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

[2023] AATA 368

QXSC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 368 (23 February 2023)

ReviewNumber:     2019/6141; 2019/6143; 2019/6144; 2019/6145; 2019/6146

Division:                  GENERAL DIVISION

File Number(s):      2019/6141

Re:QXSC  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

File Number(s):      2019/6143

Re:FKFK  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

File Number(s):      2019/6144

Re:WPLR  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

File Number(s):      2019/6145

Re:LHPQ  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

File Number(s):      2019/6146

Re:CHDG  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President Dr P McDermott RFD

Date:23 February 2023

Place:Brisbane

I affirm the decisions under review.

...............................[SGD].........................................

Deputy President Dr P McDermott RFD

Catchwords

Application for Australian Citizenship by conferral – identity requirement – where approval is prohibited unless identity requirement is satisfied – where applicants made false declaration as to national identity documents or citizenship – inconsistent and implausible evidence – lack of documentary identification evidence – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

DSN16 v Minister for Immigration and Border Protection [2021] FCA 202

Repatriation Commission v Warren [2008] FCAFC 64

Secondary Materials

Danish Immigration Service, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30 April 2009.

Immigration and Refugee Board of Canada. Iran: exit and entry procedures at airports and land borders, April 2006.

June 2001 report of the 7th European Country of Origin Information Seminar.

Macquarie Dictionary (8^th ed., 2020)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

23 February 2023

INTRODUCTION

1. Each applicant has sought review of decisions made by a delegate of the Minister to refuse their applications for conferral of Australian citizenship. The delegate refused their applications for conferral of Australian citizenship under subsection 24(3) of the Australian Citizenship Act 2007 (the Act) because the delegate was not satisfied of the identities of the applicants. The applicants have claimed that they are stateless Feyli Kurds. The Tribunal has jurisdiction to review these decisions of the delegate under s 52(1) of the Act.

   CONFIDENTIALITY ORDER

2. In DSN16 v Minister for Immigration and Border Protection [2021] FCA 202 Kerr J, at [14], emphasised that s 91X of the Migration Act 1958 (Cth) imposes a duty on all courts to not publish the name of a person who has applied for a protection visa. A similar provision that applies to the Tribunal is s 501K of the Migration Act 1958 (Cth), which requires that the identity of applicants of protection visas not be published by the Tribunal.

3. While these applications are not directly subject to s 501K of the Migration Act 1958 (Cth), I consider it appropriate not to reveal the identity of applicants who have protection visas. Accordingly, after the hearing I sought the views of the parties to whether a confidentiality order should be made, the parties have consented to making an order to protect the identity of the parties.

4. I hereby order, pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), that the names of the applicants in these matters be restricted from publication and replaced with pseudonyms that I allocate to replace the name of the applicants as follows:

   ·2019/6141: QXSC

   ·2019/6143: FKFK  

   ·2019/6144: WPLR

   ·2019/6145: LHPQ  

   ·2019/6146: CHDG  

5. I also direct and order, pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), that information tending to reveal the identity of the applicants be prohibited from disclosure.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act provides that if a person makes an application under s 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(3) of the Act provides that the Minister must not approve an application for citizenship unless the Minister is satisfied of the identity of the person.

   POLICY

7. The Department has issued revised Citizenship Policy Instructions (CPI), published on 1 January 2022, which contain relevant policy guidance at Chapter 16 in relation to assessing identity under the Act. The Tribunal notes it is not bound by policy but will consider and apply lawful policy as necessary.

8. The CPI provides that when assessing identity, a combination of three elements is relied upon. These three elements are referred to as the "three pillars of identity", each pillar is made up of individual characteristics which are described in the CPI as follows:

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

   ·     Documents – reliable and secure identity documents as identified 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.

9. The CPI further provides:

   11. Assessing a person’s identity

   In order to make an informed assessment of a person’s identity, delegates 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.

   In many cases, an applicant's identity can be confirmed by assessing whether the information provided during their interactions with the Department throughout the period of time leading up to their citizenship application has remained consistent.

   Where a case presents as more complex, delegates may find the creation of an identity timeline will assist in linking the applicant's birth identity to the identity or identities provided at visa and citizenship application. When creating an identity timeline, delegates are to have regard to each of the 'three pillars' of identity in order to create a complete picture of the person's identity from birth to present.

   …

   11.2 Assessing pillar three – life story

   When assessing a person’s life story in the context of a citizenship application, delegates must 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.

   …

   There may be cases where one pillar may be given more weight than the others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information. This research will enable the officer to test and verify whether the applicant’s claims, relevant to aspects of their life story, are consistent with the situation in a particular country. Credible country information will support and add weight to a decision, and can be cited in the decision record.

   Example - undocumented arrival

   A citizenship application is received from a person claiming: they are stateless, undocumented, and are unable to provide any evidence of their identity prior to arriving in Australia as an Illegal Maritime Arrival (IMA); they exited their country of residence on a bogus travel document; and they previously held an identity card issued to stateless people by the Government of the country they resided in. They do not have the card now.

   Issues

   ·     No documentary evidence of the person’s identity from birth to arrival in Australia.

   ·     No biometrics which can be used for comparison purposes.

   Potential action

   In order to test the veracity of the above claims and make an informed assessment, it is necessary for the officer to research country information. This research will provide an informed basis on which to assess whether the claims are factually accurate or plausible,and align with country processes.

   Specific country information is available from the Country Information and Identity Assurance Resources site. Additional research can include, but is not limited to:

   ·     information contained in the National Identity Toolbox;

   ·     reports obtained from CISNET. CISNET also contains information with regard to a country’s exit procedures;

   ·     information obtained from the relevant Post;

   ·     information from IMtel and NIS.

   The officer must then consider, assess, and weigh the country information and evidence provided by the applicant, ensure that natural justice requirements have been met, and make a determination whether they are satisfied of the applicant’s identity. The decision must clearly outline the link between the law, facts, and the weight given to the evidence that ultimately led them to the decision being made.

   Plausibility of a person’s life story

   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:

   o   birth of children, births and deaths of siblings and parents, date of marriage.

   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 delegates to compare the family composition provided by the applicant at various interactions with the Department.

   In order to corroborate information, delegates are expected to 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.  A claim that can be corroborated by independent evidence is more likely to be reliable.

10. An additional resource referred to in the CPI (see 12.4) is the National Identity Proofing Guidelines of the Attorney General's Department (AGD Identity Guidelines) which have been published for the purpose of strengthening identity proofing processes and increasing trust through a standardised and transparent national approach (see [1.2.1]). The AGD Identity Guidelines relevantly provide as follows:

    Background

    1.1.1Establishing 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.

11. The AGD Identity Guidelines provides that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken (at [5.1]). Such processes may include:

    ·     '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 (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).

    ·     A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.

12. There are no cogent reasons why the above quoted policy documents should not provide guidance to the Tribunal. Certainly, the applicants have submitted that the three pillars policy is relevant to the determination of these applications. However, the applicants have not relied on any specific parts of a policy document.

    FAMILY STRUCTURE OF APPLICANTS

13. There is no issue as to the family structure of the applicants. LHPQ is the mother of WPLR, CHDG and FKFK. QXSC is married to FKFK.

    LHPQ BACKGROUND

14. LHPQ first arrived in Australia on 8 October 2010 without a visa. On 20 July 2011, she was granted a protection visa. On 3 August 2015, she lodged her application for Australian citizenship by conferral. On 29 August 2019, her application for Australian citizenship was refused on the basis that the delegate was not satisfied of her identity.

    LHPQ IDENTITY  

    Citizenship of LHPQ

15. On 24 October 2010, when LHPQ was interviewed at Christmas Island, she initially claimed that she had Iraqi citizenship.[1] Later, in the interview she asserted she was stateless.[2]  She stated that she had previously held an Iraqi National ID card, a citizenship certificate, and a birth certificate all of which were taken by the forces of Saddam Hussein and burnt.[3]

    [1] ST4, 75.

    [2] ST4, 91

    [3] ST4, 77

16. On 23 January 2011, in her application for a protection visa, LHPQ made a statement of claims where she declared that she was ‘stateless’.[4] I do not accept the submission of LHPQ now that she understood the term ‘stateless’ to mean ‘undocumented’. This is because her statement of claims was prepared with the assistance of lawyers who would have advised LHPQ of the nature of a claim of being stateless. For that reason, I consider that LHPQ would understand that the nature of the claim of being stateless was she did not hold the citizenship of any country. This is apparent from her statement of claims in which she declared: ‘I have no country to go back to’.[5]

    [4] ST9, 145.

    [5] ST9, 145.

17. On 3 August 2015, LHPQ lodged her application for Australian citizenship. Question 16 on the application form asked: ‘Do you hold or have you ever held citizenship of any other country?’, LHPQ answered ‘No’.[6] It is concerning that LHPQ provided a false answer to Question 21 because before the Tribunal she admits that she is an Iraqi citizen. Question 21 on the application form asked: ‘Do you currently have, or have you ever had any national identity documents or numbers including birth registration numbers, social security cards, etc.)’, LHPQ answered ‘No’.[7] It is also concerning that LHPQ provided a false answer to Question 21 because she failed to declare that she was issued with an ID card in 2009 (discussed further below).[8] The citizenship application form incorporates a declaration in which LHPQ declared ‘that the information I have supplied in this form is complete, trustful and correct in every detail’.[9]  

    [6] T4, 180.

    [7] T4, 181.

    [8] ST5, 100.

    [9] T4, 190.

18. On 14 February 2017, LHPQ attended a citizenship interview at the Brisbane office of the Department in relation to her application for Australian citizenship. At that interview she denied having any citizenship in Iraq and claimed that she was expelled from Iraq by Saddam Hussein because she did not have a certificate of citizenship. LHPQ was then asked: ‘Okay, so you deny ever having citizenship in Iraq?’, she answered: ‘Yes, we only had personal ID and Saddam took it, that from us. We had nothing else’.

19. At the 2017 citizenship interview, an officer put to LHPQ that ‘her family are Iraqi citizens or at the very least have the ability to acquire Iraqi citizenship’. It is apparent from examining the transcript of the interview that LHPQ declined to answer that question when it was put to her. LHPQ was then informed that documents relating to the Iraqi citizenship of her son are already registered in Iraq and it was put to LHPQ that her son would be in the position to obtain a passport, she answered: ‘Impossible’. I have taken her answer to mean that her son was not an Iraqi citizen and would not accordingly be able to obtain an Iraqi passport.

20. At the 2017 citizenship interview, LHPQ claimed that as a Feyli Kurd she was unable to gain Iraqi citizenship. She remarked that 'Kurdish were like foreigners, they don't give us a certificate of citizenship'. This assertion is inconsistent with available country information which indicates that before 1980 Feyli Kurds were able to obtain both Iranian and Iraqi citizenship prior to their deportation in the 1980s depending on their descent. This country information was provided to LHPQ prior to the hearing in the respondent’s statement of facts, issues and contentions dated 18 May 2020 and was not contradicted by any evidence provided by LHPQ.

21. At the 2017 citizenship interview, LHPQ was asked about her claim that she left Iran on a fake passport and whether she was worried about the Iranian authorities on her return trip to Iran. She answered: ‘Yes, I was afraid. I was really afraid because I was with my kids then’. At that interview LHPQ confirmed that she flew out of Imam Khomeini Airport on an Iraqi passport bearing her name, photo, and details. She also said that she had no difficulties when she departed from Imam Khomeini Airport. She declined to confirm whether she had left Iran on a genuine Iraqi passport although she stated that she thought that it was not genuine.

22. In giving evidence before the Tribunal, LHPQ has given a different account about her passport to what she previously told the Department.

23. One issue is whether LHPQ had a genuine Iraqi passport in 2010 when she left Iran to come to Australia. Before the Tribunal, LHPQ no longer maintained that the Iraqi passport was not genuine. Her answer is quite different from what she told the Department on 24 October 2010 when she claimed that she never held a real Iraqi passport. In giving evidence before the Tribunal, LHPQ confirmed that when she produced her passport at the Imam Khomeini Airport in 2010 she had no difficulties using the passport. Her evidence is not consistent with the contention in the document that she filed on 4 September 2020 in response to the statement of facts, issues, and contentions of the respondent in which LHPQ contended:

    ‘In regards to departure from Iran and the passport used, the applicant has advised that she left on a nongenuine Iraqi passport and the money she had paid, secured her safe departure from Iran and she believed that the smuggler has paid part of the money as bribe to the officials’.

    She did not give any evidence that her passport was obtained by bribery.

24. The respondent contends that it would have been difficult to leave the Imam Khomeini Airport on a false passport, because there were strict security measures at the airport to prevent people leaving on a false passport.

25. In her evidence before the Tribunal, she now maintains that when she left Imam Khomeini Airport the person who arranged for her to obtain a passport was watching her at the airport to make sure that she and her sons went through with her passport. This appears to be the first time when such an assertion has been raised because she did not make such an assertion in her entry interview or citizenship interview. I consider her statement about being watched when her passport was checked is really an embellishment on her part without any foundation. I consider that the assertion was made because the respondent’s statement of facts, issues and contentions dated 18 May 2020 contained country information concerning the security procedures at the Imam Khomeini Airport in Tehran whereby the authenticity of passports is verified at the time of the departure of a passenger from the Danish Immigration Service[10] and the UNHCR[11].

    [10] Danish Immigration Service, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit

    Procedures, ID Cards, Summons and Reporting, etc., 30 April 2009.

    [11] UNHCR in relation to Tehran airport departures as at 2006.

1. LHPQ in her submissions has remarked that ‘we should be looking at the available country information for 2010 when the applicants left Iran and not to rely on the country information available in 2022 when the technology has advanced, and things have changed greatly’. However, the country information from the Danish Immigration Service that is referenced in the respondent’s statement of facts, issues and contentions was issued in 2009 and not in 2020. I consider that this country information would be likely to reflect security procedures in 2010. This country information has not been contradicted by any other evidence before the Tribunal.

2. On 21 June 2021, the respondent filed with the Tribunal the tender bundle[12] which contained information obtained by the Australian government from the Iraqi Ministry of Interior Civil Status Directorate through the DFAT Post which indicated that LHPQ ‘is an Iraqi citizen, and the last Iraqi document was issued for her is an Iraqi ID card in 2009’.[13] This evidence has not been challenged by LHPQ, who has had adequate time to dispute this information. I accordingly give some weight to this official information from the Iraqi Ministry of Interior Civil Status Directorate and conclude that the information indicates that LHPQ is an Iraqi citizen.

   [12] Exhibit R1,

   [13] ST5, 100.

3. It was only after the filing of this tender bundle that LHPQ no longer reiterated her claim that she was not an Iraqi citizen. In giving her evidence-in-chief before the Tribunal, LHPQ was asked by her representative whether she was ever a citizen of Iraq, she answered: ‘Yes, I have been a citizen’. She was then asked: ‘And are you today a citizen of Iraq?’, she answered: ‘Yes, I am from Iraq, the Kurdish, Feyli Kurdish of Iraq’.  Before the Tribunal LHPQ asserted that she ‘always said’ that she was a citizen of Iraq. Her answer before the Tribunal is markedly different from her answer on her Australian citizenship application and her response at the 2017 citizenship interview where she claimed she was stateless and declined to give a proper answer to the Departmental officer who asked her whether she had Iraqi citizenship or the right to obtain Iraqi citizenship.

4. In her examination-in-chief LHPQ no longer maintained the contention in her response document that was filed on 4 September 2020 that the Iraqi passport was not genuine.  Under cross-examination LHPQ was asked whether the Iraqi passport she used when she left Iran was a real or fake passport, she answered that she did not know whether the Iraqi passport was a genuine or a fake passport.  Her answer is inconsistent from what she told the Department on 24 October 2010 when she claimed that she never held a real Iraqi passport and that her false passport was taken by the people smuggler in Malaysia.

5. I have concluded that when LHPQ left Iran to travel to Australia, she had travelled on a genuine government passport, which may have been an Iraqi passport. I have come to this conclusion because the Department has information from the Iraqi government which confirms that an Iraqi identification card (ID card) was issued to LHPQ in 2009 which was the year before when she departed Iran for Australia. LHPQ has herself stated that her passport was obtained in 2009. I have inferred that it is likely that the passport and ID card were issued at the same time. The applicant may well have had an Iraqi passport which would have facilitated her movement to Iraq. However, later in these reasons I explain why I consider that LHPQ may have used an Iranian passport.

6. I have already concluded that the information that the Australian government obtained from the Iraqi Ministry of Interior Civil Status Directorate through the DFAT Post concerning the Iraqi citizenship of the applicant was accurate as it came from official sources.

7. Furthermore, because an ID card had been issued by the Iraqi government to LHPQ in 2009 it is also not plausible that she had lost her Iraqi citizenship in 1980 when she claimed to have been deported from Iraq. However, even if she had lost her citizenship when she claimed to be deported (which I do not accept is the case), she had certainly regained her Iraqi citizenship evidenced by the issuing of the ID card in 2009. If she had lost her citizenship, she could only regain it by making an application. However, at her citizenship interview in 2017 she denied ever attempting to regain Iraqi citizenship. I have therefore concluded that she had never lost her Iraqi citizenship.

8. FKFK has also produced a hospital birth certificate dated 2009 which refers to the LHPQ’s Iraqi ID card number. The fact that in 2009 the Iraqi government had issued an ID card to LHPQ makes it quite clear that there is no basis for the assertion of LHPQ at an IAAAS interview on 23 January 2011 that the Iraqi records of her family were destroyed. It was after this interview that LHPQ was granted a protection visa on 20 July 2011.

9. The fact that LHPQ was issued with an Iraqi ID card in 2009 confirms the falsity of the declaration made by LHPQ in her application for Australian citizenship that she never held citizenship of any country. That information also confirms the falsity of her statements made at her 2017 citizenship interview that she never held any citizenship documents issued by the Iraqi government.

10. LHPQ has provided inconsistent information concerning the citizenship status of her husband and herself. When she was interviewed at Christmas Island on 24 October 2010, she claimed that her husband was an Iraqi citizen but thereafter denied that her husband was an Iraqi citizen. At the IAAAS interview on 23 January 2011, LHPQ asserted that her husband had attempted to obtain documents to claim Iraqi citizenship ‘but all our records were destroyed’. At the 2017 citizenship interview, LHPQ claimed that her husband had never gone back to Iraq to claim Iraqi citizenship although at the hearing before this Tribunal LHPQ asserted that he went to see his sister and obtain documents, the documents being citizenship documents. 

11. At the 2017 interview when she was asked whether she was eligible to become an Iraqi citizen, she answered: ‘I know that they wouldn’t give it to me and I don't want it. We only got pain from them. … I'm hoping to get the Australian one'. It is only now before the Tribunal that LHPQ finally acknowledges her Iraqi citizenship.

    Protection visa

12. LHPQ first arrived in Australia on 8 October 2010 and applied for a protection visa in January 2011. LHPQ was granted a protection visa on 20 July 2011.

13. In the RSA form (dated 23 January 2011) LHPQ was required to disclose her citizenship at birth, she declared that she was a ‘Stateless Faili Kurd’. She also declared that she had no other citizenship.[14]

    [14] ST9, 163.

14. At the Tribunal hearing, LHPQ was questioned about her 2011 statement of claims when she sought the protection of Australia, which was prepared with the assistance of lawyers. In her statement of claims LHPQ claimed that if her family went back to Iran the government would accuse her family of being spies. She also claimed that she feared persecution in Iran and that she could not return to Iran because of her illegal departure from Iran and that she would be severely punished if she returned to Iran.

15. At the Tribunal hearing, LHPQ acknowledged that she signed the statement of claims for protection. She was also asked about the following claims in her statement of claims about what would happen to her if she returned to Iran:

    I do not have a right to return to that country, because of my illegal departure. When I return, it is possible that they will punish me. I know that the punishment will be severe.[15]

    [15] ST9, 144.

16. The Tribunal noted that LHPQ’s claim for a protection was that she was afraid of persecution in Iran but that some four months after she was granted a protection visa, she departed Australia and went back to Iran for two and a half months. It was put to LHPQ that these statements in her claim for a protection visa were false as she had travelled to Iran less than a year after making them. LHPQ answered:

    Yes, these statements are false. I agree. What I’m telling you is that I didn’t want to live there. I had a legal document to leave here and visit and come back. I didn’t want to live there.

17. The Tribunal again put to LHPQ: ‘And you just agreed that you provided false information, is that right?’, she responded: ‘Yes, correct. I do agree that it was false’.

18. The advocate of LHPQ informed the Tribunal that she is fluent in Persian and that was one reason why the representative requested a Farsi interpreter. At the hearing LHPQ, nor her representative, did not take any issue with the translation of the word ‘false’. However, LHPQ contends in post hearing submissions the word ‘false’ should have been translated to mean ‘wrong/mistake’. I do not accept that there was a misinterpretation of the evidence given by LHPQ at the Tribunal, when she admitted that her claims in the statement of claims are false. I do not consider that there was a mistranslation because LHPQ did not take issue with what she asserts is a mistranslation at the hearing. LHPQ has only raised the issue of what she now asserts to be a mistranslation of her answer in her reply to the final submissions of the respondent which raised the submission that at the hearing LHPQ admitted making false claims in her statement of claims.

19. In these circumstances I have concluded that LHPQ has admitted to making false claims in her statement of claims. I consider that LHPQ made false claims in the application for a protection visa because shortly after she was granted a protection visa, she returned to Iran and stayed there for some two and a half months. Her presence in Iran for that period shows that there was no basis in her claims of needing protection and she made a false claim in her application for a protection visa that if she and her family went back to Iran the government would accuse her family of being spies because she returned to Iran with her family. LHPQ also made a false claim in her application for protection that she cannot return to Iran because of her alleged illegal departure from Iran and that she would be severely punished if she returned to Iran. However, country information from the Danish Refugee Council in 2009 indicates that ‘people who have left Iran illegally are not detained upon return, though the person may be fined’, ^[16] neither of which occurred in this case and LHPQ had no issues when she returned to Iran after the grant of her protection visa.

    [16] ST2, 143 (Application No, 2019, 6146).

20. At the Tribunal hearing, LHPQ was asked why she was not scared when she travelled to Iran even though she had claimed to be afraid of persecution in Iran, she answered: ‘Because I went there legally with Australian travel documents. I went there, that’s why’. Her answer does not really explain why she was not afraid when she claimed not only to have illegally departed from Iran, but she came to Australia seeking protection on the basis that her family will be regarded as spies.

21. At the 2017 citizenship interview, LHPQ was asked about when she went to Iran in relation to the marriage of her son to an Iranian girl. LHPQ was asked the question that ‘you were granted a protection visa on the basis that you said you feared returning to those countries so what was different that allowed you, to make you feel safe to travel back there?’, LHPQ answered: ‘I went for the sake of my son, and I didn’t go anywhere from the airport to the house. I was afraid’. I consider that this answer that she gave was certainly false and misleading given the considerations above. At the hearing LHPQ denied giving this answer at the citizenship interview and remarked: ‘I didn’t say that’. In fact, LHPQ asserted that what was recorded on the 2017 citizenship interview transcript was incorrect.

22. I consider that she did give this answer because there was no exception taken before the hearing to the accuracy of this recorded answer. LHPQ remarked: ‘I went there legally. Why should I say that? I went to Ahvaz, and I went to the cemetery’. In giving evidence before the Tribunal, LHPQ admitted that on her visit she had visited the cities of Tehran and Ahvaz. Her answer: ‘I didn’t go anywhere from the airport to the house’ at the 2017 citizenship interview was incorrect when in fact she indicated at the Tribunal hearing that she had visited two cities in Iran. I consider that her answer that she did not go anywhere from the airport to the house was given to bolster the previous false claim in her statement of claims that she feared severe persecution if she returned to Iran.

23. I consider that LHPQ made a false claim when she claimed that she faced discrimination in Iran because her husband could not work in Iran. On 24 October 2010 when she was interviewed at Christmas Island, she claimed that ‘the Iranian government would not let my husband work as he was not Iranian’. However, at the 2017 citizenship interview she stated that her husband had rented a butcher shop in Iran. At the Tribunal hearing, LHPQ was questioned by the respondent about what her husband did for work in Iran. LHPQ was asked: Did your husband own his own butcher shop?, she answered: ‘First he was working with someone else, then he opened a small shop for himself’. LHPQ was then asked: how did your husband own his own shop without an Iranian ID? LHPQ did not directly answer that question but stated that that he was facing ‘problems’ in that ‘they would not allow him to get Iraqis to work there’. I have concluded that this answer indicates that the Iranian government would not let Iraqis work in the shop. I consider that the fact that her husband could work in the shop is a strong indication that her husband was allowed to work in the shop because he had Iranian citizenship.  

    Different names

24. Due to the confidentiality orders I have made in respect of all the applicants, I will not outline the specifics of the various names or spellings in my considerations of the different name issues that arise for each of the applicants.

25. On four occasions, LHPQ informed the Department that she had only ever used the name which the application for review was made for.

26. First, on 24 October 2010, LHPQ was interviewed by the Department at Christmas Island. In her entry interview, she gave her family name as evidenced in ST4, 75. She indicated that she had no other name.[17]

    [17] ST4, 75. 

27. Second, on 23 January 2011, when LHPQ made her statement of claims, she stated that there were no other names that she had been known by.[18]

    [18] ST9, 147.

28. Third, on 17 July 2015 in her application for Australian citizenship, she answered ‘No’ to the question: Have you been known by any other name? (Including name at birth, previous married names, aliases, or alternative spellings or full spellings of all names).[19]  

    [19] T4, 179.

29. Fourth, on 14 February 2017, when LHPQ attended interview at the Brisbane office of the Department in relation to her application for Australian citizenship she claimed not to have used another name. LHPQ was asked: 'Have you ever been known by any other name?', to which she answered 'no'. LHPQ was again asked to confirm: 'You've never used any other name in any other country on any documents?', to which she answered ‘No’.

30. In her response document filed on 4 September 2020, LHPQ contends that she has only used one name in Iran which was her current name but that in Iraq her name was different as it included her father and grandfather’s name. Up until this time LHPQ had on four occasions (2010, 2011, 2015 and 2017) informed officers of the Commonwealth that she did not use a name other than the name listed in her application for citizenship.

31. LHPQ contends that she had not intentionally provided incorrect information to the Department and asserts that she was confused because of miscommunication, misinterpretation, or misunderstandings. However, before the Tribunal she was not forthcoming about her use of a name other than the name listed in her application for review. In giving evidence LHPQ was asked about the name which included her father and grandfather’s name, she initially did not answer that question and then said: ‘I don't know’. Later she confirmed that her name and her middle and last name were those of her father and grandfather. LHPQ has not disputed the contention of the respondent that the full name is consistent with Iraqi naming conventions of using a person’s father’s and paternal grandfather’s names.

32. LHPQ has provided an explanation of why she used the name listed in her application for citizenship.  Before the Tribunal she stated that she first used the name listed in her review application in Iran and that this name was not used in Iraq. She stated that the last name used in her review application was chosen by her husband who did not use that name for herself. However, in her citizenship interview in 2017 she informed the Department that she got the last name not from her husband but from her sisters. She then remarked: ‘My sisters use this name, some of my sisters and they said to me whatever name you have just put that name’. I do not accept that she is credible because she has provided inconsistent reasons regarding the use of her name.

33. I consider LHPQ has concealed her real Iraqi name to conceal her identity as an Iraqi citizen. Her use of different names would make it difficult for the Department to ascertain her Iraqi origins. The last or family name used by her in her application for citizenship is not consistent with Iraqi naming conventions which requires the use of her father and grandfather’s name.  LHPQ has endeavored to conceal her real Iraqi name to prevent the respondent in ascertaining that she is an Iraqi citizen.

34. Because there is evidence that LHPQ has used different names it is difficult for me to conclude what is the actual name of LHPQ. LHPQ has claimed that she is the name listed in her review application (which is a name adopted in Iran) or the name mentioned in her response document that she filed on 4 September 2020. There is also evidence that her last name is something different, as it is mentioned on Iraqi documentation for her son. The fact that LHPQ has on several occasions falsely declared that she has only used or been known by the name listed on her review application leads me to not accept what she now claims is her name.

    Different dates of birth

35. LHPQ has provided the Department with information which indicates that she has three different dates of birth.

36. First, on 24 October 2010, LHPQ was interviewed by the Department at Christmas Island. In her document of interview, she stated that her date of birth as July 1954. In the nominal roll and biodata form she listed her date of birth as 19 July 1954.[20] This is the same date of birth that is on her Queensland driver licence.[21]

    [20] ST1, 4.

    [21] T4, 193.

37. Second, in her statement of claims for a protection visa she declared that her date of birth was 31 December 1956.[22] In her application for Australian citizenship she has also listed her date of birth as 31 December 1956.[23]

    [22] ST9, 162.

    [23] T4, 179.

38. Third, the Iranian white card that she lodged when she sought Australian citizenship lists her date of birth as 21 March 1958.[24]

    [24] T4, 191.

39. At the 2017 citizenship interview she was asked about her date of birth, and she claimed that she could not remember her date of birth. The tenor of what she told the officer was that she did not know the day or month of her birth but that ‘they’ (presumably the officers who interviewed her when she arrived in Christmas Island) had themselves decided what was the day and month of her birth. I do not accept that the Departmental officers would have assumed what was her date of birth. I consider that the Departmental officers would record what LHPQ had said on her arrival on Christmas Island.

40. LHPQ was then asked at the citizenship interview whether her date of birth was recorded on any other documents prior to her arrival in Australia, and LHPQ remarked ‘on that document from Iran there's my date of birth’. LHPQ then referred to the Iranian white card that was lodged with her application for Australian citizenship. The date of birth on the Iranian white card is 21 March 1956 which is different from the date of birth on her application for citizenship.

1. LHPQ has not in my view provided a credible explanation, nor is it obvious, as to why she has provided the Department with differing dates of birth. On 24 October 2010, LHPQ advised the Department that her date of birth was 19 July 1954. Before the Tribunal, LHPQ gave evidence that this was the date of birth she used in Iraq before moving to Iran. However, in her statement of claims dated January 2011 she then claimed that she was not sure of her date of birth and had chosen 31 December 1956 as her date of birth.

2. When LHPQ was questioned about providing different dates, she answered that there were differences between the Western calendar and the Iranian calendar. Her answer is not convincing because while there are certainly differences between the Western calendar and the Iranian calendar, these differences do not provide a plausible explanation of why LHPQ has provided different dates of birth after she arrived in Australia.

3. In 2015, FKFK in her application for Australian citizenship stated that the date of birth of her mother was 1 January 1958.[25] FKFK in giving evidence has asserted that the person who completed the form made a mistake and that her mother was born in 1956. I do not readily accept this explanation because in 2017, FKFK was enrolled as a student at an Australian university and before her enrolment would have obtained some proficiency in English. I consider that FKFK would have been able to read her application in 2015 to readily notice what she claimed to be a mistake in her mother’s date of birth. When FKFK arrived at Christmas Island she then stated that her mother had a date of birth in 1958.[26] When CHDG arrived at Christmas Island, he also then stated that his mother was born in 1958.[27] It may well be the case that LHPQ was born sometime in 1958.

   [25] T4, 165.

   [26] ST3, 255; ST ST6, 313 (Application No 2019/6143).

   [27] ST8, 227 (Application No 2019/6146).

4. There is no cogent evidence before the Tribunal to enable me to determine the correct date of birth of LHPQ. 

   CONCLUSION

5. On the evidence before the Tribunal, I cannot be satisfied of the identity of LHPQ.

6. Because of inconsistent information, I cannot place any reliance on statements made by LHPQ. LHPQ has provided inconsistent information to officers of the Commonwealth about her citizenship, her name, and her date of birth. Despite her earlier assertions that she is stateless LHPQ now admits that she is an Iraqi citizen.

7. I consider that the claims that were made by LHPQ in her application for a protection visa were false. It is not plausible that she would face persecution in Iran and detained a long time when she later visited Iran shortly after obtaining her protection visa.

8. There has been inconsistent conduct of LHPQ who initially claimed that she was only known by the name given in her review application. In 2015, when LHPQ made her application for citizenship, she declared that she had not been known by any other name other than the name given in her review application. When she was interviewed by the Department in 2017, she again reasserted that she had never used any other name but later acknowledged she had a previously used a different name before living in Iran, which included her father and grandfather’s names. On 4 September 2020, when she filed her document in response to the statement of facts, issues, and contentions of the respondent, she conceded that in Iraq she was known by a name which included her father and grandfather’s name. I cannot be satisfied that the latter name is her real name even if she is an Iraqi citizen because the last name is also different in some documentation.

9. An important element of the identity of LHPQ is her date of birth. When LHPQ was interviewed by the Department in 2017, she informed the officers that she certainly appreciated the difference between the Iranian solar calendar and ‘the Gregorian one’. She stated that her date of birth was 31 December 1956 and she said that she did not use another date of birth. However, in 2010 on her arrival at Christmas Island she informed the Department that her date of birth was 19 July 1954.  In 2015, in her application for Australian citizenship she had disclosed that her date of birth was 31 December 1956, she also then stated that she did not ever have a different date of birth. Her Iranian white card lists her date of birth as being 21 March 1956. Two of her children have made declarations that she was born in 1958.

10. At her citizenship interview in 2017, the tenor of what LHPQ said was that she could not remember her date of birth and that the date of birth that was recorded in her entry records was given by those who conducted the interview. If, as she has claimed, she did not remember her actual date of birth when she was interviewed at Christmas Island, she should have informed those officers who interviewed her of that fact.

11. Whilst I can accept that there may be difficulties of providing an interpretation of dates in jurisdictions with differing calendars, LHPQ has not in my opinion given a proper explanation for her providing different birth dates to the Department.

12. LHPQ was given a protection visa based on her claim of being a Feyli Kurd. Prior to the hearing, the respondent in the statement of facts, issues and contentions dated 18 May 2020 has fairly and squarely raised the issue of whether the applicants were indeed Feyli Kurds. 

13. In 2011, when LHPQ made an application for a protection visa, she stated that her preferred language was Arabic and that in Iran she is identified by her accent of being an Arab Iraqi national. In giving evidence before the Tribunal, LHPQ remarked: ‘I have two languages: Arabic and Persian’, she did not then mention that the Kurdish language was her language. I can accept that if LHPQ had Kurdish origins and had lived in Iran for thirty years she may not be as fluent in the Kurdish language as she is in the Farsi language. However, when she was interviewed in 2017, she informed the departmental officer that she had three languages: Arabic, Persian and Kurdish.

14. It is not plausible why in 2011 and before the Tribunal, LHPQ had not acknowledged her proficiency in the Kurdish language and yet in 2017 claimed to have proficiency in the Kurdish language. I consider that her claim in 2017 was made to bolster her claim to be Kurdish. While LHPQ does not bear any onus of proof, she has not placed any cogent evidence before the Tribunal to establish that she has Feyli Kurdish ethnicity or that she had suffered discrimination in Iraq.

15. In giving evidence at the hearing LHPQ was asked about her claims in her statement of claims concerning the difference between Iranian women and Arab Iraqi women and her claim that her ‘accent identifies me as an Arab Iraqi national’. Before the Tribunal the applicant was asked if a Kurdish person would identify themselves as a Kurdish Iraqi woman rather than an Arab Iraqi woman. In her answer LHPQ remarked:

    ‘We live in harmony, Kurdish and Arab people. It makes no difference. Kurdish and Arab people live in harmony. It makes no difference’.

    Before the Tribunal LHPQ did not claim any discrimination based on her claimed Kurdish status and did not repeat the false claim that her husband could not work in Iran.

16. I consider that LHPQ adopted a different name while she was in Iran to disguise her Iraqi background. In my view by adopting differing birth dates and names, LHPQ was making it difficult to ascertain her true Iraqi origins. There is no other plausible explanation for her conduct in adopting a different name while she was in Iran.

17. LHPQ has given inconsistent evidence concerning her movements after she had moved to Iran and before she travelled to Australia. In her statement of claims dated 23 January 2011, LHPQ claimed, ‘Iraq they will not take me back because I do not have any ID to prove my Iraqi nationality’. When LHPQ was interviewed in 2017, she denied ever having travelled back to Iraq before she left Iran to come to Australia. LHPQ answered: ‘Never. No never’. LHPQ now contends that this answer may be an error because the interpreter was not from Iraq. However, I do not accept this explanation of LHPQ because the records of the 2017 interview also contains the record of LHPQ remarking: ‘Iran would not let us out of the border because we were foreigners. They would not let us out’. These remarks were made after LHPQ had answered: ‘Never. No never’.

18. The only plausible explanation of why LHPQ has given inconsistent evidence of her movements after she had moved to Iran was to conceal her right to enter Iraq by virtue of her Iraqi citizenship. LHPQ has now admitted to the Tribunal that she did indeed travel back to Iraq before she had left Iran to come to Australia. LHPQ admitted that she did go to Iraq in 2004 with her son and husband for the son’s pre wedding ceremony. She also admitted to the Tribunal that when she went to Iraq, she produced her Iranian white card that identified her as an Iraqi citizen. The fact that she was able to travel back to Iraq in 2004 is inconsistent with the claims that she made in her statement of claims dated 23 January 2011 when she claimed that she did not have any ID to prove her Iraqi nationality and that she lacked freedom of movement in Iran, these claims had no basis and were patently false.

19. I have concluded that the passport which LHPQ used when she left Imam Khomeini Airport in 2010 was indeed a genuine passport. This is because LHPQ stated that when she departed from the airport she did so without any difficulties. I have had regard to country information which indicates that the validity of the passport would be verified at the time of the departure (the country information has not been contradicted by any cogent evidence) and LHPQ’s evidence she faced no difficulties or delay in leaving the airport. 

20. It may be the case that the official passport that she used was an Iraqi passport because she is an Iraqi citizen. LHPQ herself in her evidence-in-chief stated that she obtained the Iraqi passport in 2009. This is the same year when the Iraqi government advised that LHPQ was issued with an Iraqi identification card. I have concluded that it is legitimate to infer that it is likely that the Iraqi identification card was issued to LHPQ at the same time when she obtained a genuine Iraqi passport.

21. In 2015 she answered Question 21 on the application form for Australian citizenship which asked: ‘Do you currently have, or have you ever had any national identity documents or numbers (including birth registration numbers, social security cards, etc.) she answered ‘No’.[28] I have previously mentioned that it is concerning that she did not disclose the Iraqi National ID card that was issued to her in 2009. LHPQ has made a false declaration in not disclosing this national identity document because she wished to continue her façade of being stateless.

    [28] T4, 181.

22. The provision by LHPQ of different names and dates of birth may also be done to prevent the Department from ascertaining whether she had Iranian nationality. I have previously mentioned that LHPQ did not respond when she was asked how her husband owned his own shop without an Iranian ID. The fact that LHPQ was not prepared to deny that her husband had an Iranian ID leads me to conclude that her husband may well have been an Iranian citizen. If this was the case, then the LHPQ may also have Iranian citizenship and the right to an Iranian passport.

23. During the hearing WPLR mentioned that it would be possible to fly directly to Indonesia with an Iranian passport. If LHPQ had an Iranian citizenship, she could have flown directly to Indonesia without having to travel through Malaysia and undertake the dangerous journey from Malaysia to Indonesia. FKFK has in giving evidence remarked ‘that going from Malaysia to Indonesia is very, very dangerous way’. It is entirely plausible that the applicant may have directly flown to Indonesia with an Iranian passport. There is no documentary evidence of what actual airline flight was taken by LHPQ.

24. LHPQ has not been honest in her dealings with the Government. She has given inconsistent evidence on her name, date of birth, citizenship and whether she had a genuine Iraqi passport. I am not prepared to accept that any of the various and conflicting statements made by LHPQ concerning her identity are accurate. LHPQ has also not provided a consistent account of her movements, she has provided inconsistent information on whether she was able to travel to Iraq from Iran.

25. As LHPQ now concedes that she is an Iraqi citizen she can obtain documentation from the Iraqi government which confirms her identity. LHPQ has not put forward any reason why she could not obtain Iraqi identity documentation, such as a passport, which verifies her personal particulars such as her name, date of birth and photograph. To establish one’s ‘identity’ it is usual to have recourse to ‘official information about yourself, such as passports, bank account details etc.’[29]

    [29] Macquarie Dictionary (8^th ed., 2020), 769.

26. Given the above considerations and findings, I am not satisfied of the identity of LHPQ for the purposes of s 24(3) of the Act.

    WPLR BACKGROUND

27. WPLR first arrived in Australia on 8 October 2010 without a visa. On 13 July 2011, he was granted a protection visa. On 15 July 2015, he lodged his application for Australian citizenship by conferral. On 29 August 2019, his application for Australian citizenship was refused on the basis that the delegate was not satisfied of his identity.

    WPLR IDENTITY  

    Citizenship of WPLR

28. On 8 October 2010, WPLR was interviewed at Christmas Island. At that interview, WPLR claimed that he was a Kurdish Feyli and that he only had a white card.[30] In response to the question 9 on the Biodata form which requires a person to answer: ‘Your citizenship’, he answered: ‘None’. He had previously answered ‘stateless’ and then struck out that answer.[31]

    [30] ST3, 157.

    [31] ST7, 227.

29. In his evidence in chief before the Tribunal, WPLR claimed that he initially did not understand what ‘stateless’ meant. He remarked: ‘At the beginning, they didn’t say you are stateless, they just said that you are coming from Iran, you are a refugee in Iran’. He added: ‘At the beginning no, but later on, yes, I realised what does it mean’. However, I do not accept that WPLR had correctly recalled what he said when he arrived in Australia because the term ‘stateless’ is recorded in the record of his initial interview.

30. On 21 January 2011, WPLR made his application for a protection visa in which he declared: ‘I was born stateless’.[32] Question 8 in the application form for the protection visa asked: ‘What is your current citizenship?', WPLR had answered 'Stateless-Iran'. In his statement of claims he also declared that he was ‘stateless’.[33]

    [32] ST9, 325.

    [33] ST9, 347.

31. Before the Tribunal the WPLR’s representatives have submitted that WPLR understood the term ‘stateless’ to mean ‘undocumented’. However, his statement of claims for protection was prepared with the assistance of lawyers who I consider would have advised WPLR about the nature of making a statutory declaration of being stateless. I am fortified in my conclusion that he understood the nature of being stateless. This is because in the same sentence in his statement of claims in which he claimed to be ‘stateless’, he also declared that he had ‘no legal right to enter or reside in any other Country temporarily or permanently’.[34]

    [34] ST9, 145.

32. I have concluded that when WPLR claimed to be stateless, he understood that his claim of being stateless was that he did not have the citizenship of any country and that he had no legal right to live in any country. In answering question 9 in the Biodata form in 2010, I consider that WPLR then linked the concept of ‘stateless’ with having no citizenship.

33. On 10 July 2015, WPLR completed his application for Australian citizenship which was lodged on 15 July 2015. Question 16 on the application form asked: ‘Do you hold or have you ever held citizenship of any other country?’, WPLR answered ‘No’.[35] WPLR also declared that his female parent (LHPQ) was ‘stateless’.[36]  Question 21 on the application form asked: ‘Do you currently have, or have you ever had any national identity documents or numbers (including birth registration numbers, social security cards, etc.), WPLR answered ‘No’.[37] That application form incorporates a declaration in which WPLR declared ‘that the information I have supplied in this form is complete, trustful and correct in every detail’.[38]  

    [35] T4, 11.

    [36] T4, 14.

    [37] T4, 12.

    [38] T4, 21.

34. On 14 February 2017, WPLR attended a citizenship interview at the Brisbane office of the Department in relation to his application for Australian citizenship. At the interview, WPLR denied having any citizenship in Iraq and denied having made any attempt to apply for Iranian citizenship or Iranian citizenship. He also denied that his parents had Iraqi citizenship, he remarked: ‘No if they had Iraqi citizenship they would have stayed in Iraq’.

35. At the 2017 citizenship interview it was put to WPLR that his marriage certificate shows that he had an Iraqi ID national ID card. WPLR answered: ‘Okay, the person I paid back in 2014 to forge this document, he worked in the government, I don’t know to what extent he forged those documents or how successful he’s been’. 

36. At the 2017 citizenship interview it was put to WPLR that his date of birth and his ID number were recorded in the Iraqi government system. WPLR remarked: ‘if he is good at his job, there must be’; he added, ‘The only thing I can say that the guy I paid, he’s got a lot of connections with the government and the money I paid him wasn’t a small amount’.

37. At the 2017 citizenship interview it was put to WPLR that he could obtain an Iraqi passport. WPLR did not agree and remarked:

    ‘To be honest I’m just shocked that you guys consider these things to be genuine. That said I have connections in the registry office, and he said that he can do a good job, but I didn’t think that it would be to this extent that you are asking me questions as to whether these documents are original or not’.

    However, WPLR later agreed with the proposition that was put to him by the Departmental officer that he was ‘now’ an Iraqi citizen.

38. At the 2017 citizenship interview, WPLR was also asked about the departure procedures at the Imam Khomeini Airport when he departed from Iran in 2010 on his journey to Australia. WPLR was asked whether his passport was connected to a computer system, and he answered ‘No’. He was next asked: ‘So she didn’t enter anything into a computer, didn’t scan the passport. Didn’t do anything like that?’ and he answered: ‘No’.

39. At the Tribunal hearing, WPLR gave a different account of the departure procedures at the Imam Khomeini Airport to what he gave at the 2017 interview. In giving evidence before the Tribunal, WPLR stated that his Iraqi passport was scanned on departure. When he was taken to the transcript of the 2017 interview, he then resiled from his earlier statement before the Tribunal that his passport was scanned, he then asserted that he did not know whether the passport was scanned at the airport because the computer was ‘high’.

40. The Tribunal asked WPLR: ‘Isn’t it the case that at the time of this interview in 2017, you answered no to the question of her checking out the computer, because you thought that that would be more of a plausible explanation how you managed to get through the airport with a fake passport?’ WPLR denied that this was the case. Because WPLR has changed his account of events within a short period of time in giving evidence before the Tribunal, I consider his evidence is unreliable and that he gave an account that he considered at the time would be most favorable to him.

41. The respondent’s statement of facts, issues and contentions dated 18 May 2020 contained country information from the Danish Immigration Service[39], the UNHCR and other sources[40], concerning the security procedures at the Imam Khomeini Airport whereby the authenticity of passports is verified, which I have considered. In reliance on this country information the respondent contends that it would be difficult to leave the Imam Khomeini Airport on a false passport because of the strict security measures at the airport to prevent people leaving on a false passport.

    [39] Danish Immigration Service, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit

    Procedures, ID Cards, Summons and Reporting, etc., 30 April 2009.

    [40] Immigration and Refugee Board of Canada. Iran: exit and entry procedures at airports and land borders, April

    2006. June 2001 report of the 7th European Country of Origin Information Seminar.

1. Because of the strict security measures at the airport, I do not accept the assertion of WPLR that his passport was not scanned at the airport. I can accept that the strict security measures at the Imam Khomeini Airport may be circumvented by bribery. However, there is no cogent evidence that the security procedures at the airport were circumvented by bribery in this case.

2. WPLR has submitted that the country information from the Danish Immigration Service has no bearing on the application. WPLR has submitted that ‘we should be looking at the available country information for 2010 when the applicants left Iran and not to rely on the country information available in 2022 when the technology has advanced and things have changed greatly’. However, the country information from the Danish Immigration Service was issued in 2009 and not in 2020 as contended by WPLR. Because the country information was issued in the preceding year to when WPLR travelled to Australia, I consider that it would likely refer to the security procedures at the airport in 2010 and certainly has relevance.

3. In reliance on the uncontradicted country information I have concluded that WPLR had left Iran with a valid passport.

4. On 4 September 2020, WPLR filed a document in response to the statement of facts, issues, and contentions of the respondent in which he contends: ‘He did live in Iran holding only Iranian issued documents and did leave Iran using a false passport’. I do not accept the contention that WPLR used a false passport. When WPLR was interviewed at Christmas Island, he was then asked whether the passport that he used to travel to Australia was genuine, he replied ‘don’t know’. Because he did not then claim that the passport was false, I do not give his later contrary contention any weight.

5. WPLR has provided various accounts to Commonwealth officers on how his passport was taken from him on his journey to Australia.  When he was interviewed on Christmas Island in 2010, he stated that the passport was taken away from him in Kuala Lumpur. He then claimed that he landed in a beach in Indonesia and then drove 15-16 hours before he arrived in Jakarta. In 2011 he stated that the passport was taken away in Malaysia. At his citizenship interview in 2017 he was asked: ‘What happened to the passport?’, he answered:

   ‘The smuggler took it away from us the minute that he was taking us towards the shore, he took it away from us. In Jakarta. In Jakarta yeah, he gathered all the passports.’

6. I cannot reconcile the various explanations provided by WPLR of when his passport was taken from him. WPLR variously stated that his passport was taken from him in Kuala Lumpur, in Jakarta or on a boat as the boat approached Jakarta. It is difficult to accept that the passport was taken in Malaysia because it may have been needed for his entry into Indonesia.

7. The contention of WPLR as outlined in his response document filed on 4 September 2020 is that the father of WPLR was an Iraqi national in the early days of his life but that his father lost his citizenship during the rule of Saddam Hussein. Another contention in that response document is that WPLR was unable to obtain Iraqi citizenship whilst he was in Iran because he was unable to prove the Iraqi citizenship of his parents. The contention of WPLR that he is unable to obtain Iraqi citizenship has no basis because at the conclusion of his evidence-in-chief he was asked: ‘what do you believe your citizenship to be?’ and WPLR answered: ‘I think I’m Iraqi, yes’. At the 2017 interview, WPLR also agreed that he was ‘now’ an Iraqi citizen. I accordingly conclude having regard to these admissions that WPLR is an Iraqi citizen.

8. WPLR himself has admitted that he has provided inconsistent evidence concerning the Iraqi ID card which had been seized as a bogus document by the Department. The Queensland Document Examination Unit examined the Iraqi National ID Card of WPLR. WPLR has not disputed the conclusion of the Unit that the document was ‘legitimately manufactured’ but had been fraudulently altered.

9. On 21 June 2021, the respondent filed with the Tribunal the tender bundle[41] which contained information obtained by the Australian government from the Iraqi Ministry of Interior Civil Status Directorate through the DFAT Post which indicated that ‘all the sons and daughters’ of LHPQ are ‘registered with the Iraqi authorities as Iraqi citizens and they have the right to obtain any documents to prove their identity, marital status and citizenship’.[42] This evidence has not been challenged by WPLR who has had adequate time to dispute this information.

   [41] Exhibit R1,

   [42] ST5, 100.

10. I accordingly give some weight to this official information from the Iraqi Ministry of Interior Civil Status Directorate and conclude that the information indicates that WPLR, being a son of LHPQ, is an Iraqi citizen. In his response document filed on 4 September 2020, WPLR does not, unlike the case of the response document of other applicants, acknowledge that the Department had information received from DFAT confirming that WPLR is an Iraqi citizen.

11. Furthermore, at his 2017 interview he admitted that he was not registered with the UNHCR as a refugee.

12. Given the above considerations there is accordingly no basis to the various claims of WPLR that he is stateless.

    Protection visa

13. On 21 January 2011, WPLR declared his statement of claims when making his application for a protection visa, which was granted on 13 July 2011. The statement of claims was prepared with the assistance of lawyers. In his statement of claims there are some claims made by WPLR which are difficult to accept. I do not accept his claim that he is stateless and unable to claim Iraqi citizenship because he now admits that he is an Iraqi citizen. It is difficult to accept his claim that as a Feyli Kurd from Iran he could not marry an Iranian woman and that it is against the law for him to marry an Iranian woman. His brother has an Iranian wife, and his sister married an Iranian man.

14. At his 2017 citizenship interview, WPLR was asked whether he tried to register with any organisation to show that he was a refugee and he admitted that he was not registered with the UNHCR as a refugee. WPLR stated that he did not need to register in Iran because he had the white card. WPLR asserted that the UN office would only admit Afghanis to the office and that they would not assist Iraqis. I do not give weight to this aspersion on the UN office. WPLR had never had any contact with any international humanitarian agency such as the UNHCR or IOM.[43]

    Different names

    [43] ST3, 164; ST8, 269.

15. On 24 October 2010, WPLR was interviewed by the Department at Christmas Island when he gave his name as that listed in ST3, 157, he did not answer the question of whether he was known by any other name.[44] On the same day he also completed a Biodata form. On that Biodata form in response to question 2 he disclosed his name as listed in ST7, 227. In response to question 3 on that form as to whether there were ‘any other names you are known by’, WPLR did not disclose any other names and left blank the space for his answer to that question.[45] I have concluded that WPLR then made a deliberate decision to not disclose the other names that he was known by.

    [44] ST3, 157. 

    [45] ST7, 227.

16. On 23 January 2011, when WPLR applied for a protection visa, he answered ‘N/A’ to question 3 which asked him: ‘Have you been known by any other names?’.[46] I have also concluded that WPLR made a deliberate decision to not disclose any other name at this time.

    [46] ST8, 240.

17. On 10 July 2015, in his application for Australian citizenship, he answered ‘No’ to question 3 which reads: ‘Have you been known by any other name? (including name at birth, previous married names, aliases, or alternative spellings or full spellings of all names’).[47] I have concluded that WPLR then also made a deliberate decision to not disclose any other name.

    [47] T4, 10.

18. On 13 February 2017, WPLR attended an interview at the Brisbane office of the Department in relation to his application for Australian citizenship when he agreed to answer the questions truthfully and provide as much information as possible. At the interview WPLR was asked his name, he provided the name given on his review application and he stated was his name on Facebook. The officer asked him if he was known by any other name and WPLR responded ‘No’ to that question. WPLR was asked: 'So you have only been known as [the name listed in the review application]. Like because in Iraq you know sometimes people are known by their father’s name too you know and their grandfather’s name. Have you been known by any other names?', to which he answered 'No no’.

19. WPLR was also asked where his last name comes from, and he replied:

    ‘I don’t know exactly. I believe it’s a tribal name. It’s a big family which they partially live in Iran, partly live in Iraq and the area of the residence is on the border’.

20. WPLR was asked to confirm: 'You've never used any other name in any other country on any documents', to which he answered ‘No’.

21. In his response document that was filed on 4 September 2020, WPLR did not, unlike the case of his mother, contend that he used different names in Iran and Iraq. Instead, WPLR contends that ‘everything that he has said to date about his identity is true and correct’. For reasons which appear below I have concluded that the information that he has provided to the Department is not true and correct but is also misleading.

22. In giving evidence before the Tribunal, WPLR acknowledged that he answered ‘No’ to the question 3 in his application for Australian citizenship which reads: ‘Have you been known by any other name?’, he added ‘Of course, no’. When WPLR was asked whether he had been known by other names besides the name given in his review application, he answered that:

    ‘In the Arabic country they use the father's name and the grandfathers. As you can see on the Iraqi documents it's my father's name after my name and my grandfather's and there's nothing else to add or have taken from my name’.

23. This answer that WPLR gave at the Tribunal hearing to the question about whether he had been known by different names certainly differs from he told the Departmental officers in his 2017 interview (stated at [124]).

24. WPLR now admits that his name is that as listed in his 2014 marriage certificate and in his 2010 nationality certificate, which differs from the name given in his review application. At the citizenship interview in 2017, WPLR confirmed that he never used any other name in any other country on any documents. In his citizenship application lodged in 2015 and his responses at the 2017 citizenship interview, WPLR did not disclose names which accorded with the Iraqi naming convention whereby his father and grandfather is included in his name as he admitted to the Tribunal.

25. It is a matter of grave concern that at the citizenship interview in 2017, WPLR denied that he was known by his full name in accordance with Iraqi naming convention. On that occasion he specifically answered the Departmental officer as follows:

    'No no, because I was born in Iran, and in Iran we use surnames, we don’t use the father’s or the grandfather’s name. Even my white card has been issued as...’ [the name listed on his review application]

    This answer of WPLR is patently false because before the Tribunal admitted that he had used a different name in Iraq when he was married in 2014 but that he had not disclosed that different name to the Department in 2015 and 2017.

26. I note that in a 2015 tenancy agreement the name of WPLR is spelt as differently.[48] I accept WPLR’s explanation that the spelling of this name was a mistake.

    [48] PT12, 54.

27. At the 2017 citizenship interview, WPLR was invited by the Departmental officer to send documentary evidence in support of his application for Australian citizenship. In response WPLR sent the Department various documents, which included his Iraqi identity card.

28. On 28 May 2018, the Department advised WPLR that his Iraqi identity card had been assessed by Departmental examiners to have some anomalies and he was requested to provide answers to specific questions concerning the authenticity of the document. On 28 May 2018, WPLR confirmed that he did not know whether the requested documents were genuine, he remarked:

    ‘I have no idea if the Doc is genuine or not and I just wanted it for marriage not anything else and if I knew that if I could marry with my travel Doc I wouldn’t do it’.

29. On 4 June 2018, the Department sent WPLR with a Notice of Seizure of Bogus Documents regarding the Iraqi Identity Card because it was reasonably suspected that the document was fraudulently altered and was a ‘bogus document’ as defined in s 5(1) of the Migration Act 1958 (Cth). WPLR did not dispute that the document was a bogus document.

30. Before the Tribunal WPLR was asked: ‘If you’re willing to engage a person to obtain documents you know are fraudulent, why should the tribunal accept anything you say as true?’, WPLR responded:

    ‘I had no options to do that. I was waiting for my wife to get married at this for four years and it was my only option is to do. Then, I didn’t want to lose my wife because of that. I know I did something, it’s not right to do it, but on that time, I didn’t understand what I’m doing.’

    He added:

    ‘Yes, because I didn’t go to any departments to apply for them, that’s why I wasn’t sure, they aren’t forged or genuine. That’s - I wasn’t sure. When you pay someone to do something for you, like the government papers, you are meant to rely on them that they are genuine’.

31. In 2014 in making an offshore spouse application at the Australian embassy in Jordan, WPLR submitted an Iraqi Identity Card and an Iraqi Nationality Certificate which he states were ‘fake’. While he has quite properly acknowledged that ‘it’s not right to do it’, I cannot place reliance on evidence from an applicant who admits that he submits false documents to the Government.

32. In his application for Australian citizenship, WPLR was required to disclose all names that he was known: ‘Including name at birth, previous married names, aliases or alternative spellings or fully spellings of all names’. WPLR did not disclose all names that he was known by including his previous married name.[49] His application for Australian citizenship was lodged on 15 July 2015 and some sixteen months earlier in February 2014 he was married under a different name.[50] This name is quite different from the name disclosed in his application for Australian citizenship.

    [49] PT12, 48.

    [50] PT12, 40.

33. After considering the evidence before the Tribunal, I cannot be satisfied what the actual name of WPLR. There is certainly evidence before me that WPLR is known by different names. Those different names are the names that WPLR disclosed to the Department on his arrival in Australia, his application for a protection visa, his application for Australian citizenship, the name on his marriage certificate as well as the name on his nationality certificate which WPLR has stated is a ‘fake’ document. There is also a translation of an Iraqi document in evidence which discloses a different name for WPLR.[51] Because WPLR asserted that the records of the Iraqi document concerning his nationality are ‘fake’ and were influenced by bribery I am not prepared to accept that those names are in fact his actual names.

    [51] PT12, 50.

34. As an Iraqi citizen I consider WPLR should be able to obtain official documentation which verifies his name.

    Different dates of birth

35. WPLR has provided the Department with information for different dates of birth.

36. On his application for Australian citizenship, he answered question 6, which asked him for his date of birth as 21 March 1981. Question 7 of that application requires WPLR to advise whether he has ever had a different date of birth to the date of birth shown at question 6 and he answered ‘No’. In giving evidence before the Tribunal, he confirmed that he did answer ‘No’ to question 7.

37. There are translations of Iraqi documents in evidence.[52] These documents are personal identity documents that are purported to be issued by the Ministry of Interior of the Republic of Iraq which discloses that WPLR has a date of birth of 22 March 1981.

    [52] PT12, 42, 50.

38. In evidence is an Iranian study completion certificate which discloses that WPLR has a date of birth of 22 February 1982.[53] Before the Tribunal, WPLR stated that the date of birth had a different year and a different month to the date of birth on his application for Australian citizenship. WPLR was asked to explain the difference and he responded: ‘I have no explanation because as you can see it's my name, everything is right, but they made a mistake with the date of birth’. WPLR did not put forward any cogent explanation based on differing calendars in use in Iran or Iraq or why the date of birth was incorrect.

    [53] T57.

39. As an Iraqi citizen, I consider WPLR should be able to obtain official documentation which verifies his actual date of birth.

    CONCLUSIONS

40. I have decided that I cannot place any reliance on the statements of WPLR because he has provided inconsistent information about his citizenship, his name, and his date of birth.

41. Despite his earlier claims of being stateless, WPLR now admits to being an Iraqi citizen. I consider that WPLR has made false declarations in his application for a protection visa and in his application for Australian citizenship that he is stateless.

42. In 2015 when WPLR made his application for citizenship, he made a false declaration that he had not been known by any other name. When he was interviewed by the Department in 2017, he again reasserted that he had never used any other name. At that interview WPLR was specifically directed to the Iraqi naming convention whereby people are known by their father’s as well as their grandfather’s name and he was asked if he used another name, he still answered ‘No no’.

43. On 4 September 2020, WPLR filed his document in response to the statement of facts, issues, and contentions of the respondent. Unlike the case of the response document of his mother, there was no contention by the WPLR that he had used another name. It is somewhat concerning that WPLR in giving evidence before the Tribunal now admits that his name is that as listed in his 2014 marriage certificate and in his 2010 nationality certificate. Having considered the AGD Identity Guidelines, I note that WPLR has not provided a consistent life story. Because of the inconsistent conduct of WPLR, I am not prepared to rely on his evidence and accept that these names are his actual names.

44. Although there is documentary evidence before the Tribunal that WPLR is an Iraqi citizen, I am unable to place reliance on those documents because WPLR himself has stated that the ‘documents are all fake, I paid someone to make these for me’. The Department seized the Iraqi Identity Card because it was reasonably suspected that the document was fraudulently altered and was a ‘bogus document’ as defined in s 5(1) of the Migration Act 1958. WPLR did not dispute that the document was a bogus document.

45. An important aspect of the identity of WPLR is his date of birth. WPLR has not provided any cogent explanation of why he has provided documents with different birth dates. I am certainly unable to rely upon the date of birth on the documents which WPLR has described as ‘fake’. I am not satisfied as to what is WPLR’s date of birth.

46. WPLR was given a protection visa based on his claim of being stateless as a Feyli Kurd. Prior to the hearing the respondent in the statement of facts, issues and contentions dated 18 May 2020 has fairly and squarely raised the issue of whether the applicants were indeed Feyli Kurds. While he does not bear any onus of proof, WPLR has not placed any cogent evidence before the Tribunal to establish that he is indeed a Feyli Kurd. I do not accept his claim that he will be punished on his return to Iran because he used a false passport at the Imam Khomeini Airport when he departed from Iran in 2010 on his journey to Australia. That is because in my opinion he had a valid passport when he departed from Iran.

1. It was put to FKFK that the fact she was ‘able to pass through immigration clearances three times on your trip suggest that you, in fact, had a genuine passport?’ and FKFK stated that she had no idea whether the passport was genuine or not. I consider that the passport was genuine because FKFK was able to use the passport to obtain immigration clearance in Tehran, Dubai, and Indonesia without any difficulty.

2. In these preceding paragraphs I have outlined my reasons why I conclude that FKFK departed from the Imam Khomeini Airport with a genuine Iranian passport.

3. The Iranian Government gives a white card to foreign residents. Although FKFK has on several occasions referred to her white card, she has not produced the original white card. At her entry interview she asserted that her white card was thrown in ‘the water’ before she entered Australia. At her 2017 citizenship interview, FKFK was asked by an officer: 'Where is the last card that you had?' She answered: 'I don't remember. I might have brought it with me and threw it in the sea on the way, I don't remember, I don't know'.

4. Before the Tribunal, FKFK gave a different account of how she disposed of the original card, she remarked: ‘I didn't say that I threw it into the water. I said whatever documents we had the smugglers took from us and he said he will destroy it in the water but, yes, I didn't do it’. FKFK has acknowledged that there is a copy of her white card in evidence.[93]

   [93] T4, 181.

5. The respondent’s statement of fact, issues and contentions refers to the statement of FKFK who stated that her white card prior to her departure for Australia and the statement of QXSC who stated that the white card of FKFK expired about a year prior to her departure. The respondent has raised the contention that FKFK no longer needed a white card after her marriage due to her acquisition of Iranian citizenship. The respondent has also raised the contention that if FKFK was stateless she would be unable to attend a public university in Iran and that her enrolment in a pre-university course indicates that as a citizen of Iran she was able to attend university FKFK has not placed any cogent evidence before the Tribunal in respect of these contentions which provide further reasons to indicate that FKFK had Iranian citizenship prior to her departure from Iran.

6. On 21 June 2021, the respondent filed with the Tribunal the tender bundle[94] which contained information obtained by the Australian government from the Iraqi Ministry of Interior Civil Status Directorate through the DFAT Post which indicated that ‘all the sons and daughters’ of LHPQ are ‘registered with the Iraqi authorities as Iraqi citizens and they have the right to obtain any documents to prove their identity, marital status and citizenship’. This evidence was filed before the hearing and has not been challenged by FKFK who has had sufficient time to dispute this information.

   [94] Exhibit R1.

7. I accordingly give some weight to this official information from the Iraqi Ministry of Interior Civil Status Directorate and conclude that the official information indicates that FKFK being a daughter of LHPQ is an Iraqi citizen. FKFK at her 28 August 2010 entry interview acknowledged her Iraqi citizenship. I accordingly find that FKFK is also an Iraqi citizen.

8. In the response document she contends:

   ‘We submit that if there is information suggesting the applicant is of Iraqi Nationality that this information is used in the applicant’s favour because it sheds more light on the applicant’s identity even further. It does not cast more doubts about the applicant’s identity’.

9. I consider that it is fair to regard this contention as a concession that FKFK is an Iraqi citizen. Certainly, there is no cogent evidence that contradicts the official Iraqi information in the tender bundle which shows that FKFK is not an Iraqi citizen.

10. Accordingly, I consider that FKFK who has Iraqi and Iranian citizenship made a false declaration in answering Question 16 on the application form for Australian citizenship when she answered ‘No’[95] to the question ‘Do you hold or have you ever held citizenship of any other country?’. FKFK was certainly not stateless when she left Iran.

    [95] T4, 162.

11. However, the fact that I have found that FKFK is an Iraqi citizen as well as an Iranian citizen is not the end of my inquiry to be satisfied about her identity.

    Protection visa

12. In 2010 FKFK at her entry interview asserted that female members of the Basij ‘stopped me because my veil was not covering my hair’ and the dress ‘I was wearing was short. I begged them to let me go, and they released me’. I do not accept that this assertion is truthful. This is because at the hearing before the Tribunal, FKFK confirmed that she was not stopped by any of the Iranian authorities whilst she was outside of the house and that she was not asked for her identity documents. While FKFK made her assertion about the Basij more than 10 years ago, I consider that if she had indeed been stopped by the Basij she would have remembered the event at the hearing before this Tribunal. At the hearing she stated that her identity documents were not checked whilst she was outside of the house in Iran. The RSA assessment which recommended that the application for a protection visa be accepted was made on the ground that FKFK was stateless.

    Date of birth

13. FKFK in her application for Australian citizenship answered Question 6 on the form which required an applicant to disclose their date of birth, as 26 October 1988. Question 7 on that form required FKFK to advise whether she has ever had a different date of birth to the date of birth shown at question 6 and she answered ‘No’.[96]

    [96] T4,10.

14. Family members of FKFK have indicated that FKFK has a date of birth different to that provided by FKFK in her application for Australian citizenship. Her mother in her Biodata form has disclosed that the date of birth of FKFK was 5 October 1988.[97] I would ordinarily accord great weight to the statement of a mother as to the date of birth of her daughter. Her brother, CHDG, in his Biodata form has indicated that FKFK was born in 1989.

    [97] ST7,137 (Application No. 2019/6145).

15. In attending the 2017 citizenship interview at the Brisbane office of the Department, FKFK remarked that the Persian date of birth is written in her white card and that when she came to Australia the interpreter converted it to the Christian calendar. At the 2017 interview, FKFK was asked about the location of the original white card, she answered: ‘Yeah, the original was returned back to the government in order to get the permit to leave Iran’. However, FKFK in her 2010 interview gave a different account to the Department of how she disposed of the white card, she remarked: ‘I have a copy of the white card on me, the smuggler told me to throw away the original’. I do not consider that the interpreter could have read the date on her white card which she asserts she had disposed of before her entry interview.

16. I also do not accept that FKFK is a credible person because she has provided different accounts of how she lost possession of her original white card.

17. An important document which would ordinarily contain information about the date of birth of FKFK is her marriage certificate. At her 2017 interview, FKFK stated that she did not have a marriage certificate but a handwritten piece of paper with some sacred verses on what she said was a ‘plain sheet’. FKFK also asserted that the marriage was not legal because she ‘didn’t have a birth certificate’. However, her husband has produced a religious marriage certificate which referred to a date of birth of FKFK as well as the number of her birth certificate.[98]

    [98] Exhibit A11.

18. Another reason why I have concluded that FKFK is not a credible person is because of her false statements to a Commonwealth officer that she did not have a marriage certificate and a birth certificate, the falsity of these statements is shown by the existence of the marriage certificate which refers to the birth certificate of FKFK. In evidence are translations of an Interior Ministry document entitled ‘Certificate of Birth’ and a similar Interior Ministry document.[99] These documents refer to a birth certificate of FKFK which is dated 26 October 1998.  A certified copy of the original birth certificate does not appear to have been produced.

    In these circumstances, I am not able to make a finding about the date of birth of FKFK who has claimed not to have a birth certificate. The mother and brother of FKFK consider that she has a date of birth which differs from the date of birth on her application for Australian citizenship.

    Different names

    [99] T4, 179.

19. On 25 August 2010, FKFK was interviewed by the Department at Christmas Island. At that entry interview she gave a name which differs from the name that she disclosed on her application for Australian citizenship and did not answer the question of whether she was known by any other name.[100]

    [100] ST3, 251, ST6, 310. 

20. On 22 September 2010, when FKFK applied for a protection visa, she stated that her full name was that as given in her review application. Question 3 on the personal particulars form asked the applicant to disclose the other names that she has been known by. FKFK disclosed a name similar to the name that she disclosed at her entry interview.[101] That other name is quite different from the name that she gave in her review application.

    [101] ST&, 318.

21. On 4 May 2015, in her application for Australian citizenship, FKFK stated that her full name was as given in her review application. She answered ‘No’ to question 3 which reads: ‘Have you been known by any other name? (Including name at birth, previous married names, aliases, or alternative spellings or full spellings of all names’).[102]

    [102] T4, 161.

22. On 13 February 2017, FKFK attended an interview in relation to her application for Australian citizenship and FKFK agreed to answer the questions truthfully and provide as much information as possible. FKFK was asked: ‘Can you tell me your full name?’, she answered: ‘My name is...’ [the name given in her review application]. FKFK was asked: ‘Are you known by any other names?’ and she answered: ‘No’.

23. I consider that FKFK has made a false declaration in giving a false answer to question 3 on her application for Australian citizenship. FKFK has certainly used names other than the one listed in her review application as indicated in the previous documentation that she has provided to the Commonwealth.

    CONCLUSIONS

24. On the evidence before the Tribunal, I cannot be satisfied of the identity of the FKFK. I have in these reasons outlined why FKFK is not a credible person.

25. FKFK made false claims in her statement of claims for a protection visa about being stateless. She has also made false declarations, in answering Question 16 on the application form for Australian citizenship which asked: ‘Do you hold or have you ever held citizenship of any other country’, FKFK by answering ‘No’ to that question made a false declaration in giving a false answer. The applicant did not disclose that she has both Iraqi and Iranian citizenship.

26. In her application for Australian citizenship, FKFK was required to disclose whether she ever had a national identity document. FKFK did not disclose any identity documents in answering ‘No’ to question 21 on the application form for Australian citizenship which asked: ‘Do you currently have, or have you ever had any national identity documents or numbers including birth registration numbers, social security cards, etc.)[103] At her entry interview in 2010, FKFK has asserted that she had an Iranian white card but has provided inconsistent information as to how she disposed of her white card. On 4 September 2019 FKFK filed her response document in which she contends: ‘She did live in Iran holding only Iranian issued documents and did leave Iran using a false passport’. FKFK did not disclose these documents in answering Question 21 in her application for citizenship and has made a false declaration in giving a false answer.

    [103] T4, 163.

27. I have already mentioned how FKFK has given false statements to the Commonwealth officer at the 2017 citizenship interview when she told the Commonwealth officer that she did not have a marriage certificate and a birth certificate, these were patently false statements because FKFK did not want to provide any information which would enable the Commonwealth to ascertain the citizenship of her family.

28. At the 2017 citizenship interview, FKFK was asked: ‘Before you came to Australia; had anyone left Iran?’, she answered ‘No’ to that question. When her answer to that question was read out to FKFK at the hearing before the Tribunal FKFK gave the following unpromoted response: ‘Maybe I didn't understand the question properly or maybe it was a mistake by the interpreter’. FKFK was then asked: ‘So what do you say should be the correct answer to that question?’. FKFK then responded:

    ‘So in that case I should say, 'Yes, my oldest brother who was in Iran wanted to get married with my auntie's daughter, which she was in Iraq, and it was the time after the Saddam regime … the border they didn't have much control so people were travelling to Iraq and coming back.  In that time my brother went to Iraq with my parents’.

29. At the time of the 2017 citizenship interview, FKFK was enrolled as a student in an Australian university and would have had sufficient proficiency in the English language to enable her to properly understand the questions at the interview. There is no submission that she did not understand the question. I consider that this is another instance where FKFK did not want to provide any information which would enable the Commonwealth to ascertain the citizenship of her family. It is plausible that FKFK at the 2017 citizenship interview did not want to reveal the ability of the family of FKFK to exercise their rights as Iraqi citizens to travel to Iraq.

30. Given the above considerations and conclusions above, and in the absence of any official government documentation, I am unable to make a finding as to the name of FKFK and her date of birth. Accordingly, I am not satisfied of the identity of FKFK for the purposes of s 24(3).

    QXSC BACKGROUND

31. QXSC was born in Iran and married FKFK in April 2010. QXSC first arrived in Australia on 21 July 2010 without a visa. On 4 May 2011, he was granted a protection visa. On 6 May 2015, he lodged his application for Australian citizenship by conferral. On 3 September 2019, his application for Australian citizenship was refused on the basis that the delegate was not satisfied of his identity.

    QXSC IDENTITY

    Citizenship

32. On 28 August 2010, QXSC was interviewed at Christmas Island. At that interview QXSC disclosed that his citizenship was ‘Kurdish Faili’.[104]

    [104] ST4, 79.

33. On QXSC’s application for Australian citizenship, question 16 asked: ‘Do you hold or have you ever held citizenship of any other country?’, QXSC answered ‘No’.[105]

    [105] T4, 111.

34. Question 21 on the application form asked: ‘Do you currently have, or have you ever had, any national identity documents or numbers (including birth registration numbers, social security cards, etc.), QXSC answered ‘No’.[106] The application form incorporates a declaration in which QXSC declared ‘that the information I have supplied in this form is complete, truthful and correct in every detail’.[107] 

    [106] T4, 112.

    [107] T4, 121.

35. On 13 February 2017, QXSC attended a citizenship interview at the Brisbane office of the Department in relation to his application for Australian citizenship. At the citizenship interview he was asked about his nationality, and he answered ‘stateless’. QXSC also stated that he identified as Kurdish Feyli.

36. At the citizenship interview, QXSC denied that he was able to obtain Iraqi citizenship. The tenor of what QXSC then stated was that he needed proof of his father’s Iraqi citizenship. He stated that he did visit the Iraqi embassy in Iran but that they kicked him out.

37. In giving evidence before the Tribunal, QXSC remarked that if he could prove that his parents were Iraqi, ‘I can get my citizenship. It’s going to be a bit hard because I’m born in Iran’.

38. QXSC in his response document that was filed on 4 September 2020 in response to the statement of facts issues and contentions of the respondent has referred to the comments that he made at the citizenship interview. In that response document he made the following statement:

    I will also point out that whilst it MAY be possible for someone in my situation to now obtain Iraqi citizenship, it was not possible at all during the time I lived in Iran prior to 2010. 

39. In Repatriation Commission v Warren [2008] FCAFC 64, at [92], Logan J explained that a concession made in a Statement of Facts and Contentions lodged with the Tribunal and served inter partes prior to the commencement of the hearing forms the background against which each party conducted its case. I consider that it is fair to regard the above contention made in the response document as being an admission by QXSC that since 2010 it would be possible for somebody in his situation to now obtain Iraqi citizenship.

40. I also consider that QXSC is an Iraqi citizen in reliance on the statement of his wife at the entry interview at Christmas Island when she stated that her spouse is an Iraqi citizen.[108] I accordingly find that QXSC is not stateless and is an Iraqi citizen.

    [108] ST3, 254 (Application No 2019/6143).

41. The respondent’s statement of facts, issues and contentions dated 18 May 2020 contained country information from the Danish Immigration Service[109], the UNHCR and other sources[110],  concerning the security procedures at the Imam Khomeini Airport. This country information confirms that the authenticity of passports is verified upon departure. I accept that it would be difficult to leave the Imam Khomeini Airport on a false passport because of the strict security measures at the airport to prevent people leaving on a false passport. There is also no cogent evidence that the security procedures at the Imam Khomeini Airport were circumvented by bribery in this instance. Because of the strict security measures at Imam Khomeini Airport, I do not accept the assertion of QXSC that he used a false passport to depart from Iran. I consider that he used an official government passport.

    [109] Danish Immigration Service, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit

    Procedures, ID Cards, Summons and Reporting, etc., 30 April 2009.

    [110] Immigration and Refugee Board of Canada. Iran: exit and entry procedures at airports and land borders, April

    2006. June 2001 report of the 7th European Country of Origin Information Seminar.

42. QXSC has contended that the country information from the Danish Immigration Service has no bearing on the application. QXSC has submitted that ‘we should be looking at the available country information for 2010 when the applicants left Iran and not to rely on the country information available in 2022 when the technology has advanced, and things have changed greatly’. However, the country information from the Danish Immigration Service was issued in 2009 and not in 2020 as contended by the QXSC. Because the country information was issued in the years prior to when QXSC travelled to Australia on an Iranian passport, I consider that it would likely refer to the security procedures at the airport in 2010. I rely upon this uncontradicted country information to conclude that QXSC used a valid Iranian passport to depart from Tehran airport.

43. I also consider that the passport was valid because he was able to use that passport to travel from Tehran airport to Indonesia via Dubai. QXSC at the 2017 citizenship interview confirmed that the passport contained his name and photo and that he had no issues using the passport. At the citizenship interview it was fairly put to QXSC that the amount that he claimed that he paid for the passports for his wife and himself would not be sufficient to enable bribery to occur. There is no plausible evidence of bribery in the procurement of the Iranian passport in this case.

1. Before the Tribunal WPLR stated that in Iran, you have to be Iraqi-Iranian person to be able to obtain an Iranian passport and that QXSC had an Iranian passport. The fact that QXSC used a valid Iranian passport to depart Iran points to QXSC having Iranian citizenship. At the 2017 citizenship interview, it was put to QXSC that he had gained Iranian citizenship because he had not renewed his white card before he left Iran. In giving evidence before the Tribunal QXSC confirmed that his white card expired on 6 October 2008. He stated that he did not have a valid white card in Iran from 6 October 2008 until he left in July 2010. It is certainly plausible that his Iranian citizenship meant that he had no need of a white card that is issued to foreigners in Iran.    

2. QXSC has certainly not been consistent in explaining what happened when his white card expired. At the 2017 citizenship interview, he asserted that he paid for a renewal of his white card and did not give him the document. At 2017 interview, QXSC was asked: ‘Why wouldn't they give you a document’, he answered: ‘I don’t know’. Before the Tribunal he gave a different account of what happened on his attempt to renew the white card, he asserted that he had a receipt that was valid until 6 October 2009. However, at his 2017 citizenship interview there was no mention of QXSC receiving a receipt that functions instead of a white card. Because of the inconsistency of his accounts, I do not accept that he had a receipt and that it is more plausible that he had no need of a white card as he had Iranian citizenship. This is consistent with the Departmental assessment that Feyli Kurds are overwhelmingly Iranian citizens of Iranian origin.[111]

   Protection visa

   [111] ST6, 133.

3. On 22 November 2010, QXSC made his application for a protection visa which was granted on 4 May 2011. His application for a protection visa was prepared with the assistance of lawyers who would have advised QXSC of the nature of a claim of being stateless. The RSA assessment which recommended that the application for a protection visa be accepted was made on the ground that QXSC was stateless. Having regard to the fact that he is an Iraqi citizen as well as being an Iranian citizen, I do not accept his claim of being stateless. QXSC has had no previous contact with the UNHCR.[112]

   Different names

   [112] ST4, 86.

4. On 21 July 2010, QXSC was interviewed by the Department at Christmas Island. At that interview he gave his name as stated at ST7, 135 and he did not answer the question of whether he was known by any other name.[113]

   [113] ST7, 136. 

5. On 23 January 2011, when QXSC applied for a protection visa, he stated that his given names and his family name was as stated in ST9, 154.

6. On 4 May 2015 in his application for Australian citizenship, he stated that his full name was as given in his application for review (which differed from the above-mentioned name responses). He answered ‘No’ to question 3 which asked: ‘Have you been known by any other name? (Including name at birth, previous married names, aliases, or alternative spellings or full spellings of all names)’.[114]

   [114] T4, 10.

7. On 13 February 2017, QXSC attended a citizenship interview and agreed to answer the questions truthfully and provide as much information as possible. At the interview, QXSC was asked his name, he answered with the name listed in his review application. QXSC answered ‘no’ to questions whether he had any other names or middle names. He did not disclose that he had been known by other names.

8. One matter of concern is that at the 2017 citizenship interview QXSC denied that he had any marriage certificate. QXSC remarked:

   ‘we had a paper, but that paper is something like this, the A4 thing and written by hand like this. To like and it is…it doesn't worth any like legal things’.

9. QXSC was asked: ‘Where is that paper?’ and he responded: ‘I don’t have it. It's not important’.

10. QXSC later produced the marriage religious certificate, which he claimed was not in his possession when it was requested at the 2017 citizenship interview. At the hearing he confirmed that he only provided a copy of the marriage certificate. That document is quite different to the document that was described by QXSC when he was interviewed in 2017 because it contains several signatures, photographs of QXSC and his wife as well as references to their numbered birth certificates.

11. The fact that QXSC was not forthcoming about his marriage certificate leads me to conclude that QXSC did not want to provide the Department with any information that will enable them to ascertain his identity.

12. I cannot be satisfied of the actual name of QXSC because there are documents in evidence which contain different names to refer to QXSC. There is no cogent evidence upon which I can make a finding on the actual name of QXSC.

    Date of birth

13. QXSC has been consistent in stating that his date of birth is 14 January 1983. In giving evidence before the Tribunal QXSC has asserted that he does not have a birth certificate or shenasnameh. QXSC stated that he did not have such a document because his parents could not show that they had Iranian citizenship.

14. In evidence are certificates from a vocational and technical training organisation which states that QXSC was born in 1983, the certificates both refer to a numbered birth certificate.[115] When QXSC was asked about one of these certificates, he stated that the reference number is a reference to his green card number. I accept that QXSC may be correct that these certificates refer to his green card number because in evidence is a marriage certificate that refers to a birth certificate with a different number.

    [115] Exhibits A2 and A10.

15. I do not accept the assertion of QXSC that he does not have a birth certificate when his marriage certificate refers to a numbered birth certificate.[116] In the present state of the evidence I cannot make a finding that I am satisfied as to the date of birth of QXSC until the official birth certificate is produced. 

    [116] Exhibit A11.

    CONCLUSIONS

16. On the evidence before the Tribunal, I cannot be satisfied of the identity of QXSC.

17. I consider that he has made false claims about being stateless in his application for a protection visa and in his application for citizenship. I have concluded that he is an Iraqi citizen and would be able to obtain official documentation from the Iraq Government which verifies his identity. I also consider that he has Iranian citizenship. The Departmental advice which was provided before the hearing is that there are conservatively 2.5 million Iranian citizen Iraqi Kurds.[117]

    [117] ST6, 225 (Application No 2019/6144).

18. In 2015, QXSC made his application for citizenship, in which he declared that he had not been known by any other name. When he was interviewed by the Department in 2017, he was reminded that ‘it's important that you answer the questions truthfully and provide as much information as possible’. At the 2017 interview, QXSC again reasserted that he had never used any other name. These answers were false as QXSC has been known by other names.

19. An important aspect of the identity of QXSC is his date of birth. QXSC has claimed that he does not have a birth certificate. I do not accept this claim as his marriage document refers to his numbered birth certificate. I would be satisfied as to the name and date of birth of QXSC if a duly certified copy of the marriage document was provided. Otherwise given QXSC has Iraqi citizenship, he should be able to obtain official Government documents which verify his name and date of birth.

20. QXSC also made a false declaration in answering Question 21 on the application form for Australian citizenship. Question 21 asked: ‘Do you currently have, or have you ever had, any national identity documents or numbers (including birth registration numbers, social security cards, etc.), he answered ‘No’.[118] In evidence before the Tribunal is an Iranian white card with the name and photograph of QXSC.[119] QXSC in giving evidence before the Tribunal confirmed that the white card is ‘My white card’. QXSC also gave evidence that he also had a green card issued from Tehran. At his citizenship interview in 2017, QXSC stated that he had a green card and a white card. QXSC did not disclose that he ‘ever had’ those documents when he answered Question 21 on the application form for Australian citizenship. Therefore, I have concluded that he made a false declaration in answering Question 21.

    [118] T4, 112.

    [119] A8.

21. Based on the considerations and findings above, I am not satisfied of the identity of QXSC for the purposes of s 24(3).

    NATURE OF THE APPLICATIONS

22. These applications concern the application of s 24(3) of the Act, as discussed above.  The applicants made submissions that a citizenship certificate should be issued to them. If I was satisfied of the identity of the applicants (which is certainly not the case), my usual course of action would be to set aside the decision under review and remit it to the respondent for reconsideration with a direction concerning my finding concerning the identity of the applicants. The reason for such a course of action would be that to attain citizenship it is necessary for a delegate to be satisfied as to the other requirements in 21(2) of the Act which have not been the subject of this application. The respondent has not had the opportunity to be heard as to whether the applicants have satisfied those other requirements.

23. I have outlined in these reasons why I have determined that I cannot be satisfied of the identity of each applicant. In these circumstances the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where the identity of the applicants is far from clear.[120]

    [120] Beyan and Minister for Immigration and Border Protection [2015] AATA 256, [38] (Senior Member CR Walsh).

24. While there was some dispute as to what happened at the citizenship interviews of some applicants, I indicated at the conclusion of the hearing that I would have entertained an application to be made after the hearing for Departmental officers to be required for cross-examination. However, no such application was made.

25. In the case of FKFK, WPLR, LHPQ and CHDG my prime reason for concluding that these applicants have Iraqi citizenship (apart from any admissions or concession that have been made) is because of the uncontradicted information that the Department obtained from the DFAT post in Iraqi. However, that information from the DFAT post does not reveal important aspects of identity such as the full name and date of birth of a person. I have concluded that the applicants QXSC and FKFK are Iranian citizens but without official information as to their full name and date of birth, I am unable to be satisfied as to their identity. There was no cogent reason why the applicants could not obtain official information as evidence of their identity to support their applications.[121]

    [121] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310.

    DECISIONS

26. In application No 6141 of 2019, I affirm the reviewable decision dated 3 September 2019.

27. In application No 6143 of 2019, I affirm the reviewable decision dated 3 September 2019.

28. In application No 6144 of 2019, I affirm the reviewable decision dated 29 August 2019.

29. In application No 6145 of 2019, I affirm the reviewable decision dated 29 August 2019.

30. In application No 6146 of 2019, I affirm the reviewable decision dated 30 August 2019.

I certify that the preceding 307 (three-hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

............................[SGD]............................................

Associate

Dated: 23 February 2023

Date(s) of hearing:	21-25 June 2021 and 14 September 2021
Date final submissions received:	1 June 2022
Advocate for the Applicant:	Mrs Roya Majd
Advocate for the Respondent:	Tal Aviram and Alexander Zhang
Solicitors for the Respondent:	Clayton Utz