Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4440
•26 November 2021
Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4440 (26 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7921
Re:Aidin Rezaei
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:26 November 2021
Place:Adelaide
The decision under review is affirmed.
......................[SGND]..........................
Senior Member B J Illingworth
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to good character – whether applicant undocumented stateless person – whether applicant engaged in material deception in his dealings with the department – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
REASONS FOR DECISION
Senior Member B J Illingworth
26 November 2021
Introduction
This is an application for review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 18 November 2020 who refused to approve the applicant’s application for citizenship by conferral pursuant to s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate was not satisfied that that the applicant was a person of good character pursuant to s 21(2)(h) of the Act.
At the hearing the applicant was represented by Mr Pasha Mehr, Conatur Legal and the respondent was represented by Ms Subasha Prasad, Minter Ellison.
The applicant gave evidence before the Tribunal. Clinical Psychologist Dr Ali Sahebi also gave evidence by telephone from Iran. He provided a brief report dated 1 April 2013[1].
[1] Exhibit B, Supplementary T Documents, pages 24-25.
Background
Opening
The applicant referred the Tribunal to page 3 of the Application for Australian Citizenship dated 14 August 2017[2], and the applicant’s response to question 22 as being a fundamental issue raised by the respondent in asserting the applicant was not a person of good character.
[2] Exhibit A, T Documents, T4, pages 25-42.
Question 22 reads, “Do you currently have, or have you ever had, any national identity documents or numbers (including birth registration numbers, social security cards, etc)?”. The applicant answered, ‘No’.
Counsel submitted that English was not the applicant’s first language and he misinterpreted the question, namely, that it was asking whether or not such identity document was on his person at that time. It was only after he subsequently received documents from Iran that he realised he had certain national identity documentation.
The applicant otherwise relied on the content of a letter from the applicant’s solicitor to the Tribunal dated 26 March 2021 and the attachments. The Tribunal advised counsel that if the applicant wanted to rely on an asserted fact contained in the letter, that fact must be proved by evidence and that the content of the letter was not evidence and was, at least in part, in the nature of evidence from the bar table.
The respondent submitted that the application for Australian citizenship by conferral was rejected on the basis that the applicant did not meet the good character test contained in section 21(2)(h) of the Act. The respondent submitted that, having regard to all of the evidence before the Tribunal, the Tribunal should find that the applicant engaged in material deception by stating he was a “stateless undocumented Fali Kurd”, when the evidence before the Tribunal clearly demonstrates that he was aware of his Iranian citizenship and was viewed as such by Iranian authorities and his family.
The respondent submitted the Tribunal should not accept that the applicant’s claims that he was confused, including in relation to passport complexities, and that he did not intend to mislead the Minister’s Department (the Department). The respondent submitted that the Tribunal should draw an inference from the whole of the evidence that the applicant’s claims to being stateless and undocumented were a deliberate attempt by the applicant to mislead the Department and to bolster his protection visa claims. The respondent also referred to multiple inconsistencies in his claimed identity over time, which the respondent submitted evidenced the applicant was engaged in a serious and ongoing pattern of deception from the time he lodged his protection visa application in 2013 until April 2020. It is submitted that such inconsistencies could not be explained by confusion or poor mental health.
The Evidence
The Applicant
The applicant has resided in Australia for approximately 9 ½ years during which time he said his understanding of the English language has vastly improved. When he arrived in Australia and was in the detention centre and he had no English.
The applicant completed the Application for Citizenship dated 14 August 2017 himself, and without assistance.
The applicant explained why he believed he was stateless. His answer was lengthy. He said during his first interview at Christmas Island when asked where he came from, the immigration officers tried to divide the arrivals into several groups. He was asked if he had any identification documents and he said no; that his passport had been lost and his personal property was stolen. When asked his background he said he was Kurdish from Iran. He referred to his parents, and in particular his father, who lived between Iran, Iraq and Kurdistan. His father had no identity card.
The applicant said that he was his mother’s second child and when they attempted to obtain an identity card for him in Iran, that could not be achieved because his father had no identity documents. He explained that his father found a person in the Department and he paid that person to obtain an identification card for the applicant.
The applicant said that when he was interviewed in Christmas Island Immigration Detention Centre, he tried to explain that background to those present, in his Farsi language. He explained that his father paid for someone to get the identification card and it was not a fake identification card, but the applicant said that he thought there was a misunderstanding between the applicant and the interpreters.
He explained that when he was a child, he had difficulties growing up. He had issues at school because of his Kurdish accent. He had mental health problems, including anxiety. His mother tried to help him lose his Kurdish accent. He said he saw his father 4-5 times during his life.
The applicant said that when he tried to explain his background to those in Christmas Island Immigration Detention Centre he was suffering from depression and he was taken to a doctor who prescribed tablets. About eight or nine months later he went to Sydney where he was being treated for his mental health condition and saw a psychologist.
The applicant said that his journey to Australia, and in particular from Indonesia to Australia by boat, was difficult. He was fighting for his life and did not know where he was or what would happen to him.
It was against that background that he provided information to authorities on Christmas Island. It was never his intention to deceive the Australian Government, including in his application for Australian citizenship. The applicant repeated that on Christmas Island he was asked if he had any identification documents. He said he telephoned his mother, but she could not find any documents, save for the last page of a document with respect to his final year of school.
The applicant said he kept in contact with his mother and regularly asked if she had found his identification documents. He said that all of a sudden, after he had sent his application for citizenship to the Department, his mother was moving to a new house, and she found a small bag which contained the applicant’s documents. The applicant first asked his mother to send the documents to him but he then said that because he had failed to receive a present previously sent to him by his mother, he did not trust the postal service and he told her not to send the bag and its contents.
His mother sent the bag and its contents to the applicant’s brother who was living in Turkey. He in turn gave it to their aunt and uncle to bring with them when they returned to Australia. His aunt and uncle told the applicant that when they arrived at the airport in Australia, they were asked questions about the documents. They explained to the authorities that they were bringing the documents to Australia to give to the applicant, which they did.
After he received the documents, the applicant took them to be translated. He said he tried to contact the Department without success. He was told by others who had been through similar procedures that he should wait until he was requested to provide the documents. Then, after he received a further communication from the Department asking if he had any further documents, he sent the original documents and translations to the Department.
The applicant said that he had always tried to be of good character, be a member of the Australian community and work hard. He expressed his appreciation for the help the Australian community has given him since his arrival in Australia. He wants to give back to the Australian community. He has never lied. He acknowledged his receipt of documents from his aunt and uncle, and said he provided the material to the Department upon request. He did not hide the fact of the receipt of the documents. The applicant has never said he was not Iranian.
However, the applicant subsequently said that when he was detained on Christmas Island, having explained his personal history to the authorities including from childhood, that when asked if he was Iranian, he responded:
Don’t even call me Iranian; I’m not Iranian because the way they treat me, my mum, my sick mother, my family, my brother, my sister – no, I’m not Iranian. I don’t believe that I am Iranian. I just said my opinion. That was from the bottom of my heart. I didn’t know that they would take it as a general official thing. I said, ‘if you are asking me “are you Iranian?” know there is not even one reason to call myself Iranian’.
The applicant said that he considers himself an Australian. He has never had any civil or criminal proceedings issued against him, and he has never been declared bankrupt. He said he was highly regarded by his employer[3]. He attends church and a centre that helps people from multicultural backgrounds. He first went there to get help and he then became a team member who helps others.
[3] Exhibit F, reference letter from Altus Traffic dated 31 August 2021.
In response to the Tribunal, he confirmed that he obtained an identification card in Iran. To get that card he first needed a birth certificate which is a booklet[4] (the booklet) in which life events such as marriage are also recorded. His father obtained the applicant’s booklet by paying money and, having received the booklet, the applicant was then able to receive an identification card. No money was paid to obtain the identification card. The applicant explained that, insofar as he said in evidence-in-chief that his father paid money to get his identification card, he said because of his English he has always understood his identification card to be his booklet. It was the booklet for which his father paid money to a person in the relevant department. He obtained the identification card when he was aged about 15 years. The applicant accepted that the booklet was not a fake document and the contents were correct. Hence, with the assistance of the booklet, he was subsequently able to obtain a valid identification card and thereafter a valid Iranian passport.
[4] His birth certificate booklet is a Shenasnameh.
Nonetheless, the applicant said he does not regard himself as Iranian because the country required his father to find and pay a person within the department to obtain the document, which I infer was the booklet, to make the applicant’s life easier. They were lucky his father found that person. Others he knew have still been unable to obtain documents in this way. His date of birth was at or about the time of the Iran-Iraq war and they were lucky enough to find someone to whom they could pay money to get the booklet.
In cross-examination, the applicant said he arrived by boat in about July 2012. He started in detention from about 11 July 2012. He now speaks English (not well), Farsi and Iranian (Kurdish). He now preferred to try and speak English because he was more confident speaking English. When he arrived in Christmas Island, Australia, his preferred language was Kurdish, but they did not have the right interpreter. They had a Dari interpreter who also assisted on occasions, but that interpreter did not have a thorough understanding of his language. Sometimes they used an Afghani interpreter, or he would speak Persian.
The applicant was referred to the Biodata interview form dated 12 July 2012[5]. He confirmed that document correctly stated that his preferred language was Farsi (Persian). He was referred to his Irregular Maritime Arrival Entry Interview dated 28 September 2012 (Entry Interview)[6], which referred to his interpreter interpreting in the Farsi (Persian) language. The applicant said that he could not recall the interpreter. He said, on occasions, Afghan interpreters who purported to speak Farsi (Persian) could not do so. The Entry Interview at Exhibit B page 27 contained two boxes ticked ‘yes’ which indicated he understood what was said in the interview and that he understood the interpreter. The applicant said he did not tick the two boxes and could not remember if he was asked the questions and answered yes. He said he was under pressure at the time following his journey from Indonesia to Australia by boat. He was depressed. He cannot guarantee what was said at that time.
[5] Exhibit B, pages 45 - 50.
[6] Ibid, pages 26 – 44.
In relation to the Protection Visa Application dated 19 March 2013[7] and related documents signed by the applicant[8], the applicant was referred to the interpreter identified at page 127 of the Supplementary T Documents. The applicant knew the interpreter, who was Persian, and agreed she interpreted in his preferred language and he had no issue with the translation.
[7] Ibid, pages 73 – 87.
[8] Ibid, pages 88 – 136.
The applicant could not recall the names of those who translated the earlier documents, albeit the documents indicated the translation was Farsi (Persian), his preferred language.
The applicant then said when first interviewed upon his arrival in Christmas Island, the interpreter was Persian but with an incorrect accent. He had difficulty understanding that person. They could not find someone else. However, he was not sure if that was the Biodata interview. He said that some female Afghan interpreters were used but the Farsi interpreters were either busy or had gone on holiday. He agreed that in the Biodata interview he said he was an Iranian citizen. However, the applicant asked the interviewer what he should say, and he was told whatever his passport indicated. He told them the passport said he was Iranian.
The applicant did not agree that those conducting the interview explained what citizenship meant. The applicant said he asked for help. Those present asked him about, and relied on, his recollection of the contents of his passport. They told him the interview was not important. They asked him about his citizenship. The applicant said he answered that he did not know. He told them he did not believe he was Iranian but asked what they wanted him to put in the document himself. They asked him what was written on his passport and he said Iranian. They told him this interview was about what identification documents he had.
The applicant did not accept that the interviewers explained the importance of citizenship and the concept of citizenship. He now understands its importance. He thought the passport was the document one used to go from country to country. He did not then understand that the passport was indicative of one’s citizenship.
In response to the Tribunal, he said he knew it was important to get the booklet and national identification card. When asked if he knew the importance of the identification card, and that it established he was a member of the Islamic Republic of Iran, the applicant responded he did not know that fact. The Tribunal referred him to his original national identification card and translation[9]. He said he was 14-15 years of age at the time. He agreed that was his card and that he said in evidence there was no expiry date. The Tribunal referred to the translation at page 82 of the Tribunal documents which said the expiry date was 29 April 2015. The applicant said that a person in Iran could use the card after the expiry date. Nonetheless, he agreed this was his national identity card.
[9] Exhibit A, T Documents, T7, pages 80-81.
The Tribunal referred the applicant to his Iranian driver’s licence[10]. The applicant agreed that the booklet and national identity card were required to obtain his Iranian driver’s licence. Those documents were also necessary to obtain his Iranian passport. The applicant accepted that the passport indicated he was a citizen of Iran.
[10] Ibid, pages 84-86.
The applicant still maintained his belief that, at the time the passport was issued, it was merely a document to enable him to move between countries. He did not understand a passport to be a document to identify from which country a person came.
In relation to the identification card, the applicant then said that this hearing was the first occasion he was made aware of the expiry date, and the only important content of the card was the 10-digit number appearing at the top of the card. So long as a person had that number, that person could rely on that number and need not produce the card. He also said on the back of the card was a postcode number similar to the Australian postcode system which, together with the 10-digit number, was all the information one required. That information enabled a record check to be made which confirmed a person’s identity. He kept a record of those numbers on a piece of paper in his pocket which he had in his possession when he arrived at Christmas Island.
When he came to Australia, he could not recall the card details. He explained this was due to his lack of memory. In the last few months living in Iran, he had a heart attack and twice attempted suicide. As a consequence of one such suicide attempt, he was in a coma for a few days and suffered memory loss. That occurred about 4 – 5 months before coming to Australia. He did not receive any help for his mental health but was under the care of a medical practitioner at Christmas Island. He was not prescribed any medication.
The applicant said his mental health during his journey to Australia was terrible. When in Australia he told the nurse about his history and he was kept under observation and was checked regularly. He attended the medical centre three times a week and was given medication. He also consulted a psychologist who was brought to Christmas Island from interstate. He continued to receive treatment at Christmas Island and thereafter for almost 2 years when he lived in Sydney. The report from the clinical psychologist Dr Ali Sahebi dated 1 April 2013[11] related to the period when he was residing in Sydney. The applicant consulted him for a few months.
[11] Exhibit B, pages 24-25.
The applicant said in response to counsel for the respondent that he was highly depressed and, according to the nurses on Christmas Island, he was at high risk of suicide. He did not know his formal diagnosis. He was tested in Sydney. He had memory issues. He was panicking, shaking and confused when in detention on Christmas Island and this impacted on his ability to answer questions. He described the detention centre as like being in a jail. He said his brain was frozen, but he was happy to be alive.
The applicant was asked how his health impacted, if at all, on his ability to answer questions in his various interviews. He did not answer the question but did say that all those who arrived on the same boat as him, were able to leave Christmas Island before him. He was not allowed to leave because he was not capable of looking after himself.
The applicant could not detail the length of his mental health treatment in Sydney. He said he also received help 3 times a week from a charitable organisation. His general practitioners also gave him some medication. He was last on tablets for depression 10 – 12 months ago or perhaps 2 years ago. He also consults a pain specialist.
The applicant repeated at length his evidence about the circumstances of the interviews. He repeated that in the Biodata interview he was told not to worry about the interview. Those who interviewed him were nice and did not push him to answer the questions. He again referred to his suicide attempt and said he died for 3 minutes. When he was brought back, he suffered memory issues.
Counsel for the respondent again referred the applicant to the Protection Visa Application and related documents. He received assistance from a Persian interpreter who was present. It was completed when in Sydney about 4 months after leaving detention. He had a lawyer who provided him with the documents to sign. He said he did not know the contents of the documents but just signed them. At the time, he was living in shared government housing accommodation with other people. The case officer helped with shopping and going to medical appointments.
The applicant was again referred to his Protection Visa Application[12] in which he said his citizenship at birth was stateless, that he had no right of entry or residence in any country other than his country of nationality or former country of habitual residence, and that he was stateless because of his father. When put to him that he was in fact a citizen of Iran and he had purposely misled the Department when he said he was stateless, he repeated at length his life history, his difficulties as a child including at school, and referred to the manner in which he was treated. He said that doctors would refuse to treat him at the hospital because of his Kurdish accent. He maintained his opinion that he was stateless, and now regarded himself as Australian. The booklet and documents obtained when in Iran only served to make his life easier and enabled him to go to school and university. He said he did not know if his date of birth was true. He did not know what happened to his father.
[12] Ibid, pages 73 – 91.
In response to a question from the Tribunal in relation to the Protection Visa Application, the applicant there said that he had a passport in his correct name, and that smugglers took it from him[13]. The applicant said that those who brought him from Indonesia to Australia stole his property, including his passport. He believed his passport was used by the smugglers to transport others illegally and for money. The Tribunal asked if he ever said his passport was thrown into the sea. He acknowledged that he said it might be in the sea, he did not know where it was.
[13] Ibid, page 75.
The applicant was referred to his statutory declaration dated 19 March 2013[14] and under heading ‘Background’. He said he could not be sure about the dates referred to under that heading because of his memory. Otherwise, the facts contained in the document were correct. He maintained that he did not have the right to enter or reside permanently in any country or to be a citizen of Iran. He completed this document with the assistance of an interpreter who he understood.
[14] Ibid, page 92 – 97.
The applicant was referred to his Form 80 dated 19 March 2013[15], prepared in support of his Application for a Protection Visa. When asked questions about the form, his answers were lengthy. He said he told the Department he had the booklet but that his mother could not find it. In response to question 16, namely, whether he currently had or ever had national identity documents, he ticked the ‘yes’ box, but only referred to his booklet and his school certificate. He was asked why he did not refer to his identity card. He said in Iran the booklet was the document they regarded as their identity document. He also said because of his mental health issues, he misunderstood the question to ask whether he had the document in his possession. He said he thought the question meant to ask whether he had it in his pocket.
[15] Ibid, pages 98 – 115.
The Tribunal notes that the applicant did not have in his possession at that time, either the booklet or school certificate. They remained in Iran and were not located until five years later when his mother moved to a new house. If he genuinely believed the question referred to documents in his possession at that time, he would not have answered ‘yes’ and mentioned the booklet or school certificate. He plainly understood the question. This was the excuse that the applicant gave in evidence to explain why in at question 22 of his citizenship application form dated 14 August 2017, he answered ‘no’ to the same question.
When completing this Form 80, the applicant was supported by an immigration solicitor and interpreter in his preferred language. He said he made a mistake by not referring to his national identity card because of his mental health. He said he did not deliberately lie. He went into lengthy explanation that he was on drugs, thinking what would happen to him, that he was sitting in the interview for 2-3 hours, he was tired and nervous, he was thinking: were they going to kick him out, were they’re going to kill him or send him back to Iran to be killed.
The Tribunal reminded the applicant that this was not a Christmas Island interview. It was 4 months after leaving detention. He was residing in Sydney. He was with his migration solicitor and interpreter. The applicant said he still had issues and mental health problems.
The applicant’s explanation for the errors in the Form 80 were unconvincing. His evidence was neither credible or reliable and he appeared to embellish his evidence.
The applicant said that he now understood the difference between citizenship and right of permanent residence in Australia but did not understand these concepts at the time of being first interviewed. He could not recall if his migration lawyer explained that concept to him or the questions being asked of him in the various documents the applicant completed and signed. He said he could not remember.
The applicant was referred to the Protection (Class XA) Visa Decision Record dated 16 April 2013[16]. He said that the details relating to his father were told him by his mother. He could not personally be sure whether that information was correct. He told the interviewer that he was relying on what his mother told him.
[16] Ibid, pages 3 – 19.
The applicant was referred to a letter from his legal practitioner dated 13 March 2020[17]. This letter was a response to the invitation to comment on adverse information from the Department dated 30 January 2020. At page 112 of the T Documents in respect of the booklet, the author wrote “…in order to obtain a birth certificate, fraudulent activity ensued”. The author then wrote:
[t]herefore, he understands that the birth certificate is inaccurate and that he is in fact not an Iranian citizen and maintains his claims that he is in fact stateless, given his father was an Iraqi National with Kurdish lineage, who was stripped of his citizenship and expelled to Iran.
The applicant maintained that was his understanding as told to him by his mother.
[17] Exhibit A, T Documents, T13 pages 111 – 114.
The applicant was referred to the Further Supplementary T Documents[18], which contained an Irregular Maritime Arrival Entry Interview given by the applicant’s uncle Mr M Rezaei dated 24 November 2012, together with an application for Safe Haven visa which documents referred to the applicant’s father Mr M R Rezaei. At page 6, being the entry interview, it reads that the applicant’s father was born on 31/12/1958, that he was a citizen of Iran, that he was currently residing in Kermanshah in Iran, that he was not a stepsibling, not deceased and is not missing. At page 10 being the visa application, the list of family members refers to the applicant’s father, his date of birth as 1 January 1958, place of birth as Kermanshah, Iran, and that he was an Iranian citizen and deceased. On the next page, he lists his nephew as the applicant, his date of birth as 1 January 1987, place of birth as Tehran, Iran, and that the applicant was a citizen of Iran currently living in Australia.
[18] Exhibit C.
It was put to the applicant that this was contrary to the information given by the applicant to the Department with respect to his father’s nationality, including that his father was an Iraqi citizen without documents and that the applicant was stateless. The applicant was asked to explain. The applicant did not accept the contents of the uncle’s document and gave a lengthy explanation. The applicant referred to his booklet. He said that the only information the uncle had was that information contained in the applicant’s booklet. He referred to the tradition of multiple marriages, that the whereabouts of other family members was unknown, and that the uncle was his father’s stepbrother. He said that the respondent could ring the uncle and ask him, and he might change his mind. The applicant’s explanation was unconvincing.
The applicant was referred to the uncle’s subsequent statutory declaration dated 7 July 2015 at paragraph 6 which reads, “my parents and my brother MR are deceased[19]” and that there is no reference to a stepbrother in that document. It was put to the applicant that his personal history, including in his application for citizenship, was false. He did not agree with the contents of the uncle’s documents. He maintained his family history as indicated by him was correct. He relied on what his mother told him, including that his uncle was his father’s stepbrother.
[19] MR is the applicant’s father.
The Tribunal asked the applicant where his uncle was living. He said he could be in Adelaide, but he did not know. The applicant had not been in contact with him for a number of years and had no contact details. He could speak to others and see if they know.
The applicant was then referred to his booklet which said the applicant’s father and mother were both issued with birth certificates by Iranian authorities issued in District Registry 11 – Bakhtaran – Kermanshah, Iran. The applicant said he could confirm his mother’s details were correct because he had seen her birth certificate. He said his father’s details were put on the document because that was required by law in Iran and that the family name and identity came from the father’s details, and his father paid for this information to be included in the booklet, including that he was Iranian.
The applicant said his father abandoned the family in 1994 when the applicant was very young. The applicant maintained that the information he received and communicated to the Department came from his mother and that he always asked his mother about the family history. He said he did not have the same appearance as other family members and that he was more European in appearance. This was always an issue for him and that was why he kept asking his mother about his family history and his father.
The applicant was referred to the Irregular Maritime Arrival Entry Interview dated 28 September 2012[20]. This was an interview that occurred some months after his arrival in Australia. Question 19 said “[i]s there anything I have not asked you that you would like to say?”. The respondent said ‘yes’ and volunteered the following:
At my arrival on Christmas Island they asked me about my ethnicity. I said I was a Kurd. I saw they have written ‘stateless’. I am not stateless in that sense. My parents have been stateless. I told them I do not have any real state. I wanted to show them that my parents have no state. I wanted to clarify this so that they know I am telling the truth and not lying.
[20] Exhibit B, pages 26 – 44 at page 43.
He was asked what he meant by that statement. He explained that he had not understood what was meant by ‘stateless’. He again explained the circumstances in which he obtained the booklet. He said it was not fake but was a real booklet. They paid for it. He wanted them to understand what happened about the booklet.
Counsel for the respondent put to the applicant that, at the time he completed this document, he had some understanding of the meaning of ‘stateless’. He did not answer the question. His response referred to the error contained in the citizenship application which asked whether he had, or had ever had, identification documents in his possession. The Tribunal repeated the question and his understanding of statelessness at that time he completed the interview on 28 September 2012. He said he understood a person who is living in a country without an identification card for that country to be stateless.
Counsel suggested to the applicant that he had Iranian identification documents, and hence that did not mean he was stateless as he understood that term. The applicant said that those undertaking the interview said all Kurdish-Fali people were stateless. There was no focus on explaining what stateless meant. It was a quick conversation and those interviewing him said he was stateless.
I do not accept the applicant’s explanation. His answer was inconsistent with earlier evidence and again he appeared to be improvising his answers and attempting to distance himself from, and explain the errors by, blaming those who conducted the interview.
Counsel asked about the identity documents brought to Australia by his aunt and subsequently provided to the Department. He said he received them about three years ago, and about 12 months after he filed his application for citizenship. These were the documents his mother found which were provided to him by his aunt and uncle. He did not send the documents to the Department immediately because he did not know where to send them. Friends advised him to wait for a request from the Department for documents after which he had a limited period of time to produce them. The first time he asked his mother for the documents was when he was in detention.
The applicant again explained how he came to receive the documents. His mother visited his brother in Turkey and gave him the documents. He in turn gave them to their aunt and uncle to bring to Australia. The applicant’s cousin rang, told him they had the documents and that cousin brought the documents to the applicant’s home. This was in about 2018. After that he saw his aunt and uncle on a few occasions. He last saw them 18 months ago but more recently, the cousin contacted the applicant by text message asking about the applicant’s newborn baby. The applicant believed that cousin still lived in South Australia with the aunt and uncle.
This explanation about the whereabouts of his aunt and uncle was strikingly different to the earlier answer that he had no idea where they were residing, had no contact with his uncle for a number of years and had no contact details.
The applicant was referred to a letter from the Department being an ‘Invitation to comment on adverse information’ dated 30 January 2020[21], which referenced the paternal uncle being an Iranian citizen which in turn confirmed that the applicant’s father was also an Iranian citizen. The applicant did not make any inquiry with his uncle about his citizenship status.
[21] Exhibit A, T Documents, T10, pages 94 – 97 at page 95.
The applicant said he did not immediately advise the Department about the documents received for two reasons: first, he was waiting for the Department to get in contact with him, and second, after he lodged his application for citizenship, he received no further communication from the Department and had no contact details.
The applicant was referred to a letter dated 21 September 2017 from the Department being the acknowledgement of receipt of the application for citizenship which provided contact information. He then said he made contact with the Department to tell them he had something to add but was told they were still processing the application and they would contact the applicant. There was no evidence of that communication before the Tribunal.
The applicant said the Department sent an email request to the applicant for further information on 18 October 2019, and the Department received a new Form 80 on 29 October 2019[22] together with the original and translated documents.
[22] T7, page 53 – 69.
The documents from the applicant’s mother were translated on 22 October 2019 from which the respondent submits the inference could be drawn that the translations were not undertaken as soon as they were received as the applicant had said, and were only translated after the Department’s request for further information.
In response to the Tribunal, the applicant acknowledged that prior to his arrival in Australia he did not have the booklet in his possession. The Tribunal took the applicant to the driver’s licence which was originally issued in 2007 when he was living in Iran. The date of issue of the current driver’s licence was 28 March 2013 after he was living in Sydney, Australia. He agreed that he made the new application for an Iranian driver’s licence in Iran. He paid $300 to a cousin in Iran to get the new licence.
He received the driver’s licence by post shortly after it was issued. It was current to 27 March 2023. That document was in his possession at the time he applied for citizenship. He did not know that he should refer to the driver’s licence as a document of identification. As for the National Identification Card, he first came into possession of that from his aunt in or about 2018. He previously had possession of that card in Iran which was issued before he came to Australia. The booklet was also received from his aunt which had also previously been in his possession when living in Iran.
Counsel again put to the applicant that when he was asked in the citizenship application form at question 22 if he had or ever had any national identity documents or numbers he answered ‘no’, well knowing he had previously had an identification card. The applicant explained that he said no, because at that time they did not make it clear what was national identity. His explanation was that it was only on the last occasion before the Tribunal that the respondent called the card a national identity card. In Iran, they use the card because it has the postcode on the back, they never use it as a national identification document. When it was translated in Australia, it was translated to national identification card. It was never used as a national identification card.
The Tribunal asked the applicant what then was the purpose of the identity card. The applicant said it was like going to the pub in Australia. You produce the card as proof of identification or use it just for simple things. The important document was the booklet which was used if he went to the bank or to school. Then he said, “whenever they said national identity, I thought they meant passport” and he always says no because he doesn’t have the passport. He only had his driver’s licence.
Again, the applicant’s answers to those questions about the various documents was wholly unsatisfactory. He had previously referred to the importance of the identity card which was a document used in addition to his booklet to obtain his driver’s license and passport. That he now says “whenever they said national identity I thought they meant passport” was inconsistent with his evidence that he thought a passport was simply a document that would permit him to travel between countries and was not indicative of his national identity. His answers were lengthy, inconsistent, and again lacked credibility or reliability.
Counsel referred the applicant to his current Iranian driver’s licence translation which detailed the applicant’s date of birth and his National Identity Card Number and, hence, that identity card had some significance when obtaining the driver’s licence and important documents. He said his original driver’s licence did not refer to the National Identity Card Number.
The Tribunal then asked the applicant, if the original licence did not contain the identification number, and the applicant did not know the whereabouts of his National Identity Card, then how did his cousin know the national identity number. The applicant said when issuing the card, the Iranian police had access to the computer from which they can access the required material. The information they ask for is your name, surname, father’s details and the number at the top of the birth certificate, namely, 70162.
The applicant obtained his passport by making an application and paid a fee the same as one would do in Australia.
Counsel referred the applicant to the country information dated 14 April 2020 under heading ‘National Identity Card’ which reads:
Every permanent resident of Iran over the age of 15 (including non-citizens) must hold a national identity card. National identity cards are compulsory for a range of activities, including obtaining passports and drivers licenses and using bank services.
Counsel put to the applicant that the National Identity Card was an important document. His response was that the information does not identify from what date this became mandatory. That was not the procedure when he lived in Iran. It has changed since he left Iran. Counsel asked if the National Identity Card was not important, why he obtained the card. The applicant said so that he had the postcode on the back of the card, and it proved his address. Now its purpose has changed.
The applicant was referred to the baggage search of his aunt which occurred on 24 November 2017. The records there indicate the following documents were located, originals of the National Identity Card, Iranian driver’s licence and Iranian Shenasnameh (Booklet). Copies of the documents were also located.
The Tribunal referred the applicant to his Form 80 signed on 24 October 2019 and received by the Department of Home Affairs on 29 October 2019 in which he provided his Iranian passport details with a number V23963100. When asked how he was able to provide that number given his passport was no longer in his possession, he said before travelling to Australia he recorded the passport number on a piece of paper along with his flight ticket number, which he had in his possession when he arrived at Christmas Island, and he retained that piece of paper. He relied on it to provide the passport number.
The applicant was then referred to his Irregular Early Interview conducted on 28 September 2012 at Christmas Island and at page 41 of the T Documents in which he said, in response to the details of his passport number, that he did not know it, which appeared inconsistent with him having that piece of paper in his possession. The applicant said that upon his arrival at Christmas Island, that paper and other personal items were put in a bag and taken from him and put in a security box. It was later returned to him and he has retained the piece of paper because he thought the information would be important to the Department. It was now at home. He subsequently described the piece of paper as a notebook.
The applicant accepted that the only time he recorded his passport details was in that 2019 Form 80. He said because of his mental health issues he could not remember prior to that, that he had that information. He did his best when completing the Form 80 to give as much detail as he could. The applicant said that he completed the Form 80 by himself. He was referred to the handwritten response to the date of issue and expiry date of the passport, namely, 12/04/2012 and 13/04/2017. He agreed it was not his handwriting and that it may be his girlfriend’s handwriting. When asked to explain how he was able to record those details, he then said that this document was completed after he received the documents from his aunt and he was able to rely on the documents to complete the Form 80. He did not rely on the notebook.
The Tribunal asked the applicant what his mental health had been like since being in Australia. He said that 7 – 8 months before coming to Australia he attempted suicide on a couple of occasions by taking an overdose of tablets he was prescribed for depression. On one of those occasions, he was successful and was deceased for about three minutes.
After he arrived in Australia his mental health was terrible, and it was not good at the time he completed the forms at the detention centre with the assistance of an interpreter. At that time, he had no English but that had improved over the last two years. He was suffering from depression. The applicant said he had been under the care of a mental health practitioner. When he was in Sydney, he was under the care of a psychologist and taking medication. He was seeing Dr Sahebi whom he last saw in 2013. His health improved but he did suffer a relapse. Thereafter, his condition improved, and he stopped taking medication about six months ago. He was under the care of his general medical practitioner for his mental health. He said that since living in South Australia he had been referred to a psychologist, but he did not make an appointment, and he has relied on his general medical practitioner Dr Najibi for treatment. The applicant last saw her four months ago but has seen other doctors in that clinic.
In re-examination, the applicant said that in his culture, family included aunts and uncles and he is very close to them. Again, this is to be contrasted with his earlier evidence that he had not seen them for a number of years and did not know their whereabouts or contact details.
The identity card contained the postcode which identifies a person’s house, not suburb. At the time the identification card first came into operation, it did not have the importance that it now holds. He has been told by those he has spoken to from Iran, that the identification card has assumed a greater level of importance.
The applicant said that in respect of his mental health issues and following his suicide attempt and coma, he was told by the doctors that he has memory loss due to loss of oxygen in the period he was lifeless. He said the doctors told him this would be temporary and that his memory would return. Nonetheless, the applicant said he is still having trouble with his memory such as with respect to his childhood, but his memory is improving. He still suffers from depression. His life was difficult, he was alone and so he attempted suicide. But he survived and received a second chance. When he left Iran, he was confused, not knowing what would happen. He said in Indonesia he was robbed at gunpoint by his taxi driver. He repeated the difficulties he experienced at sea. He was depressed when he arrived in Australia. The applicant was referred to his Identity Assessment[23] and the details of his mental health condition previously referred to. He said he agreed with that assessment, albeit his condition was worse than described.
[23] Ibid, T16, pages 127 – 129.
In respect of those documents brought to Australia by his aunt, there was an original and copy of the booklet, an original and copy of the national identification card, a copy of the passport, together with an original and a copy of a card which was described as a driver’s licence but was in fact a small card confirming the applicant did not go into the army. It was not a driver’s licence.
Dr Ali Sahebi – Clinical Psychologist – Report dated 1 April 2013[24]
[24] Exhibit B, pages 24 – 25.
Dr Sahebi provided a report and gave evidence by telephone from Iran. Dr Sahebi practiced in Sydney and was consulted by the applicant following his release from Christmas Island.
The report was very brief. The applicant was referred by his general practitioner on 18 December 2012. Dr Sahebi conducted clinical interviews[25] and administered a Post-Traumatic Stress Disorder (PTSD) scale questionnaire.
[25] In evidence Dr Sahebi said he saw the applicant twice.
The report provides no history or personal details upon which the diagnosis was made. Nonetheless, Dr Sahebi opined that the applicant suffered from PTSD and Major Depressive Disorder with symptoms including:
…disturbed sleep pattern, frequent flashbacks of traumatic experiences, extreme feelings of guilt, social withdrawal, lack of concentration, feeling anxious most of the time, feelings of hopelessness and low self-esteem, depressed mood, lack of concentration, passive suicides in Iran.
His general practitioner prescribed the applicant’s medication which he was taking.
Dr Sahebi reported the applicant’s symptoms were severe and had a big impact on the applicant’s overall functioning. He attributed the symptoms to traumatic experiences in his home country and related to his immigration and refugee case. Dr Sahebi did not otherwise provide personal historical background which underpinned his opinion.
Dr Sahebi opined that the applicant needed further psychological intervention, was not fit for work and his situation might deteriorate if he did not receive professional and practical support.
Oral evidence
Dr Sahebi practiced in Sydney since 1992 and was a member of the Australian Health Practitioner Regulation Authority and Australian Psychological Society. He deals professionally with people who are Fali Kurds. He provided some history about this ethnic group and the transfer of people with Iranian background back to Iran from Iraq during the Iran-Iraq war. People of this ethnicity often had no identification documents. ‘Fali’ means that they do not have any land. They are often homeless. They have received permission to remain in Iran, but they have no Iranian identification. A small percentage managed to obtain Iranian identification, but the majority were unable to get any proof that they were Iranian or Iraqi.
He has been dealing with this historical background since arriving in Australia in 2011 – 2012 on referral from Survivors of Trauma Assistance and Rehabilitation Service and government agencies. He has more than 100 clients from a Fali Kurd background. In his experience, most Fali Kurds are anxious and do not know how to communicate with government agencies. They are confused and some have an identity crisis.
Dr Sahebi first saw the applicant in late 2012. He was depressed and his story was not really clear. The main symptom was PTSD as a consequence of trauma he experienced. He could not say whether this was as a result of events in Iran or in detention, or the negative events in the preceding 2 years. He also suffered major depression and could not concentrate fully, and his memory did not function well.
Dr Sahebi could not identify the main cause of his PTSD or major depression. There could be a number of causative events. The journey from Indonesia to Australia could have impacted upon and exacerbated a pre-existing condition, as could his journey leaving Iran if he felt threatened.
When he examined the applicant, he opined that the applicant suffered major depression, his concentration was not good, he had loss of memory, loss of sleep, loss of focus, was socially withdrawn and disorientated. He was using medication prescribed by his general practitioner.
At the time of his consultation, the applicant was so depressed with symptoms of PTSD and memory loss, that he could not rely on the information provided by the applicant as being the complete story of his life’s events from which he could express an opinion about the cause of his mental health condition.
Dr Sahebi in his report said the applicant denied any homicidal or suicidal ideations or any thought disorder. He explained that in coming to that conclusion, he asked the applicant if he had any plan to commit suicide. If he had answered ‘yes’, he would have referred the applicant to the appropriate community health centre or, if necessary, referred him to hospital. At the time of the consultation, his condition was not that dangerous. However, when a person suffering from PTSD is reflecting on past events or has a flashback, then there is a risk of suicidal ideations.
The loss of memory was not actual loss but was caused by loss of concentration which occurs with PTSD. When the person has severe anxiety, the negative thoughts and processing of thoughts gives rise to lack of concentration and memory issues.
The applicant was not in a position to relate to his emotions. He needed to be taught to tolerate stress, which required him to be patient and increase his tolerance. He needed to learn how to regulate his anger, his anxiety and depression and other negative feelings, including guilt. He needed mindfulness training and to improve communication skills, including to communicate his frustrations. An example of his lack of orientation was on the day of consultation. He gave the applicant his address and directions to get to his rooms. The applicant rang him four times that day because he could not find his office which was close to the train station. That was consistent with a person suffering from PTSD.
The applicant said he was not using any drugs at the time of consultation and was not addicted to any drug or prescription medication. He did admit in the past to having used opium.
Dr Sahebi saw the applicant for two consultations during which he did not receive any therapy or intervention treatment. After that he did not continue with therapy. He was suffering extreme guilt, having left his family, and was very withdrawn and suffering anxiety with major depression.
In response to questions from the Tribunal, Dr Sahebi confirmed the applicant was referred to him by his treating general practitioner for psychological assessment and brief intervention. He explained that when a general practitioner refers a client who has a mental health care plan, he was allowed 4 hours within which to consult with the patient. One hour was allocated to undertake the assessment and one hour allocated to writing the report. He therefore had two hours in which to teach the required skills to stay safe, during which the applicant completed any written tests. He first saw the applicant about one week after the referral and the second appointment about one week after that. The report was written sometime later and not proximate to the consultations.
Dr Sahebi was not aware of the applicant ever having attempted suicide and did not ask him about any previous attempt. Dr Sahebi asked the applicant if he was currently suffering from suicidal ideation or was actively planning to commit suicide and he said he was not.
In cross-examination, Dr Sahebi said that the applicant’s mental health condition would have had an impact on his ability to learn because concentration and attention are the main gateways of learning. If a person cannot focus, then that person cannot retrieve information. At best, a person may learn but slowly and with difficulty.
Closing Submissions
The applicant submitted in closing that the inconsistencies between the protection visa application and the citizenship application were a result of “subjective thought” and the state of mind of the applicant when he was completing the documentation.
It was submitted that it had never been the applicant’s intention to lie to the Australian government; rather there had been misunderstandings about the documentation required to be submitted to the Department.
The applicant referred to the letter from his employer dated 3 March 2020 and submitted that the applicant would not be able to hold a higher duties position within the company if he had a deceptive nature. It was submitted that Dr Sahebi’s evidence corroborated that it was the applicant’s poor mental health which led to poor concentration which contributed to his misunderstanding of departmental documents. When the applicant received documents from Iran, he provided those documents to the Department.
It was put by the Tribunal to counsel that the respondent may take the contrary view; namely, that the applicant did not identify the existence of the identification documents until his aunt arrived in Australia with his personal papers in 2018, and he did not provide that material until 2019. The applicant submitted it was circumstantial; when it was asked of the applicant, he provided the documents. It was not a deliberate attempt to mislead the Department. Overall, the discrepancies were a result of three factors: a lack of English proficiency, psychological pressures and poor mental health, and the applicant’s own interpretation of ‘statelessness.’
In closing, the respondent relied on their Statement of Facts, Issues and Contentions. The respondent submitted that the applicant had been dishonest with his dealings with the Department from the time he lodged his protection visa application until 2020, when he made submissions to the Department that he was not an Iranian citizen. These actions have been done for the purpose of bolstering his protection claims, not as result of confusion about the concept of statelessness and his mental health.
The respondent submitted that the applicant acknowledged in the 2012 Biodata interview that he was a citizen of Iran and that he attempted to clarify what he meant during the Entry Interview. The applicant’s statutory declaration of 19 March 2013, made with the assistance of a migration lawyer and interpreter, demonstrates the applicant clearly understood the concepts of citizenship and statelessness.
It was submitted that there was insufficient evidence to establish how the applicant’s mental health conditions affected him in such a material way that he could not understand the concepts of statelessness and citizenship at any point from arrival until 2017 when he made the application for citizenship. The applicant would have had some knowledge of citizenship and statelessness by 2017 by virtue of his citizenship application. Dr Sahebi’s evidence was that it was not impossible to learn new concepts, and the respondent submitted that the applicant understood the concept of citizenship in 2012.
With respect to the applicant’s failure to submit identity documents to the Department, the respondent submitted that the applicant had an ongoing obligation to keep the Department informed of changes in the applicant’s circumstances and that the applicant was not forthcoming in this respect. It was only when the Department made a clear request for further information on 18 October 2019 that the applicant provided the identity documents on 29 October 2019.
With respect to the applicant’s submission about having poor English language skills, the respondent submitted that this hearing had been held entirely in English and without an interpreter, and the applicant gave evidence that his English had improved in the last couple of years. It was submitted that it would be difficult for the Tribunal to accept that the applicant’s difficulties with English led him to provide inaccurate information in 2017 when he made his application for Australian citizenship. The applicant has been assisted through these immigration processes by migration lawyers and interpreters. These issues of statelessness and citizenship would have been explained to the applicant and there is no evidence they were not properly explained.
The respondent submitted the applicant has been able to obtain documents readily available to Iranian citizens and the Tribunal could be satisfied that the applicant has always been an Iranian citizen.
The respondent submitted that some positive should be attributed to finding that the applicant is a person of good character due to his employment and the relationships he has established in Australia. However, these factors are not outweighed by his deception over the years to the Department.
The applicant in reply submitted that the Tribunal should take into consideration the positive things the applicant has done since becoming a resident of Australia, and also Dr Sahebi’s opinion that the concentration and English language issues are a relevant consideration.
Consideration
Dr Sahebi said in evidence that he saw the applicant in 2013 after he arrived in Sydney from Christmas Island. He opined that at that time the applicant suffered PTSD, anxiety and depression. Dr Sahebi gave evidence by telephone from Iran without the benefit of his notes. Nonetheless, I accept his opinion that the applicant suffered PTSD, anxiety and depression in 2013.
The applicant said that he consulted Dr Sahebi for a number of months, however, Dr Sahebi said he saw the applicant on two occasions and the applicant did not make any further appointments for treatment of his mental health condition. I prefer Dr Sahebi’s evidence in that regard.
I am also satisfied that the applicant continued to suffer from those diagnosed mental health conditions, including since coming to South Australia, and that he has received treatment for those conditions from his general practitioner, including the prescribing of medication which he stopped taking some months ago.
However, as the respondent correctly submitted, Dr Sahebi’s report and diagnosis is old and of little assistance to the Tribunal in deciding the nature and extent of the applicant’s mental health condition since that time, and including when completing various documents for the Department.
It is unfortunate that the Tribunal does not have current evidence from those responsible for his medical treatment and, in particular, his mental health condition such as from his general practitioner, who it is said has been prescribing medication over a number of years.
In assessing the applicant’s evidence I have had regard to that ongoing mental health condition but I am not satisfied that his condition has had an impact upon the applicant that explains the errors contained within the various documents to which I have referred, the purported misunderstanding of questions within the documents and, in particular, question 22 of the application for citizenship, and the inconsistencies in the evidence before the Tribunal.
I have also had regard to the fact that the applicant gave evidence in person unaided by the assistance of an interpreter. English is not his first language. I accept that he had no English when he arrived at Christmas Island in 2012. However, although his English was not perfect, he now demonstrated a good command of the language, understood the questions being asked of him at the hearing and answered those questions.
The respondent places significance on the alleged errors or inconsistencies contained within the documents provided to the Department and submits that the applicant deliberately misled the Department and demonstrated an ongoing pattern of deception. It is helpful that I refer to some of the various documents referred to in evidence.
Upon his arrival in Christmas Island, the applicant was interviewed and a Biodata form was completed. That form records the applicant saying he was born in Tehran, Iran and that he was Iranian. The applicant said in evidence that he asked those interviewing him for help; that he was asked his citizenship and responded that he did not know; that the concept of citizenship was not explained to him; that he was asked about his memory of the contents of his passport and he told them the passport said he was Iranian but that he did not believe he was Iranian. He also said he was told by those conducting the interview, that the interview was about the identification documents he had, that the interview was not important, and that he was not to worry about the interview.
I accept that the applicant had just arrived in Australia by boat from Indonesia, and that he was understandably depressed and anxious. However, I do not accept that those who conducted the interview said its purpose was about identification documents, that the interview was unimportant, and he need not worry about it. The Biodata interview is an important process in dealing with illegal maritime immigrants. I do not accept the applicant’s evidence about the conversation and that he said he did not believe he was Iranian. I was not impressed by his evidence about the interview. I find the applicant was attempting to now trivialise the interview process and the recorded information which was contrary to his subsequent assertions that he was stateless.
The applicant said in evidence that he did not understand at that time of his arrival in Australia that the passport was indicative of one’s citizenship, and he thought it was merely a document to enable one to move between countries. This is to be contrasted with his comments that his passport had been stolen by smugglers when travelling from Indonesia to Australia to be used to transport others for money. This at least indicated the passport was a document of some value and importance. He also gave a different explanation of the whereabouts of his passport in his Entry Interview[26]; when asked where his passport was, he said “in the ocean in Indonesia”. Later in his evidence, he said whenever anyone referred to his national identity card, he thought they meant his passport and he always said he did not have any national identity because he did not have a passport. This latter comment clearly indicates that he knew his passport was indicative of national identity.
[26] Exhibit B, Supplementary T Documents, page 41.
A passport is an internationally recognised document of importance, including for the purpose of identifying a person’s nationality. He attempted to trivialise the importance of a passport, gave inconsistent evidence about his understanding of its importance, and also what happened to it. I gained the very real impression that he was improvising his evidence to meet the questions asked which gave rise to the inconsistencies in his evidence and rendered his evidence unreliable and lacking credit. The applicant was an intelligent man. He well knew the importance of his passport.
The applicant said that he wrote the passport number on a piece of paper that he had in his pocket when he arrived on Christmas Island. He thought that it might be useful to have a record of the passport number and airline flight ticket details. This is also indicative that he well knew the importance of the passport.
However, further evidence about his passport was troubling. In his Entry Interview conducted on Christmas Island on 28 September 2012, he said he did not know his passport number. The Tribunal asked him why he gave that response when he had the passport number on the piece of paper which he had in his possession and has kept in his possession to this day. He then said his property had been taken from him, placed in bag, and locked away. If that was truly the case, and well knowing the importance of a passport, it is extraordinary that he did not tell those interviewing him of the piece of paper from which the passport number could be obtained.
I note that in his Form 80 dated 19 March 2013[27], which was prepared in Sydney after leaving Christmas Island with the assistance of his migration lawyer and interpreter he also said his passport number was unknown. This was plainly at a time when, having now left Christmas Island, the record of his passport number on that piece of paper would have been immediately available to him.
[27] Ibid, pages 98 – 114 at page 101.
Then, in his Form 80 dated 24 October 2019, for the first time appears the passport number which he said he was able to provide because he used the information on the piece of paper, which he then described as a notebook. When asked to explain how the application form also detailed both the date of issue and expiry date of the passport, he explained he did not use the piece of paper/notebook, but was now reminded that he used the photocopy of the passport that he had received from his aunt.
The whole of his evidence on this topic was unsatisfactory.
In a number of the documents the question is asked, “do you have or have you ever had any national identity documents or numbers?” For example, in the Form 80 dated 19 March 2013 prepared in support of his protection visa application, he listed his booklet and school certificate in response to that question. We know from the applicant’s evidence that he did not have those documents in his actual possession, and that at that time, despite asking his mother if she could locate his documents, they could not be found. Clearly, he understood the meaning of the question extended to documents he previously had in his possession.
When the Tribunal asked the applicant why he did not refer to his identity card in response to the question, his answer was lengthy, trivialised the identity card as unimportant and that his booklet was his identity document. He then gave the excuse that he misunderstood the question to mean documents in his pocket, which was plainly untrue because he, in part, answered the question correctly. He then blamed his mental health, drugs he was taking, that he was sitting in an interview for 2 – 3 hours, was tired, nervous thinking they were going to “kick him out” or kill him or send him back to Iran. This was also plainly untrue. As the Tribunal reminded him, this event occurred in Sydney, post his release from Christmas Island, conducted in the presence of his migration solicitor and an interpreter in his preferred language. He then referred to his mental health problems at the time.
I do not accept his evidence with respect to the mistakes in this particular Form 80. His evidence lacked both credibility and reliability.
In his Form 80 dated 24 October 2019[28] – which was a document provided following a request for further information dated 18 October 2019 and was prepared with the assistance of his case officer – in answering that same question he only referred to his driver’s licence, despite having by this time received a number of documents from his aunt.
[28] Exhibit A, T Documents, T7, page 55.
In the Application for Citizenship[29], in response to the question “do you currently have, or have you ever had any national identity documents or numbers?”, he answered ‘no’. The applicant’s explanation for answering no, was that he understood the question to ask if he currently had in his possession such documents. However, when dealing with a similar question in earlier documents he clearly understood the question to include documents that he previously had in his possession. I do not accept that he misunderstood the question.
[29] Ibid, page 27.
The evidence about the booklet was also contradictory insofar as he said it was a genuine document, the contents of which are correct, albeit was a document paid for by his father. This is to be contrasted to the letter written by his solicitor dated 13 March 2020 in which the solicitor wrote that the applicant:
…understands that the birth certificate is inaccurate and that he is in fact not an Iranian citizen and maintains his claims that he is in fact stateless, given his father was an Iraqi National with Kurdish lineage, who was stripped of his citizenship and expelled to Iran.
This comment is also contrary to the applicant’s Form 80 dated 20 October 2019 completed with the assistance of his case officer in which he responded ‘yes’ to question seven which asked if he held citizenship from any other country. He named that country as Iran. He also in that same document said his brother was a citizen of Iran.
The respondent’s Further Supplementary T Documents[30] raise significant questions about the applicant’s citizenship and the credibility and reliability of the evidence he gave to the Tribunal. Those documents include his uncle’s Irregular Maritime Arrival Entry Interview (uncle’s Entry interview) conducted on 24 November 2012, in which the uncle said he was born on 6 May 1968 in Iran and that he was a citizen of Iran. That document also referred to his brother, the applicant’s father, who was said to be born on 31 December 1958 in Iran and who was not a stepsibling, not deceased and not missing.
[30] Exhibit C.
In the uncle’s Personal details Form 790C, the uncle listed his parents (the applicant’s grandparents), his brother (the applicant’s father), four other siblings, his nephew (the applicant), and two sisters-in-law all as Iranian citizens. Then in his statutory declaration dated 7 July 2015, the uncle declared that he was a citizen of Iran and born on 6 May 1968 and that his deceased brother (the applicant’s father) and four sisters all lived in Iran.
When asked to explain, the applicant said he relied on his family history as indicated to him by his mother who also said that, contrary to the contents of the uncle’s Entry Interview, the uncle and his father were stepsiblings. He said the respondent could telephone the uncle and asked him and he might change his mind. However, the applicant said he did not know his aunt or uncle’s whereabouts, albeit they could be in Adelaide, and that he had not been in contact with them for number of years. When further pressed by the Tribunal, the applicant conceded that he had more recently been in contact with his cousin via text message following the birth of the applicant’s child, and that cousin lived with his aunt and uncle.
The Tribunal did not receive any evidence from the applicant’s aunt and uncle.
The applicant also gave evidence having filed his application for citizenship he subsequently received the various documents via his aunt and immediately had them translated. He said did not provide those documents to the Department because he did not know where to send them having had no reply to his application for citizenship. He was told by others to wait until he received a request from the Department for further documents.
However, this was plainly wrong because he received a response from the Department dated 21 September 2017 to his application for citizenship which provided contact details for the Department. Further, the relevant documents had a certified translator stamp that the documents were translated on 22 October 2019, a few days after the request for further information from the Department dated 18 October 2019, and not shortly after the documents were received by the applicant, which was his evidence
When the fact of the response from the Department dated 21 September 2017 was put to him, the applicant then said he did contact the Department to tell them he had something to add, but was told they were still processing his application and would be in contact with him. I do not accept that explanation.
Conclusion
The applicant gave evidence in an endeavour to portray himself in the best possible light. He would readily change his evidence in an attempt to explain away any inconsistency that was put to him. His evidence did not stand up to scrutiny and was lacking in both credibility and reliability.
Insofar as the applicant claimed to be stateless, I am not satisfied on the evidence before me that the claim is established. There was a body of evidence even from the applicant which supported the respondent’s submission that there was no basis for the claim. He even stated on occasion both orally and in Departmental documents that he was an Iranian citizen and not stateless.
The documents produced by his uncle to the Department also contributed to the body of evidence that supported the applicant was an Iranian citizen. The applicant’s explanation that he relied on what his mother told him about his personal history and that his father was an undocumented Fali Kurd from Iraq is not supported by the evidence. The documents produced by his uncle portray a very different picture which clearly supports the respondent’s submission that the applicant is knowingly an Iranian citizen who has not been honest in his dealings with the Department.
The applicant did not immediately engage with the Department and provide those additional documents received from his aunt; he only did so when he received a request from the Department for further documents. I do not accept that he arranged for translations of the document as soon as they were received, nor that he engaged with the Department with the intention of providing the material. It was only after the request for further documents that he then engaged with the Department and provided the further documents and their translation.
The meaning of the phrase ‘good character’ was considered by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs[31]:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely a person of good repute may be shown by objective assessment to be a person of bad character.
[31] (1996) 68 FCR 422 at 431 (Irving).
To his credit, the applicant has not been convicted of an offence. He provided a letter from his employer dated 31 August 2021 which spoke glowingly of him as an employee, including as a leader, responsible supervisor and that he is a person of kind disposition. He had gained the respect and admiration of his colleagues. However, that letter is not referable to the applicant’s enduring moral qualities and is referable to his good standing, fame or repute in the community or place of employment.
There were a significant number of inconsistencies in the various documents provided to the Department and the applicant’s evidence before the Tribunal. As I have said, I have had regard to those matters personal to the applicant, including his mental health and lack of English at the time of and following his arrival in Australia, and including when giving evidence. However, those matters do not satisfy me that, despite the inconsistencies in documentary evidence and his evidence before the Tribunal, the applicant is a person of good character as discussed in Irving v Minister for Immigration, Local Government and Ethnic Affairs. I have very real concerns about the applicant’s credibility and reliability for the reasons I have outlined.
Accordingly, I am not reasonably satisfied that the applicant satisfies the requirement of paragraph 21(2)(h) of the Act, namely, that he is of good character.
Decision
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
…..………[SGND]………………..
Associate
Dated: 26 November 2021
Dates of hearing: 20 July 2021 & 1 September 2021 Advocate for the Applicant: Pasha Mehr, Conatur Legal Advocate for the Respondent: Subasha Prasad, Minter Ellison
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Intention
-
Standing
-
Statutory Construction
0
1
0