Najad and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 1299

Najad and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1299 (31 May 2024)

Division:GENERAL DIVISION

File Number:          2022/0470

Re:Shahpoor Esa Najad

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:31 May 2024

Place:Melbourne

The decision under review is set aside. In its place, the matter is remitted to the Respondent under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 with the directions that (1) the prohibition in s 24(3) of the Australian Citizenship Act 2007 does not apply to the Applicant and (2) that the Applicant satisfies s 21(2)(h) of that Act at the time of this decision.

.........................[SGN]...............................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicant is a Faili Kurd born in Iraq – applicant was granted a protection visa – applicant applied for Australian citizenship by conferral – irregularities in information provided by applicant – delegate of Minister not satisfied of applicant’s identity – delegate additionally not satisfied applicant was of good character – consideration of legislative provisions – evidence of applicant in Australia – tribunal satisfied as to applicant’s identity – tribunal’s assessment of good character must be contemporary – tribunal satisfied applicant of good character – decision under review set aside and new decision substituted remitting the matter with directions to the Respondent

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

GJDB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re [2023] AATA 3245

Secondary Materials

Convention relating to the Status of Refugees (done at Geneva 28 July 1951). Entry into force for Australia and generally, 22 April 1954. ATS (1954) 5

Revised Citizenship Procedural Instructions (CPIs) – CPI 15 – Assessing Good Character under the Citizenship Act – CPI 16 – Assessing identity under the Citizenship Act.

REASONS FOR DECISION

Senior Member D. J. Morris

31 May 2024

1. The Applicant, Mr Shahpoor Esa Najad, has asked the Tribunal to review a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) who on 22 December 2021 refused to approve Mr Esa Najad’s application for Australian citizenship by conferral. The delegate was not satisfied of Mr Esa Najad’s identity so decided that s 24(3) of the Australian Citizenship Act 2007 (‘the Act’), which prohibits the grant of citizenship where identity is not established, applied. The delegate further was not satisfied that the Applicant was of ‘good character’ at the time of the decision, for the purposes of s 21(2)(h) of the Act.

   HEARING

2. The hearing was held on 5 January and 2 February 2024 by video link under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr Navid Baghi of Amity Lawyers represented the Applicant. Mr Keith Sypott of The Australian Government Solicitor represented the Respondent. The Applicant gave evidence. Mr Glenn Saddler, the manager of his employer, and Ms Helen Paterson, the proprietor of his employer, also gave evidence. An interpreter of the Persian language assisted the Tribunal.

3. The Tribunal admitted into evidence the exhibits listed in the annexure to these reasons. In addition, the Tribunal had regard to Statements of Facts, Issues and Contentions provided by both parties.

4. At the conclusion of the hearing, the Tribunal reserved its decision. For the reasons that follow, the Tribunal has decided to set aside the decision under review and remit the matter to the Respondent with directions.

   BACKGROUND OF APPLICANT

5. The Applicant was born in Baghdad and is aged 53. He arrived in Australia in April 2010 as an irregular maritime arrival. On his arrival he gave the following information to the Minister’s Department. He said he was a stateless Faili Kurd and a practising Shi’a Muslim. He said that he and his family were forced to leave Iraq by the government when he was three months old because they were ‘not Iraqi’.

6. He said that he paid 9 million toman to come to Australia, via Dubai and Jakarta, using a false passport. He said he feared returning to Iran, because he did not have Iranian citizenship, he thought he would be ‘captured,’ and he had ‘no identification rights’.

7. A statement of claims was subsequently prepared by Mr Esa Najad’s then representative which contained the following information. It reiterated that he was a stateless Faili Kurd. It stated that he worked for his father as a farmer in Iran and also was employed as a carpenter and labourer. The statement said he never had any travel or identity documents and that his father, who will be called VEN, and his mother, KK, were both stateless residents of Iran.

8. In August 2010, the Applicant’s refugee status assessment was concluded with a finding that he did not meet the definition of a refugee within the meaning of the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (‘the Convention’).

9. In January 2011, an independent merits review assessor recommended that Mr Esa Najad be recognised as a person to whom Australia owed protection claims under the Convention. The Applicant subsequently applied for, and was granted, a protection visa.

10. In June 2015, Mr Esa Najad applied for Australian citizenship by conferral. He provided a statutory declaration with his application declaring that he was a stateless Faili Kurd and that he did not have a birth certificate. He was asked for further information by a delegate of the Respondent and, in response, provided a further statutory declaration in April 2017 repeating that he did not have a birth certificate and, because of this, could not open bank accounts.

11. In September 2019, a delegate of the Respondent requested documentary evidence of the Applicant’s identity from either Iraq or Iran. The delegate referred to information held by the Minister’s Department that suggested Mr Esa Najad had a paternal relative in Australia who had provided evidence of his Iranian citizenship and suggested that it was therefore ‘highly likely’ that the Applicant was also an Iranian citizen.

12. In December 2019, Mr Esa Najad provided a certified copy of an Iranian driver licence and a statutory declaration in which he declared as follows. He said that VEN and KK were not, in fact, his biological parents and VEN is his paternal uncle. He said that he had referred to VEN and KK as his ‘parents’ because they had raised him. He said that his biological parents had been killed in an accident when the Applicant was aged five or six, when he was taken in by his uncle’s family.

13. Mr Esa Najad said that VEN obtained a letter from the local village chief testifying that he was VEN’s son, and this letter was used to obtain a birth certificate, in which VEN and KK were listed as his parents. The Applicant said he did not disclose this previously, as without any documentary evidence of his biological parents, he ‘thought at the time it would be too difficult to explain the details’.

14. He further said that his family and extended family have always been involved in political activities and that some family members were executed by the Iranian government. He said he was arrested and tortured during protests in 2009 and his brother continues to be involved in protests against the government. He said he left Iran on an Iranian passport with his ‘correct details,’ but that people on the boat to Australia told him to say he was a stateless Faili Kurd so he could get a visa, which he did, because he feared being deported.

15. The Applicant said he did not tell the truth earlier because he feared the consequences and, while he did not intend to mislead the Department, he was ‘under the influence of the wrong people’.

16. In response to an invitation from a delegate who was concerned about Mr Esa Najad’s identity and whether he could be assessed as being of ‘good character’, the Applicant in January 2020 provided copies of his Iranian birth certificate and national identity card, with translations, and a further statutory declaration in which he asked the Department to ‘disregard all information’ he had provided before December 2019. He confirmed he was a ‘documented Iranian citizen’.

17. On 22 December 2021, a delegate of the Minister refused the application for citizenship.

    ORAL EVIDENCE

    The Applicant

18. The Applicant confirmed his place of birth as Baghdad, that he is of Kurdish background and aged three months was ‘deported’ from Iran to Iraq.

19. He said he does not have any memories of his biological parents, because they died when he was of an early age. He said he was raised by VEN and KK. When asked whether he was always aware that VEN was not his biological father, the Applicant replied, “No, I realized afterwards,” and in response to a direct question from the Tribunal said he knew about the age of 13 and 14 that he and his sister were of different parents.

20. He said that he regards VEN and KK as his parents. VEN died five years ago, but he said he still refers to him as his father.

21. When asked how he obtained his Iranian birth certificate, Mr Esa Najad said, “I can only explain what I have heard, because I was too young. My father knew someone in the village where we lived. He got elders to sign a letter certifying who the children are and according to that petition, we got the birth certificate.”

22. Mr Esa Najad said he did not have any documentation regarding his biological parents. He was asked what he knew about them. He responded, “What I have heard is that my parents were shepherds, tending cattle and sheep in a mountainous area. Sheep and goats go up mountains, but cattle don’t. They say my mother was minding animals. Three people went to a place in the mountains with beehives. They used dynamite and made an explosion. As a result, my father died. My mother came down but died about seven or eight days later.”

23. Mr Baghi asked the Applicant about a statement he obtained from the Public Prosecutor for Ilam Province, He said, “I was about 20 years old then. Of the three people who made the explosion, one had died. The other two had a disagreement. One told the other ‘you killed that person.’ Our relative told that person. I was encouraged to lodge a complaint so that you get what you deserve and your rights. They are now two old men. I realized I couldn’t take old men to Court because of their age.”

24. The Applicant said he had five years schooling. The Iran-Iraq war was underway at the time and the Iranian government erected a tent camp where reading and writing was encouraged in tent classrooms, but no certificate was issued.

25. Mr Esa Najad said he started working aged 11 for a maternal uncle who was a car painter. He said he cleaned up the shop floor. This was seasonal work. He then moved to Tehran and worked in children’s bedding and then in sofas. He said, “After that I worked as a plumber and then installing air conditioning channels, and then on farms building tunnels. I also worked as a builder. I lived with cousins, but they married, and I could no longer live with them. My employer had a garage with a room where I could sleep.”

26. Mr Baghi asked the Applicant if he had siblings. He said he has a brother and had a sister, M. He says his brother is currently caring for KK and his sister, who had an unhappy forced marriage, had after two or three years into the marriage, taken her own life.

27. Mr Esa Najad said he had been imprisoned twice in Iran. On one occasion he said he was in custody for two months and on the other occasion for 35 days. On the first occasion he said he was involved in a fight after someone involved in a religious ceremony had erected a speaker facing his house. He said his father, VEN, was unwell at the time with Alzheimer’s disease and he and his half-brother took the speaker down, which led to the altercation.

28. On the second occasion he said there was a protest regarding a presidential election. Mr Esa Najad said he was watching with a friend while others were protesting and ‘smashing things’. He said, “We went to get away from the protest. Police were waiting. They stopped and arrested us. They insisted we were involved in the protest. We were taken into custody. The following day they brought a van, put us in it with others, we were handcuffed. We were blindfolded for a while and taken to a prison. They put us in a queue. Soldiers came and beat us with batons. There were 50 of us in a small room. I couldn’t lie down. They brought about five or six bottles of water, for all.”

29. Mr Esa Najad said about three or four days before he was released, he was taken to a Court and told he was to be charged for taking part in the protest. The Applicant said he explained where his place of work was and that he did not have a weapon on the day. He told the Tribunal that after three or four days he was released.

30. The Applicant said that after release, he had to sign a commitment that if he was near a protest or arrested for a protest, he had to report to the police. He said he then decided to leave Iran.

31. Mr Baghi asked the Applicant how he left Iran. He said, “I departed using my own passport. I paid 7 or 8,000 [toman] to go to Indonesia and buy a SIM card. I flew to Dubai and from Dubai to Indonesia.”

32. The Applicant was asked what happened to his passport. He said: “When we were getting on a small boat, a guy asked me to hand in my passport. I gave it to him. He was with us for four days. After four or five days, a smaller boat came. They said, ‘give us money or a watch, whatever.’ I handed him my mobile, I had $500 which I did not hand in.” Mr Esa Najad said his passport was never returned to him.

33. After a voyage of 14 or 15 days, they landed in Australia. The Tribunal directly asked the Applicant why he said he was a stateless Faili Kurd on arrival. He replied: “When I was talking to them, a person back in Iran said, when you arrive in Australia, say you didn’t have a passport. I got scared. He said say I am Kurdish and stateless. I made that claim. Thought I might be deported back to Iran. In addition, there were 25 of us in the boat. Some Burmese, one Afghan, the rest of Kurdish background. All were given the same advice. I am sorry about it now.”

34. Mr Esa Najad said he was distressed on arrival and feared he would be deported. “I didn’t know the language. I didn’t know anything. I used some medication I had obtained back in Iran to calm me down.”

35. The Applicant said that apart from his mental health his physical health also deteriorated on arrival. He said, “After a while, I felt sick. I could go to the medical room only once a day. They would give me Panadol. I was coughing blood. After three or four months, I went to hospital for an operation. They found a tumour next to my heart. I had x-rays. It was growing. They said it would cause a stroke if the doctor didn’t operate. I was hospitalised in Fremantle hospital and had an emergency operation.”

36. Mr Baghi asked the Applicant why he did not correct the information about statelessness for as long as he did. He replied, “The main reason is that when I was in the detention centre, I decided to tell them the truth. But all the others advise me I would be deported. I got scared, and didn’t do it.”

37. The Applicant told the Tribunal he has continued to use mental health medication and medication for hypertension. He said he had further surgery at the Royal Melbourne Hospital in 2016 for a tumour affecting a nerve in his neck, which affected the left side of his body.

38. Mr Esa Najad said that after the operation and seeing a psychologist, he felt better and received a letter from the Department inviting him to provide information. “I talked to my manager. They helped me to contact a lawyer. I only had an Iranian driver licence. I received a birth certificate and national ID card.”

39. Under cross-examination, the Applicant said he had thought his mother was born in Iraq but was not sure. He said his parents married in Iraq. He agreed that he moved from Iraq to Iran when he was aged about three months, with his biological parents. He believed his adoptive parents followed shortly afterwards.

40. Mr Esa Najad said he believed his parents did not have any identity documents because they lived in the mountains outside city areas. Mr Esa Najad said that he moved around with VEN and KK when he was growing up and when he was about 16 or 17 he moved to Tehran to live with cousins there, working in a carpentry factory. He said he worked in Tehran for about eight years and then moved away, and returned to his first job aged about 37. He said sometimes he worked in Tehran and sometimes he would go farming for months at a time.

41. Mr Sypott asked Mr Esa Najad whether any death certificates were issued for his biological parents. He said, “No, at the time there was no organisation. There was a village and an elder. There is no tomb – I don’t know where their tombs are.”

42. The Applicant was asked about the Office of Public Prosecutions document. He said he went to the office when he was around 21 years old and there were staff there who wrote statements for illiterate people; they helped him.

43. The Applicant said at the time he was adopted by VEN and KK they did not have any children of their own. Later they did have children, and they had all grown up together. He named two half-brothers and one half-sister.

44. Mr Sypott asked the Applicant about his home life. He said his adoptive father used to beat him for minor infractions. He said VEN used to take medication for a mental condition, and on occasions the Applicant would take some of it himself. He agreed that one of the reasons he wanted to leave Iran was so he didn’t have to deal with his father.

45. The Applicant was asked if there was any particular reason he chose to come to Australia. He said, “I was taken as a non-Iranian citizen in Iran, by which I mean when I worked in a place, people would say I was Iraqi, and I would have to leave.”

46. Mr Sypott took the Applicant to statements he had made about being arrested. He said, “I said I was arrested twice. One was in relation to the speaker. The second one was in the university area. Before all this I was arrested but they didn’t imprison me. Maybe I’ve been arrested more than ten times.” He then clarified that for the majority of these arrests they were all ‘finalised in a night’ and it was only on two occasions that he was actually imprisoned.

47. Mr Esa Najad agreed with the Respondent that some of the things he said in his entry and subsequent interview about not being able to get work in Iran were untrue. He agreed that he wrongly said he did not have identity documents, but also said that despite having documentation, an employer would say to him he was an immigrant and without work rights, and make him move on.

48. Mr Sypott noted that the Applicant said in the second interview in Australia that he did not have any family members involved in political activities. The Applicant responded, “In the early days of the revolution my mother’s cousin was a communist. Another relative was arrested and executed by the Mujahadeen.”

49. The Applicant agreed that he did not mention to the Department that both sides of his family had links to political activities because it might have harmed his chances of being granted a protection visa, and that he had wrongly claimed he left Iran on a false passport.

50. Mr Sypott noted that in his citizenship application, the Applicant described himself as ‘stateless’ and asked if he did that because he was scared of losing his visa. He responded, “Both that factor, and because I had said it from the beginning, I had to continue saying it.”

51. Mr Esa Najad was pressed about why he had told a Department officer that VEN and KK were his parents, when he knew at the time that his biological parents had died. He responded, “Because I know these people as my parents. My biological parents had died when I was about four years old, and I see them as my parents.”

1. Mr Sypott noted that the Applicant listed five siblings. He said that he listed them all because they were members of the household when he grew up. He agreed that only two were his actual brother and sister and the others were cousins. He said, “Up to the age of 14 or 15 I did not know they were my cousins or about the death of my parents. Even now we all call each other brothers and sisters, not cousins.”

2. The Applicant said his sister, M, died when he had not yet turned 18 but in his entry interview he had described her as being in Iran. Mr Sypott asked why he did this, given she had died around 20 years earlier. The Applicant responded, “I don’t know, really. I wanted to make things easier. I just said something. I accept I made a mistake and didn’t say the truth at that time.”

   Mr Saddler and Ms Paterson

3. Mr Saddler and Ms Paterson gave concurrent evidence. Mr Saddler said that the Applicant is an employee under his supervision and has been since 2018. He confirmed and adopted a statement he had made of 28 June 2023.

4. Mr Saddler was asked to described Mr Esa Najad. He responded, “I can’t question his character. He is a good person. Reliable. Doesn’t take sickies. He is hard-working and never late. He gets on with others and works Saturday mornings.

5. Mr Saddler was asked what he knew of the Applicant’s background. He replied, “We’ve had ongoing conversations during lunch breaks together. He has detailed his upbringing and experiences during the Iran-Iraq war, and then went to Ilam Province. I can see he gets very upset. He told me his parents were killed when he was five in an explosion. His version of events doesn’t change at all. I have no reason to doubt him.”

6. Ms Paterson confirmed and adopted her statement. She said she is one of the owners of the business where Mr Esa Najad is employed. She was asked about her views on the Applicant’s character. Ms Paterson responded, “We are a small business on ten acres. I visit all the staff every day. We celebrate birthdays. He is kind and considerate. One of our best employees, and I’ve been in business for 30 years. I gave him a Christmas bonus.”

7. Mr Baghi noted that Ms Paterson had not referred to Mr Esa Najad’s background in her statement. She responded, “No. Some of what Glenn mentioned is common knowledge in the workplace, such as the bombing. The Applicant is a very honest man. Just as an example, I told him that he was due four weeks’ annual leave. He said that he had taken it last year. He didn’t realise he gets four weeks every year.”

8. Ms Paterson explained that the business stores and repairs empty shipping containers for shipping lines, and the Applicant works with marine surveyors to fit liners for container upgrades, sanding floors and undertaking minor repairs to make the containers suitable for reuse.

   CLOSING SUBMISSIONS

9. Mr Baghi said that, in terms of the three pillars of identity, which are referred to in the Citizenship Procedure Instructions, the Respondent has raised no issue in relation to the ‘Biometrics’ pillar.

10. He said that the Applicant’s account of his life as a Faili Kurd is consistent with independent country information relating to Iran and it is reasonable to conclude that Mr Esa Najad does identify as Faili Kurdish. Mr Baghi noted that the Applicant has admitted to providing incorrect information about his citizenship status, and that he has since corrected his family information and explained why he initially provided wrong details.

11. Mr Baghi noted that the incorrect information about his biological parents does not disclose any hidden agenda or provide the Applicant with any advantage; on the contrary it just made things more complex for him. He noted that the Applicant viewed his uncle and aunt as his parents and noted that in his private discussions with Dr Nina Zimmerman, consultant psychiatrist (Exhibit A4), Mr Esa Najad freely referred to VEN and KK as his ‘parents’.

12. Mr Baghi noted that the circumstances leading to the deaths of his parents at the hands of honey thieves setting up dynamite is largely based on what other people have told him. He said that the actions of the Applicant should be viewed through his lack of formal education, the displacement of his family by the Iran-Iraq war and noting the description on his birth certificate of VEN and KK as his parents was consistent with cultural norms where people took on orphaned children relatives.

13. In respect of his character, Mr Baghi said that ‘good character’ spoke of a person’s enduring moral qualities and whether they are likely to respect Australian laws. He said that Mr Esa Najad has acknowledged that he provided incorrect information about his citizenship and family background; he has acknowledged the seriousness of what he did and has expressed contrition. There is no established pattern of bad behaviour and no evidence of the Applicant breaking any Australian laws since arriving in this country.

14. Mr Baghi said it was accepted that a person should not provide false information to the Australian government but that there were mitigating circumstances: the Applicant suffers from mental health conditions and has a low level of education. He was influenced by people smugglers who encouraged him to claim he was stateless, and received the same advice from fellow detainees. His greatest fear was being returned to Iran.

15. Mr Baghi referred to Dr Zimmerman’s diagnosis of the Applicant with PTSD and that he arrived in Australia less than two years after being tortured in an Iranian prison.

16. Mr Sypott contended that the Tribunal should affirm the decision on both bases. He said there have been significant discrepancies in the Applicant’s life story and that he is not ‘stateless’ and nor did he leave Iran on a false passport. Mr Sypott said the Applicant had said he was not involved in political activities against the Iranian government but that the true situation is that some members of his family have been persecuted and others were members of the Revolutionary Guard corps.

17. Mr Sypott submitted that it would have been a simple thing to have explained that VEN and KK were in fact his adoptive parents, and that the Applicant said his sister M was in Iran when in fact she had died many years before by suicide.

    CONSIDERATION

18. The Tribunal’s task in this matter is to decide whether Mr Esa Najad’s application for Australian citizenship should fail on the basis that his identity is not satisfied, and – either additionally or in the alternative – that he is not of good character.

    Identity

19. President Kyrou of this Tribunal in Re GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245 said the following at [8]-[12]:

    8. The word ‘identity’ is not defined in the Act and it does not have a single meaning, as its meaning can vary according to the statutory or other context in which it is used. In some contexts, ‘identity’ may have a broad meaning which incorporates a person’s views of themselves and their cultural attributes. In other contexts, ‘identity’ may have a narrower meaning which focuses exclusively upon physical traits – such as those found in DNA or fingerprints – that are unique to each individual.
    9. Dictionary definitions of ‘identity’ tend to incorporate a spectrum of meanings, including those referred to above. For example, one of the definitions of ‘identity’ in the Oxford English Dictionary is: ‘The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.’ All but the last two words in that definition may be seen to reflect the concept of permanent sameness, whereas the last two words may be seen to reflect a broader concept of outward expression of a person’s character.
    10. In my opinion, s 24(3) of the Act uses the word ‘identity’ in the sense that the person seeking citizenship is the human being that they claim to be. Identity involves a continuum: a person remains the same human being from the moment they are born until the moment they die. In between these times, many attributes associated with them – such as their name, physical appearance (such as their height, weight and the colour of their hair), personality, gender, nationality, languages spoken, manner of speaking and religion – and their life experiences and fortunes may change, but they will remain the same human being. Whilst each of these matters may assist in ascertaining a person’s identity, it is of fundamental importance that, for the purposes of s 24(3), they are not confused with, or treated as equivalent to, a person’s identity.
    11. The above analysis is consistent with the observations of Mortimer CJ in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs. Her Honour stated that the concept of identity for the purposes of s 24(3) of the Act ‘is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application.’ She added that it is erroneous to conflate a person’s names with the concept of identity.
    12. Section 24(3) of the Act does not require the Minister – or the Tribunal in performing its review function – to exercise a discretion. Instead, it requires that the Minister make an evaluative judgment and form an opinion about a person’s identity. If the Minister is satisfied of a person’s identity, the Minister is not required by s 24(3) to refuse to approve them becoming an Australian citizen. That section prompts a binary choice; the Minister is either satisfied of the applicant’s identity or the Minister is not.

    (Footnotes omitted)

20. With respect, the Tribunal agrees with the conclusions of the learned President therein expressed.

21. The Revised Citizenship Procedural Instructions are issued by the Department for the policy guidance of officers. They are not a legislative instrument, and the Tribunal is not bound by them. Nonetheless they provide useful guidance in coming to the evaluative judgment referred to by the learned President above.

22. CPI 16 refers to the ‘three pillars’ of identity. They are set out at paragraph 5:

    Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

    Documents – reliable and secure documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Life story – an account of the events that happened to a person during their lifetime.

23. The Tribunal must make a  contemporary assessment as to whether, standing in the shoes of the Minister, it is satisfied (as at the date of this decision) of the identity of Mr Esa Najad.

24. The Tribunal considers that the Applicant placed a number of hurdles in front of himself which led to the decision made by the delegate. He has been inconsistent in what he has said in several interviews up until he, to use a frank expression ‘came clean’ after prompting from the Department and, it seems, obtaining better legal advice.

25. The Tribunal concludes that the Applicant left Iran because of an amount of discrimination against him because of his Faili Kurd ethnicity, but does not accept that he is, or was, ‘stateless.’ He left that country on a valid passport issued by the Iranian Government which on his own evidence he gave to a people smuggler.

26. The Tribunal accepts the evidence that the Applicant provided false information to officers of the Department in his entry and second interview, because he was influenced by the advice of smugglers and fellow detainees, and was scared of being returned to Iran. The Tribunal accepts that his mental health was affected at the time, as was his physical health as supported by the objective medical evidence.

27. However, the Applicant also provided false information in his citizenship application many years on. There is no excuse for this, except the plaintive one that because he had provided a false narrative for such a long time to Australian officials, he found it hard to abandon it.

28. At this hearing, I found the Applicant an honest and frank witness in his testimony. His evidence about what he had been told about the deaths of his biological parents had the ring of truth. The Tribunal accepts his evidence that he did not know until his early teens that VEN and KK were not in fact his birth parents, but had adopted him after the tragic deaths of his father and mother.

29. The Tribunal notes that the Applicant gave misleading information about his sister, M, by saying she was ‘in Iran’ when in fact he admitted she died some 30 years ago in a very sad manner. However, as I remarked during the hearing, there was no advantage to Mr Esa Najad in saying this: had his sister been alive, speculation could arise about a future migration strategy, but given she has died, this was inaccurate information that does not lead anywhere. The Tribunal noted the palpable anguish of the Applicant when giving evidence about M.

30. The Tribunal largely accepts the broad details of the Applicant’s interactions with the authorities in Iran, including that he was incarcerated two times and that he was beaten on the second occasion. His evidence was detailed and plausible.

31. The Tribunal accepts the submissions of the Applicant’s legal representative that the Respondent has raised no issues with Mr Esa Najad satisfying the Biometric pillar in the CPIs. The Tribunal notes that before it are colour copies of original Iranian government-issued documents with photographs of the Applicant at different times of his life and is amply satisfied that the person before it in the hearing is the same person as is there depicted.

32. In terms of the ‘Documents’ pillar, Mr Esa Najad has provided debit cards, a healthcare card, a Medicare card, a driver licence issued by the State of Victoria, a visa evidence card issued by the Minister’s Department, and a Certificate 1 in Spoken and Written English. I am satisfied that he has maintained a consistent identity in terms of how he is known since he has been in Australia.

33. However, to be totally assured of his identity requires, if possible, an unbroken chain from birth. Mr Esa Najad has not provided that. However, he has provided a document described as an ‘Iranian birth certificate’ (TD, p 236) with a photograph of the Applicant affixed to it as a young man. He has also provided an Iranian identity card, with another photograph of the Applicant, at a slightly older age (TD, p 244). There was no submission that the Iranian Government documents provided (albeit late in the piece) were not genuine.

34. In terms of the ‘Life story’ pillar the Applicant significantly clouded the waters in the claims he made in his entry and second interviews. Worse than that, are some of the claims he made in terms of the refugee status assessment and in his application for Australian citizenship. The Tribunal sounds a note of caution that some submissions made by the Respondent casting doubt on the grant of a protection visa to the Applicant are not matters for this hearing nor for my consideration under the Act, except in the confined sense that false claims reflect on whether or not Mr Esa Najad satisfies the ‘good character’ requirement under s 21 of the Act.

35. Overall, the Tribunal has made an evaluative judgement and is satisfied on the material before it of the Applicant’s identity. The fact that he has provided false information earlier is not irrelevant to this assessment, but because authentic identity documents from Iran, including photographs, were later provided, I find that this false information does not deal a fatal blow in being so satisfied.

36. The Tribunal finds that the prohibition in s 24(3) of the Act does not apply to the Applicant.

    Good character

37. The second basis on which the citizenship application was refused was on the grounds that the delegate was not satisfied Mr Esa Najad was of good character at the time of the delegate’s decision.

38. CPI 15 relates to assessing good character under the Act. Much of this particular procedural instruction concentrates on cases where a prospective citizen has committed offences, what were the nature of the offences, how long ago were they, and whether the person has shown appropriate remorse. There is no record of Mr Esa Najad committing any offences in Australia; in fact to the contrary the criminal history check shows no offending. He has admitted being arrested ‘ten times’ in Iran, but it is difficult for the Tribunal to evaluate the nature of any infractions he was alleged to have committed in that country.

39. It is certainly the case that the Applicant has provided incorrect information to the Australian Government at his entry interview, second interview, in earlier statutory declarations and in his application for citizenship. While some allowance might be taken of a person, having arrived off the high seas in perilous circumstances, giving inaccurate information, it is expected that it is corrected at the earliest opportunity. Mr Esa Najad failed to do that. In fact, he did not correct some important information until 2019, some nine years after his first arrival, when he had many opportunities to do so. This action, not isolated in one instance, weighs against a finding that the Applicant is of good character.

40. Weighing in favour of a finding of good character are two factors. One is the otherwise unblemished record of the Applicant in Australia, with no record of any offending. The evidence of Mr Saddler and Ms Paterson was also, in my view, particularly compelling. They gave statements and oral evidence of strong support for the qualities of the Applicant that they had observed over the last seven years they have been working with him, in terms of his honesty, hard-work, kindness to other workmates and diligence. He has a good employment record and has made a positive contribution to the national economy and, it follows, to the Australian community. This conduct is significantly supportive of a finding of good character. The second factor is that my task is to make an assessment of good character as at the time of this decision. It is now almost six years since the Applicant corrected the misleading information he provided to the Department.

41. Weighing all the material before me, I am satisfied to make a positive character finding in relation to Mr Esa Najad. This is not to excuse the false information he freely provided to the Department, and failed to correct until 2019. But it cannot be that a person is permanently blighted by a bad decision, or decisions, in the past, when there has been no long pattern of deceptive behaviour, and there has been contrition. In coming to this conclusion, the Tribunal takes into account several facts: the lack of formal education of the Applicant, his documented mental and physical health conditions (especially the emergency operation soon after his arrival in Australia) and, withal, what he said in his evidence was his admitted inability to know how to extricate himself from the misleading responses he had provided, until he finally sought psychological and legal assistance. The fact that almost five years have now passed since the information was corrected is also relevant. It is also relevant that there has been no punitive action in Australia on the basis of false information provided to officials.

42. The Tribunal finds that the Applicant satisfies the requirements of s 21(2)(h) of the Act as at the time of this decision.

43. The outcome of the Tribunal’s findings, therefore, is that the decision to refuse Mr Esa Najad Australian citizenship by conferral is set aside. In its place, the Tribunal substitutes a decision that the prohibition in s 24(3) of the Act does not apply, and directs the Respondent that the requirements of 21(2)(h) are met. The citizenship application is thereby returned to the Respondent for consideration of the remaining requirements for the grant of Australian citizenship.

    DECISION

1. The decision under review is set aside. In its place, the matter is remitted to the Respondent under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 with the directions that (1) the prohibition in s 24(3) of the Australian Citizenship Act 2007 does not apply to the Applicant and (2) that the Applicant satisfies s 21(2)(h) of that Act at the time of this decision.

I certify that the preceding 95 (ninety- five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

............................[SGN]............................................

Associate

Dated: 31 May 2024

Date(s) of hearing:	5 January 2024 and 2 February 2024
Counsel for the Applicant:	Mr Navid K. Baghi
Solicitors for the Applicant:	Amity Lawyers
Counsel for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	The Australian Government Solicitor

ANNEXURE

Schedule of exhibits

Volume of T documents  Exhibit R1

Supplementary T documents  Exhibit R2

Statutory declaration of Applicant, 25 September 2003                   Exhibit A1

Statutory declaration of Mr G. Saddler, 28 June 2023  Exhibit A2

Statutory declaration of Ms H. Paterson, 28 June 2023                   Exhibit A3

Psychiatric report of Dr N. Zimmerman, 31 May 2022  Exhibit A4

Bundle of evidence, lodged 11 August 2023  Exhibit A5