MXQS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1539
•18 May 2021
MXQS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1539 (18 May 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2019/8128
GENERAL DIVISION )
Re: MXQS
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Senior Member Katter
DATE OF CORRIGENDUM: 4 June 2021
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
1.To alter the paragraph numbering with the paragraph number ‘9’ to be replaced with ‘7’ and all subsequent paragraphs re-numbered in numerical order.
........................[SGD].....................
Senior Member Katter
Division:GENERAL DIVISION
File Number: 2019/8128
Re:MXQS
APPLICANT
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS And
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:18 May 2021
Place:Brisbane
The decision under review is affirmed.
...................[SGD].................
Senior Member Katter
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether satisfied as to the identity of the person - refusal of citizenship – not satisfied of identity – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes Act 1914 (Cth)
CASES
Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Re Kirby and Collector of Customs (1989) 20 ALD 369
Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
REASONS FOR DECISION
Senior Member Katter
18 May 2021
APPLICATION
This is an application to review a decision as to an application for citizenship[1] of the Applicant.
[1] Exhibit 1, T Documents, T2, page 14, Notification of Refusal of an application for Citizenship by Conferral; T4. Pages 226 – 243, Form 1300t.
BACKGROUND
The Applicant was born in Iraq[2].
[2] Exhibit 1, T Documents, T9, page 352, Applicant’s Movement History.
On 17 June 2010 the Applicant arrived at Christmas Island, the Australian Territory in the Indian Ocean, by boat[3].
[3] Exhibit 2, ST2 page 382 Identity Assessment Report; T9, page 352, Applicant’s Movement History.
On 6 May 2015 the Applicant lodged an application for Australian citizenship by conferral[4]. On 6 May 2016 the Applicant attended an identity interview with the Department[5].
[4] Exhibit 1, T Documents, T4, page 247, Decision Record.
[5] Exhibit 7, AM11, page 256, Transcript of Identity Interview 6 May 2021.
On 7 December 2016 the Respondent refused the Applicant’s citizenship application of 6 May 2015[6].
[6] Exhibit 1, T Documents,T4, page 244 Notification of refusal for application of Citizenship by Conferral.
On 18 April 2017 the Applicant lodged an application for Australian citizenship by conferral[7]. That application was made on a Form 1300t and included the following details, as well as a photograph of the Applicant[8]:
[7] Exhibit 1, T Documents, T2, page 14, Notification of Refusal of an application for Citizenship by Conferral; T4, page 244, Notification of refusal for application of Citizenship by Conferral.
[8] Exhibit 1, T Documents, T4, pages 226 – 243, Form 1300t.
“2. Your full name (this will appear on your evidence of citizenship) [Applicant] 3. Have you been known by any other names?
(including name at birth, previous married names, aliases, patronymic names, clan or tribal names, or alternative spellings or full spelling of all names)
No …
6. Date of birth
01/01/1980 …
8. Place of birth
Town/city Khanaqin
State/province Diyala
Country Iraq …
17. Do you hold or have you ever held citizenship of any other country?
No …
22. Do you currently have, or have you ever had, any national identity documents or numbers (including birth registration numbers, social security cards, etc.)?
No …
32. Parent 1
Relationship to you Father
Parent/adoptive parent’s full name
[Applicant’s Father]
Sex Male
Parent/adoptive parent’s date of birth Not really sure, between approximately 1945, 1950
Place of birth
Town/city Khanaqin
State/province Diyala
Country Iraq
Has this parent/adoptive parent ever been known by or used any other names, date of birth or gender?
Other names include alternative spellings, patronymic names, maiden names, clan or tribal names
No – Spelling may be different due to statelessness
Has this parent/adoptive parent ever held Australian citizenship?
No
Present country(s) of citizenship (if not living, write ‘DECEASED’)
Deceased …
Parent 2
Relationship to you Mother
Parent/adoptive parent’s full name
… [Applicant’s Mother]
Sex Female
Parent/adoptive parent’s date of birth Not really sure, between approximately 1960- 1955
Place of birth
Town/city Khanaqin
State/province Diyala
Country Iraq
Has this parent/adoptive parent ever been known by or used any other names, date of birth or gender?
Other names include alternative spellings, patronymic names, maiden names, clan or tribal names
No – Spelling may be different due to statelessness
Has this parent/adoptive parent ever held Australian citizenship?
No
Present country(s) of citizenship (if not living, write ‘DECEASED’)
Deceased …
37. Since the age of 18 years, have you ever lived or travelled outside Australia (only consider the last 10 years)?
Yes – List all countries, in date order, that you have lived or travelled to.
Include reason for travel, for example:
· work, study or training
· business
· visit family
· holiday or leisure, including visits to your country of origin
· military deployment
Country
Date from
Date to
Reason for visit
7. Day Month Year
8. Day Month Year
Iran
Not sure 1980
Not sure 05 2010
Living in Iran
Indonesia
01/05/2010
-/05/2010
Two weeks – on Route – not really sure
Australia
June or July/2010
05/05/2011
Detention centre of Immigration Christmas Island – not really sure about date of entry
Iran
22/01/2012
22/02/2012
Searching for my family
Australia
22/02/2012
To now
…
Part M – Declaration
WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
52. Please read the following carefully before signing.
Complete this declaration if you are the main applicant and are aged over 18 years or over.
· I declare that I intend to reside or continue to reside in Australia, or maintain a close and continuing association with Australia.
· I declare that the information I have supplied in this form is complete, truthful and correct in every detail.
· I acknowledge that this application constitutes an application for evidence of Australian citizenship. … ”
On 17 October 2019 the Respondent requested further information in relation to the Applicant’s application for citizenship by conferral[9]:
[9] Exhibit 1, T Documents, T6, page 276, Email to Applicant requesting further information.
“ … Subsection 24(3) of the Australian Citizenship Act 2007 (the Act), provides that a person must not be approved to become an Australian citizen unless the delegate is satisfied of the person’s identity.
To assist in the processing of your application the Department requires further information to support your claimed identity before you arrived in Australia. This includes providing evidence of any Iraq, Iran or Kuwait issued documents you have and details of your live story to support your identity. …
1. Overseas Issued Documents
The citizenship identity provisions require all applicants to provide evidence of their identity from birth and evidence of any changes made to their identity details since birth.
You are required to provide documentary evidence of your identity issued to you in Iraq, Iran and/or Kuwait by the Iraq, Iran and/or Kuwait government or by an organisation that is responsible for issuing documentation that may be used as evidence of your identity from birth.
You may not have had any Iraq, Iran and/or Kuwait issued documents when you arrived in Australia; however, Departmental information suggests that applicants such as yourself can reasonably be expected to explain such documents through family members.
Outlined below are examples of the types of documents you can provide that will assist you in satisfying subsection 24(3) of the Act:
· Household Registration Document or Family Book
· Birth Certificate
· Foreign Nationals Identification card
· Extract birth register
· Statement of residence
· Proof of Identity to Foreign residents
· Statement of residence
· Kuwait Article 17 passport
· Kuwait ID card
· Shenashnameh
· Iraq identity card
· Iraq Nationality certificate
· Laissez – passer
· Marriage certificate
· Divorce certificate
· Discharge from Army card
· Military book
· Amayesh refugee registration card
· Proof of identity for foreign residents
· Church issued Documents:
o Baptismal Certificate/Evidence of Birth
o Marriage Certificate
o First communion
o Sunday school attendance
o Any other church issued documents including copies/photos of church registers
· School Issued Documents:
o Students Cards
o School Transcripts
o Transfer Cards (Issued when a student changes school)
o School Records and/or Education Certificates
o Any other school issued documents including copies/photos of school registration lists
· Travel Documents:
o Passport – all pages including biodata, issue, expiry and extension dates, visa labels/stamps, entry and exit stamps, travel permits used for travel
o Certificate of Entry
o Certificate of Identity
· Driver’s Licence
· Labour Card/Work permit
· Political Memberships
o Union Solidarity and Development Party (USDP) Membership Card
o National League for Democracy (NLD) Membership card
· Land Ownership Deeds/Records
· Employment records
· Professionals/business registrations
· Financial institution statements, taxation notices and voting registration
· Any expired identity documents
· Family photo taken at time of your Household Registration Document and any other photo you may have to support your identity
· All other documents that show use of your claimed identity in the community before you came to Australia.
*Where appropriate, family member’s documents should also be sought as this may support your claimed identity. Please provide any additional documents issues to your parents/family that may assist in supporting your identity.
Please note:
- the above list of overseas issued documents is not exhaustive and you may wish to provide any identity document issued overseas you have in your possession (even if they are not listed above).
- if you do not have the original documents, please provide copies of oversea identity documents.
2. Life Story to Support your Identity
The Department also requires further information relating to your life story. In particular, in relation to your name (including all aliases you have been known as), family composition, associated visa applications, residence history in Iraq, Iran and/or Kuwait, countries you and your family have resided in outside of Iran, Iraq and/or Kuwait.
Please provide the following documents and responses to the information below:
· Complete attached Form 80 – Personal particulars for assessment including character assessment. Please ensure you clearly list the following:
oAll names you have been known as
oFamily composition – including names and dates of birth for all family members (including deceased family members)
oComplete residence history in Iran, Iraq and/or Kuwait, including how long you lived in each town/village
oComplete residence history outside of Iran, Iraq and/or Kuwait, including dates of how long it took to travel to any country outside of Iran, Iraq and/or Kuwait.
· Complete Attachment A – Associated visa applications. Please ensure you provide information relating to ALL visas you have applied for to sponsor anyone to Australia, including the nature of your relationship to that person.
· UNHCR card
· Any other Identity documents issued outside Australia supporting the claimed identity.
· Statutory Declaration:
If you are unable to present any of the above documents/information in support of your claimed identity, please provide a written statement on a statutory declaration and provide an extensive and detailed explanation of what attempts you have made to obtain the documents and the reason(s) why you are not able to present them. Please note this information must address:
oWhat identity documents were issued to you in your own country or any other country before your arrival in Australia;
oWhat happened to those documents (if not available now)
oAll attempts you have made to obtain further documents, including details of any attempts friends or family overseas have made to obtain documents on your behalf;
oHow you were able to reside in your count[r]y of origin and any other country prior to your arrival in Australia without holding documentation;
oAn account of how you departed your country when you migrated to Australia (method of departure, what documents you used to travel
oYour family composition, both within and outside Australia. Your employment and education history, including the names of schools you attended. The Department will seek to verify school enrolments as schools in Iran, Iraq and/or Kuwait retain records of attendance;
oIf you have lost any marriage documents you will need to advise where and when the ceremony was held and who the official/pastor was and;
oAn account of your life story with regards to where you were born, places lived and visited, and any other relevant information to support your stated identity since birth.
If your statutory declaration does not cover all of these points it will not be accepted
Commonwealth statutory declaration forms are available via the Attorney-General’s Department Website:
Consider your response carefully
Under subsection 24(3) of the Australian Citizenship Act 2007, the delegate must be satisfied of your identity. In considering your citizenship application, specifically in relation to Iran, Iraq and/or Kuwait issued documents and your life story, the more documents/information you supply in your claimed identity will assist your application progressing further. If the delegate is unable to be satisfied on a person’s identity an application for Conferral of Citizenship cannot be approved. … .”
The Applicant provided documents in response to the Respondent’s request for further information on 18 November 2019[10]. The Applicant sent an envelope[11] to the Respondent which included the following: a statement (three pages)[12]; a copy of a statutory declaration from 14 August 2010 by the Applicant[13]; a copy of the letter of 17 October 2019 (referred to above)[14]; a Queensland birth certificate for a child of the Applicant[15]; a further Queensland birth certificate for another child of the Applicant[16]; a Queensland civil partnership certificate as to the Applicant[17]; a translation as to four signatories who state that the Applicant is a stateless Faili Kurdish[18]; a reference letter from Mr McKeich of Advocacy Action stating the good character of the Applicant[19]; an Australian citizenship certificate for the Applicant’s child[20]; a certificate III in spoken and written English from TAFE Queensland as to the Applicant[21]; a certificate IV in spoken and written English - further studies from TAFE Queensland as to the Applicant[22]; an Australian citizenship certificate as to the Applicant’s child[23]; copies of a Queensland driver’s licence[24], (Commonwealth of Australia) medicare card[25] and (Commonwealth Bank of Australia) bank card[26]; and form 80 personal particulars form[27]. The statement which is dated 5 November 2019 states[28]:
[10] Exhibit 1, T Documents, T7, pages 300 – 350, Applicant’s material in response to request.
[11] Exhibit 1, T Documents, T7, pages 300, 301, Applicant’s material in response to request.
[12] Exhibit 1, T Documents, T7, pages 308 – 310 Applicant’s material in response to request.
[13] Exhibit 1, T Documents, T7, pages 317 – 322, Applicant’s material in response to request.
[14] Exhibit 1, T Documents, T7, pages 302 – 305, Applicant’s material in response to request.
[15] Exhibit 1, T Documents, T7, page 311 – 312, Applicant’s material in response to request.
[16] Exhibit 1, T Documents, T7, page 313 – 314, Applicant’s material in response to request.
[17] Exhibit 1, T Documents, T7, page 315 – 316, Applicant’s material in response to request.
[18] Exhibit 1, T Documents, T7, page 323 – 324, Applicant’s material in response to request.
[19] Exhibit 1, T Documents, T7, page 325, Applicant’s material in response to request.
[20] Exhibit 1, T Documents, T7, page 326, Applicant’s material in response to request.
[21] Exhibit 1, T Documents, T7, page 327, Applicant’s material in response to request.
[22] Exhibit 1, T Documents, T7, page 328, Applicant’s material in response to request.
[23] Exhibit 1, T Documents, T7, page 329, Applicant’s material in response to request.
[24] Exhibit 1, T Documents, T7, page 330, Applicant’s material in response to request.
[25] Ibid.
[26] Ibid.
[27] Exhibit 1, T Documents, T7, page 331-350, Applicant’s material in response to request.
[28] Exhibit 1, T Documents, T7, pages 308-310, Applicant’s material in response to request.
“ID Credibility (Faili Kurd)
Without a doubt, everyone knows the importance of genuine documents for refugee who seeks protection from other countries. However, if the people have lived their lives as Stateless and did not have any documentation to prove their identity could make them vulnerable to any benefit of doubt.
Statelessness means not having access to normal services wich provided to any citizen of the country and provide no advantage, only disadvantage. This could build up dangerous situation for stateless person and expose the person in a rusk of any accusation.
As a Stateless Faili Kurd who had not have this opportunity to access this human need (ID Card) to prove who am I, I have suffered a lot.
Firstly, due to lack of our knowledge and the political condition of Iran, as Faili Kurd, we could not be registered our selves under UNHCR (which does not officially allowed to access the area I lived in most of my life in Ilam). This can be verified by UNHRC in Iran.
It my by argued that Iran issued some dociuments such as green card (which we lost it long time ago); however, because of the fear which had accelerated while I ran out of my village short of my knowledge about the rules and also lost of mother, I am left behind with no document.
Now in Australia, I would like to have some document to proudly say who I am, but unfortunately seems I am left empty handed.
A friend of me did attempted to contact Department of Migration and foreign affairs in Tehran to find any relevant documents; however, he has been told by officer, person must be presented and also due to war between Iran and Iraq during 1980 some of documentation from early settlement area (camps) had been destroyed.
Iranian Citizenship:
According to Iranian civil code, person could grant citizenship only by: Birth, Descent, Marriage, By Naturalisation and Dual Citizenship. …
· It may be argued that, some of the Faili Kurds has been granted Iranian document which is true; however it is important to know that, Faili Kurds could get Iranian citizenship if they can approve their ancestors were Iranian. Therefore, as a Faili Kurd who his parents and grandparents were not Iranian, I can’t be granted Iranian citizenship (can be verified by Iranian Government).
· I never married to any Iranian women. Therefore, I can’t apply for that.
· I was not born in Iran from unknown parents; therefore, I can’t apply for that.
· I am not living in Iran; therefore. I can’t apply for that.
These un justice results have made me discouraged to attempt to get any document from Iranian Government.
Iraqi citizenship:
It is the fact, some of the Faili Kurds have been granted Iraqi citizenship. Nationality is regulated by Iraqi nationality law of 2006. Article 17 repeals decision No 666 issued in 1980 by the Ba’ath regime which stripped the Iraqi citizenship of foreign descent, including Faili Kurds. According to article 17, 18, the Iraqi nationality who were affected by decision No 666, would be restored.
On the other hand, the Ministry of Displacement and Migration (MODM) has announced that, in order to reacquire Iraqi citizenship, Faili Kurds need to show that they were registered during 1957 Iraqi national senses.
According to UNHCR advise form 2008, an applicant for Iraqi citizenship needs to provide the nationality certificate of their father, brother, parental grandfather or uncle. Furthermore, UNHCR 2008 advise form highlights the people who their citizenship revoked and do not have documents to prove their status are required to apply in person in Baghdad, also this complicated process could take years. Furthermore with unknown reason, it seems the Iraqi Government issues the different colour of normal ID cards which still can face Faili Kurds in Iraq with sort of racism and discrimination.
· It is important to note that, to benefit from this privilege, the stateless Faili Kurd person should get permissions to travel into Baghdad which required to have some sort of issued document such as white card.
· I could not get Iraqi citizenship while I lived in Iran, because I did not have any issued identity document to get permission to Iraq.
· I could not apply due to lack of information about my grandfather was registered during 1957 senses or not
· I could not attempt due to instability and unsecured situation in Iraq after Saddam Regime while I was in Iran
· I could not attempted to acquire Iraqi citizenship due to lost my parents and lack of knowledge about some of necessary key information such as they had Iraqi identity or not.
· I could not try because illegal entry to Iraq could lead to expose my life and put me in danger.
· I could not restore my Iraqi citizenship because this facility only located in Baghdad and my take years.
However, this can not stop me to attempt to apply for my Iraqi Citizenship which is our rights, the statelessness has destroyed my life and I don’t want to impact on my children lives as well.
Even though, this privilege seems to be my dream, because the Iraqi Government has not signed and accepted the convention of travel Document and they not issue visa for who hold travel document (according to Iraqi embassy in Canberra).
Conclusion:
Due to none of the normal identity documents ever existed, I managed in 2017 to contract the people from local mosque (while living in Tehran during 2004 to 2010). If they could remember me would they prepared to provide me some sort form of document proving that I was known as [MXQS] of Faili Kurds ethnicity and stateless.
Not only did the four people from the mosque remembered me, they were prepared to provide me with registered document, which can be verified by contacting the Imamzada Yahya Council or region 12 Tehran. (Please refer to attached registered Iranian document and English Translation). Therefore, I believe that this document can prove I am Stateless Faili Kurd who was not able to have Iranian citizenship.
Since arrival to Australia, I always try to follow the law and respect others, also I have managed proudly 72 times to donate the blood (each donation can save 3 people lives who suffer from illnesses). … ”
A delegate of the Respondent refused the Applicant’s application for citizenship by conferral on 25 November 2019[29]. In the written reasons by the delegate it was stated, inter alia:
[29] Exhibit 1, T Documents, T2, pages 10-21, Notification of Refusal of an application for Citizenship by Conferral.
“ … Departmental information suggests that since 2002, refugees in Iran have been issued with a “White Card” (‘Amayesh’). Departmental sources show that the back of this card reads as follows;
“1. This card is for identity purposes and is valid in the issuing province for opening savings accounts, issuing health insurance booklets, issuing rental contracts and power of attorneys.
2. Law enforcement forces must confiscate expired cards
3. If this card is found, please place it in a post box.”
I find it highly unlikely that you were able to reside in Iran for a period of 30 years and have access services such as property, rental, banking and health without one of these cards.
In your Protection visa application, you stated that you departed Iran via Imam Khomeini International Airport in Tehran using a fraudulent passport. Information held by the Department indicates that forged visas or visas obtained through false information exist but exit from the Imam Khomeini International Airport with false documents would be difficult due to the strict border control procedures in place. It is more plausible that a person would depart Iran using either a genuine passport at an international airport or by crossing via a land border.
As part of your Protection visa application you claim to have paid a series of fees totalling approximately $7000 US dollars for the whole family to facilitate your exit from Iran. This would be a large sum of money for an undocumented, 30 year old Faili Kurd who worked as a shepherd and farm labourer (as you claimed in your entry interview) to have access to after other costs of living had been paid for. I find it more likely that you either have a work history that would allow you access to these funds, or as above, that you departed Iran using a genuine passport bearing your own name and did not have to pay such large sums of money to facilitate your exit. …
I find that you have provided documents attesting to your identity since your arrival in Australia. While I note that this covers the period since your arrival in Australia in 2010 and I further accepts that these documents are consistent to each other, as there is an absence of any earlier documentation I place less weight on this evidence.
I find that your claims regarding your purported inability to provide documentation prior to your arrival in Australia to be implausible. I also find that it does not appear that you have made a genuine attempt to obtain identity documentation from your former overseas countries of residence, despite the Department writing you to request documentation. … ”
The Applicant applied to this Tribunal for review of the decision of 25 November 2019[30] on 6 December 2019[31], stating the following as to “why it is claimed that the decision is wrong”[32]:
“The case officer has made several untrue statements about my background, including not receiving a response to the request for more information. The case officer has chosen to disreguard [sic] a Persian document supporting my claim of being a stateless Faili Kurd. The document has been signed by four witnesses and the Imam from the Mosque I attended between 2004-2005 when I lived in Tehran. This document is the equivilant [sic] of the Australian Statutory Declaration.”
[30] T2, 10-21.
[31] T1, 1-9.
[32] T1, page 7.
ISSUE
The sole issue is whether there can be the mandatory ‘satisfaction of the Applicant’s identity’ as required by subsection 24(3) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
SECTION 24
Section 24 of the Act relevantly states[33]:
[33] Compilation 29 dated 18 September 2020, including amendments up to Act No.85 of 2020, registered on 8 October 2020. The previous amendment to section 24 was Act No. 57, 2013.
“Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions. … ”
The word “identity” as used in subsection 24(3) is not specifically defined in the Act. The ‘simplified outline’ in section 2A of the Act states[34]: “The Minister must be satisfied of your identity for you to acquire citizenship by application. Rules about identification are in Division 5 of Part 2.”
[34] The previous amendment to section 2A was Act No. 7, 2015.
In the definitions in section 3 of the Act the word “identity” is used in the definition of “identifying information”:
“"identifying information" means the following:
(a) any personal identifier provided under Division 5 of Part 2;
(b) any meaningful identifier derived from any such personal identifier;
(c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
(d) any other information derived from:(i) any such personal identifier; or
(ii) any meaningful identifier derived from any such personal identifier; or
(iii) any record of a kind referred to in paragraph (c);
that could be used to discover a particular person's identity or to get information about a particular person.”
The phrase “personal identifier” as used in the definition of “identifying information” at sub-paragraph (d)(i)-(ii) is defined in section 3: “ … has the meaning given by section 10”. Section 10 of the Act states[35]:
[35] The previous amendment to section 10 was Act No. 142, 2007. The Australian Citizenship Regulation 2016 (Cth) includes reg 13 as to “personal identifiers” for the purposes of section 40(2) of the Act.
“Personal identifiers
(1) For the purposes of this Act, a personal identifier is any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face and shoulders;
(d) an iris scan;
(e) a person’s signature;
(f) any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914).
(2) Before the Governor‑General makes regulations for the purposes of paragraph (1)(f) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and
(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c) obtaining the identifier is necessary for either or both of the following purposes:
(i) assisting in the identification of, and to authenticate the identity of, a person making an application under Part 2 or seeking to sit a test approved in a determination under section 23A;
(ii) combating document and identity fraud in citizenship matters;”
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states relevantly:
“ … the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. 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.”
Section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth)[36] states that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
[36] Compilation 47 dated 1 January 2021, including amendments up to Act No.114 of 2020, registered on 2 February 2020. The previous amendment to section 33 was Act No. 60, 2015.
EVIDENCE
The Applicant gave oral evidence at the hearing[37].
[37] Transcript 30 October 2020, Pages 6-28, 30-75, 76-101.
The Applicant was asked about the time and location of his birth, stating that he was born in 1980 in Iraq[38]. The Applicant stated that both his Mother and Father were also born there[39].
[38] Transcript 30 October 2020, Page30, lines 26-29.
[39] Transcript 30 October 2020, Page 30, lines 35-45.
The Applicant stated that his family were expelled from Iraq in April 1980[40] and were sent to the Jetron camp in Iran, but the Applicant could not confirm the duration that he was there for[41]. The Applicant stated that his family then resided in Varamin, Iran, until 1990[42]. The Applicant stated that following the death of his Father in 1990, he and his Mother moved to the Ilam Province, Iran[43].
[40] Transcript 30 October 2020, Page 31, lines 30-34.
[41] Transcript 30 October 2020, Page 32, lines 1-2.
[42] Transcript 30 October 2020, Page 34, lines 18-19.
[43] Transcript 30 October 2020, Page 34, lines 46-47.
The Applicant stated that he worked as a shepherd in the area referred to as the Zagros Mountains, Iran[44]. The Applicant stated that he and his Mother moved there “around 1990”[45] and he worked as a shepherd whilst his mother completed domestic duties[46]. The Applicant stated that he worked as a shepherd from about 10 to about 24 years of age[47].
[44] Transcript 30 October 2020, Page 7, lines 25-34.
[45] Transcript 30 October 2020, Page 7, line 35.
[46] Transcript 30 October 2020, Page 8, lines 25-30.
[47] Transcript 30 October 2020, Page 86, lines 13-15.
The Applicant referred to a period of schooling when he was 16[48]. The Applicant stated that he could speak Faili Kurdish, understand basic Farsi and Arabic, and read and write in English[49].
[48] Transcript 30 October 2020, Page 86, line 18.
[49] Transcript 30 October 2020, Page 30, lines 4-17.
The Applicant stated that because his Mother developed a knee problem in 1994 she moved to Satar, Iran[50]. The Applicant recounted that during this period he continued to work as a shepherd[51] and would visit his Mother[52].
[50] Transcript 30 October 2020, Page 9, lines 20-25.
[51] Transcript 30 October 2020, Page 9, lines 40-42.
[52] Transcript 30 October 2020, Page 10, line 15.
The Applicant was asked about the renumeration he received whilst working as a shepherd. The Applicant recalled that he did not receive any money, directly, and instead would occasionally receive a lamb[53].
[53] Transcript 30 October 2020, Page 36, lines 15-21.
The Applicant stated that he and his Mother left Satar in ‘approximately 2004, 2005’ following the ‘incident’[54]. The Applicant stated that the incident involved a confrontation with the Basij over him being present in a ‘forbidden area’[55]. The Applicant stated that the Basij threatened to seize his flock of sheep and following a verbal altercation he was shot in the shoulder[56]. The Applicant stated that this was not his first interaction with the Basij and that on these previous occasions they had asked him to provide his ‘green card’[57]. The Applicant confirmed that he did have a green card at these times[58]:
“Did you have a green card at that time?---At that time, yes. You know that that incident you said before, yes, I had, yes.
And so when the Basij would stop you, they would ask you to see your green card. Is that correct?---They ask about the – not green card – they ask about the identity card. They said, ‘Where is your identity card? Where is your card?’.
Right. But was the green card the only form of identity card that you had at that time?---Yes.”
[54] Transcript 30 October 2020, Page 37, lines 31-33.
[55] Transcript 30 October 2020, Page 37, lines 36-43.
[56] Transcript 30 October 2020, Page 38, lines 5-11.
[57] Transcript 30 October 2020, Page 38, lines 20-31.
[58] Transcript 30 October 2020, Page 38, line 32.
The Applicant stated that he kept his documents in his pockets but did not keep any money on him[59].
[59] Transcript 30 October 2020, Page 89, lines 39-42.
The Applicant stated that he was hospitalised for one month as a result of the ‘incident’ gunshot[60]. The Applicant further stated that he did have his green card when he was admitted to hospital[61]. The Applicant stated that following his departure from hospital his Mother kept the relevant documentation[62].
[60] Transcript 30 October 2020, Page 39, lines 19-20.
[61] Transcript 30 October 2020, Page 39, lines 23-35.
[62] Transcript 30 October 2020, Page 91, line 19.
The Applicant was asked about the expense of his hospitalisation and the Applicant stated that members of the village had paid it[63]. The Applicant stated that following his release from hospital he returned to the village but was told it was unsafe[64]. As a result, the Applicant and his Mother moved from Satar to Tehran[65].
[63] Transcript 30 October 2020, Page 39, lines 40-45.
[64] Transcript 30 October 2020, Page 40, line 24.
[65] Transcript 30 October 2020, Page 40, line 25.
The Applicant stated that identification documentation requirements depended on the situation of each province and state in Iran[66]:
“Were you ever asked by the governor during that period, so between 2001, 2002, 2003, were you ever asked to register for an Amayesh card?---Actually we haven’t been asked, and the information, I should provide it to you now, because I haven’t been asked yet. Actually this Amayesh card is a true fact. It started from the day after 2004 or something. But each state, each governor it has a different regulation. I want to explain it to you. As I said before, depends of the situation. … Depends of the situation of the province. In that year they might extend the previous one. Since 2004, 3, they starting to release Amayesh card. Just I want to account it and show it as an explanation. 2003 or 2004, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20. Now should be Amayesh 17. However, depends of the province, its different. In some province … the registration for Amayesh 14 is going. Three years behind. In – you know, for Afghan people, they have an Amayesh card, is going to put 16 or 15, depends. The reason I give it to you and you can get it from the … if you want to communicate with them, I am happy with that, yes. The reason was in the 2003, the situation of the province was a lot of people, they come in to the province to go to the pilgrimage fir after they … to Iraq. They didn’t try to put more pressure on the United government, because government can do something else. They extend it for other year, and they start it from the other year, which we miss it. Is that clear, or do you want me to – and also ---
No, no ---?---I have other paper that it shows that, exactly what I said. Just give me a second, I will show it … and I am quite happy to – actually I am using, you know, the Google Translate, okay? It’s for Afghan people last year. It suggests that some of them, they have Amayesh 11, some of them, they have Amayesh 13. But they had to … . Depends of the province they live, depends of the government. Because this one, it doesn’t come from the Tehran. It issue in the same province, and gave you … . And even the issue of it cannot be same day, for example if something is happening in all of Australia, no. The problems maybe started from the newer one, other one might have started from January next year. It was still hardly any different. If its clear, it is good. But otherwise if you need another question or explanation, please ask. Thank you.”
[66] Transcript 30 October 2020, Page 76, lines 33-36.
The Applicant was questioned about his ability to provide documentation as to his time in the Ilam Province, Iran[67]. The Applicant testified that it was ‘impossible’[68] to provide that documentation and that he did not need a ‘green card’ when he worked as a shepherd in the Ilam Province[69]. The Applicant stated that following his accident and move to Satar his Mother lost a bag that contained the relevant documentation (the ‘green card’)[70]. The Applicant stated that getting a green card required that he and his Mother return to the Ilam Province[71]. The Applicant referred to the green card expiring periodically, which meant a ‘new date [was required] for each [new] card’[72]. The Applicant recalled that the frequency of this renewal process varied from year-to-year[73]. The Applicant then outlined the steps for renewing the documents[74]. The Applicant stated that the first step was to inform the councillor of the local area that the documentation was missing[75]. The Applicant stated that three Iranians were required to be present during this stage[76]. The Applicant then stated he was expected to present before the relevant department to sign the relevant paperwork[77]. The Applicant stated that it was then necessary to go to the police station and pay the relevant fees[78]. The Applicant stated that this process ‘took a long time’[79] and that he did not return to the Ilam Province because he ‘feared for his life’[80]. The Applicant stated that between 2001 and 2003 his green card had been renewed but this had ‘mostly’ been done by his Mother[81].
[67] Transcript 30 October 2020, Page 10, lines 40-45.
[68] Transcript 30 October 2020, Page 11, line 3.
[69] Transcript 30 October 2020, Page 11, line 20-25.
[70] Transcript 30 October 2020, Page 11, lines 30-32.
[71] Transcript 30 October 2020, Page 11, lines 32-35.
[72] Transcript 30 October 2020, Page 12, lines 9-12.
[73] Transcript 30 October 2020, Page 12, lines 13-14.
[74] Transcript 30 October 2020, Page 12, lines 28-29.
[75] Transcript 30 October 2020, Page 12, lines 28-29.
[76] Transcript 30 October 2020, Page 12, line 30.
[77] Transcript 30 October 2020, Page 12, line 38.
[78] Transcript 30 October 2020, Page 12, lines 40-43.
[79] Transcript 30 October 2020, Page 12, line 43.
[80] Transcript 30 October 2020, Page 13, line 2.
[81] Transcript 30 October 2020, Page 76, lines 15-21.
The Applicant stated that he and his Mother moved to Tehran because they feared for their safety[82].
[82] Transcript 30 October 2020, Page 13, lines 20-25.
The Applicant and his Mother completed this journey by car[83]. The Applicant stated that his Mother paid for the car and a driver[84].
[83] Transcript 30 October 2020, Page 40, line 26.
[84] Transcript 30 October 2020, Page 40, lines 36-37.
The Applicant stated that it was during this drive that his Mother lost his green card[85]. The Applicant stated that even if they had the relevant documentation it would not work in Tehran[86]. The Applicant stated that this was because they did not have permission to travel from Satar to Tehran and were ‘illegal residents’[87]. The Applicant stated that they did not apply for permission because of fear of the Basij[88]. The Applicant stated that the last green card he possessed was the one issued in 2003[89].
[85] Transcript 30 October 2020, Page 41, line 1.
[86] Transcript 30 October 2020, Page 41, lines 23-25.
[87] Transcript 30 October 2020, Page 41, line 36.
[88] Transcript 30 October 2020, Page 41, line 42.
[89] Transcript 30 October 2020, Page 93, line 5.
The Applicant stated that when he and his Mother moved to Tehran they stayed in a motel for a ‘few days’[90]. The Applicant stated that after being introduced to other families, he and his Mother moved into , Tehran[91]. The Applicant stated that he lived here ‘almost four years’ until the death of his Mother[92]. The Applicant stated that he then moved into another residence, with three other men, but that he was not part of a rental agreement[93]. The Applicant stated that he lived at this address for one to two years, but that it was ‘less than two years’[94]. The Applicant stated that he would pay 2000 Toman every night that he stayed at the address[95]. The Applicant stated that during this time he worked at a market as a porter and was able to earn 15,000 to 30,000 Toman on a daily basis[96]. The Applicant stated that he managed to save between $2000 to $2500 USD[97].
[90] Transcript 30 October 2020, Page 43, lines 30-40.
[91] Transcript 30 October 2020, Page 44, line 15.
[92] Transcript 30 October 2020, Page 44, lines 13-21.
[93] Transcript 30 October 2020, Page 44, line 42.
[94] Transcript 30 October 2020, Page 45, lines 23-26.
[95] Transcript 30 October 2020, Page 46, line 11.
[96] Transcript 30 October 2020, Page 46, lines 44-47.
[97] Transcript 30 October 2020, Page 47, line 24.
The Applicant stated that when he and his Mother were living in Tehran in 2005 he had surgery on his shoulder[98]. The Applicant stated that the mosque and the family he and his Mother lived with paid for the surgery[99]. The Applicant stated that he did not require identity documents for the surgery because the mosque and the family paid extra[100]. The Applicant stated that the surgery cost roughly 500,000 Toman[101]. The Applicant then confirmed that the mosque and the same family did not pay for his Mother’s hospitalisation in 2008[102].
[98] Transcript 30 October 2020, Page 47, line 29.
[99] Transcript 30 October 2020, Page 47, lines 36-44.
[100] Transcript 30 October 2020, Page 48, line 26.
[101] Transcript 30 October 2020, Page 47, line 35.
[102] Transcript 30 October 2020, Page 56, lines 22-25.
The Applicant stated that he met Mr Maliki when he was working in Tehran and that this was ‘before 2009’[103]. The Applicant recalled that he would often spend time with Mr Maliki who owned a shop in the market[104]. The Applicant testified that the shop was ‘worth a lot’[105] and that it was Mr Maliki who put him in contact with Kharim[106]. The Applicant referred to Mr Maliki arranging ‘everything’[107] and Kharim arranging a fake passport for him[108]. The Applicant stated that he was informed that if he was able to successfully arrive, then the total cost would be $7000 USD[109]. The Applicant stated that it was Mr Maliki who provided him with the remaining $3500 to $4000 USD[110]. The Applicant stated that he paid money to Mr Maliki when he went to Iran and again in 2012[111]. The Applicant stated that he was no longer in contact with Mr Maliki[112].
[103] Transcript 30 October 2020, Page 57, line 26.
[104] Transcript 30 October 2020, Page 57, line 40.
[105] Transcript 30 October 2020, Page 58, line 13.
[106] Transcript 30 October 2020, Page 58, line 19.
[107] Transcript 30 October 2020, Page 58, line 24.
[108] Transcript 30 October 2020, Page 58, line 23.
[109] Transcript 30 October 2020, Page 58, lines 29-35.
[110] Transcript 30 October 2020, Page 58, line 43.
[111] Transcript 30 October 2020, Page 59, lines 1-3.
[112] Transcript 30 October 2020, Page 59, line 36.
The Applicant stated that Mr Maliki and Kharim provided him with an Iranian passport that contained his photograph[113]. The Applicant was questioned about his interview with the Respondent and the statement by the Applicant that he did not remember the name on that travel document[114]. The Applicant stated that this was because he could not read English[115]. The Applicant stated that Kharim took him to the airport and informed him ‘to place the passport in his pocket and show it if it was necessary’[116]. The Applicant stated that Kharim informed him that he had already provided the relevant authority with the necessary documentation[117]. The Applicant stated that he did not raise questions about the name on the passport because he was scared[118].
[113] Transcript 30 October 2020, Page 60, line 11.
[114] Transcript 30 October 2020, Page 61, lines 2-3.
[115] Transcript 30 October 2020, Page 61, line 4.
[116] Transcript 30 October 2020, Page 61, lines 37-40.
[117] Transcript 30 October 2020, Page 67, lines 8-9.
[118] Transcript 30 October 2020, Page 62, line 4-6.
The Applicant stated that Kharim told him to go to the ‘right hand’ desk at the airport[119]. The Applicant stated that he queued at the airport and then provided security with the passport, before moving to a waiting area[120]. The Applicant stated that the bribe had ‘definitely’ been paid by Kharim[121]. The Applicant was questioned about the plausibility of using a fraudulent passport at the airport, where there would be a requirement to bribe multiple airport personnel[122].
[119] Transcript 30 October 2020, Page 68, line 10.
[120] Transcript 30 October 2020, Page 68, lines 20-25.
[121] Transcript 30 October 2020, Page 68, line 29.
[122] Transcript 30 October 2020, Page 74, lines 1-11.
The Applicant confirmed that he applied for a pilgrimage visa in 2011 to return to Iran[123]. The Applicant stated that he applied for this visa in his name[124]. The Applicant stated that even now if he returned to Iran he would be ‘in trouble’[125] because of his lack of documentation[126].
[123] Transcript 30 October 2020, Page 79, line 39.
[124] Transcript 30 October 2020, Page 79, line 44.
[125] Transcript 30 October 2020, Page 15, line 28.
[126] Transcript 30 October 2020, Page 15, lines 26-27.
The Applicant was questioned about his lack of knowledge regarding the international airport in the Ilam Province, Iran[127]. The Applicant stated that it was difficult to see the airport because of a large hill and that it did not exist in either 2004 or 2005[128]. The Applicant further stated that there was limited operation of the airport[129].
[127] Transcript 30 October 2020, Page 97, lines 4-12.
[128] Transcript 30 October 2020, Page 97, lines 4-12.
[129] Transcript 30 October 2020, Page 97, lines 4-6.
The Applicant stated that he had communicated with ‘18 different ministries’ in an attempt to obtain the documentation required by the Respondent[130]. The Applicant stated that this included communications with the Department of Foreign Affairs in the Fars Province, in addition to communication to the Iranian Presidential Office[131].
[130] Transcript 30 October 2020, Page 21, lines 35-36.
[131] Transcript 30 October 2020, Page 21, lines 25-31.
The Applicant stated that one of the factors for the inconsistencies in his recollection was the choice of interpreter[132]. The Applicant provided the example of the interpreter at Christmas Island incorrectly translating an address as evidence of this[133]. The Applicant stated that his second interview at Christmas Island involved him talking in ‘my language’[134].
[132] Transcript 30 October 2020, Page 13, lines 30-35.
[133] Transcript 30 October 2020, Page 14, lines 2-4.
[134] Transcript 30 October 2020, Page 14, lines 10-12.
CONSIDERATION
The facts relevant to satisfaction of the Applicant’s identity must be established on the balance of probabilities[135]. In Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[136] the Tribunal confirmed the need for a ‘definitive conclusion’ to be reached on questions of identity[137].
[135]Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; Re Kirby and Collector of Customs (1989) 20 ALD 369 and Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630.
[136] [2020] AATA 1267.
[137] Ibid.
Ascertaining a definitive conclusion requires a consideration of whether there are any discrepancies in the Applicant’s oral evidence that preclude the Tribunal from being satisfied of the Applicant’s identity to the required degree[138]. The Respondent submits that the Tribunal, as an administrative decision-maker, is required to make findings of fact based on material which is logically probative in which the rules of evidence provide a guide[139].
[138] Respondent Closing Submissions 13 November 2020, page 9, paragraph 21.
[139]Respondent’s closing submissions, page 2, paragraph 5, referencing Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [97] per Flick and Perry JJ.
The Respondent has issued Citizenship Policy Instructions which contain relevant policy guidance, at Chapter 16, regarding the assessment of ‘identity’ under the Act[140]. The Citizenship Policy Instructions prescribes “three pillars of identity” as relevant to assessing identity: biometrics, documents and life story[141]. The Citizenship Policy Instructions state that a ‘single pillar’ should not be used to establish a person’s identity[142].
[140] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions 15 July 2020, page 4, paragraph 10.
[141] Citizen Procedural Instructions (CPI) 16 – Identity, page 105, paragraph 4.4.
[142] Ibid.
The Applicant submitted that his ‘circumstance as a stateless person’[143] is relevant to the lack of identity documentation. The Applicant has produced documents as to communications seeking information regarding his presence in Iran prior to 2010[144]. The Applicant submitted that he has ‘attempted to demonstrate a total willingness to deliver, to the best of his ability, what is available’[145]. The Applicant has communicated with the Imam Khomeini Hospital and the Iman Hussein Hospital[146]. There is a document from the Imam Khomeini Hospital of Ilam stating that documents and medical information of patients belonging to more than 10 years before, get automatically omitted from the filing system and the ‘officer in charge of filing is free of any responsibility in that respect’[147]. The Applicant has provided a translation as to four signatories who state that the Applicant is a “stateless Faili Kurdish”[148]. The Applicant has not filed any other documents in relation to his identity, which pre-date his arrival in Australia[149]. The Applicant has not been able to produce other identity documents from Iran[150]. Therefore, there are no documents as to the Applicant’s identity from birth to arrival in Australia[151].
[143] Transcript 30 October 2020, Page 5, lines 36-37.
[144] Exhibit 3, Submissions of the Applicant, page 3, paragraph 18.
[145] Transcript 30 October 2020, Page 5, lines 39-40.
[146] Exhibit 3, Submissions of the Applicant, page 3, paragraph 19.
[147] Exhibit 3, Submissions of the Applicant, page 3, paragraph 20.
[148] Exhibit 1, T Documents, T7, page 323 – 324, Accredited Translation of References.
[149] Respondent Closing Submissions 13 November 2020, page 4, paragraph 11.
[150] Exhibit 3, Submissions of the Applicant, page 3, paragraph 15.
[151] Citizen Procedural Instructions (CPI) 16 – Identity, page 113, paragraph 4.15.
As referred to above, the Applicant stated that if he returned to Iran (now) he would be ‘in trouble’[152] because of his lack of documentation[153]. The Applicant confirmed that he applied for a pilgrimage visa in 2011 to return to Iran[154] and that he applied for that visa in his own name[155].
[152] Transcript 30 October 2020, Page 15, line 28.
[153] Transcript 30 October 2020, Page 15, lines 26-27.
[154] Transcript 30 October 2020, Page 79, line 39.
[155] Transcript 30 October 2020, Page 79, line 44.
There are also no biometrics as to the Applicant[156].
[156] Citizen Procedural Instructions (CPI) 16 – Identity, page 113, paragraph 4.15.
Section 4.15 of the CPI states that the objective of assessing an applicant’s life story is “to link the applicant’s identity at birth to the identity provided in their application for Australian citizenship”[157]. The Applicant’s life story was articulated in the oral evidence led by the Applicant[158].
[157] Citizen Procedural Instructions (CPI) 16 – Identity, page 112, paragraph 4.15.
[158] Transcript 30 October 2020, Pages 6 – 28, 30 – 75, 76 – 101.
The application lodged for Australian citizenship on the form 1300t at point 22 included a question whether the Applicant had ever had any national identity documents or numbers[159]. The Applicant answered “no” as to that point in the form[160]. At part M of that form there is a declaration[161]. In the Applicant’s response to the request for further information in relation to the Applicant’s application for citizenship, the Applicant provided a statement, stating that “none of the normal identity documents ever existed”[162]. In oral evidence the Applicant stated that that he had a ‘green card’ in Iran[163].
[159] Exhibit 1, T Documents, T4, pages 226 – 243, Form 1300t.
[160] Ibid.
[161] Ibid.
[162] Exhibit 1, T Documents, T7, pages 308-310, Applicant’s material in response to request.
[163] Transcript 30 October 2020, Page 38, lines 20-31.
As to the ‘green card’, the Applicant stated that he did not need the ‘green card’ whilst working as a shepherd in the Zagros Mountains[164]. At the time when the Applicant was working as a shepherd, when he was shot by Basij as referred to above, the Applicant stated that he had a green card at that time[165]. The Applicant also referred to having a ‘green card’ when he was admitted to hospital[166], that being at a time when he was working as a shepherd in the Zagros Mountains.
[164] Transcript 30 October 2020, Page 11, line 20-25.
[165] Transcript 30 October 2020, Page 38, line 32.
[166] Transcript 30 October 2020, Page 39, lines 23-35.
The Applicant recalled that he had his ‘green card’ during the first surgery but not during the second. The Applicant stated that he was able to still receive the second surgery, where there was no ‘green card’, because of an extra payment made by the mosque and family[167].
[167] Transcript 30 October 2020, Page 48, line 26.
The life story from birth to arrival in Australia, as articulated in the oral evidence, is not, in the circumstances referred to above, ‘definitively conclusive’[168]. The identity of the Applicant is unclear or cannot be satisfactorily ascertained[169], mandatorily, to the required degree[170]. Section 24(3) of the Act is mandatory as to the Minister’s satisfaction of the identity of the person and there cannot be approval of a person becoming an Australian citizen if the identity is unclear or cannot be satisfactorily ascertained[171].
[168] Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267.
[169] Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth).
[170] Respondent Closing Submissions 13 November 2020, page 9, paragraph 21.
[171] Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth).
DECISION
The decision under review is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
.....................[SGD]....................
Associate
Dated: 18 May 2021
Date of hearing: 30 October 2020 Date final submissions received: 31 January 2021 Advocate for the Applicant: Mr G. McKeich Advocate for the Respondent:
Solicitors for the Respondent:
Ms D. Mak
Clayton Utz Lawyers
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