MZLV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 2630

MZLV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2630 (14 July 2021)
Division:GENERAL DIVISION
File Number: 2020/3431
Re:MZLV
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 14 July 2021
Date of Written Reasons: 3 August 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.................[sgd].......................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – Faili Kurd – whether the Tribunal is satisfied of the Applicant’s identity – s 24 Australian Citizenship Act 2007 (Cth) – National Identity Proofing Guidelines – Revised Citizenship Procedural Instructions – three pillars of identity – lack of documents prior to arrival in Australia – inconsistencies in life story –Tribunal not satisfied of Applicant’s identity – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4654
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2576
Minister for Home Affairs v G (2019) 164 ALD 103
Mohsin v Minister for Home Affairs [2019] AATA 1999
Negri v Secretary, Department of Social Services [2016] FCA 879
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Department of Foreign Affairs and Trade, Country Information Report Iran (21 April 2016)
Department of Foreign Affairs and Trade, Country Information Report Iran (14 April 2020)
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 August 2021
INTRODUCTION

The Applicant seeks review of a decision by a delegate of the Respondent to refuse his application for Australian citizenship by conferral.
The hearing was held in Melbourne on 13 and 14 July 2021. Parties appeared in person and the Applicant was represented by Mr Diznab, a solicitor from Gold Migration Lawyers. The Minister was represented by Mr Orchard, a solicitor from Sparke Helmore Lawyers.
At the conclusion of the hearing on 14 July 2021 the Tribunal provided ex tempore reasons. Gold Migration Lawyers subsequently requested a statement in writing of the reasons for decision. These are now provided consistent with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA), and in accordance with Federal Court authority, which provides:[1]
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
[1] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).
APPLICANT’S IDENTITY
Pursuant to s 35 of the AATA and given the Applicant has previously been granted a Protection Visa, the Tribunal has applied a confidentiality order. He will be referred to by the anonym MZLV and certain details tending to identify him have been redacted.
BACKGROUND
The Applicant arrived in Australia in 2010 as an Unauthorised Maritime Arrival[2] with his then-wife and child. During an interview with immigration officials, conducted with the assistance of an interpreter, the Applicant stated he:
(a)Was born in Iraq and is an undocumented and stateless Kurd of the Faili sub-group, who relocated from Iraq to Iran in 1980 during the rule of Saddam Hussein;[3]
(b)Grew up in the same village in Iran as his ex-wife. They were married in 2005 and had a child in 2006;[4]
(c)Lived in [Village A] for 30 years from 1980 until departing for Australia in 2010.[5] At the present hearing, however, relying on a document dated 9 June 2020 and purporting to be from a local official in Iran, he now claims to have lived in [Village B] throughout his life. The Applicant stated this longstanding inconsistency arose from a mistake made by immigration officials and interpreters in 2010 when completing his arrival processing on Christmas Island. He has not since corrected this purported error;
(d)Has always been ‘scared’ of Iranian police and security authorities because of not having any documents.[6] He claimed to have received a green identity card (Green Card) from Iranian officials until 2003, following which he was undocumented. He said Iranian authorities told his family replacement White Cards would be provided, but this never occurred;[7]
(e)Travelled from Iran to Indonesia by aircraft via Dubai,[8] with his ex-wife and child, claiming to have paid USD$19,000 to a people smuggler in Iran to arrange fraudulent passports and exit permits;[9]
(f)Secured visas for his family on arrival in Indonesia, where they stayed for approximately 20 days[10] before boarding a boat organised by people smugglers, who took their counterfeit Iranian passports;[11] and
(g)Feared a ‘lifetime in jail’ or being ‘killed’ if he returned to Iran because of the illegal nature of his departure.[12]
[2] Exhibit R1, 246. An Unauthorised Maritime Arrival is defined at s 5AA of the Migration Act 1958 (Cth) to include a person who entered Australia by sea at an excised offshore place.
[3] Ibid, 247-250.
[4] Ibid, 250.
[5] Ibid 248.
[6] Ibid, 257; 255; 264; 265.
[7] Ibid, 253.
[8] Ibid, 268.
[9] Ibid, 260-262.
[10] Ibid, 266.
[11] Ibid, 261.
[12] Ibid, 263.
The Applicant was subsequently recognised as a refugee and granted a Protection (subclass 866) Visa.[13]
[13] Ibid 43-58; 179.
Within a year of arriving in Australia and being granted protection, the Applicant returned to Iran with his then-wife and child in 2011 for a five-month visit with their families.
The Applicant’s then-wife and child returned to Iran without him for an approximately seven-week visit in 2013 that he organised;
On 16 April 2015, the Applicant applied for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act).[14] He provided copies of the following documents in support of his citizenship application:
[14] Ibid, 23-32.
(a)Victorian Heavy Vehicle Driver Licence with an expiry date of 17 September 2015;[15]
(b)Medicare card;[16]
(c)Four pages of a Titre de Voyage travel document, which was issued to him in Australia on 21 July 2011 and expired on 21 July 2013;[17]
(d)Translated copy of his ex-wife’s Iranian Green Card, which purports to have been valid for a year from 23 December 2002;[18]
(e)A Statutory Declaration dated 30 July 2015 explaining why he has no identification documents and was never granted citizenship of Iraq or Iran;[19]
(f)Consent to release information from VicRoads dated 17 October 2016;[20]
(g)Work reference dated 2 September 2011;[21]
(h)Notification of Refugee Status Assessment Outcome dated 4 February 2011, with accompanying Assessment Record and Application for a Protection Visa;[22] and
(i)Two Statutory Declarations of the Applicant, Personal Particulars Forms, and a Health Undertaking Form, all dated 23 December 2010.[23]
[15] Ibid, 34; 37-38.
[16] Ibid, 33.
[17] Ibid, 35. A Titre de Voyage is not a passport but a Refugee Convention Travel Document issued to people under the international system where they are unable to obtain a travel document from their country of lawful residence.
[18] Ibid, 36-37.
[19] Ibid, 39.
[20] Ibid, 40-41.
[21] Ibid, 42.
[22] Ibid, 43-92.
[23] Ibid, 93-130.
The Applicant’s ex-wife and child returned to Iran for a further visit he organised in 2016. On return to Australia the luggage of the Applicant’s ex-wife was searched by border officials. Iranian travel documents were found and forwarded to the Department, which included Iranian Green Cards for her and the Applicant.
On 5 October 2016, the Respondent sought further information from the Applicant regarding his application.[24] The Applicant responded on 25 October 2016, stating in part:
…
The only document that the Iran government has given us is the Green Card and No other document ever been issued to us and this is the major reason that we migrated to Australia.
In Iran they Never issue birth certificate to Non Iranians, although my son was born at home in Iran because of not being Iranian, not having insurance and not affording the cost of the delivery.
That's why many other mothers…are losing their life.
At the moment the only documents from my birth until now are this Green Card and my Australian documents…
(Emphasis added.)
[24] Ibid, 138-142.
The Applicant lodged a further Personal Particulars Form dated 17 October 2016,[25] explaining that he returned to Iran for a five-month period soon after arrival in Australia because his mother was sick.[26] Among the following documents he submitted was a translated copy of his Iranian Green Card purportedly issued in 2003;[27]
(a)Change of Name Certificate dated 1 July 2016, reflecting a change in his Christian name while living in Australia;[28]
(b)Australian issued Titre de Voyage valid from 16 September 2016 until 16 September 2018;[29]
(c)Photocopies of a debit card, Victorian Health Care Card, gym membership card, and Medicare Card in the name of himself, his ex-wife, and two children;[30]
(d)Visa and visa extension from Iranian immigration authorities for a five-month return visit he had made to Iran in 2011 – 2012;[31]
(e)Payslips for three pay periods between December 2014 and March 2015;[32] and
(f)English and vocational training certificates.[33]
[25] Ibid, 144-171
[26] Ibid, 147.
[27] Ibid, 172-173.
[28] Ibid, 174.
[29] Ibid, 175.
[30] Ibid, 176-177.
[31] Ibid, 178-179.
[32] Ibid, 180-182.
[33] Ibid, 183-185.
In March 2020, the Applicant was invited by a delegate of the Respondent to respond to adverse information regarding his previous claims.[34] The Applicant provided several responses to the questions asked, including that he:
[34] Ibid, 187-194.
(a)Returned to Iran soon after arriving in Australia and claiming protection because his father was sick.[35] This reason contrasted with a previous claim that he returned because his mother was sick;[36]
[35] Ibid, 195-199.
[36] Ibid, 147.
(b)Made remittances from Australia titled ‘family support’ on behalf of another person in Australia between July and November 2017, whose contact details he no longer had because that person had changed their address and mobile numbers, which he no longer had;[37]
[37] Ibid, 200-201.
(c)Sourced a Victorian Heavy Vehicle Driver Licence using a fraudulent Iranian driver’s licence soon after arriving in Australia, purportedly on the advice of an individual he met at a park. The Applicant explained:[38]
[38] Ibid 202.
I was new in Australia, I didn't know much about Australian law, I had Neighbourhood and he told me plenty of truck driver job in Australia, if you can get a license you will find a job easy. I didn't see this person since seven Year's ago….
He made a fake license for me…it's not original card, just normal paper inside.
When I got Australian licence, I was really regret and I scared to tell the truth to vicroad…I didn't repeat anything illegal after that in Australia.
I attached five year's 100% clear license history.
...
(Errors in original.)
(d)The Applicant also provided:
(i)Photographs purporting to be of the fraudulent Iranian Driver’s Licence;[39]
(ii)Letter dated 24 March 2020, purporting to be from a person who had given him ‘10 hours of [driver] training sessions starting in may 2012…’;[40]
(iii)Record from VicRoads stating he held medium rigid and car licences since December 2016, with no traffic offences recorded against him;[41]
(iv)Translated copies of expired Iranian Green Cards dated 2002-2003, purporting to have been issued to his six siblings;[42]
(v)Information about his current work in Australia, tax and bank arrangements, and letters of support from others;[43] and
(vi)Translated copy of a letter from Iran purportedly of his high school results.[44]
[39] Ibid, 210-212.
[40] Ibid, 203.
[41] Ibid, 204-209.
[42] Ibid, 213-224.
[43] Ibid, 225-242.
[44] Ibid, 244-245.
On 26 May 2020, a delegate of the Respondent refused the Applicant’s application for citizenship under s 24(3) of the Act, because the delegate was not satisfied of the Applicant’s identity (citizenship refusal decision).[45]
[45] Ibid, 7-22.
On 3 June 2020, the Applicant applied to the Tribunal for review of the citizenship refusal decision.[46] Scheduling orders were made on 21 August 2020 for submission of materials, but the hearing was delayed due to restrictions arising from the COVID-19 Pandemic. A hearing was subsequently listed on 21 December 2020 for 19 March 2021, then further delayed due to COVID-19 restrictions until 13 July 2021.
[46] Ibid 1.
PRE-HEARING ISSUES
On 17 June 2021, Mr Diznab, the Principal Lawyer at Gold Migration Lawyers, advised that the Applicant’s case had been mismanaged by one of his firm’s lawyers. Mr Diznab sought consent orders for the submission of a new Statutory Declaration for the Applicant and a revised Applicant’s Statement of Facts, Issues and Contentions (ASFIC). Mr Diznab stated:
I would like to draw your attention to the attached Statutory Declaration. Mr Pang has mismanaged this matter and has made some serious mistakes.
Kindly note that Mr Pang is no longer handling this matter and I have now taken over.
Due to the issues raised in the attached Statutory Declaration, I would like to seek an adjournment of the hearing…We also need to file a new Statement of Facts, Issues and Contentions and some other documents.
...
An accompanying Statutory Declaration from Mr Chi Yuen (Peter) Pang, dated 17 June 2021 stated in part:
…I filed a letter (Statement of Facts, Issues and Contentions) dated Friday, 9 October 2020, which bears Mr Ramtin Diznab's name and signature. I confirm that I drafted this letter and I signed this letter electronically. I did not show this document to Mr Diznab before I signed it using his name and I sincerely aplogise.
2. …I confirm that in 2020, the applicant…handed me some documents to add to his AAT matter. These docuemtns are from Iran and bear the applicanrts name. They are going to immensely assit the applicant's matter, which was refuded due to lack of identity documetns from Iran. I have not provided these documents to the AAT. I again, apologies.
3. …I drafted a statutory declaration for the applicant…and I asked him to sign it. This statutory declaration is dated 20.8.2020 has been filed with the AAT. I have made mistakes in Paragraphs 9, 10, 11 and 12 (please refer to below screenshot). The applicant had in fact informed me number of times that he had returned the green card back to the Iranian authorities. I apolise for making such fatal errors.
…
(Errors in original)
The Tribunal gave leave by consent for submission of a new Statutory Declaration for the Applicant and ASFIC, which were lodged with the Tribunal on 28 June 2021. Additional materials lodged by Gold Migration Lawyers on the Applicant’s behalf included:
(a)Copies of what he claimed to be his parents’ Green Cards dated 2002 with translations, and six short statements from his siblings in Iran, all in precisely the same templated terms stating:
I, [name of sibling],
…
Confirm that Green Cards of myself and my father, mother, sister and brother including [MZLV] were submitted to the office of Governor…in 2003 in order to obtain a White Card. Unfortunately, as yet we were not successful in getting any other type of card.
(b)A letter purporting to be from Iranian officials from [Village B] stating:
This is to certify that [MZLV] – father’s name: [redacted], a Faili Kurd deported from Iraq lived in this village since 1980 at the age of 3 till 2010.
(c)A contract for a farming property the Applicant claimed to have leased in Iran for a year from 11 July 2007; and
(d)Nine pages of photocopied photographs purporting to be of the Applicant and his family members in Iran. Mr Diznab elected not to tender these into evidence.
LEGISLATIVE FRAMEWORK
The Preamble to the Act states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)       by pledging loyalty to Australia and its people; and
(b)       by sharing their democratic beliefs; and
(c)       by respecting their rights and liberties; and
(d)       by upholding and obeying the laws of Australia.
Section 25(1)(a) of the AATA and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.
Section 24 of the Act confers a general power on the Minister to either approve or refuse to approve an application made under s 21 of the Act. Specified circumstances are set out at ss 24(3) to (7) of the Act, that preclude the Minister from granting citizenship. This includes if the Minister is not satisfied of the person’s identity:[47]
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.[48]
[47] Division 5 of the Act sets out identity provisions at ss 40-45.
[48] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth).
Citizenship Policy and Procedural Instructions
In determining an applicant’s claim for citizenship, decision-makers are assisted by executive policy. This includes Australian Citizenship Policy, which refers to the description of identity in the National Identity Proofing Guidelines, which is published by the Commonwealth Attorney-General’s Department (AGD Guidelines). Revised Citizenship Procedural Instruction 16 (CPI16), titled CPI16 – Assessing Identity under the Citizenship Act, also provides guidance about assessing identity and refers to the AGD Guidelines as relevant when considering s 24(3) of the Act. These provide:
1.1 Background
1.1.1 Establishing confidence in a person’s identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia’s digital economy into the future.
The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion.’[49] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[50] Noting that each case before the Tribunal is considered de novo, Government policy is ordinarily considered and applied unless there is a cogent reason not to do so.[51] No submissions were made by Mr Diznab or Mr Orchard that the Tribunal should disregard the available policy and the Tribunal sees no reason not to apply it.
[49] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].
[50] Ibid, [65]; [70].
[51]Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

Relevantly in this matter, CPI16 describes three pillars comprising biometrics, documents and life story, as the foundation on which assessments of identity are made:

Pillar of Identity

Individual Characteristics

Biometrics

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

Documents

Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life Story

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

Decision makers are counselled not to rely on a single pillar in isolation, but 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.
Additional guidance is provided as follows:
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek to establish a person’s identity from birth using an evidence-based approach. It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
The way in which officers should approach the concept of assessing a person’s identity from birth is to create an identity timeline, thus creating a complete picture of the person’s identity from birth to present. The objective is to link the Applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life. The three pillars are the methodology for establishing a person’s identity, and officers must turn their mind to the individual characteristics in order to piece together a person’s identity timeline and create an ‘identity picture’.
…
4.14 Assessing pillar two – documents
Documents are an important element of the process in establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).
When assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent, or otherwise, and whether they element support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application, officers should seek to create a complete identity ‘picture’ of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person’s identity, while at the same time considering their life story, is to consider their identity timeline.
…
In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, officers should locate the information provided during these interactions, plot it on the person’s identity timeline, and compare it with information provided at the time of applying for Australian citizenship.
Example – testing information pursuant to the pillars of identity
A person’s identity story can include, but is not limited to, their age compared to
their:
·education, employment, places of residence, marriage and divorce;
·extended family history including:
obirth of children, births and deaths of siblings and parents, date of marriage.
Example – the importance of family composition
Family relationships can be very useful when establishing an individual’s identity. Relationships form an important characteristic of a person’s life story. It is important for officers to compare the family composition provided by the Applicant at various interactions with the Department.
In order to corroborate information, officers should examine the family composition provided to the Department by the citizenship Applicant’s claimed family members, as well as the particulars of the information. There are generally common elements between family members who travelled to Australia together, or were from the same village. Independent corroborating evidence for a particular fact or interpretation means that the fact or interpretation is more likely to be true.
Paragraph 5.1 of the AGD Guidelines establishes that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken, encompassing:
·     Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
·     Verification of the person’s claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
·     Verification of a person’s claimed identity with reputable organisations or bodies known to them…
·     A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
ISSUE BEFORE THE TRIBUNAL
The issue for consideration by the Tribunal is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.
EVIDENCE
Documentary evidence
The following documents were admitted into evidence at the hearing:
(a)Section 37 documents tendered by the Respondent numbering 331 pages;[52]
[52] Exhibit R1.
(b)Statutory Declaration of the Applicant dated 28 June 2021, comprising five pages and 20 paragraphs;[53]
[53] Exhibit A1.
(c)Statutory Declaration of the Applicant dated 12 March 2021, comprising two pages and eight paragraphs;[54]
[54] Exhibit T1.
(d)Statutory Declaration of the Applicant dated 20 August 2020 as amended during his oral evidence, comprising two pages and 16 paragraphs;[55]
[55] Exhibit T2
(e)Applicant’s bundle of documents lodged on 28 June 2021,[56] comprising:
[56] Exhibit A2.
(i)Translated copies of Green Cards purportedly issued to the Applicant’s parents in 2002;
(ii)Six brief templated and translated statements purporting to be from the Applicant’s siblings in Iran;
(iii)Translated statement dated 9 June 2020 purporting to be from Iranian officials;
(iv)Translated copy of a farm lease agreement purporting to be for land leased by the Applicant in Iran in July 2007; and
(v)Translated certificate dated 21 July 1995, purporting to be an ‘Educational Certificate for Individuals Deported from Iraq.’
(f)Statutory Declaration of Mr Chi Yuen (Peter) Pang, a lawyer at Gold Migration Lawyers, dated 17 June 2021;[57]
(g)Emails between Mr Diznab and Mr Orchard dated 17 to 22 June 2021;[58]
(h)Country Report for Iran dated 14 April 2020, published by the Department of Foreign Affairs and Trade (DFAT Report);[59]
(i)Transcript of a hearing into a citizenship refusal application for the Applicant’s ex-wife dated 8 April 2021;[60]
(j)Translated Iranian online media article dated 5 May 2017;[61] and
(k)Translated Iranian online media article dated 28 February 2018.[62]
Applicant’s evidence
[57] Exhibit A3
[58] Exhibit A4.
[59] Exhibit A5.
[60] Exhibit A6.
[61] Exhibit A7.
[62] Exhibit A8.
Tribunal’s assessment of Applicant’s evidence
The Tribunal was left with the impression on several occasions during the Applicant’s testimony that his responses were evasive, less than forthright, inconsistent, or implausible. He was at times unable to recall key events that his ex-wife had been able to recall, or claimed he forgot key events, or blamed others for mistakenly recording information that he attested was true, or that had been part of his documentary record since arrival in Australia. For example, he claimed the Iranian village he lived in for most of his life was incorrectly recorded by immigration officials and interpreters on arrival in Australia and never since corrected by him. He claimed to have forgotten that his only child in Iran was born in a hospital rather than at home, and the existence of a farm lease document.
The Applicant was reminded several times to specifically answer questions being asked. For example, when asked by Mr Diznab who owned the farm he had recently provided a 2007 rental agreement for, he responded: ‘The people who owned it.’ It took several attempts to get the Applicant to provide more specific responses. When pressed to specifically identify who it was he leased farms from, the Applicant said he rented approximately six farms while living in Iran. When asked about the inconsistency between his claim at the 8 April 2021 hearing that there was ‘no documentation’[63] for such transactions, the Applicant said he forgot about the lease agreement and only recalled it after the last hearing. He claimed to have contacted his sister in Iran who located a phone number for the leaseholder, who purportedly retained ‘a copy in their archives.’ There is no evidence from the Applicant’s sister or the purported leaseholder to corroborate this claim.
[63] Exhibit A6, 70 [26].
Applicant’s oral evidence
The Applicant was assisted by an interpreter in the Farsi language. He adopted his Statutory Declarations dated 28 June 2021 and 12 March 2021 as true and correct. He stated there were several mistakes in a Statutory Declaration he signed on 20 August 2020, which was prepared for him by Mr Pang at Gold Migration Lawyers. When asked if it was usual for him to sign Statutory Declarations that were not true and correct, the Applicant said he usually did not, explaining: ‘They told me to sign them and I signed them….I believed the lawyer would do the right thing.’
Key aspects of the Applicant’s oral evidence at the present hearing can be summarised as follows:
(a)The Applicant said he attended school for 12 years while living in Iran and gained a diploma in 1995, for which he has only recently produced a certificate;
(b)The Applicant agreed his son was born in an Iranian hospital. When asked why he previously claimed his son was born at home because of disadvantages suffered by Faili Kurds,[64] the Applicant said he forgot his son was born in a hospital. The Applicant said neither he nor his ex-wife sought a birth certificate from the hospital in question, claiming these were only issued to parents with Iranian birth and marriage certificates. The Applicant relied on an Iranian online news agency report dated 28 February 2018 for this claim.[65] When put to the Applicant that the DFAT Report suggested birth certificates were issued by Iranian hospitals without reference to nationality, the Applicant insisted only parents with Iranian birth and marriage certificates could secure a birth certificate for newborn children. He also claimed that he and his ex-wife did not receive any certificate or other proof from the Islamic celebrant who conducted their marriage;
[64] Exhibit R1, 143.
[65] Exhibit A8.
(c)The Applicant stated that contrary to the evidence of his ex-wife at the April 2021 hearing about them purchasing a farm after marriage and subsequently selling it to pay the people smugglers,[66] he never owned land and his ex-wife’s evidence was wrong. When asked how she could be mistaken about something of such prominence in their lives, the Applicant contended she was ‘sick and in pain’ at the last hearing because she was expecting a child with her new partner and was in an advanced stage of pregnancy. The currently constituted Tribunal, who also presided over the 8 April 2021 hearing, rejects this claim;
[66] Exhibit A6, 35 [35]; 84 [14].
(d)When asked about his protection claims that he had only been able to work illegally in Iran on farms owned by others,[67] the Applicant insisted this was correct. When challenged that the farm lease agreement he recently provided and his other evidence about leasing farms on six occasions suggested he worked legally, the Applicant insisted the farm lease agreement he provided arose from ‘illegal’ work. He stated: ‘This is not an official contract, just an agreement with the landowner’;
[67] Exhibit R1, 48; 93 [9].
(e)The Applicant said he left Iran with his ex-wife and their child on fraudulent passports procured by people smugglers. He claimed to have paid the then-equivalent of USD$19,000 for their passage to Australia, explaining this was raised by selling all his ‘life belongings’ for USD$6,000, his farm animals for USD$4,000, borrowing USD$5,000 from his father, and another USD$5,000 from friends;
(f)When asked about the Respondent’s submission that exit procedures from Iran were difficult to abuse, the Applicant responded: ‘I don’t accept this at all…Going through was done easily.’ He said the Iranian Government only realised this in 2011 following which they ‘made passports electronic;’
(g)The Applicant agreed that between September 2011 and February 2012, within a year of arriving in Australia and being granted protection, he returned to Iran with his ex-wife and their child for a five-month visit. When asked why, he responded: ‘Because of severe difficulty in regard to my mother.’ He said that after arriving in Iran there had also been ‘an accident,’ following which his father developed blood clots, causing the Applicant to travel to Tehran and extend their visas. The Applicant agreed his ex-wife and children subsequently returned to Iran for two subsequent visits in 2013 and 2016 without him. He said that during his wife’s 2016 return visit to Iran ‘she brought back her Green Card;’
(h)When challenged that returning to Iran so soon after being granted protection in Australia appeared to conflict with the claimed identity of a person fleeing persecution, who risked death or imprisonment on return because of their illegal departure, the Applicant claimed there was a difference between ‘being returned and returning myself’:
If returned by force I would have definitely had issues because I left on a false passport, but when we go back on Australian travel documents, they looked at me as a foreign national…They don’t interfere with you.’
(i)The Applicant said he organised the visas for his and his family’s travel to Iran in 2011 through Iranian consular officials in Canberra. When asked by Mr Diznab if he visited the Iranian Embassy personally, he responded ‘No,’ claiming the applications were remotely made and the visas received by post. He claimed to have lied in his Iranian visa application about previously having been to Iran. When challenged that the evidence at the April 2021 hearing was that he personally visited the Iranian Embassy in Canberra to secure visas for his family’s return visits to Iran,[68] the Applicant claimed he only did so to secure visas for his ex-wife and children’s travel in 2013 and 2016, but not in 2011;
[68] Exhibit A6, 51 [43]; 52 [1]-[15]; 75 [5]-[32]; 76 [17];
(j)Mr Diznab asked the Applicant how he was able to explain to the Iranian Embassy in Canberra that he had never been to Iran when his ex-wife and son’s birthplace were both recorded as Iran in their travel documents. The Applicant responded:
‘Something I need to explain here is that I realise what is important for Iranian embassy is nationality inside the passport. They do not look at city you are born, they look at your nationality, if the nationality is Iranian then they will not issue the visa for you.’
(k)Upon Mr Diznab clarifying with the Applicant whether he meant to say that the Iranian Embassy does not look at the city of birth on the travel documents or pay much attention to the city of birth, the Applicant confirmed: ‘the city of birth is not important, the only thing that is important to them is the nationality;’
(l)The Applicant said at the April 2021 hearing that if Iranian authorities became suspicious of people travelling to Iran they would do a ‘fingerprinting test or something like that.’[69] He was directed to a previous documentary claim where he said a fingerprint test was conducted during his family’s 2011 visit to Iran.[70] The Applicant claimed he was easily able to extend his family’s visas on two occasions in 2011 but the third time attracted suspicion, requiring him and his ex-wife to be fingerprinted by Iranian authorities, but nothing came of this. When put to him that he and his wife were of no interest to Iranian authorities, the Applicant replied:
[69] Exhibit A6, 72 [1].
[70] Exhibit R1, 195.
Why should we be of interest… we went there as foreign nationals…I didn’t say we had an issue with the Iranian Government. We are not an enemy of the Iranian Government or the Iranian state…Iran has many enemies. I’ve never done anything against the Iranian Government.
(m)When challenged that these comments appeared inconsistent with his protection claims, the Applicant said:
Yes but there’s a misunderstanding here of what I said, what I meant to say is we are not an enemy of Iranian Government and Iranian state but this is Iranian Government that they did not treat us fairly and give us the rights we deserve.
(n)When asked about the circumstances in which he recently produced six expired Green Cards for his siblings from 2002, the Applicant said he contacted his family in Iran and they secured copies of these from an unnamed Iranian government office, which were sent to him in approximately May 2020. No further explanation was provided about how these expired cards were procured, or why Iranian authorities retained expired Green Cards from almost two decades ago;
(o)The Applicant said he was unaware of why Iranian authorities denied him and his family replacement white identity cards (White Cards) since 2003, stating: ‘When we turn in Green Cards they said we’ll let you know if we’ll give you White Cards or not and never gave us a convincing answer…They would never explain.’ He said that he and his family followed this up with Iranian officials on several occasions prior to his departure for Australia but were turned away. He said his parents and siblings had continued to make enquiries every ‘few months’ since 2003 without success. The Applicant claimed his family never received any letters from Iranian authorities about their enquiries and he had no correspondence from Iranian officials relating to the provision of copies of his parents’ and siblings long-expired Green Cards about year ago. When asked if his family members felt comfortable about continuing to approach Iranian authorities given his circumstances, the Applicant stated: ‘They never talk about me’;
(p)In a Statutory Declaration the Applicant explained how he acquired a Victorian Heavy Vehicle Drivers’ licence using a fraudulent Iranian driver’s licence:
In or around May 2012, while living at [address redacted], I was in a park with my son [name redacted], who was four at the time, when I met a man named Afshin. Afshin had children of a similar age, and was speaking persian with his children so I introduced myself. Afshin asked what I was doing for work and I advised that I was struggling to find work without a drivers licence. Afshin asked if I had my Iranian drivers licence, to which I advised no. Afshin told me that if l gave him a passport photo he could arrange an Iranian drivers licence for me, and that with this I would be able to obtain a full/unconditional licence from VicRoads. I was aware that I could get a probationary licence from VicRoads, however Afshin said that I would need a full licence to gain employment. I was new to Australia, and had only been outside of a refugee camp for just over a year. I had financial issues and was in desparate need of employment, in order to support my family. Afshin asked for $300 to get this licence for me...[71]
(q)Mr Orchard asked the Applicant about his use of a fraudulent Iranian licence soon after arrival in Australia. Prior to responding, the Tribunal reminded the Applicant about his right to silence and privilege against self-incrimination, which he subsequently exercised. In response to further questions, however, the Applicant agreed he had never driven a vehicle in Iran before procuring the Victorian licence. When it was put to him that he should correct the licence issue by advising the Victorian Government, the Applicant disagreed. When asked whether his use of the fraudulently acquired Victorian licence as proof of identity in Australia for over a decade reflected a continuing willingness to deceive, the Applicant claimed variously he was ‘fooled’ by the person who gave him the fraudulent Iranian licence, and had ‘no choice’ but to accept this person’s suggestion. When asked how he was ‘fooled,’ the Applicant said Afshin knew he was ‘new to Australia’ and unaware of Australian ‘rules.’ The Applicant said he understands the rules now, but believes he is ‘entitled’ to the fraudulently acquired Victorian licence, including because he had driven for ten years and had ‘done nothing wrong’;
(r)When asked by Mr Diznab on the morning of the second hearing day if he now regretted providing a false Iranian licence to VicRoads, the Applicant said he did. When asked by Mr Diznab if he was willing to notify VicRoads about this now, the Applicant responded: ‘Many times I have been tempted to do this…maybe it’s a better thing if I do it;’
(s)When asked about the education certificate he provided from 1995,[72] the Applicant initially claimed he received it at the end of high school almost thirty years ago, and it had been in his records since. When asked why he only produced it relatively recently, the Applicant stated: ‘This was issued in 1995 in school and it was there, it wasn’t something I was holding, it was something that school had…I got this recently...’
(t)When asked about any medical records from Iran, the Applicant said he had none. When asked if he had any medical evidence from the time of his father’s illness in 2011, the Applicant responded: ‘No.’ When directed to a document in evidence relating to his father’s hospitalisation in 2011,[73] which he previously provided in March 2020, the Applicant accepted he had done so. When put to the Applicant that his ability to procure the medical record relating to his father indicated it was possible for him to secure other medical records from Iran relevant to his identity, he responded: ‘I could ask’;
(u)When asked about the templated and perfunctory nature of the statements from his six siblings about their purported inability to obtain White Cards since 2003, the Applicant responded: ‘What else are they supposed to write?’ When put to him that the letters lacked any detail about his identity and life in Iran, the Applicant responded: ‘They don’t have identity, what should they write?’;
(v)When asked about the letter purporting to be from a local government official in [Village B] in Iran,[74] the Applicant said he personally knew the author of this letter. When asked about the inconsistency between the village the letter claimed the Applicant resided in for 30 years between 1980 and 2010, and a different village consistently identified in his Australian immigration documents,[75] the Applicant attributed this to a mistake made by immigration officials and interpreters in 2010: ‘It’s not my fault. This is the way they heard it and tried to write it.’ The Applicant agreed it was his signature on immigration documents, that he attested to the information being complete and correct, and that he read and understood it. He claimed friends assisting him with forms in later years perpetuated the mistake about his home village by relying on the 2010 information: ‘The person who has filled in this form for me said everything is correct and I signed it.’ The Applicant insisted he had lived in [Village B] instead of [Village A] all his life; and
(w)The Applicant accepted he signed a Statutory Declaration given to him by Gold Migration Lawyers that contained incorrect information, claiming the mistakes arose from miscommunication: ‘this is a conversation we had in English’ and without an interpreter.
[71] Exhibit A1, [5]-[6].
[72] Exhibit R1, 244-245.
[73] Ibid 198.
[74] Exhibit A2 [17].
[75] Exhibit R1, 107; 144; 164; 170.
Applicant’s evidence: 8 April 2021 hearing

At the 8 April 2021 hearing of his ex-wife’s application, the Applicant adopted his Statutory Declaration dated 12 March 2021 as true and correct. A summary of his evidence follows:
(a)The Applicant said he had known his ex-wife since her birth in their Iranian village of approximately 150-200 people, where everyone knew everyone else.[76] He was older than his ex-wife and after discussions between their families in 2005, a proposal event was organised, which was followed by a verbal marriage declaration by a Mullah and a celebratory ceremony three or four months later.[77] When asked about any documents relating to the marriage, the Applicant responded: ‘The officials won’t issue any marriage certificate’;
(b)The Applicant said he worked as a farmer growing crops and tending livestock in Iran, but on land owned by other people.[78] In other evidence he stated: ‘we as family would work on not only our own land but also other people’s land’[79] (Emphasis added). He said that by providing the seed and labour his family could survive on the proceeds and sometimes also sold livestock. He said that his whole family saved the equivalent of approximately USD$2,000 each year, which depended on seasonal factors. After marriage, he and his ex-wife lived with his parents for about 18 months and then ‘rented a small place’ close to where his parents lived.[80] When asked about any documents relating to leases, the Applicant claimed it was all undertaken verbally, and no documents existed because it was a ‘tiny village and everyone trusted each other’;[81]
(c)When asked if he or his family had purchased land in Iran, the Applicant said they had not, because Faili Kurds were not permitted to. When challenged that his ex-wife had claimed they purchased their own land after marriage, the Applicant denied this, stating: ‘maybe she’s mistaken’;[82]
(d)The Applicant said the village he lived in had a lot of Faili Kurds and the ‘traffickers’ from Tehran were well known in their area. Regarding the arrangements for travel to Australia, the Applicant could not recall how he paid the smugglers, but said the money had come from his own savings, by selling some livestock, appliances, ‘farmlands [he] had planted,’ and by borrowing from his parents and friends;[83]
(e)Even though he and his ex-wife divorced in 2016, they still had a good relationship and he continued to assist her with visa and citizenship applications and pay for her travel and that of their children to Iran. When asked if he had asked his ex-wife for information to complete her travel applications, the Applicant responded: ‘No – I knew everything myself,’ but said he checked with her to make sure he had not missed anything. He claimed that he presented visa application forms personally to the Iranian Embassy in Canberra, stating: ‘they don’t ask questions’;
(f)The Applicant said that after obtaining travel documents from Australia in 2011, their ‘chance of getting prosecuted’ on return to Iran ‘won’t happen.’[84] When pressed about the risks he and his ex-wife had previously relied upon arising from illegal departure from Iran, the Applicant claimed if Iranian authorities became suspicious, they would ‘perform a finger printing test.’[85]
[76] Exhibit A6, 58 [36].
[77] Ibid 58 [41]-59 [4].
[78] Exhibit A6 73 [15]-[19].
[79] Exhibit R1, 35 [21]-[22].
[80] Ibid 69 [15].
[81] Ibid 70 [26]-[29].
[82] Ibid 74 [1]-[9].
[83] Ibid 69 [41]-[47].
[84] Ibid 71 [18]-[19].
[85] Ibid 72 [1]-[2].
Country Report - Iran
The Tribunal has considered a Country Report for Iran dated 14 April 2020, published by the Department of Foreign Affairs and Trade (DFAT). This is considered a source of authoritative and reliable information. In relation to birth certificates, identity cards, and Faili Kurds, the DFAT Report states at paragraphs 3.25 – 3.26 and 5.32 – 5.37:
Faili / Feyli / Iraqi Kurds
…
3.25 Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates (see Refugees and Undocumented Afghans). Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons de-naturalised by the former government have their Iraqi citizenship restored). DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran.
3.26 Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
…
5.30 International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims…In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.
Birth Certificates (Shenasnameh)
5.32 Birth registration is compulsory and must occur within 15 days of birth. Hospitals issue birth certificates for newborn children. The certificate includes the parents’ national identity card and shenasnameh numbers, and, where the parents have settled on one, the newborn’s name. Parents then submit the birth certificate along with their own national identity card or shenasnameh to the local ONOCR, which then issues the child’s shenasnameh (the ONOCR is the sole issuing authority for shenasnameh). Where a child is born at home, a doctor’s note stating all of the particulars of the birth is required for a birth certificate and subsequent issuing of a shenasnameh.
5.33. The shenasnameh itself is a small passport-style book issued to all Iranians. The first page is the inside of the cover page and includes the bearer’s fingerprint. The second page contains a photograph (for bearers over the age of 15), the names of the bearer’s parents, the date and place of birth, the location where the shenasnameh was issued, the name of the issuing officer and a serial number. The third page contains information on the bearer’s marriage(s), divorce(s) and children. The current style of shenasnameh was introduced in 2013.
5.34. To obtain a replacement shenasnameh, a person must attend the national ONOCR and produce an official identity document (such as a passport or national identity card) that confirms their identity. An affidavit of identity must also be presented. The replacement shenasnameh features a diagonal printing across the centre of all pages stating ‘duplicate’, and a new date of issuance.
…
National Identity Cards
5.35 Every permanent resident of Iran over the age of 15 (including non-citizens) must hold a national identity card. National identity cards are compulsory for a range of activities, including obtaining passports and driver’s licences and using bank services. ONOCR initially issues applicants with temporary cards upon receipt of a completed application form, an original copy and photocopy of all pages of the applicant’s shenasnameh, and two photographs. Applicants must present all of this documentation in person at either a local branch of the ONOCR or an Iranian diplomatic mission abroad. Applicants’ fingerprints are also taken. The ONOCR then issues a permanent card with a 10-year validity. The front of the national identity card includes the bearer’s photograph, national identity number, full name, date of birth and shenasnameh number. The reverse features the bearer’s residential numerical code, validity date and the numerical identifier of the issuing office. National identity cards do not specify the bearer’s religion. National identity cards are biometric. The ONOCR is the issuing authority.
5.36 There is no requirement for Iranians to carry either or both of their shenasnameh or national identity card at all times. They are required only when it is necessary to prove identity — not having them will prevent individuals from being able to complete their business. Different offices require different forms of identification: banks require only a national identity card, while notary public offices require both a national identity card and shenasnameh. Iranians generally check with offices ahead of time to see which form of identification is required, or carry both as a means of security.
In 2015 DFAT published a report that elaborated on the registration of Faili Kurds in Iran, which stated in part:
Over the years, refugees in Iran have been issued with different types of registration documents including the so-called blue, green and white refugee registration cards. The UNHCR reported that Feyli Kurds who arrived prior to 1979 were mainly issued with white cards, while the majority of those who arrived in the 1980s received green cards. In 2002 the majority of Iraqi refugees residing in Iran were registered during a comprehensive registration programme referred to as Amayesh registration. From 2002-3 the Amayesh scheme had replaced previous refugee registration processes, becoming the sole system through which a refugee status could be renewed.
Refugee registration cards (or ‘temporary resident cards’), referred to as Amayesh cards, are renewed annually. Amayesh registration enable refugees to access basic services and work permits, and contain information about the town and province the card holder is permitted to reside in. Children born to Amayesh card holders are also generally issued with Amayesh cards. To renew an Amayesh card, refugees are required to pay municipal taxes and a card renewal fee. Amayesh cards are renewable provided that the relevant conditions, such as the payment of municipal taxes, are met.[86]
…
[86] Department of Foreign Affairs and Trade, “Feyli Kurds – obtaining identity travel documents”, DIBP Tehran, 17 September 2015, CISEC96CF13392.
DFAT assessed in 2015 that:
It is probable the majority of Faili Kurd refugees in Iran are registered and have Amayesh (refugee registration) cards. DFAT has observed that many Faili Kurds are able to produce Iranian nationality documents when pressed, for example when applying for family visas to Australia.[87]
[87] Ibid.
DFAT published the following information in 2016:
…it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. DFAT agrees with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visa. Additionally, many Iranians travel to Turkey where there is no visa requirement for Iranians and from there travel onwards using forged documents. Forged visas or visas obtained through false information are common but exit from the Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved.[88]
CLOSING SUBMISSIONS
[88] Department of Foreign Affairs and Trade, Country Information Report Iran (21 April 2016).
Applicant
Mr Diznab cited several citizenship-identity application cases previously set aside by the Tribunal, in support of the contention that the Applicant’s citizenship refusal decision should also be set aside. These included: Dhayakpa v Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa); Mohsin v Minister for Home Affairs [2019] AATA 1999 (Mohsin); MDQK and Minister [2020] AATA 2576 (MDQK); and LHSM and Minister [2020] AATA 4654 (LHSM). Mr Diznab also cited a 2016 Canadian document during closing, which he did not refer to during the hearing, in support of the proposition that counterfeit documents could easily be procured on the Iranian ‘black market’ and although it would be ‘high risk’ to exit an Iranian international airport with fraudulent documents, the consensus view was that it was ‘not impossible.’
Mr Diznab cited paragraph 4.15 of CPI16 in support of the proposition that one pillar of identity ‘can be given more weight than others’ if an Applicant is stateless. He said the Applicant ‘has continued to seek out any documents to establish his identity’, his life story was credible, and the citizenship refusal decision should be set aside.
Respondent
Mr Orchard said the citizenship refusal decision should be affirmed because the Tribunal could not be satisfied of the Applicant’s identity. He said there was a lack of clear documentary evidence from the Applicant to establish his identity prior to arrival in Australia, and inconsistencies in his life story.
Mr Orchard said the documents provided by the Applicant were of ‘no material value’ in that collectively they ‘don’t paint a clear picture of who he is’. He said the Applicant had been unwilling to provide statements from family and friends about his life prior to arrival in Australia, and the online news reports he relied upon were non-authoritative and should not be preferred to the DFAT Report. Mr Orchard said the Applicant’s latest claim about the village he grew up in for 30 years was inconsistent with that recorded in his documents since arrival in Australia. He said the Applicant’s claim that others caused this mistake and he signed documents without knowing the accuracy of the contents, should be of considerable concern to the Tribunal. Mr Orchard said this undermines other information recorded from the Applicant over the years and the Tribunal could no longer have confidence in the Applicant’s original documents that were said to have suffered from these mistakes. He said there was no evidence from the local government official in Iran about how he knew the exact years of the Applicant’s arrival and departure from Iran, and if records existed that supported this information, they were not provided.
Mr Orchard said the Applicant’s evidence at the April 2021 hearing about having ‘no documents’ was inconsistent with his recent provision of documents, including the 2007 farm lease agreement which he claimed to have only remembered after the last hearing. Mr Orchard said if the Applicant was entirely undocumented as he claimed and therefore prevented from owning land and a range of other everyday things denied to Faili Kurds, his lease of a farm would have been at the forefront of his recollection. Mr Orchard said there was no mention of the land lease activities referred to at the current hearing in the Applicant’s citizenship application. It was also unexplained why the landowner in question, from whom there was no evidence, would have retained a lease document from 14 years ago. Mr Orchard said there had been starkly different accounts about land ownership in Iran between the Applicant and his ex-wife, with the latter stating they purchased land together after marriage. He said the ex-wife’s evidence should be preferred, because it was spontaneous and under oath, whereas the Applicant had difficulty recalling the circumstances of his farming and lease activities.
Mr Orchard said the Applicant’s use of a fraudulent Iranian licence to secure a Victorian licence demonstrated his willingness to turn to document fraud and mislead government agencies. He continued to use the fraudulently acquired licence as a base identification document in Australia, which demonstrated a continuing ‘willingness to deceive.’ Mr Orchard said aspects of the Applicant’s evidence were implausible, such as forgetting that his child was born in an Iranian hospital, yet had deliberately provided two different accounts at two different times in his evidence about the circumstances of his son’s birth. Moreover, and notwithstanding the Applicant’s circumstances and claimed fears of harm if returned to Iran, he voluntarily returned there within a year of arriving in Australia and being granted protection, using his own name in a Titre de Voyage. He also secured multiple extensions of his visa in Iran during a five-month stay and claimed he and his ex-wife were fingerprinted by Iranian authorities without any consequences. Mr Orchard said the ‘more likely story’ was that the Applicant, his ex-wife and child were and are of ‘no interest’ to Iranian authorities.
Mr Orchard concluded there was no explanation as to why a White Card was not issued to the Applicant or his family after 2003 and the DFAT Report disclosed that this was ‘not common.’ When the Applicant’s lack of documents to establish his identity in Iran were considered with inconsistencies in his evidence, Mr Orchard said the Tribunal should not be satisfied of his identity.
CONSIDERATION
Receiving an Australian certificate of citizenship is a significant privilege bestowing considerable rights and obligations. The strict emphasis on establishing identity as a precondition to granting citizenship, differs significantly from the refugee assessment process, which focusses on the satisfaction of protection criteria. The focus on identity in citizenship applications is particularly important because it links to the acquisition of other valuable identity documents like a passport and potential entitlement to taxpayer-funded benefits. Australian citizens can vote, depart and return to Australia at will, and apply for certain employment positions. Thorough assessment of identity claims is therefore inexorably linked to the integrity of Australian citizenship.
The Tribunal has considered the cases relied upon by Mr Diznab, who submitted that two of these, MDQK and LHSM, involved Faili Kurd citizenship applications. The Tribunal has no equivalent to the doctrine of stare decisis or judicial comity. Each case is considered afresh and turns on its own facts. Moreover, the cases relied upon by Mr Diznab are distinguishable on their facts. For example:
(a)The Applicant in MDQK was a Faili Kurd who arrived at Christmas Island via a people smuggler’s vessel in 2010, and returned to Iran, albeit for a brief period. Unlike the Applicant, however, he was issued Green and White Cards in Iran, attended university, and was involved in a union. He moved between Iraq and Iran. A transcript was provided of part of his academic record and one of his professors from university tendered a statement and gave oral evidence at the hearing. A statement was also provided from a person who lived with the Applicant in a refugee camp prior to his arrival in Australia. The Applicant in MDQK was found to have given a consistent life story;
(b)The Applicant in LHSM was a Faili Kurd who arrived at Christmas Island via a people smuggler’s vessel in 2010, although his wife travelled to Indonesia on a valid Iranian passport. Unlike the Applicant, he was issued with Green Cards and White Cards by Iranian authorities and travelled between Iran and Iraq. His Iranian-born wife became an Australian citizen and the Applicant lived in Australia with her, their children, his mother and his siblings. His wife gave evidence at the hearing. The factual matrix included members of LHSM’s family moving between Iran and Iraq and it was contended by the Respondent he was the holder of a genuine Iraqi passport and had a sibling who was an Iraqi citizen, who possessed an Iraqi marriage certificate, citizenship certificate and Iraqi national ID; and
(c)In Mohsin, another case cited by Mr Diznab, the Applicant was an Afghan citizen and did not claim to be stateless. He arrived in Australia from Afghanistan with his sister who was his guardian. Both his brother and brother-in-law gave evidence at the hearing and documents including translated copies of his Taskera, Afghan passport, and statements from his brother, sister, and brother-in-law were tendered into evidence. Unlike the Applicant in the present matter, Mr Mohsin had documentation establishing his identity prior to arrival in Australia. This was corroborated in the cross-examination of his family members, which the presiding Member noted was ‘both consistent and unshaken.’[89]
[89] Mohsin v Minister for Home Affairs [2019] AATA 1999, 44.
Biometric data

No biometric data was available in this matter, which would have been of limited use in any event. That is because there are no reliable identity documents preceding the Applicant’s arrival in Australia, to enable a comparative assessment with any biometric data recorded since his arrival.
Documents
In terms of documents, the Tribunal accepts they are not legally essential when determining identity, but it is reasonable to consider whether they are available and what an applicant has done to procure them. Despite the Applicant’s past claims that he had no documents, he now says some have been in his possession or were otherwise accessible but have only recently been produced. He also accepted during the current hearing it may be possible for him to procure other records in Iran, which he has not previously attempted to do.
The Tribunal has residual concerns about how some of the documents recently provided by the Applicant were sourced, which are not alleviated by his explanations. This includes:
(a)It remains unclear from the Statutory Declaration of Mr Pang, how the Applicant was able to produce a translated copy of his Green Card in support of his citizenship application in 2016,[90] if it had previously been returned to ‘Iranian authorities.’ This conflicts with other evidence, including that an expired Green Card, purportedly belonging to the Applicant, was located during a luggage search by Australian border officials after his ex-wife returned from a visit to Iran in 2016;
(b)It remains unclear to the Tribunal why Iranian officials would retain expired Green Cards for the Applicant’s parents and siblings from almost two decades ago and provide these recently to his family, but be unwilling to provide any explanation about why their identity documents have not been renewed during the same period. There is a dearth of evidence from the Applicant’s siblings about how these expired cards were procured, except for very brief and templated statements. It remains unclear to the Tribunal why these statements did not encompass more specific information relevant to the Applicant’s background and identity;
(c)The Applicant produced an incomplete farm lease document from 2007 without evidence from whoever procured it for him in Iran, or explanation about which ‘archive’ it was procured from, or why the lessor had retained it for the last 14 years. It remains unclear why there is no evidence from the lessor about their relationship with the Applicant, which may help establish his identity;
(d)Notwithstanding the Applicant’s explanations, it remains unclear to the Tribunal why he has only recently provided an education certificate that he claims was issued to him almost thirty years ago. Moreover, his oral evidence about 12 years of schooling and gaining a diploma, sits uneasily with his evidence on arrival in Australia that Faili Kurds ‘were not allowed to be educated;’
(e)It remains unclear to the Tribunal what village the Applicant lived in during his life in Iran, notwithstanding the letter he has recently produced purporting to be from an Iranian official in [Village B]. The Applicant said he personally knew the official, who could have provided more comprehensive evidence about the Applicant’s background and identity but did not. The information in this letter about the Applicant’s village of residence in Iran for 30 years also conflicts with information previously recorded by Australian immigration officials with the assistance of translators. The Tribunal does not accept the Applicant’s explanation that this is the mistake of others who misunderstood him. He has consistently signed immigration documents to the effect that they are complete, correct, and he read and understood them. The Applicant’s evidence about signing Statutory Declarations and forms presented to him by lawyers and friends, which he was not certain were true or complete, reflects a concerning recklessness and tendency to blame others. This further diminishes the Tribunal’s confidence in his identity claims;
(f)The Applicant previously used a false Iranian driver’s licence to procure a licence from VicRoads. He has subsequently used that fraudulently acquired licence during the last decade, including for identification purposes. His use of false documents in Iran and after arrival in Australia, coupled with the absence of evidence to confirm the provenance of the documents he has recently provided, do little to support the Tribunal’s confidence in the veracity of those documents or the Applicant’s identity. The Applicant’s attempts to justify retention of the fraudulently acquired Victorian licence do him little credit and any intention he may have about reporting this fraudulent transaction to VicRoads is yet to be acted upon.
[90] Ibid, 172-173.
In the absence of biometric evidence and scarcity of documents, attention necessarily turns to a person's life story. Again, this may not be entirely consistent for a variety of reasons and minor deficiencies or inconsistencies should not attract undue focus.
Life Story
The totality of the evidence discloses significant inconsistencies since the Applicant’s first contact with Australian authorities in 2010, which are not persuasively ameliorated by his explanations. These include:
(a)The expert evidence refers to well-established identity documentation processes and a comprehensive registration program by Iranian authorities since 2002-2003 to document refugees within its borders. DFAT states that White Cards (or Amayesh cards) are issued to refugees regardless of 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. DFAT also states at 3.170 of the Country Report that it is ‘unable to verify if a registered refugee has had their Amayesh card confiscated or been denied re-registration. If such a practice exists, it is unlikely to be common.’ The Applicant’s evidence is that he and his family were never issued identity documents after 2003, without explanation from Iranian authorities. While significant weight is placed on the DFAT Report as a reliable source of information, the Tribunal accepts a proportion of Faili Kurds have remained unregistered;
(b)The Applicant has not provided any documentation from the Iranian government to his family that either records denial of White Cards, or corroborates their repeated enquiries about this over the last two decades. This appears inconsistent with his recent evidence that his siblings were able to source copies of their long-expired Green Cards from almost twenty years ago from the same authorities;
(c)The Applicant’s evidence since arrival in Australia records him living in [Village A] for 30 years from 1980 until 2010. In a document he produced dated 9 June 2020 and purporting to be from a local government official he knows in Iran, it states the Applicant instead lived in a village with an entirely different name during this period. When challenged about the discrepancy, the Applicant attributed this to the immigration officials and interpreters who took his statement at Christmas Island in 2010 and purportedly ‘wrote the village in the wrong way.’ He claimed the wrong village reference was subsequently repeated in other immigration forms prepared by friends, which the Applicant signed without correcting. The Tribunal found his claims unpersuasive in circumstances where the information in 2010 was recorded with the assistance of interpreters. There is a substantial difference between the names of the two villages, which belies his suggestion this arose from misinterpretation. The Applicant has never corrected this error during his decade-long stay in Australia and has consistently attested the information he provided was ‘complete, correct, and up to date in every detail.’ He also signed to the effect that he had read and understood the documents he has submitted;
(d)The Applicant’s ex-wife stated in her evidence that she and the Applicant worked on family-owned land for a time after their marriage, and then ‘managed to purchase separate land so that we could work it for ourselves.’ She said they sold this land to fund their travel to Australia. The Applicant contradicted this, stating he never owned land and his ex-wife was mistaken. He attempted to explain this mistake as due to his ex-wife’s sickness and advanced pregnancy when giving evidence last April, which the Tribunal rejects. The Tribunal considers it remote and implausible that the evidence of the Applicant’s ex-wife about their land ownership and sale was mistaken, given it was sworn evidence given in a forthright manner and from her personal knowledge;
(e)The Applicant stated in previous documentary evidence that he worked as a farmer for others and had a constant fear of being caught by Iranian inspectors for working illegally. In another document he claimed to have worked on a farm as a contractor and casual farm worker.[91] In his oral evidence last April, he stated there is no such thing as real estate and ‘no documentation,’ and that leases were all done through ‘verbal discussion’ because ‘everyone trusted each other.’ In contrast, his oral evidence during the present hearing is that he leased farms on approximately six occasions. Contrary to his previous ‘no documentation’ submission, he also claimed to have remembered the existence of a farm lease agreement after the April 2021 hearing. His explanation about how he sourced this document remains unclear and there is no evidence from the relative he claims secured the lease agreement for him, or what ‘archives’ the Applicant is referring to, or evidence from the lessor about why he retained an expired lease document for 14 years, relating to someone who left Iran over a decade ago. The Tribunal also notes that the farm lease document refers to ‘Page 2 of 6’ without the other pages being included. When asked about this at the hearing, the Applicant said the missing pages contained ‘general material’ that his family ‘didn’t find necessary to send.’ The Tribunal places little weight on this incomplete document of unconfirmed provenance. It is noteworthy that in contrast to the Applicant’s inconsistent evidence about his work activities and the existence of lease documents, the evidence of his ex-wife, which the Tribunal prefers, is that they worked on family-owned land, then bought their own, and sold it to help fund their travel to Australia;
(f)The Applicant claimed in a previous letter to the Department that his son was born at home because of the disadvantage suffered by Faili Kurds. During the Applicant’s ex-wife’s hearing last April, she and the Applicant disclosed their son was born in an Iranian hospital, but they had not taken steps to try and procure a document relating to the birth. The Applicant’s ex-wife stated it was the Applicant ‘who managed to find that hospital through some connections he had.’[92] Again, this was sworn evidence given in a forthright manner and the Tribunal has no reason to doubt it. The Tribunal considers it implausible that the Applicant forgot where his son was born, given the very specific nature of his previous claim that their child had to be born at home because of disadvantage suffered by Faili Kurds;
(g)The Applicant said birth certificates are only issued to children born in Iranian hospitals if the parents have Iranian birth and marriage certificates. He relied on an online media report from three years ago as authority for this claim, which is considered to have little probative value in terms of official Iranian Government policy. Given the evidence of the Applicant and his ex-wife, it may be open for them to source a letter from the hospital relevant to their child’s birth information, including their details as parents. It may also be possible, as the Applicant accepted during the hearing, for him to procure other medical records relevant to his identity;
(h)When asked about DFAT’s references to robust security procedures at Imam Khomeini Airport, the Applicant insisted “going through was done easily.” In response to a question from Mr Diznab about DFAT’s reference to exit procedures in Iran being difficult to abuse, the Applicant disagreed. The Tribunal accepts it is not impossible, but appears a high risk undertaking to depart an Iranian International Airport using false documents. The Tribunal places greater weight on the DFAT Report than the Applicant’s claims about the security procedures on exiting and re-entering Iran. There is no evidence before the Tribunal about the comparative difficulty of international entry and exit procedures at Imam Khomeini Airport prior to and after the introduction of more sophisticated passport procedures in 2012. The Tribunal also places no weight on the Applicant’s claims about what Iranian consular officials in Australia or immigration officials in Tehran look for when considering visa applications or visa extension applications, which was absent any corroboration. In response to questions, the Applicant accepted he has no expertise in this area;
(i)The Tribunal places no weight on the Applicant’s claims that he was considered a “foreign national” when returning to Iran within a year of departing on a purported false Iranian passport. There is no persuasive basis to accept his evidence that Iranian border officials considered his Titre de Voyage to reflect Australian nationality. The Applicant’s ex-wife and child’s details clearly indicate they were born in Iran, giving rise to potential questions about why they were travelling on a Titre de Voyage, with no record of departure from Iran. The Tribunal makes no definitive finding about this, but considers it more likely that these circumstances had the potential to attract the attention of Iranian officials, rather than cause the Applicant and his family to be waved through a foreign nationals line at the airport as he contends;
(j)The Applicant’s claims on arrival in Australia that he would be persecuted by Iranian authorities if he was somehow able to return and faced a ‘lifetime in jail’ or being ‘killed’ because of his illegal departure, sit uneasily with his subsequent conduct. Within a year of arriving in Australia and being granted protection, he coordinated travel visas with Iranian consular officials in Canberra and returned to Iran with his then-wife and child for five months. In his April 2021 evidence the Applicant did not refer to applying remotely for Iranian visas from consular authorities in Canberra in 2011, as he did at the present hearing. The collective effect of his and his ex-wife’s evidence is that he visited Iranian consular officials in Canberra in 2011, 2013 and 2016 to facilitate his family’s return travel to Iran;[93]
(k)While in Iran in 2011, the Applicant travelled to Tehran to seek an extension of his stay from Iranian authorities. His evidence about whether Iranian officials approved his visa extension as stated in previous documentary evidence, or a travel agent he paid did it as stated orally at the present hearing, provides no basis for a reliable conclusion. The Applicant’s return to Iran in 2011, and subsequent visits undertaken by his wife and children in 2013 and 2016, sits uncomfortably with the identity of a Faili Kurd fearing persecution, death or imprisonment on return to Iran as a result of their illegal departure. The Tribunal is unpersuaded by the Applicant’s claims that an Australian Titre de Voyage substantially removed his fears about the risks of returning, because this is not evidence of Australian nationality. Similarly, the Applicant’s claim that he ‘did not have an issue with the Iranian Government’ is at odds with his previous claims about the Iranian Government’s repression of his ethnic minority, persecution of himself and his family, and claimed fears that Iranian authorities would kill or imprison him for life if he returned to Iran; and
(l)The Applicant has consistently said in the past that ‘No other document has ever been issued’ except for his Green Card that expired in 2003.[94] Contrary to that claim, he has more recently produced other documents. This includes one purportedly relating to his education dated 1995. He also produced a farm lease document from 14 years ago, despite giving evidence last April that no documents were available for such transactions. He has recently provided copies purporting to be of his siblings’ expired Green Cards from 2002, and a letter from a local government official he claims to know in Iran confirming his 30-year residence there, albeit in a different village to the one previously recorded in his Australian immigration documents. Again, there is no evidence from those who sourced these documents or why almost 20-year-old Green Cards were retained by Iranian authorities. The Applicant simply says his family members procured them from a ‘government extension’ in May 2020.
[91] Exhibit R1, 165.
[92] Exhibit A6, 43 [12].
[93] Exhibit A6, 76 [23] and following.
[94] Exhibit R1, 39, 143; 146.
The Tribunal considers it implausible for the Applicant to have spent so long living in Iran, where he purportedly attended school for 12 years, worked extensively in agriculture, married, had a child, and lived in the same family and village environment, to have so little to show in terms of documents and other secondary evidence to corroborate his identity.
The Tribunal is also concerned about the Applicant’s evidence that he previously signed Statutory Declarations presented by his lawyer, and other immigration documents prepared by friends, without proper regard for the contents being true and correct. Signing a Statutory Declaration constitutes agreement that the information is true, and people can be charged with a criminal offence if this is not the case. The Tribunal is also concerned by the Applicant’s claim that fundamental details, such as the village he lived in for 30 years in Iran, were incorrectly recorded in multiple documents raised after his arrival in Australia, and which he has failed to correct during the past decade. This casts further doubt on the veracity of his life story and other details recorded in those documents.
It is for an Applicant to provide documentary evidence relevant to establishing their identity,[95] or to explain what reasonable efforts have been taken to obtain it. The Tribunal is unconvinced the Applicant has exhausted all avenues to procure more persuasive identification documents. Mr Diznab submitted in closing the Applicant has ‘continued to seek out any documents to establish his identity.’ The Applicant’s evidence during the hearing, however, was that he was unaware statements from his family, friends, employees, hospitals and others in Iran would assist him, but believes he may be able to source such information. Given his mother, siblings and other relatives and friends still live in Iran, it remains unclear why the Applicant did not call some as witnesses at this hearing or provide more expansive statements relevant to his ancestry and life story. This sort of corroborating material relevant to identity may assist a future citizenship application.
[95] CPI16 [4.12].
The templated letters purporting to be from his siblings could have been part of his life story, but these only refer to the handing in of Green Cards and subsequent denial of replacement White Cards. The Applicant’s ex-wife in Australia, and the authors or providers of the other documents he recently produced from Iran, were not available for cross-examination regarding the provenance of the documents or how they were obtained, or why they were retained by Iranian officials, who have otherwise caused the Applicant and his family to purportedly remain undocumented for almost two decades.

The Applicant used a false passport when departing Iran, a false Iranian licence to secure a Victorian Heavy Vehicle licence, and subsequently used the Victorian licence as a source identity document for the last decade. Such conduct reflects a willingness to deceive. When coupled with the unexplained inconsistencies previously highlighted, this casts doubt on the Applicant’s overall evidence and identity claims.
CONCLUSION
It is for an applicant to provide documentary evidence relevant to establishing identity,[96] or explain what reasonable efforts have been taken to obtain it. Decision-makers are expressly precluded by s 24(3) of the Act from granting citizenship unless satisfied of an applicant’s identity. The Applicant has failed to provide persuasive documentation establishing his identity prior to arrival in Australia, while agreeing there may be other documents he could access through family and others in Iran, to establish his identity more persuasively. There are also continuing concerns about significant inconsistencies in his life story.
[96] CPI16 [4.12].
The Tribunal is not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act. Accordingly, the prohibition under s 24(3) of the Act applies and the citizenship application must not be approved.
DECISION
The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

................................[sgd]........................................
Associate
Dated: 3 August 2021

Date of hearing: 13 and 14 July 2021

Advocate for Applicant: Mr Ramtin Diznab

Solicitors for Applicant: Gold Migration Lawyers

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

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

Date of hearing:	13 and 14 July 2021
Advocate for Applicant:	Mr Ramtin Diznab
Solicitors for Applicant:	Gold Migration Lawyers
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers