NMJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 203

NMJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 203 (9 February 2021)

Division:                  GENERAL DIVISION

File Number(s):      2019/8277

Re:  NMJB

APPLICANT

And  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:                  Member M Kennedy

Date:  9 February 2021

Place:  Adelaide

The decision under review is affirmed.

……..[sgnd] Member M Kennedy

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – no primary or secondary identity documentation – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth).

Cases

CDNB and Minister for Immigration and Border Protection [2018] AATA 757 at [11]-[12].

Dhayakpa and Minister for immigration and Border Protection (2015) 148 ALD 162; [2015]

AATA 310 at [117].

REASONS FOR DECISION

Member M Kennedy 9 February 2021

1.This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the applicant (NMJB) in the context of a grant of Australian citizenship.

2.The Australian Citizenship Act 2007 (Cth) (the Act) provides for the conferral of citizenship where eligibility criteriaare met. However, the Minister expressly must not approve aperson becoming an Australian citizen unless the Minister is satisfied of the identity of the person: sub-section 24(3) of the Act.

3.NMJB arrived in Australia on 14 November 2011 as an unauthorised maritime arrival. The applicant did not hold a visa and did not produce apassport or any other identity documents. He was subsequently granted a Protection (subclass 866) visa after an independent protection assessment had recommended that he met the criteria for a protection visa, on the basis that he had a well-founded fear of persecution for a Refugees Convention reason.

4.More specifically, the reviewer had accepted that the applicant faced a real chance of serious harm if he were to be returned to Iran because he was a stateless Faili Kurd, who may be imputed with an adverse political profile due to a dispute that had arisen out of an inappropriate advance towards his mother by a local basij.

5.The applicant has held his protection visa since 13 September 2012.

6.On 2 February 2017, the applicant applied for a grant of Australian citizenship by conferral. The application was refused by the Respondent’s department on 29 November 2019 because the delegate was not satisfied as to the applicant’s identity. In this regard, the delegate observed the absence of any documentary evidence pertaining to the applicant’s identity prior to his arrival in Australia.

7.The applicant applied to the Tribunal for review of the delegate’s decision on 13 December 2019.

CONSIDERATION

8.The language of the Act clearly prohibits the grant of Australian citizenship in circumstances where identity cannot be satisfactorily ascertained, or a decision maker is not satisfied, in the sense of positively satisfied, as to the applicant’s identity.

9.Reflecting the legislation, it is also now well settled by decisions in this Tribunal that the question of identity is of particular importance in citizenship matters because of the very significant benefits conferred by Australian citizenship. It is also well settled that each case must be considered on its individual merits including considering particular impediments to obtaining documents related to identity.

10.In reviewing this matter, I have no primary identity documentation (such as identity cards, passports and the like), or indeed any other documentation, from the applicant’s life before his arrival in Australia, which I will refer to as ‘secondary’ identity documentation.

11.Primary identity documents are not necessarily essential, nor indeed are secondary identity documents, but as observed in Dhayakpa and Minister for immigration and Border Protection (2015) 148 ALD 162; [2015] AATA 310 at [117]:

Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbedsociety. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the tribunal.

12.In this matter I am concerned with an applicant who has stated that his country of former habitual residence is Iran. As I observed in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 (CDNB):

[11] …Iran falls within the description of a society that is ‘established and undisturbed’ (to use the terminology mentioned in Dhayakpa) in the sense that Iranian nationals are typically able to produce documents to establish their identity. Iran has laws, systems and bureaucracy regarding the registration of births, deaths and marriages. Iran issues passports accepted as identity documents throughout the world. Iran engages sophisticated systems at its frontiers to monitor the arrival and departures of its nationals and others. The Iranian Embassy in Canberra will issue passports to Iranian nationals upon request. My remarks in this regard are of a general nature and are made on notice.

[12]    Furthermore, evidence provided by the Respondent … establishes, at least in a general sense, that non-Iranian nationals who are [Faili] Kurds in Iran who were expelled from Iraq, and their descendants, will typically have been registered by the Iranian authorities and hold refugee registration cards described as either ‘Green Cards’ or ‘White Cards’.

13.The evidence provided by the Respondent in this matter now before me confirms those general observations. The evidence includes Exhibits ST22 and ST23 – the Department of Foreign Affairs and Trade (DFAT) Thematic Report ‘Faili Kurds in Iraq and Iran’ and the DFAT Country Information Report – Iran.

14.The observation that non-Iranian Faili Kurds in Iran will typically be registered and hold refugee registration cards is not, however, absolute. While Faili Kurds living in Iran are overwhelmingly Iranian nationals, and the majority of non-Iranian Faili Kurds living in Iran are registered refugees, there remains a third group of unregistered refugees, although the actual numbers of such persons are unclear.

15.I observe that ST22 at item 3.35 mentions that 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. My role in this review is not to assess again the claim

made by the applicant to be stateless and undocumented, other than to the extent that it is relevant to consider his evidence as to why no primary or secondary documentation from Iran (or elsewhere) have been produced to establish his identity, or to otherwise form a view as to the reliability of other evidence given about his identity.

16.As I observed in CDNB, I recognise the dilemma that would be faced by a hypothetical applicant for citizenship, who having secured Australia’s protection on false pretences as an undocumented and stateless Faili Kurd, would be reluctant to produce identity documentation for the purpose of securing a grant of citizenship where doing so would establish or tend to suggest that they are in fact Iranian (or Iraqi) nationals.

17.In discussing the decision under review with the applicant, the applicant explained that he was angry with the decision, but was also able to understand where the decision was coming from. The applicant told me that he had not tried to get medical documents from Iran or documents pertaining to his employment from Iran, and thought he might be able to try and obtain such documents. The applicant ultimately submitted that he did not have anything to hide, and if he had documents from Iran, he would provide them. I confirmed with the applicant that he did wish to proceed with the review in light of his remarks.

18.The respondent accepts that the production of documentation supporting the claimed identity is not essential in every case. However, in this case the respondent submitted that there are glaring improbabilities and inconsistencies associated with the applicant’s narrative of his life in Iran, when compared to information about the circumstances in Iran. In this regard, the respondent identified aspects of the applicant’s evidence concerning the previous holding of identity documentation, his employment history, his education history, access to medical care and the circumstances of his departure from Iran. The respondent subsequently took the applicant through these matters in the course of cross examination.

19.Under cross examination, the applicant was taken to correspondence from the Department outlining the range of alternative documents (other than primary identity documents) that might be produced to satisfy a decision maker about identity. The applicant indicated he had not been thinking about records such as school records, medical records or documents relating to his employment. It was put to the applicant that he had been on notice since December 2019 that other documents from Iran may assist in establishing his identity, but nothing had been provided. The applicant said he had received the Department’s

correspondence and decision but had not read it properly as he had been busy. I understood the applicant to indicate that the day of the hearing was the first day he had understood that he was able to provide secondary identity documents (i.e. documents such as school and medical records). The applicant’s attention was drawn to the fact of his participation in tribunal conference processes (without raising the substance of those conferences). It was subsequently submitted that I should not accept the applicant’s position that he had been unaware that alternative documentary evidence might assist his case in all the circumstances.

20.The applicant gave oral evidence as to his date and place of birth in Tehran. The applicant said he had not been issued with a birth certificate because he did not have Iranian nationality. It was put to the applicant that every child born in Iran is issued with a document registering their birth, regardless of their nationality. In this regard, I note the content of paragraph 3.40 of the DFAT Thematic report on Faili Kurds in Iraq and Iran at ST195 of the Tribunal papers that provides foundation for the assertion put to the applicant.

21.The applicant gave evidence that he left Tehran when he was 19. His parents continue to live in the same building that they lived in during his childhood. In this regard, I note that it would therefore appear that the applicant’s family are well settled in their location and relocation or disruption would not appear to be a barrier to accessing records to assist the applicant.

22.As to the issue of identity cards, the applicant gave evidence that he once held a ‘green card’ for about 15 years. I note that terminology such as ‘green card’, ‘white card’, or ‘pink card’ refers to Amayesh cards issued to Iraqi refugees by Iran regardless of their ethnicity. The DFAT Thematic report details Iranian practices regarding the issuing of such cards: ST194 at [3.36] to [3.39].

23.The applicant’s evidence was challenged on the basis of information he had provided to Australian authorities upon arrival for the purposes of character assessment. The applicant had indicated ‘none’ to a question asking for details of any identity documents he currently used or had used in the past. The applicant said he did not have a copy of the number for the card, and so had not written anything because it would not be useful. The applicant said his answer had been incorrect, although it was a mistake.

24.The particular benefits of holding a white or green card were put to the applicant, such as providing access to schooling, hospital treatment, purchasing telephones, and purchasing utilities and other benefits. The foundation for these questions may be found at the DFAT Thematic Report at ST196 and elsewhere in the country information provided by the Respondent, for example the IDBS Identity Analysis Report: Feyli Kurd Cohort, which restates such matters by reference to earlier iterations of DFAT country information in the context of its analysis: see for example ST150.

25.The applicant said that he attended primary school between 1999 and 2002, but had done so illegally and would not go to school if an inspector from the Department of Education was present. He said he stopped attending school when his parents could no longer pay bribes. The inconsistency of this narrative against the country information about the entitlement of registered refugees who hold Amayesh was put to the applicant.

26.The applicant was asked about information he had provided concerning his father’s medical treatment when he had developed a heart condition. The applicant was asked whether his father had been treated in hospital. I observed that the applicant’s answers to these questions were implausibly vague and uncertain given he had been living with his parents at the time and the event was of some gravity. During cross examination the applicant would not commit to an answer about whether his father had been treated in hospital or not..

27.The applicant said he had worked illegally for cash in hand and for food due to his unregistered status. The applicant described his family as being very poor. The applicant was then asked how, in these circumstances, he had been able to raise US$20,000 to obtain false documents to depart Iran. The applicant stated that his father’s employer had helped him. In this regard, when the applicant was further questioned about how he had been able to pass through the airport on a false passport, he described his father’s employer speaking with people at the airport gate who then called him through. When pressed about the plausibility of this evidence given the potential penalties a person would face for assisting in an illegal departure from Iran, the applicant said that his father had told him that his employer was a good man.

28.At the conclusion of the applicant’s cross examination, I again invited the applicant to put forward any further evidence he wished me to consider in order to satisfy me of his identity. The applicant indicated he had no further evidence to offer.

29.In closing, the respondent contended that I should not be satisfied of the applicant’s identity in the absence of primary or secondary identity documentation from Iran, in circumstances where the applicant had mentioned he might try to obtain supporting documentation from Iran, but had not taken the opportunity to obtain and present such evidence throughout the long course of these proceedings. The respondent further contended that the applicant’s evidence regarding his life in Iran and reasons why he could produce no identity documents should be rejected in light of inconsistencies and implausibility.

30.Specifically, it was contended that the applicant’s evidence regarding the absence of birth registration documentation was not consistent with country information, and he had provided inconsistent information about whether he had ever held identity documentation. It was further contended that the applicant’s evidence about his father’s medical treatment was unsatisfactory and potentially inconsistent with country information concerning access to hospital treatment. Finally, it was submitted that the applicant’s evidence about his and his family’s work and financial capacity was inconsistent with his evidence about how his departure from Iran was arranged. It was submitted that the narrative given by the applicant as to his departure from Iran was implausible.

31.The applicant concluded his case by reiterating that, if he had documents, he would have provided them. The applicant revisited the evidence he had given about his father’s medical treatment and stated he had seen a normal doctor. He further stated his father had borrowed money to arrange for the applicant’s departure from Iran.

32.While I am mindful that the production of identity documents (both primary and secondary documents) are not legally essential to establish identity, I have found the respondent has convincingly established that the applicant’s narrative as to why he can produce no such documentation is unreliable and should not be accepted.

33.I am concerned to note the inconsistency in information provided by the applicant as to what identity documentation he has ever held, and was not persuaded by his explanation in this regard. I am also concerned to note the multiple examples of where the applicant’s evidence

about his life in Iran departed from the country information available to the Tribunal about the services he and his family would be able to access if they held Amayesh, which the applicant now states the family once held.

34.Ultimately, I have developed real concerns about the applicant’s narrative in the context of why he has no primary or secondary identity documents from Iran. I conclude that the problem presented by the absence of primary or secondary identity documents from Iran has not been satisfactorily explained or overcome. A and as a consequence, I am not satisfied of his identity.

35.I am reinforced in this conclusion by reflecting on the applicant’s position regarding not being aware that secondary documentation might assist him, and his supposition that he might be able to obtain such document now he knows it is important. Given the correspondence provided to the applicant regarding his application for citizenship and its subsequent refusal, and the well-established processes deployed in the General Division of this Tribunal to prepare matters for hearing, I cannot accept that the applicant was unaware of the importance of producing documentary evidence from Iran about his schooling or medical treatment, or indeed any factor of his life in Iran. In circumstances where the applicant told me that his family continue to live in the same location in Iran, I am not satisfied that the applicant has made reasonable efforts to access documentation from Iran to corroborate his identity.

36.For these reasons, I am not satisfied as to the identity of the applicant, and it follows that the applicant must not be approved for the grant of Australian citizenship.

I certify that the preceding 36 (thirty- six) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy

...................[SGND]........................

Administrative Assistant Legal Dated: 09 February 2021

Dateofhearing:	3 December 2020 (by Microsoft Teams)
Applicant:	Self-represented
AdvocatefortheRespondent:	Tom Ellison, Australian Government Solicitor