citizen with the financial means to meet the fees payable, and who planned to secure employment in a field relevant to his degree.
The circumstances of the Applicant’s departure from Iran in 2010
It was argued on behalf of the Minister that, taking into account the family history claimed by the Applicant, I should not accept his evidence that his father paid US$6,000 to obtain a passport not knowing the validity of the document to be provided, or the evidence that his father was able to access such an amount.
The Minister referred me to a report by the Danish Refugee Council of a fact-finding mission to Iran between 24 August and 2 September 2008 entitled Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc. It was reported that:
People caught by the airport authorities attempting to leave Iran on forged documents face serious questioning at the airport. The person may be fined. It was added that it is unclear whether the person may also be detained or imprisoned for trying to leave the country on false documents.[15]
[15] Exhibit R1, Supplementary T Documents, 91.
[redacted]
The issue of identity cards
The Applicant has provided copies of the front of three cards:
·a green card issued to him on 23 October 1985;[16]
·a white card issued to him on 3 September 2002 to expire one year from the date of issue;[17]
·a white card issued to him without a date of issue or expiry appearing on the front of the card.[18]
[16] Exhibit R1, 124; translation at 122.
[17] Exhibit R1, 99, translation at 98.
[18] Exhibit R1, 96, translation at 94.
The card issued on 3 September 2002 included the following notes:
This document is issued as an identification card and merely is valid within the holder's province of residence for the purposes of opening accounts, medical card application, education, registering some documents (e.g. tenancy agreement or POA) and appearing in hearing and courts.
Police will confiscate the expired cards.
Should you find this card, please drop it in city mail box.[19]
[19] Exhibit R1, 98.
White cards (Amayesh cards) are issued to refugees regardless of their ethnicity and generally expire annually. Any refugee not holding a valid card is considered by Iranian authorities to be an irregular migrant and is liable to be deported, although this rarely occurs in practice.[20]
[20] Exhibit R1, Supplementary T documents, 123.
[redacted]
In view of the considerable benefits attached to a white card and the risk of deportation if a refugee’s card has expired, the Minister puts that the Applicant has failed to provide an acceptable explanation of why he is not able to produce copies of cards issued to him after 2002.
The Minister argues that the state of the evidence in this regard suggests that the Applicant was a citizen of Iran and the holder of an Iranian passport from September 2003 onwards. For this reason, no further white cards were issued to him.
The Applicant’s return to Iran after he was issued with a protection visa in Australia
It is the contention of the Minister that in view of the Applicant’s expressed concerns for his safety in Iran which led to his obtaining a protection visa, it is unlikely that he would have entered Iran illegally on two occasions. It is more likely that the Applicant entered Iran using an Iranian passport.
The Minister points to the following inconsistencies in the Applicant’s evidence:
·notwithstanding that his parents came to Iraq to visit him, he took the risk of entering Iran illegally;
·his father could have visited a doctor in Iraq rather than the Applicant travelling with his father to Iran;
·the Applicant has not produced any documentary evidence of his father being treated for his illness;
·in relation to the second visit to see his ill grandmother who has since died, the Applicant has not produced a copy of her death certificate;
·in relation to both visits the Applicant could have entered Iran using his Australian travel document which he used to enter Iraq.
The failure of the Applicant to produce additional documents in support of his life story
The Minister referred to various documents the Applicant failed to provide in support of his application:
·white cards issued to him after 2003;
·white cards issued to other family members;
·his birth certificate referred to in his academic transcript;
·his father’s driver’s licence;
·documents relating to his father’s illness;
·his school records;
·records of his parents’ rental accommodation.
January 2011 interview
The Minister argues that during this interview the Applicant said that his grandparents were from Iran. If this is true the Applicant would be entitled to Iranian citizenship.
THE ISSUE
The only issue for determination is whether I am satisfied of the Applicant’s identity. Other issues relating to his eligibility for conferral of Australian citizenship are not before me in this application.
REASONING
The role of the Australian Citizenship Policy, the Citizenship Policy Instructions and the National Identity Proofing Guidelines
These documents are policies of the Government indicating the manner in which it is expected that identity will be determined in most cases. However, they are not binding on the decision-maker, in this case the Tribunal.
The Policy and the Instructions relate specifically to the determination of identity under the Act. The Guidelines are non-specific and relate to all Commonwealth legislation.
In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) Brennan J. said, in part:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.[21]
[21] (1979) 2 ALD 634 at 645.
Both the Policy and the Instructions refer to the Guidelines. In the appropriate case all three should be considered but it will always be for the decision-maker to determine their applicability in the particular matter under consideration.
The meaning of identity in subsection 24(3) of the Australian Citizenship Act
Identity is not defined in the Act.
The statement set out in the National Identity Proofing Guidelines at paragraph [12] of these reasons assists in the determination of an individual’s identity. It is not to be read as a definition of the word identity in subsection 24(3). It is the task of the decision-maker to ascertain the meaning of the word used in the Act in the context in which it appears. The author of a policy document does not have the power to amend an Act of Parliament by adding a definition of a word used in the Act. That is a power reserved to Parliament itself.
In Project Blue Sky Inc v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ. said:
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[22]
[22] (1998) 153 ALR 490, 512.
The Oxford English Dictionary[23] 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.
I note that paragraph 2.1.1 of the National Identity Proofing Guidelines is consistent with this definition.
[23] Online Edition.
The three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant. The Guidelines emphasise the combination of characteristics and attributes which allow an individual to be distinguished from others. In that context, to be satisfied of an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.
In saying this, the Guidelines do not require an applicant to negate every possible alternative hypothesis as to identity which may be proposed. Such a requirement would go beyond what is envisaged by the Guidelines and Instructions, which are concerned with the internal consistency and unique applicability of an applicant’s biodata, documents and life story.
The identity of the Applicant
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.
There may be other characteristics of the Applicant which could be included in this list. The above are those of which I am satisfied on the balance of probabilities based on the evidence before me, and which allow me to be satisfied of the Applicant’s identity as distinguished from others.
I accept the argument of the Minister that there is no reason not to apply the policies referred to earlier. They assist in the process of ascertaining the set of characteristics which determine a person’s identity.
The Applicant’s date of birth
I accept the evidence of the Applicant that he does not have the original or a copy of his birth certificate. However, he has produced a copy of the identity card issued to him in 2002 which shows his date of birth as [month/redacted, day/redacted] 1982.[24] This is consistent with the Applicant’s belief as to his date of birth and is not contested by the Minister.
[24] Exhibit R1, 98.
The Applicant’s evidence as to the year of his birth is corroborated by his age which appears on the identity card issued to him when he was three years old.[25] The card appears to have been issued in October 1985.
[25] Exhibit R1, 122.
The Applicant’s place of birth
In telling his life story the Applicant said that he was born in a refugee camp in Yazd, Iran. Obviously, as with his date of birth, he was stating his belief based on what he had been told. I accept the Applicant’s evidence as to his belief as to where he was born.
The Applicant’s evidence is supported by his identity card issued in October 1985 which records his place of birth as Yazd. Further, the card was issued by the Bureau of Aliens and Foreign Immigrants and is described as “Identity Card for individuals expelled from Iraq.”[26]Although the Applicant was not expelled from Iraq I am satisfied that the card was referring to his being the child of parents expelled from Iraq.
[26] Exhibit R1, 122.
I have taken account of the statement of Mr S. that he knew the Applicant’s family when they were living in the YazdBaf refugee camp. It was argued on behalf of the Minister that I should place minimal weight on this as Mr S. was not called to give evidence. However, the Minister did not request that Mr S. attend the Tribunal for cross-examination. His statement was provided to the Tribunal by the Minister as part of the documents filed in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The Minister was not taken by surprise.
There is further support for the Applicant’s evidence from Dr A. who taught the Applicant at the Islamic Azad University – Yazd Branch and who said that there were many students who had lived in a refugee camp who attended that university.
I am satisfied on the balance of probabilities that the Applicant was born in a refugee camp in Yazd, Iran.
The Applicant has no siblings of the same age
I accept the evidence of the Applicant that his siblings are younger than himself. This is not in dispute and there is no evidence to suggest that he is a child of a multiple birth. If the Applicant had a sibling who shared his birthday it is possible that sibling could share all of the characteristics I have referred to in paragraph 77 above. That is not the situation in this matter.
The name by which the Applicant was first known
The name by which a person is known is commonly considered to be part of his or her identity and is a component of a person’s biodata referred to in the three pillars set out in the Policy.
A person’s name may change during his or her lifetime, but the name by which a person is first known remains constant. This will usually be ascertained by reference to a birth certificate.
The Applicant does not have a copy of his birth certificate. However, the identity document issued to him when he was three years old records his given name and his family name.[27] The same name appears on his academic record.[28] This is the name always used by the Applicant except when he departed Iran for the first time and travelled through Indonesia using a false name.
[27] Exhibit R1, 124; a translation appears at 122.
[28] Exhibit A11.
The Applicant’s ancestry
Based on the Applicant’s evidence and the information recorded on his identity card issued in 1985, I am satisfied that he is the son of [name redacted] and the grandson of [name redacted]. On the same basis I am satisfied that his father and grandfather were born in Iraq. I am satisfied on the evidence of the Applicant that his mother was born in Iraq.
The Applicant’s ethnicity
The Applicant identifies himself as a Feyli Kurd. He said the when he returned to Iraq he walked across the border to visit family in Iran. This is consistent with the following information taken from the DFAT Country Information Report Iran dated 7 June 2018:[29]
Faili Kurds
3.13 The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border, including Khuzestan, Lorestan, Kermanshah, and Ilam provinces, or in major cities. …… Three main groups of Faili Kurds live in Iran: Iranian citizens, those of Iraqi origin who are registered refugees, and those of Iraqi origin who are not registered refugees. Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available.
[29] Exhibit R2.
The DFAT Thematic Report includes:
2.14 In Iran, Kurds represent between seven and 15 per cent of the population. Faili Kurds are a small proportion of Iran’s Kurdish population, though information on the size of Iran’s Faili Kurd population is unavailable. Faili Kurds in Iran typically reside in areas close to the border with Iraq, particularly in Kermanshah and Ilam provinces, as well as in major cities such as Tehran and Yazd.
The Applicant gave evidence that he speaks Farsi and Arabic and that he understands, but does not speak, Feyli Kurdish. He said that he spoke Farsi in the camp in an effort to “fit in”.
The DFAT Thematic report Faili Kurds in Iraq and Iran dated 3 December 2014 includes:
2.12 This report refers to three broad groups of Faili Kurds in Iran: Faili Kurds who are Iranian citizens (‘Iranian citizens’), Faili Kurds of Iraqi origin who are registered as refugees in Iran (‘registered refugees’), and Faili Kurds of Iraqi origin who are not registered as refugees in Iran (‘unregistered refugees’).
2.13 Each of these groups may speak a range of languages and dialects, depending on their origin, place of residence and education. In Ilam and Kermansah, Kurdish dialects are spoken and Farsi is used less. Faili Kurds who had lived in these areas would be more likely to speak Kurdish dialects. In major cities such as Tehran and Yazd, Farsi is more widely spoken. Nonetheless, many Tehranis of non-Persian ethnic origin can speak the dialect of their own ethnic group. Faili Kurds born in Iran may also speak Arabic, but only if one or both parents spoke Arabic and raised the child to do so. Arabic is taught in schools in Iran, but only to a basic level.
This is consistent with the Applicant’s language skills and his having attended primary school in the refugee camp.
The Applicant’s 1985 identity card issued by the Bureau of Aliens and Foreign Immigrants was “for individuals expelled from Iraq”.[30]
[30] Exhibit R1, 22.
On the basis of the evidence referred to above I am satisfied that the Applicant is of Feyli Kurd ethnicity.
Consideration of the arguments of the Minister
The Minister placed considerable emphasis on the proposition that the Applicant was not a “stateless Feyli Kurd”. It is argued that his life story was not consistent with that of a person who had grown up in poor circumstances in a refugee camp. It is argued further that, considering his graduation from university, his ability to obtain a passport in a false name and his departure from and return to Iran, I should infer that he is a citizen of Iran and the holder of an Iranian passport.
I do not agree that the Applicant’s life story contains the inconsistencies referred to by the Minister or is otherwise implausible.
In this application I do not consider the determination of whether the Applicant is stateless is relevant to determining his identity. A person’s status as a citizen of one or more countries may change several times over a lifetime. It is not a factor which goes to the “sameness of a person … at all times or in all circumstances” or which “distinguishes a person … from others”.[31] The same can be said of the holding of a passport.
[31] Oxford English Dictionary.
The Applicant was cross-examined at length. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.
Dr A. gave evidence that students from refugee camps attended the Islamic Azad University in Yazd despite the fees which were charged. The Applicant said that a course in Applied Chemistry was the only one available to him when he enrolled and that he worked to pay the fees. He was also given financial assistance by his mother.
I am satisfied that the Applicant’s parents had the financial means to move out of the refugee camp and rent accommodation prior to the Applicant’s attending university. It is not inconsistent nor implausible that they would have assisted their son to pursue a tertiary education and improve his prospects of employment and a better lifestyle.
The Applicant’s evidence that his father was able to arrange the issue of a passport in a false name is consistent with the following extract from the DFAT Country Information Report:
2.15 Despite this strong legal framework and regular calls by authorities to tackle corruption, international observers report it remains endemic in all sectors of the Iranian economy and across society. In January 2017, Transparency International ranked Iran 131 out of 176 in its annual Corruption Perceptions Index. The GAN Business Anti-Corruption website reports that a powerful system of political patronage, nepotism, and cronyism pervades all sectors of the economy, irregular payments and bribes are often required to obtain services, permits, or public contracts, authorities do not effectively enforce anti-corruption laws in practice, and impunity is pervasive.
This report was issued in 2018 but there is nothing to suggest that the situation was any different at the time the Applicant obtained the passport.
The Applicant’s evidence that he has never been a citizen of Iran (and therefore never entitled to hold an Iranian passport) is also consistent with the following from the DFAT Country Information Report (subparagraph 3.14):
Reports suggest that many Faili Kurds of Iraqi origin have applied for Iranian citizenship. However, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved – this is also true for naturalisation applications for nationality from other groups, including those who have married Iranians or been in-country for generations. Others have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian nationality.
The Applicant gave a plausible and consistent explanation of his decision to leave Iran. It is consistent that his father would assist him to do so, notwithstanding the considerable expense involved.
The DFAT Country Information Report is also consistent with the Applicant’s evidence that he was able to enter Iran illegally on the two occasions he returned to visit family:
5.22 DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees.
I have referred earlier to that section of the Country Information Report which refers to the Feyli Kurds living close to the Iranian/Iraqi border.
Finding as to the identity of the Applicant
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.
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.
CONCLUSION
The decision under review, being the decision of a delegate of the Minister for Home Affairs made 11 July 2019 refusing the Applicant’s application for Australian citizenship, will be set aside.
The matter will be remitted to the Minister with a direction that the Minister be satisfied of the identity of the Applicant for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).
It will be recommended to the Minister that when the Applicant’s application for citizenship is being further considered, a decision is made in respect all requirements of the Act. This will avoid the possibility of the Applicant having to incur the time and expense of multiple applications to the Tribunal.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...............................[SGD].........................................
Associate
Dated: 30 July 2020
Date(s) of hearing: 15 April 2020 Applicant: In person Solicitors for the Respondent: T Ellison, Australian Government Solicitor
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