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

[2021] AATA 4439

Rahim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4439 (28 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0564

Re:Moshen Ebrahim Rahim

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:28 September 2021

Place:Adelaide

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the applicant satisfies the identity criteria set out in s 24(3) of the Australian Citizenship Act 2007 (Cth).

.........................[Sgnd].................................

Senior Member B J Illingworth

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – whether Tribunal is satisfied of Applicant’s date of birth and place of birth – decision under review set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Secondary Materials

Australian Citizenship Policy Statement

Attorney-General’s Department, National Identity Proofing Guidelines, 2016
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005

REASONS FOR DECISION

Senior Member B J Illingworth

28 September 2021

INTRODUCTION

1. This is an application for review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 19 January 2021 who refused to approve the applicant’s application for citizenship by conferral pursuant to s21(2) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate was not satisfied of the applicant’s identity pursuant to s24(3) of the Act.

2. At the hearing, the applicant was represented by Ms Roya Majd of Majd Visa Pty Ltd and the respondent by Ms Emily Spice, Australian Government Solicitor.

3. The applicant gave evidence before the Tribunal, as did his mother who gave evidence by telephone from Iran. Both were assisted by an interpreter.

   BACKGROUND

4. The applicant arrived in Australia (Christmas Island) as an unauthorised maritime arrival on 21 December 2010. That same day he completed a Biodata (Persian) – Direct Arrival form (Biodata form) with the assistance of an interpreter[1]. The applicant spoke only Persian at the time. The form records his English was poor. The handwritten Persian script in the Biodata form was in the applicant’s handwriting. The English translation was in the interpreter’s or interviewer’s handwriting. The Biodata form included the following information:

   (a)the applicant was born on 31 July 1983 in Tehran, Iran;

   (b)his most recent address was in Tehran, but he provided a previous address in Isfahan, Iran in 1986;

   (c)his citizenship was ‘stateless’;

   (d)his religion was Islam Shiite;

   (e)his ethnic group was Faili Kurd;

   (f)his father was born in Iraq in 1956 and was deceased; and

   (g)his mother was born in Iran in 1961 and resided in Tehran.

   [1]Exhibit B, Supplementary T Documents, T17, pages 189-198.

5. His Unauthorised Arrival Interview form (Arrival form)[2] dated 4 January 2011 includes the following information:

   (a)Date of Birth – 31 July 1983;

   (b)Place of birth – Tehran was handwritten and crossed out and replaced with Isfahan;

   (c)Citizenship – Iran – no documents though, so claimed stateless;

   (d)Previous addresses – 1986 to 1996 Isfahan, Iran and 1996 to 2001 Tehran, Iran; and

   (e)Employment History – 2001 to 2010 worked in a foam and rubber shop.

   [2] Ibid, T18, pages 199-221.

6. Further, in the Arrival form the applicant provided personal and family details, consistent with his evidence. He said his father worked in the building/construction industry. The applicant left Iran because he was stateless and had no rights. He did not have a birth certificate because his mother was Iranian, but his father was Kurdish. Even though his mother was Iranian he was unable to get Iranian citizenship. The absence of a birth certificate also meant he did not undertake military service and had no military papers. He travelled to Australia with the assistance of people smugglers and in particular a man named Majid. He paid $11,000 for a passport. He detailed his journey to Australia namely, Tehran to Bazarahan then to Istanbul by bus, to Dubai and then Jakarta by plane, and then by boat to Australia.

7. The applicant was interviewed on 28 January 2011 for the purpose of an Immigration Advice and Application Assistance Scheme form (IAAAS form) and also provided a typed statement dated 28 January 2011 prepared with the assistance of an interpreter[3], in which he said he was born on 30 August 1983[4] in Esfahan (also referred to as Isfahan). He also said that, prior to his entry interview, he was warned by smuggler ‘Majid’ not to mention certain information to immigration authorities as his position as a genuine asylum seeker would be jeopardised. He followed that advice and some of the content of his Biodata entry interview was untrue. In that respect, he said his journey to Australia took about a month, whereas he originally said two weeks, and that he could give more details if required.

   [3] Ibid, T23, page 228 and T24, pages 229-231.

   [4] As opposed to his previous date of birth of 31 July 1983.

8. In that typed statement the applicant also said he did not hold documents identifying him as Iranian, albeit he was born there. His father died in 2006 of natural causes having worked privately and illegally as a builder. His mother remained in Tehran.

9. The applicant, with the assistance of an interpreter, also completed a Form 80 dated 28 January 2011[5]. His date of birth was typed and read ‘30 August 1983’ and his place of birth was ‘Esfahan, Iran’. The form contained consistent personal details including that of his parents, that he had no siblings, that he had no identification documents as he was stateless, and his residential details, including, from 1986 to 1996 when he resided in Isfahan.

   [5] Ibid, T25, pages 232-242.

10. In Part A of his Request for Refugee Status Assessment and Statement of Claims also dated 28 January 2011, which had typed entries and was prepared with the assistance of an interpreter, his date of birth is recorded as 30 August 1983 and he said he had no identification documents because he was stateless[6].

    [6] Ibid, T26, pages 244-263.

11. The Department’s Refugee Status Assessment Record dated 28 February 2011[7], under heading ‘Claimant Identity and Background’ said the applicant’s date of birth was 30 August 1983 and place of birth was Esfahan, Iran. His identity was accepted as was his claim to being a stateless person, “owing primarily to his stated lack of a birth certificate, and inability to prove such an entitlement”, which was consistent with country information provided. The author found, amongst other things, that the applicant was stateless and satisfied the definition of refugee as set out in Article 1 of the United Nations High Commissioner for Refugees Convention and Protocol Relating to the Status of Refugees.

    [7] Ibid, T29, pages 287-302.

12. The applicant applied for and was granted a protection (subclass 866) visa on 12 May 2011[8]. Again, in that application his date of birth was typed 30 August 1983.

    [8] Ibid, T30, pages 304-331.

13. Hence, the Biodata form dated 21 December 2010 which was handwritten by the interpreter contained the incorrect place of birth (Tehran), but correct birth date according to the Gregorian calendar (31 July 1983). The Arrival form dated 4 January 2011, which was handwritten, contained the correct place of birth (Isfahan) and correct birth date. The forms thereafter were typed and contained the correct place of birth (Isfahan) but incorrect birth date (30 August 1983).

14. The applicant could not recall if the typed forms were pre-populated prior to the interview or whether he was taken through each document, asked a question and the response then typed. Nonetheless, he relied on the person completing the forms for their accuracy. However, all documents after the Biodata form referred to the applicant’s place of birth as Isfahan or Esfahan (which is the same city), and all documents prepared after the Arrival form recorded his incorrect date of birth as 30 August 1983.

15. These forms were completed in a short period of time after the applicant arrived in Australia. His English was poor, he did not know his Gregorian calendar date of birth, and he relied on others to translate his birth date from the Persian to the Gregorian calendar.

16. On 10 June 2015, the applicant applied for citizenship by conferral[9]. In that document, his date of birth was typed 30 August 1983 and the applicant said he had never had a different date of birth. His place of birth was Esfahan, Iran. He provided various identity documents including South Australian and Victorian drivers’ licences, both of which recorded his date of birth as 30 August 1983[10].

    [9] Exhibit A, T6, pages 84-98.

    [10] Ibid, T6, page 96 and T12, page 153.

17. The Department prepared an Identity Assessment Report dated 5 December 2016[11] which, under heading ‘Recommendation’ said, “I find [the applicant’s] claimed stateless, undocumented status to be not supported.” In reaching that recommendation, the author concluded amongst other things that a travel document, namely an exit card signed by the applicant[12], was in fact an exit card from Malaysia and not an exit card from Indonesia (by plane) which, when considered along with other unreliable and inconsistent evidence of his life and travel history, it was concluded highly likely that the applicant was an Iranian national, and that his claim to statelessness was not credible.

    [11] Ibid T7, pages 99-106.

    [12]Exhibit B, T18, page 221.

18. On 29 May 2019, the Department sent the applicant an email requesting he submit original overseas documents with translations in support of his claimed identity, predating his arrival in Australia, and that he completed a new attached Form 80. Also attached was a letter of the same date requesting further information[13].

    [13] Exhibit A, T9, pages 109-115.

19. The applicant provided the completed handwritten Form 80 dated 12 June 2019, together with his mother’s identity certificate (Birth Certificate) and translation and two photographs. The Form 80 recorded the applicant’s date of birth as 30 August 1983, that he was born in Isfahan, Iran, and that he was stateless because he was a Faili Kurd and had no personal identity documents from his birthplace[14].

    [14] Ibid, T10, pages 116-141.

20. On 24 March 2020, the Department sent the applicant an ‘Invitation to comment on adverse information’[15]. The author identified under heading “Inconsistent claims” six inconsistencies. They were as follows:

    (i)Date of Birth – in the Biodata form dated 21 December 2010 the applicant declared his birth date as 31 July 1983. His date of birth is elsewhere listed as 30 August 1983.

    (ii)Place of birth – in the application for citizenship dated 9 June 2015 the applicant listed his place of birth as Tehran, Iran. The author also said in the Biodata form that the applicant declared he was born in Tehran, Iran. In the statement completed 28 January 2011, the applicant declared he was born in Esfahan, Iran. Further, Iranian law states that the birth of a child should be registered within 15 days of the birth, regardless of the parents’ status. The author asked for clarification of place of birth and any record of birth.

    (iii)No overseas documents, family in Iran – the author referred to refugees in Tehran being issued a “white card” (‘amayesh’) and invited the applicant to produce identity documents for family members.

    (iv)Travel to Australia – in the applicant’s protection visa interview he referred to paying $11,000 to people smugglers. He was asked how he was able to fund that.

    (v)Mother’s ‘shenasnameh’ (Iranian identity book) – the author said this document was more than a birth record and records marriages, divorces, births of children and deaths of family members. The applicant’s mother’s shenasnameh did not contain details of her marriage, or the applicant’s birth.

    (vi)Departure card – the author referred to the departure card signed by the applicant as being a card out of Malaysia. The applicant declared that it was an exit card out of Indonesia which it was said was normally given when you depart on an aircraft. The applicant declared he left Indonesia via boat.

    [15] Ibid, T11, pages 143-147.

21. I note that in respect of “Place of birth” referred to in paragraph 20(ii) above, the author of the invitation to comment was wrong when stating that, in the application for citizenship dated 9 June 2015, the applicant listed his place of birth as Tehran, Iran. He there listed his place of birth as Esfahan, Iran. It was only in his Biodata form prepared on the day of his arrival on Christmas Island, that his place of birth is listed as Tehran. Thereafter, including in his application for citizenship, he consistently referred to his place of birth as Isfahan or Esfahan which is the same city. Within the Biodata form the applicant also referred to having lived in Isfahan, Iran in 1986, when he was approximately three years of age.

22. The applicant, in response to the invitation to comment, provided a statutory declaration dated 5 January 2021, which included as follows[16]:

    [16] Ibid, T15, pages 180-185.

    (i)Date of Birth – the applicant’s date of birth in the Iranian calendar is 09/05/1362. He did not know the date conversion to the Gregorian calendar. He relied on interpreters to convert the date to 31 July 1983. He did not know where the date 30 August 1983 referred to in other documents came from other than a possible incorrect translation. He said this type of error was not isolated with respect to those arriving by boat. The applicant only learnt of the error in 2015 during his identity assessment interview. He asked that it be corrected but was told because he had no documents in support it would not be changed. He had to await the outcome of the Department investigation. He was still waiting to be advised of the outcome of that investigation. He said if one listened to his voice recordings, he has always said his date of birth was 09/05/1362. He was not responsible for mistakes made by others.

    (ii)Citizenship – the applicant did not complete the Form 80 dated 28 January 2011 in support of his protection visa application. It was completed by his migration agent. He believed the error occurred because the forms were “prefilled already for anyone who was from Iran and she [the migration agent] forgot to change it to stateless”. The mistake was only in the Form 80, but the migration agent corrected information in the statement.

    (iii)Place of birth – the applicant was born in Isfahan and never said he was born in Tehran. The application for citizenship, Form 1300t, did not list his place of birth as Tehran, Iran and he attached the application for citizenship together with his Form 80 dated 28 January 2011, which provided the same consistent place of birth namely, Esfahan. The applicant also attached his Form 80, Part A dated 28 January 2011, which records his place of birth as Esfahan, Iran and date of birth at 30 August 1983[17].

    (iv)Travel to Australia – his mother’s inheritance from her parents paid for the people smugglers.

    (v)Departure card – the applicant obtained the departure card through freedom of information. It is the same departure card completed when leaving Dubai and travelling to Indonesia. He has never claimed it was an exit card “out of Indonesia”. He said it was a card he received leaving Dubai when coming to Indonesia. He may have been “misunderstood or misinterpreted”.

    (vi)Identity assessment report – the applicant was critical of the report being mere opinion of the writer and not based on fact.

    (vii)My Identity – recent changes to Iranian law enables children born to Iranian mothers to apply for Iranian Citizenship. The applicant asked his mother to obtain Iranian documents. His mother obtained legal advice. The applicant must be physically present in Iran and provide a DNA sample to achieve this. He nonetheless confirmed his identity.

    (viii)Good Character – the applicant declared he was law-abiding, honest and financially responsible having worked in Australia for a number of years and paid taxes.

    [17] Exhibit B, T25, page 232.

    ISSUE TO BE DETERMINED BY THE TRIBUNAL

23. The only issue before the Tribunal is whether it can be satisfied of the applicant’s identity pursuant to s 24(3) of the Act.

    LEGISLATIVE FRAMEWORK

    Identity Requirement

24. Section 24(3) of the Act provides:

    The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

25. The Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 states:

    There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.

26. Further, Citizenship Procedural Instruction 16 of the Australian Citizenship Policy Statement (the Policy)[18] of November 2020 provides that:

    Purpose

    The identity provisions of the Act prohibit the approval of a citizenship application in cases where the decision-maker (the Minister or their delegate) is not satisfied of the person's identity.

    To the extent that the Act allows for discretion, decision-makers should give due consideration to the Department’s approved policy and procedures where relevant and appropriate in decision-making.

    [18] Exhibit H.

27. The Attorney-General's Department, National Identity Proofing Guidelines refers to the concept of identity as ‘not a fixed concept; it is highly dependent on context.’[19]

    [19] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1, 2.1.1.

28. In Boy19 v Minister for Immigration and Border Protection, the Federal Court of Australia confirmed that the level of satisfaction required in the granting of citizenship is one of ‘reasonable satisfaction[20]’, which can be taken to mean that the Tribunal must act reasonably in a legal sense. 

    [20] [2019] FCA 574 at [55].

    The Hearing

    Opening submissions

29. The applicant in opening confirmed that the only issue was whether the Tribunal is satisfied about the applicant’s identity as required under s24(3) of the Act.

30. The respondent confirmed that was the only issue and referred to documents from the applicant’s protection visa file, citizenship application and statements from the applicant and his mother. Based on these documents the respondent submitted that the Tribunal should not be satisfied of the applicant’s identity for three reasons, namely:

    (a)inconsistent Biodata information, in particular, inconsistencies in the applicant’s place and date of birth;

    (b)lack of reliable documentation from before the applicant’s arrival in Australia; and

    (c)the applicant’s inconsistent account of his travel to Australia.

    The Evidence

    The Applicant

31. The applicant provided a statutory declaration dated 5 January 2021 and gave consistent oral evidence. He was referred to a number of documents before the Tribunal.

32. The applicant said that he had not been known by another name, but when he came to Australia, he had to illegally obtain a false passport with a false name to enable him to arrive in Australia. That name was Mosam Rahimi. He had not used that name before or since arriving in Australia.

33. In respect of the application for citizenship[21], the applicant was referred to question 3 in which he ticked ‘no’ in response to the question namely, had he been known by any other name. He said that he did not know that the false name in the passport should be included in the answer. He had not otherwise been known by another name.

    [21] Exhibit A, T6, page 84.

1. The applicant said his date of birth was 09/05/1362 in the Persian calendar. When the applicant arrived in Australia, he did not convert his date of birth to the Gregorian calendar. The applicant was referred to the Application for Conferral of Australian Citizenship Decision Record[22], which contained an extract from the applicant’s Biodata form which contained the applicant’s date of birth. The applicant wrote his date of birth in Farsi as 09/05/1362. The date in English is there translated to 31/7/1983.

   [22] Ibid, T2, pages 10-24 at page 13.

2. When asked why he had used the date of 30 August 1983, he said that he first realised there was a different date of birth within the documents when he was called for an interview in about 2016 (which upon reading the interview occurred in 2015). He was then told his date of birth was wrong. The applicant said that he had always told them his date of birth in the Persian calendar and, insofar as there was a mistake, it was the interpreter’s mistake. The applicant said he was not familiar with the Gregorian calendar. Hence, until then he did not try to change the date.

3. The applicant was again referred to his application for Australian citizenship and question six which gives his date of birth as 30 August 1983; and question seven in which the applicant said he had never had a different date of birth and was asked to explain. The applicant explained that he completed this application form before he was called to the interview at which time he was told of the issue with his date of birth. He said when asked he had always given his date of birth by reference to the Persian calendar. He never converted it to the Gregorian calendar.

4. The applicant said that after the interview he intended to take action to correct the date of birth and consulted a lawyer. He was advised that it was better to stick with the date of 30 August 1983. He said that it should be evident by the recordings of his interviews that he has always given his date of birth as 09/05/1362.

5. The applicant said he was born in Esfahan, Iran as referred to in his application for Australian citizenship. He was also referred to his Form 80 dated 28 January 2011[23] which he agreed was signed by him. Within that document, in response to question 4, he wrote his name in his own language. The applicant was referred to question 6 which typed his place of birth as Esfahan and country as Iran.

   [23] Exhibit B, T25, pages 232-243 at page 232.

6. In respect of his typed statement dated 28 January 2011[24] submitted as part of his protection visa application, at paragraph 3 it reads: “I was born on 30/08/1983 in Esfahan, Iran”.

   [24] Ibid, T24, page 229-231 at page 229.

7. The applicant was referred to the Biodata form dated 21 December 2010[25] completed when he arrived on Christmas Island. In response to question 8, his place of birth is Tehran. When asked why the place of birth is Tehran yet everywhere else it is Esfahan, the applicant said that he had always said his place of birth was Esfahan. There was either a mistake by the interpreter, or he misunderstood the question. Further, insofar as the responses to the various questions are written in Farsi, that is the applicant’s handwriting. The English script is the interpreter’s writing. He said he was distressed when completing the Biodata form, having arrived at Christmas Island that day by boat.

   [25] Ibid, T17, pages 189-198 at page 189.

8. The applicant was referred to his Form 80 dated 28 January 2011 which said he was Iranian. The applicant said that he was asked where he was born and he answered Iran, but the document endorsed incorrectly that he was an Iranian national. The applicant said he has no citizenship because he is Faili Kurd and he does not hold any documents proving he was a citizen of any country. The reason he holds no such documents is because his father was an Iraqi Kurd. At the commencement of the Iran-Iraq war, Saddam Hussein started killing Shi’ite people in Iraq. That’s why his father ran away to Iran. His father had no documents. He entered Iran illegally. Hence, when the applicant was born, his father had no Iranian documents and therefore the applicant could not receive Iranian citizenship.

9. The applicant’s father did not have a white card or a green card. He arrived in Iran illegally. He would have had to have gone to the immigrants’ camp and go through a procedure to get a white or green card. There was a possibility his father could be expelled to Iraq and that is why he was not in the camp. He did not trust the Iranian government or rule of law.

10. The applicant was referred to page 140 of the Tribunal Documents which he said was a copy of his mother’s birth certificate. Page 141 were photographs of the applicant and his parents. He has no brothers or sisters. His mother had medical issues and it was dangerous for her to have more children.

11. Albeit, the applicant’s mother and her parents had birth certificates because they were Iranian, and they had Iranian documents which enabled them to get their birth certificates, the applicant’s father did not have Iranian documents so the applicant could not get a birth certificate.

12. The applicant had no Iranian identity documents, but he was able to go to school. He went to a private school for 6 years. He could not go to a public school because that required identity documents. Military service was compulsory, but he did not complete military service because he had no identification documents.

13. The applicant said he was 27 years old when he left Iran using a false Iranian passport. He first went from Iran to Dubai then Djakarta. In an earlier interview, he said that he went to Turkey then Dubai and Indonesia. He explained the reason he said that was because that was what the people smugglers told him told to say. They told him that it would have a good impact in Australia.  At the time, the applicant said he was under stress and distressed and feared whether or not he would make it to Australia. So, when he arrived in Australia, he told the authorities what the people smugglers told him to say. After 1 – 2 weeks when the pressure lessened, he then told the truth about his route to Australia.

14. The applicant was referred to Exhibit B being the departure card (otherwise referred to as an exit card)[26]. The document was not in his handwriting and was not filled in by the applicant. It was written in English. He explained that, when he arrived at the Indonesian airport, he did not know that the card needed to be completed. To obtain a visa, the card needed to be filled out.  He did not know how to fill out the card because it was in English, so the officer who needed the card filled it out for him and he signed it. It was completed in Indonesia, not Malaysia. He has never been to Malaysia.

    [26] Ibid, T18, page 221.

15. The applicant was referred to Exhibit F, being a transcript of a YouTube video. This he produced to substantiate that there are still people in Iran who are without documents, even if they were born there. They still have difficulty obtaining Iranian documents.

16. The applicant was referred to the statement of his mother and the new laws in Iran which permits citizenship to pass through a person’s mother. He was aware of the change in law. He said the Department of Immigration put pressure on him to pursue this process. He started to research the process on the internet. He determined that people with an Iranian mother and non-Iranian father were permitted to obtain Iranian citizenship, but the applicant had to be physically present in Iran at the time of the application. His mother made inquiries and that was the response she got. She consulted a lawyer and also asked the Foreign Immigrants’ Ministry.

17. The applicant also checked the website of the Iranian Embassy. People whose parents are in Australia can apply, but if in Iran he would be required to be physically present in Iran.

18. The Tribunal referred the applicant to the Arrival form dated 4 January 2011 and the second page of that form which contained a box with questions and handwritten responses. The handwriting belonged to the interviewer. In answer to ‘Place of Birth’, the response appeared to first be Tehran which was crossed out and replaced with Isfahan. The applicant said he told the person he was born Isfahan and moved to Tehran and grew up there. The applicant said he was about 5 or 6 years of age when he moved to Tehran.

19. In relation to the applicant’s schooling, he explained that he went to a private school and not a public school. His school was an old fashioned school, similar to a mosque. It did not cost much to go to that school and the advantage was that he did not need identity documents and it was mainly related to Koran education. He was there for 5 to 6 years after which he had no further schooling. He finished school when he was aged 10 to 12 years of age. He then started work in 1380 in the construction industry bricklaying with his father. In 1385, he commenced work as a salesperson selling foam in the construction industry. He worked in that profession until two years before he travelled to Australia. He was unemployed in that two-year period.

20. The applicant said that his father passed away in 1385 but he has no record of his passing. He said that at the moment he is not able to get a record of his father’s passing due to the passage of time since his death. He said in the Persian calendar, we are currently in the year 1400 so it is 15 years since his passing. He has not attempted to obtain the record of his death.

21. The applicant again confirmed his correct date of birth was 9/5/1362. At the time he came to Australia he was not familiar with the Gregorian calendar. He did not know there was an error in the Gregorian calendar translation until he had the identity interview. When asked which of the two dates 31 July 1983 or 30 August 1983 was the correct translation, he said at the moment in Australia he uses the second date, but the first date is the correct conversion. That was not the applicant’s mistake, it was the person who translated for the interviewer. When interviewed he declared his correct date of birth in the Persian calendar.

22. The Tribunal asked the applicant if he has done anything to correct the record. He said after the interview when he was told there was an issue with the date of birth, he was going to take some action to correct it. He consulted a lawyer who advised it would be better to retain 30 August 1983 for now because a change would require supporting documents and it would be costly.

23. However, it has always been the applicant’s position that his date of birth is 9/5/1362 and that has been the date he has given on every occasion.

24. In cross-examination, the respondent referred the applicant to his Biodata form completed on his arrival at Christmas Island. He was assisted by an interpreter. The applicant repeated that he only gave the interpreter the Iranian date of birth, namely the Persian calendar date. The place of birth, Tehran, was either a mistake or he was asked to write it in Persian script. The word Tehran was written in English by the interpreter or the interviewer. Next to it the applicant was asked to write the word in Persian script. His memory was that he said he was born in Iran but grew up in Tehran.

25. Insofar as there was an inaccuracy in the Biodata form about his place of birth, it arose from a misunderstanding between the applicant and the interpreter. He was under pressure at the time of the interview and had no knowledge of the English language. He signed the document as true and correct relying on the translation.

26. In respect of the Arrival form dated 4 January 2011[27] at page 199 of the Supplementary Tribunal Documents, he was assisted by an interpreter. His date of birth on page 200 was recorded in English as 31 July 1983. The applicant said he gave the Persian date and the interpreter converted it to the Gregorian calendar. Insofar as the place of birth was originally written as Tehran, crossed out and replaced with Isfahan, the applicant said this was an example of how errors can occur in interpreting.

    [27] Ibid.

27. In respect of his typed statement dated 28 January 2011 at page 220 of the Supplementary Tribunal Documents, paragraph 3 says the applicant was born on 30 August 1983, but the applicant said he did not give them that date. This was a document prepared in the detention centre. He gave the Persian calendar date and they converted it into the Gregorian calendar. He was referred to his forms thereafter that recorded his date of birth as 30 August 1983. The applicant maintained he always gave the Persian calendar date.  The error was not his. He repeated that he was not aware of an issue until his interview after he completed his application for citizenship.  

28. The applicant was referred to other documents, including his South Australian driver’s licence which gave his incorrect date of birth as 30 August 1983, and was asked why he continued to use the incorrect date.  He again consistently explained that in the interview he told them it was a mistake. He asked in that interview how he could correct it and prove it was wrong. He was told they would have to go through all the information and check it and they would get back to him later. Therefore, he continued to use that date until he was advised of the outcome of that inquiry. He was still awaiting that outcome. He obtained legal advice in the interim and was advised to continue to use the incorrect date.

29. When asked how he knew his date of birth in the Persian calendar, the applicant said families hold ceremonies on birth dates and receive presents and cake. His mother told him his birth date.

30. The applicant was referred to his mother’s birth certificate, and in particular the translation within the Tribunal Documents at page 139. The applicant said the given name and surname were correct, but he was not sure about the conversion of the date of birth to the Gregorian calendar. He acknowledged there was no reference to the applicant within the document and said at page 137 his name should have been recorded there but there was no record in reference to children. The reason he is not recorded, is because the parents had to produce Iranian documents and his father did not have a birth certificate.

31. The applicant was asked about the absence of other Identity documents from Iran. In respect of his Arrival form interview[28] in which he said he was stateless and did not have a birth certificate, he repeated he could not get a birth certificate because his father was Kurdish and did not have identity documents.

    [28] Ibid, T18, pages 199-221 at page 208.

32. In respect to the Request for RSA (Refugee Status Assessment) and Statement of Claims Form[29], the applicant repeated he did not have any identification documents because he was a stateless person. It was put to the applicant that since 2002 Iraqi refugees in Iran have been issued with white cards. The applicant said that he was not aware of any white cards when he was in Iran and was not aware of their benefits. He never had a white card and he is not aware of his father having a white card.

    [29] Ibid, T26, pages 247 at [29].

33. The applicant said that he lived in Iran undocumented until he left when he was 27 years of age. He wanted to apply for a white card, but it was difficult and there was a risk he or his father may be sent to a detention centre and be deported. Because of that fear, he did not take any steps to get a white card.

34. He said he received no documents relating to the period he was a student in Iran. It was a private school and nothing official was issued. Students received an official certificate if they attended a public school.

35. As for his work history and his statement dated 28 January 2011[30], he said he started working illegally when aged 16 years. He said he started working occasionally in 1380 with his father in the construction industry. From 1385, he worked as a salesperson. The applicant in his Arrival form[31] was asked if the recorded employment history that he worked in a foam and rubber shop from 2001 – 2010 was correct. He said the employment was correct, but he could not be sure about the dates which the Tribunal infers were a translation from the Persian to the Gregorian calendar. He repeated that in 1380 he started working with his father, but in the form he referred to his entire work history with an employer, Neshad Foam, where he started working in 1385. He worked in that position for about 9 years until his decision to come to Australia.

    [30] Ibid, T24, page 229-231.

    [31] Ibid, T18, page 202.

36. The applicant said he had no employment documents for that 9-year period because he worked in the private sector and was paid cash. There was no need for qualifications. He said payslips were issued only to those working in government positions. The applicant said he has not contacted his former employer to see if he could obtain any employment records. He left two years before coming to Australia and there are no records of employees for those working in private sector.

37. The applicant was referred to the inconsistencies in his travel journey to Australia and asked if he had anything to add. He was consistent in his explanation of the inconsistency; that the people smuggler told him what to say and that one month after his arrival in Australia he volunteered to those in authority the correct information. He told them that at the time of his first interview, he was mentally unwell and lied. He wanted to clarify the lie in respect of his journey to Australia which he did. He was consistent with his evidence-in-chief about the departure card.

    Applicant’s mother Ms FB

38. The applicant’s mother provided a statement dated 3 July 2021 and gave evidence by telephone from Iran with the assistance of an interpreter.

39. She was born in Isfahan in 1962. Her late husband was from Iraq and was expelled by the Saddam Hussein Regime in 1979. They married in Iran but could not register their marriage because her husband had no identity documents. Her husband passed away a few years ago but she received no documents in relation to his death because he had never held Iranian documents.

40. Ms FB confirmed the applicant was their only child. He was born at home and they could not register his birth or obtain a birth certificate because her marriage was not recognised because her husband had no identification document. She said she explained this to staff at the Australian Embassy a few years ago and showed them her birth certificate.

41. Ms FB referred to the legislative change in Iran which enabled mothers to pass on their Iranian citizenship to their children. She tried to obtain identity documents for the applicant. She approached the office of Aliens and Foreign Affairs. They advised it was the applicant who needed to approach them. She told them he was overseas but could give power of attorney to Ms FB to undertake the process on his behalf. They advised they must see him physically in their office to begin the process and that DNA tests will be required.

42. Ms FB consulted a lawyer to help with the process but received the same advice. She was advised the applicant could not go to the Iranian Embassy in Australia and must be physically present in Iran. She could not apply for the applicant’s identity documents.

43. Ms FB was made available for cross-examination. She confirmed the applicant was her only child. His date of birth was 9/5/1362. She did not know that date in the Gregorian calendar. He was born at home at a place called Khansar, close to Isfahan. There were no documents of his birth. He was born during the Iran-Iraq war. They did not have access to a hospital.

44. Ms FB was referred to her birth certificate registered on 14 April 1962 in Isfahan. She said her date of birth was 26/12/1340 and she did not know that date in the Gregorian calendar. She was an only child and her father obtained it on 25/1/1341 in Isfahan.

45. The applicant was not included in her birth certificate because the applicant was born at home, and his father did not have registered documents. She repeated it was during the Iran-Iraq war. Her husband had to go to the immigrants’ camp or a detention centre. Ms FB said she personally tried to obtain the birth certificate through the registry office but they asked for the records from the hospital which she did not have because he was born at home, and his father did not have Iranian documents.

1. Ms FB said, consistent with her statement, that after she realised people can obtain documents through their Iranian mother she approached the foreign immigrants’ office but she did not obtain documents because the applicant was in Australia and had to be present in Iran. She repeated that she employed a lawyer and obtained the same advice.

2. Ms FB was questioned about her husband. She confirmed he was the applicant’s father. They married in 1350 but were not given official documents because her husband had no documents. They did receive an unofficial engagement certificate which her father kept. Her parents are deceased, and she does not know what has happened to that document.

3. Ms FB’s marriage is not recorded on her birth certificate because her husband did not have any documents. She did not know if he lost the documents or left them in Iraq. He passed away on 16/2/1385 but there is no certificate or record of his death. He died at home from natural causes and was buried at home. He had no documents and hence there was no formal burial or documents of his death.

4. Ms FB was referred to information indicating that Iraqi refugees in Iran were issued white cards since about 2002. She said that she tried to assist her late husband to obtain a green card for the sake of her child and to obtain a birth certificate. However, a few of his friends tried to obtain a green card but when they did so they were deported during the Iran-Iraq war. That is why her late husband did not trust the government and did not follow up obtaining a card.

   Closing Addresses

5. The applicant submitted that he has not provided inconsistent evidence to the Minister. To the extent that inconsistencies have occurred, it is a consequence of miscommunication, misunderstanding or misinterpretation in preparation of the various forms.

6. He should not be penalised for those errors. In particular, he was not aware of those errors until they were brought to his attention. He tried to correct the errors without success. Information was prepopulated in various documents and there was incorrect date conversions.

7. It is unlikely he provided false information with respect to his place of birth nor is there any suggestion from the respondent why he may have done so. It was not essential to his claim.

8. He gave his date of birth of 9/5/1362 in the Persian calendar which correctly converts to 31 July 1983. He gave that Persian date of birth consistently and correctly since his arrival in Australia, and it was not until his identity assessment interview that he was first aware of any error. He explained that error, which was not of his making, and that he has continued to use that date of birth following legal advice that the date cannot be changed unless advised by the Department.

9. Counsel submitted that this is consistent with the Department’s position that an applicant cannot use another date of birth unless the change is acknowledged. Albeit departmental documents, namely the Biodata form and Arrival form, were department documents depicting the correct date, it is the information contained in the application for protection visa which is relied on and cannot be changed.

10. Subject to any decision by the Tribunal, to change the date, he will need to provide documentary evidence of his date of birth, absent of which his date of birth will be regarded as that contained in his protection visa application.

11. There is credible information about the applicant’s details. He said he does not have and has never had any identity documents and he is now being asked to prove he does not have any documents. He has done his best. His mother has given evidence that she presented her birth certificate in 2016 to the Department when requested. It was confirmed to be a genuine document. She confirmed that the applicant was not referred to in the document and both the applicant and his mother have consistently explained why that is so and that the applicant has not been able to obtain identity documents. That has been the applicant’s consistent position.

12. The applicant explained his journey to Australia and admitted he was not truthful about that journey when first spoken to having had advice from people smugglers. It was the applicant who alerted officials to the error and corrected the record. Whether the applicant was or was not in Malaysia does not impact upon the Tribunal’s finding as to his identity. He admitted he travelled on a false passport. He also explained the departure card. He said it was the Department that alleges the departure card is consistent with other departure cards used to depart Malaysia. The applicant has never said he was in Malaysia.

13. The inconsistencies were not essential to his claim and he has consistently explained those inconsistencies.

14. The respondent referred to s24(3) of the Act which provided that the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the applicant’s identity. The Minister submitted that the Tribunal cannot be satisfied of the applicant’s identity based on the information before the Tribunal.

15. The respondent referred to the three pillars of identity namely biometric data, documents and life story.

16. It was submitted that the applicant’s evidence as to biometrics and life story is not consistent. There is an absence of documents from Iran linking the applicant to his identity.

17. In relation to the applicant’s biometric data, his date and place of birth has changed over time which it is submitted is core information and casts doubt on the applicant’s identity. In relation to his date of birth, the Minister accepts that there may be errors introduced as a result of translating his date of birth from the Persian calendar to the Gregorian calendar, however there is no clear explanation for the change of birth from 31 July 1983 to 30 August 1983. The Biodata form and the Arrival form list the former date of birth which the applicant says is correct. His statement and the documents that follow changed to the latter date. It was submitted that an error would be more easily understood if at first instance the incorrect date appeared in the initial forms and an attempt was made to correct the date in the later forms.

18. Insofar as the applicant said he was advised by a lawyer to maintain the incorrect birth date, it was submitted that explanation was inadequate. There was no material before the Tribunal in support of that submission.

19. It was also submitted that the applicant’s counsel’s comments about the Minister’s policy position with respect to refusing to change dates of birth, and that the date of birth contained in the protection visa application is the recognised date of birth absent papers being produced to the contrary, was evidence from the bar table and should not be relied on by the Tribunal. I agree with that submission.

20. The respondent submitted that, in respect to his place of birth, the applicant originally said he was born in Tehran as evidenced in the Biodata form, which was later changed to Isfahan.

21. The applicant referred to a possible misunderstanding or misinterpretation of the question. However, when viewed as a whole, the Biodata information and changes in date and place of birth ought to weigh against the Tribunal being satisfied about the applicant’s identity. In response to a question from the Tribunal, counsel accepted that there may have been an interpreting error when for the first time in the statement dated 28 January 2011, the date of birth is 30 August 1983. However, the respondent was critical of the applicant for not thereafter endeavouring to change the error including in the application for citizenship.

22. As for the second pillar, namely documents relevant to identity, the Minister submits that the absence of identity documents linking the applicant’s current identity to his identity in Iran means that the Tribunal ought to have doubts about the applicant’s identity. Counsel referred to the country information contained within the Supplementary Tribunal Documents at page 347, and that since 2002 Iraqi refugees were issued a white card (amayesh) and referred to the endorsement on the back of the white card. Counsel submitted there was no evidence of a reluctance to issue white cards to Iraqi refugees. It was submitted that it was highly unlikely the applicant did not have identity documents given the time he had lived in Iran, including when working. He has not attempted to obtain documents from his employer where he worked for approximately 9 years.

23. The respondent referred to the statement of the applicant’s mother and her evidence where she details her attempts to obtain the applicant’s identity documents, that the applicant was born at home, that his father had no identity documents and, as a consequence, there were no birth documents of the applicant available. Counsel said that the respondent accepts the mother’s explanation as to why no documents were available to support the applicant’s identity and, if the Tribunal accepts that explanation, it does not, in the absence of such documents, enable the Tribunal to reach a positive state of satisfaction about the applicant’s identity.

24. In referring to the absence of identity documents in Iran, the applicant provided a video recording dated December 2020 of a man and woman who were said to have made attempts to obtain documents. To the extent that they referred to the difficulty in obtaining identity documents in Iran, the respondent submitted that material was of no weight and should be disregarded by the Tribunal. It was submitted that it provided no credible evidence to explain why the applicant provided no identity documents. Those pictured on the video were not identified and appear to describe their own difficulties rather than necessarily difficulties attributable to residents in Iran generally.

25. The applicant’s life story and the inconsistencies in his journey from Iran to Australia raise further doubt about his identity. Counsel referred to the applicant’s reference to leaving Tehran by bus but also aeroplane. Counsel referred to the incorrect details he gave of his journey to officials upon his arrival in Christmas Island based upon advice from the people smugglers, and that he subsequently told the truth. Counsel also referred to the inconsistency in the departure card and referred to the identity assessment report at page 105 under heading ‘Travel History’, in which the author said that investigators uncovered an “exit card” for Malaysia, and that the applicant’s route to Australia involved spending time in Malaysia prior to travelling on to Indonesia.

26. Hence, the respondent submitted that the assertions by the author of the report are contrary to the applicant’s evidence that he never went to Malaysia, and in fact travelled to Indonesia, which was where this card was completed. This, it was submitted, was a further inconsistency which raised doubt about the applicant’s credibility and therefore his identity.

27. The Tribunal notes however that the respondent provided no evidence to the Tribunal which underpinned the factual assertion made in the Identity Assessment Report, nor how it is said that the document was in fact an exit card for Malaysia. A photocopy of the card was before the Tribunal. It is headed ‘Departure Card’, is written in English and requires information to be provided about the traveller’s nationality, passport number, place of issue of passport, date of issue, intended destination and flight number which have been completed and written in English. There is no reference to Malaysia on the card.

28. The respondent submitted that the various inconsistencies cast doubt about the applicant’s credibility. When having regard to the totality of the evidence and the three pillars, the absence of reliable identity documents from Iran, the inconsistencies in his date of birth and place of birth, and story about his travel to Australia, the Tribunal cannot be satisfied as to the applicant’s identity.

29. The Tribunal referred counsel to the Department of Foreign Affairs and Trade (DFAT) Thematic Report titled ‘Faili Kurds in Iraq and Iran’ dated 3 December 2014 under heading ‘Rights of Citizenship’ at paragraphs 3.24 – 3.27 and in particular at 3.27 which reads:

    …in practice, according to credible 2014 report…the ability of children born to Iranian mothers and Faili Kurd fathers to acquire citizenship remains limited by the requirement for proof that the child was born in Iran; a marriage certificate between the parents; proof of the father’s legal residence in Iran, and proof of the renunciation of non-Iranian identity. However, DFAT is unable to confirm the extent to which these requirements prevent the children of Iranian mothers and Faili Kurd fathers from acquiring citizenship.

30. Counsel for the respondent accepted that the evidence given by the applicant’s mother accords with the DFAT Report, but submitted that without any document linking the applicant’s identity to Iran – albeit the certificate of citizenship of Iran may not be attainable – other types of identity documents should have been obtained that would provide some link to the applicant’s life in Iran such as school or work records.

    CONSIDERATION

31. The respondent invited the Tribunal to not be satisfied about the applicant’s identity, including when having regard to the inconsistencies in his date of birth, place of birth, life story including his journey to Australia and absence of identity documents linking the applicant to his life in Iran. These factors also raised issue about the applicant’s credibility.

32. The applicant arrived in Australia by boat from Indonesia on 21 December 2010 and on that day and thereafter and with the assistance of an interpreter he was interviewed, and various forms and statements were prepared. The applicant could not speak, read or write English. He relied on the interpreter to interpret the questions contained within the form and accurately translate his answers. The interviews and resultant forms included:

    (a)  21 December 2010 – Biodata (Persian) Direct Arrival Form

    (b)  4 January 2011 – Unauthorised Arrival Form

    (c)   28 January 2011 – IAAAS Interview and related documents including:

    (i)signed statement dated 28/1/2011

    (ii)Form 80 – Personal particulars for character assessment dated 28 January 2011

    (iii)Form 956 – Advice by a migration agent/exempt person of providing immigration assistance dated 28 January 2011

    (iv)Refugee Status Assessment Record dated 28/1/2011 – in which his identity was accepted, with findings that the applicant was stateless, and had a well-founded fear of persecution

    (v)Application for Protection visa and related documents dated 9/5/2011.

33. The applicant applied for Australian citizenship by completing Form 1300t dated 9 June 2015 and also provided a new Form 80 dated 12 June 2019 with various attachments.

34. It is within these forms that the respondent refers to inconsistencies with dates and place of birth. I will turn to those inconsistencies.

    Date of Birth

35. The applicant undertook his Biodata interview on the day of his arrival on Christmas Island. He said, and I accept, that at the time of the interview he was distressed.

36. Question 7 asked his date of birth. The applicant was asked to write his date of birth in the space provided in the form, which he did, in Persian script and according to the Persian calendar, namely 09/05/1362. He did not know of the Gregorian calendar or the translation of the date. The interpreter or interviewer then wrote the date according to the Gregorian calendar, namely 31 July 1983. I accept that evidence and that the applicant’s date of birth was, on that occasion, correctly translated to the Gregorian calendar.

37. The Arrival from completed on 4 January 2011 was in English and information was handwritten in English again by the interviewer or the interpreter. The applicant’s date of birth is correctly written as 31 July 1983.

38. On 28 January 2011, as part of the IAAAS interview, the applicant gave a statement which was translated and typed in English, and which gave his date of birth as 30 August 1983. There was no reference to the Persian calendar date.  This date was incorrect. It is not clear whether it was a typing error or a translation error.

39. The applicant said that he consistently gave his date of birth according to the Persian calendar. He did not know the Gregorian calendar translation. He relied on the interpreter to correctly interpret the date. To the extent that the statement now provided the date 30 August 1983, that was the interpreter’s error, not his.

40. The UNHCR Consent to Share and Release Information form dated 28 January 2011 had typed the applicant’s incorrect date of birth.  The documents that formed part of the IAAAS interview and dated 28 January 2011, including the Form 80, the Part A – Details of Persons, and the Refugee Status Assessment Record authored by an officer of the Department of Immigration and Citizenship and referred to in paragraph 110 (c) (i)–(v) above all have typed responses to the requested information and referred to the applicant’s incorrect date of birth.

41. The application for protection visa and related documents dated 9 May 2011 also contain the applicant’s incorrect date of birth.

42. Hence, it is apparent that following the mistake contained in the UNHCR form and applicant’s translated typed statement, that mistake has been perpetuated throughout all documents that followed. As for those various documents completed on 28 January 2011, it is a reasonable inference that either the same person was responsible for translating and completing the documents, and that person replicated his or her mistake from the initial error made in the UNHCR form and/or statement, or, subsequent person or persons completing each form relied on that initial error in translation.  I am satisfied that must be so, otherwise if the documents were completed separately and by different people, it is highly unlikely that each person made the same mistake in translating the date of birth from the Persian calendar to the Gregorian calendar.

43. Insofar as the applicant’s application for citizenship also contained the handwritten incorrect date of birth, I am satisfied that not knowing the translation from the Persian calendar to the Gregorian calendar, the applicant relied on the previous incorrect translation which he understandably and genuinely believed was correct.

44. The applicant said, and I am satisfied that, he was not aware of the inconsistent date of birth and error in the translation until he attended the Department and was interviewed on 24 July 2015 for the purpose of the Identity Assessment Report. I am satisfied that the applicant then asked to remedy the error but was unable to do so without documentation and that he sought legal advice which recommended he not pursue an attempt to change his date of birth. Consequently, his subsequent identity documents such as his driver’s licence contain his incorrect date of birth.

45. I am satisfied that the applicant consistently gave his date of birth according to the Persian calendar. As he said, if one listened to the recordings of his interview, he always gave his date of birth according to the Persian calendar and never gave an inconsistent date of birth. I accept the applicant’s evidence. The applicant’s mother also confirmed the applicant’s date of birth was 09/05/1362 in the Persian calendar.

46. I am satisfied that the inconsistency in the applicant’s date of birth is the consequence of an error made on 28 January 2011, by those engaged by the Department, responsible for translating and producing first the applicant’s UNHCR form and statement and which was then repeated in subsequent documents that were brought into existence. I am also satisfied that in the application for citizenship the applicant relied on the same incorrect translation of his Gregorian calendar date of birth when completing the form. He was entitled to assume the translation was correct.

1. I reject the respondent’s submission that there was no clear explanation for the change of birth from 31 July 1983 to 30 August 1983. The explanation is clear. It was a translation error which was perpetuated throughout the balance of the document created thereafter. I also reject the submission that an error would be more easily understood if at first instance the incorrect date appeared in the initial forms and an attempt thereafter was made to correct the date in later forms. The converse is equally understood.

2. The issue here is that after the Biodata form and Unauthorised Arrival form, someone other than the applicant made an error in the translation from the Persian calendar to the Gregorian calendar which infected all documents produced thereafter. 

3. Hence, insofar as there is inconsistency in the applicant’s date of birth, I am satisfied that the applicant was not responsible for the inconsistency and there is no merit in the respondent’s criticism of the applicant for providing inconsistent dates of birth. I am satisfied that the inconsistency does not reflect adversely on the applicant and his identity.

   Place of Birth

4. The issue with regards to the applicant’s place of birth arises from the answer to question 7 in the Biodata form when compared with all other forms completed by the applicant. As I have said, the applicant had that day arrived by boat from Indonesia and was distressed. In those circumstances it is not unexpected that some error in the form may occur.

5. The applicant conceded there was an error in the answer to question 7. It was his recollection that the interpreter asked the question where he was brought up rather than his place of birth, albeit with the passage of time he cannot be certain. He answered that he spent the majority of his life in Iran in Tehran and it was in that context that he referred to Tehran in answer to that question. He accepted that there may have been a misunderstanding or mistranslation. He said the person wrote in English the answer Tehran and then he asked him to write Tehran in Persian script which he did.

6. However, it is noteworthy that in answer to Part B, question 19 of the Biodata interview which requested details of prior addresses, the applicant wrote an address in Persian script, which was translated to an address in Isfahan in 1986 when he was approximately 3 years of age. He then wrote in Persian an address in Tehran in 1996.

7. In the subsequent Arrival form dated 4 January 2011 the handwritten entry first had his place of birth as Tehran, which was crossed out and replaced with Isfahan. How that transpired is unclear, but I am satisfied that the applicant informed those present that his place of birth was Isfahan.

8. Every document thereafter has the applicant’s place of birth as Isfahan or Esfahan which is the same place. The applicant’s mother also confirmed that applicant’s place of birth was Isfahan.

9. I am satisfied that the applicant’s place of birth was Isfahan and that insofar as there was an error in the Biodata form, that error was the result of a misunderstanding or misinterpretation, which might be well understood given the applicant’s arrival on Christmas Island on the day of the interview and that he was distressed.

10. I am satisfied that insofar as there was an error in the Biodata form, that error was not significant and does not enliven an adverse finding with respect to the applicant’s identity.

11. It is here worth noting how easy it is for mistakes to occur in the processing of forms and information. I am reminded of the error made by the author of the invitation to comment on adverse information dated 24 March 2020 when the author said that in the application for citizenship, he listed his place of birth as Tehran, Iran. That, as I have explained, was plainly wrong.

    Identity Documents

12. The applicant has maintained consistently throughout his time in Australia, when interviewed and during his evidence, that he did not have, nor has he ever had documents from Iran evidencing his identity.

13. The applicant was an impressive witness. He was consistent in his explanation that due to his father having escaped the Iran-Iraq war, fleeing to Iran, having no identity documents and marrying his Iranian mother which marriage was undocumented and unrecognised, and further because the applicant was born at home during the war, he too had no identity documents. I accept his evidence.

14. He did not attend a traditional school and his employment was initially through his father in the building industry, and thereafter selling construction foam. He was at all times a cash employee and did not receive formal employment or salary payments records or payslips.

15. The applicant also explained his school and work history. The respondent is correct that the absence of any document referable to the applicant’s identity when in Iran is arguably a concern. I have had regard to the respondent’s submission that the absence of such record is troubling and I note that the applicant has made no enquiry about the availability of records or confirmation of schooling or employment due to the passage of time. He also explained that in the two years prior to his departure to Australia he was unemployed.

16. However, when weighing up the evidence I am also mindful that the applicant through his mother took reasonable steps to prove his Iranian citizenship through his mother’s citizenship. He did so by contacting the embassy in Australia and by Internet search. His mother made similar inquiries in Iran. They both received similar advice that such application could not be made when the applicant’s mother resided in Iran while the applicant lived in Australia. In those circumstances, the applicant needed to be present in Iran and he was also required to give a DNA sample.

17. I have also had regard to the evidence of the applicant’s mother. She had been previously asked to provide her birth certificate to Australian authorities which certificate had been authenticated. She, like the applicant, explained that the applicant was not referred to in the birth certificate because of the circumstances of his birth and his father having no identity documents. She, also like the applicant, explained that her marriage was not recorded because her husband was an undocumented Iraqi.

18. The applicant also explained that his father did not have a white card or green card which evidence was corroborated by his mother who said that friends had attempted to obtain a green card which resulted in their deportation to Iraq. The applicant’s father did not trust the government and despite her attempts to assist him in obtaining a card, he did not do so.

19. In closing submissions, the respondent accepted the mother’s explanation as to why no documents were available to support the applicant’s identity. I agree with that submission. I am satisfied that she was credible and reliable. When weighed with the applicant’s evidence, I am satisfied that the absence of the applicant’s school or employment records do not so adversely weigh against the applicant such that I am not satisfied as to his identity.

20. In respect of the departure card, I asked during the hearing whether there was before me evidence that the departure card was indicative of the applicant having travelled through Malaysia en route to Australia. In closing submissions, counsel for the respondent referred me to page 105 of the Tribunal Documents being a portion of the Identity Assessment Report, under heading ‘Travel History’. The author then inserted “[t]he investigation uncovered an exit ‘card’ from Malaysia” and a finding that the applicant spent time in Malaysia prior to travelling to Indonesia and in Australia. However, there was no evidence before me that established that the card in question was Malaysian. There was no evidence that established how the author of that document reached that finding of fact. There was no similar Malaysian departure card presented to me from which I could make a comparison, nor an Indonesian departure card from which I might also make comparison as to its authenticity.

21. Having regard to the evidence before me, I am not satisfied that the departure card was Malaysian and do not draw any adverse finding as to the applicant’s identity when weighing the authenticity of that departure card. I prefer the applicant’s evidence that this was a document completed on his behalf, being a card endorsed in English and handwritten in English by those who were in attendance at the Indonesian airport.

22. I would have expected the respondent to place evidence before the Tribunal which underpinned the finding of fact by the author of the Identity Assessment Report with regards to the origin of the document.

23. I am satisfied that the applicant was initially not truthful to Australian authorities when detailing his journey to Australia, to the extent that he at first instance referred to travelling through Istanbul and that his journey took two weeks. I accept that he was influenced by advice from people smugglers but that soon after he made a genuine attempt to correct the record and be truthful to the Australian authorities. I am also satisfied that he was not otherwise deliberately dishonest in dealing with the Australian authorities when saying he had not previously been known by another name. Nor was he dishonest with respect to his date and place of birth.

    CONCLUSION

24. Having weighed up the whole of the evidence, the Tribunal accepts the applicant’s evidence is corroborated by his mother, that he was born on the Persian calendar date of 9/5/1362 and that at the time the applicant came to Australia he had no English and was not familiar with the Gregorian calendar and the translation of dates from the Persian calendar.

25. The Tribunal is reasonably satisfied that the correct translation to the Gregorian calendar was 31 July 1983 as translated in his Biodata and Arrival forms. The Tribunal is reasonably satisfied that the change of birth date in the Gregorian calendar was not a consequence of the applicant giving inconsistent evidence about his date of birth. The Tribunal is reasonably satisfied that at all times the applicant provided, when asked, his Persian calendar date of birth, which was subsequently incorrectly translated and which infected all documents that were prepared with the assistance of translators and department employees or by the applicant in his application for citizenship.

26. The Tribunal is also reasonably satisfied that the applicant did not give false or inconsistent evidence about his place of birth in his Biodata form, and accepts the applicant’s explanation as to a possible misunderstanding or misinterpretation of what was asked of him with respect to the relevant question. The Tribunal notes within the Biodata form he referred to living in Isfahan in 1986 when he was three years of age and that in the Arrival form there was a correction of his place of birth from Tehran to Isfahan; and thereafter no change to his place of birth occurred in subsequent documents.

27. The Tribunal notes the respondent’s criticism about the absence of documentary evidence of the applicant and his identity when residing in Iran. However, having heard the evidence of the applicant’s mother, whom the respondent acknowledged and the Tribunal agrees was a credible and reliable witness, whose evidence corroborated that of the applicant with respect to his lack of identity documents, and when balancing that evidence with the absence of school or work records, the Tribunal is reasonably satisfied nonetheless of the applicant’s identity.

28. Further, the applicant’s mother also corroborated the applicant’s evidence as to his life history in Iran to which I have referred, which life history, including the death of the applicant’s father, assisted the Tribunal in being satisfied as to the applicant’s identity.

29. Accordingly, having regard to the whole of the evidence, the Tribunal is reasonably satisfied as to the applicant’s identity as referred to in his application for the purposes of the eligibility criteria to become an Australian citizen.

    DECISION

30. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the applicant satisfies the identity criteria set out in s 24(3) of the Act.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

…………[Sgnd]……………..

Associate

Dated: 28 September 2021

Dates of hearing:	8 July 2021
Advocate for the Applicant:	Roya Majd, Majd Visa Pty Ltd
Advocate for the Respondent:	Emily Spice, Australian Government Solicitor