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

[2021] AATA 3884

Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3884 (22 October 2021)

Division:GENERAL DIVISION

File Number:           2020/1097

Re:Ali Rezaei

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:22 October 2021

Place:Melbourne

The Tribunal affirms the decision under review.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – where the applicant applies for Australian citizenship by conferral – where the applicant was born in Iran and claims to be stateless – where the delegate was satisfied applicant over 18 – where delegate satisfied applicant was a permanent resident – where applicant met general residence requirements – where delegate not satisfied of applicant’s identity and decided prohibition applies – where certain other requirements not assessed – applicant sought review by Tribunal – where applicant has not provided any personal documents sourced from Iran – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 33A, 37, 38AA
Australian Citizenship Act 2007, ss 21, 24

Migration Act 1958, s 5

Cases

Briginshaw v Briginshaw [1938] HCA 34
Eidson and Minister for Immigration and Border Protection; Re [2017] AATA 1354

Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86

Secondary Materials

Department of Foreign Affairs and Trade – DFAT Country Information Report Iran – dated 14 April 2020

Department of Home Affairs – Australian Citizenship Procedural Instructions (CPIs) – published 1 January 2019 (as revised)

REASONS FOR DECISION

Senior Member D. J. Morris

22 October 2021

PRELIMINARY

1. The Applicant, Mr Ali Rezaei, applied for Australian citizenship by conferral on 1 December 2017.  On 20 February 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), who is the Respondent in this matter, refused Mr Rezaei’s application for citizenship. The delegate decided he or she was not satisfied of Mr Rezaei’s identity and was prohibited under section 24(3) of the Australian Citizenship Act 2007 (‘the Act’) from approving the application.

2. Mr Rezaei is entitled to bring the delegate’s decision to the Tribunal for review because of section 52 of the Act, which at subsection 52(1)(b) lists a refusal to approve a person becoming an Australian citizen under section 24 as a reviewable decision.

3. In the application form to the Tribunal an applicant can say why they claim the reviewable decision is wrong.  Mr Rezaei wrote (all sic):

   I provided all the documents that I have which is the same document I provide in Indonesia to the Australian Embassy to give me a visa they accept this documents.  I hope you review again my documents so I can apply for my Australian citizenship.

   I was on the boat 1^st November 2011 and the boat sink in the ocean unfortunately all my supporting documents are gone in the water.

4. If the Tribunal finds that the prohibition under section 24 of the Act does not apply, the matter would be remitted to the Minister with a direction to that effect, and for the remaining requirements in the Act for the conferral of Australian citizenship to be assessed.

   HEARING

5. The hearing was held on 10 June 2021 and 26 August 2021 by video link, as permitted under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) because of the current public health emergency. Mr Rezaei spoke for himself, gave evidence and was cross-examined by Mr Matthew Daly of Mills Oakley Lawyers, representing the Minister. The Applicant called three witnesses to give evidence. On the first day, he called Mr Mansour Taghinejad, a friend. On the second day, he called his sister Ms Leila Rezaei, and a friend Ms Zahra Sarvari. The witnesses were cross-examined by the Respondent.

   The evidence tendered by the parties

6. The Respondent tendered the following documents which were admitted into evidence:

   (a)A volume of ‘T’ or ‘TD’ documents submitted in accordance with section 37 of the AAT Act (Exhibit R1);

   (b)A volume of supplementary, or ‘STD’ documents (Exhibit R2); and

   (c)A volume of further supplementary, or ‘FSTD’ documents, submitted in accordance with section 38AA of the AAT Act (Exhibit R3).

7. The Applicant tendered the following documents which were admitted into evidence:

   (a)Statement of the Applicant, translated, dated 1 September 2020 (Exhibit A1);

   (b)Applicant’s family photograph, dated 31 August 2020 (Exhibit A2);

   (c)Applicant’s photographic evidence, dated 30 June 2020 (Exhibit A3);

   (d)Applicant’s photographic evidence, dated 21 August 2020 (Exhibit A4);

   (e)Applicant’s Temporary Resident Card (Iran), translated on 7 September 2020 (Exhibit A5);

   (f)Colour photographs of Applicant’s parents’ identity cards (Exhibit A6);

   (g)Statement of Ms Leila Rezaei, dated 24 August 2021 (Exhibit A7); and

   (h)Statement of Ms Zahra Sarvari dated 27 July 2021 (Exhibit A8).

8. The Respondent also submitted a written Statement of Facts, Issues and Contentions (‘SFIC’) by Mr Oliver Young, solicitor to the Respondent, dated 9 April 2021, to which the Tribunal had regard.

   THE RESPONDENT’S OPENING SUBMISSION

9. Mr Daly said the Minister relies on the SFIC and contends that the Tribunal should affirm the decision of the delegate that the Tribunal cannot be satisfied of the Applicant’s identity. The Respondent drew attention to the wording of section 24(3) of the Act which says:

   Identity

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

   Note: Division 5 contains the identity provisions.

10. Mr Daly further referred to the Department of Home Affairs Australian Citizenship Procedural Instructions (‘CPIs’), and in particular CPI 16 – Assessing identity under the Citizenship Act (‘CPI 16’), which was issued on 10 April 2019. He referred to the ‘three pillars of identity’ set out at paragraph 4.4 of CPI 16, namely Biometrics, Documents and Life Story, and submitted that the key pillar in the Applicant’s matter is Documents, which he noted was not unusual where a person claims to be a Faili Kurd.

    THE APPLICANT’S BACKGROUND

11. Mr Rezaei arrived in Australia in November 2013, on a Refugee and Humanitarian (Subclass XB 200) visa which had been granted to him in September 2013 offshore, in Jakarta, Indonesia.  

12. Mr Rezaei was interviewed in Indonesia by an officer of the United Nations High Commissioner for Refugees (‘UNHCR’) and in the interview report the officer relevantly wrote (TD, p 31):

    BACKGROUND OF THE PRA

    The Principal Resettlement Applicant (PRA), Mr Ali Ali Mohammad Rezayi, is an ethnic Feili Kurd of Shia faith. He was born in [village name redacted] in Iran on [day redacted] March 1985.  Both his parents originate from Iraq where they were born and from where they were expelled by Saddam Hussein to Iran from in [sic] 1980.

    The PRA completed 8 years of schooling at [school in Iran named] in 1998.  Thereafter he helped his father on the farm until 2009 when he moved to Teheran and worked as an electrician for two years. He is the eldest of four children born to his parents. He has one brother and two sisters. His older sister is currently in Indonesia together with her husband and daughter. The PRA is single and does not have any children.

    SUMMARY OF THE CLAIM

    The PRA has no nationality because he is the son of parents who were born and had lived in Iraq, but who were deported to Iran in 1980.  In Iraq, his parents as Feili-Kurds received green cards from the Iraqi government, but they were not considered as Iraqi citizens, in fact the PRA’s father had to registered [sic] the house he brought under someone else’s name.  When they were expelled from Iraq, his parents were not allowed to take the green cards with them.

    …

    In Iran, his parents were granted with green cards from the Iranian government which had to be renewed every year. Approximately in 2000 the colour of the cards was changed from green to white.

    Life in Iran was difficult for the PRA and his family because they were humiliated and abused by the Iranians who considered them as Iraqi/Arabs. In the community they were isolated and they tried to keep a low profile in order to avoid troubles as they were at risks of detention and arrest. In Tehran, the PRA experienced arrest and detention, because he was caught by the Iranian police without Iranian ID card and he was released after payments were made by his brother-in-law.

    The PRA’s parents attempted to re-claim Iraqi and claim Iranian nationalities but they were not successful. In 2005 (1384), the PRA’s father together with some of his friends went back to Iraq for the purpose of claiming his nationality and property, but he failed. In the same year, the Iranian government announced that the Feili-Kurds in Iran would be issued with Iranian ID cards by handing over their green cards.  However, until the time the PRA left Iran, no Feili-Kurds were given an Iranian national card.

    The PRA decided to leave Iran due to the vulnerability and hardship related to his status. Without any optimistic future prospects in Iran and any possibility to return to Iraq, the PRA departed from Tehran and travelled to Indonesia via Dubai. He arrived in Jakarta on 1 October 2011.

13. The UNHCR in Indonesia accepted the material elements of Mr Rezaei’s claim as presented.

14. The Respondent’s SFIC submitted that after Mr Rezaei lodged his application for Australian citizenship in December 2017 he was interviewed on 28 November 2018. No notes of that interview were apparently kept, however a statutory declaration was declared by the Applicant on that day which stated (TD, p 159):

    I am stateless by birth, I don’t have any citizenship of any other countries. We don’t have any record of the date of the birth. Because we are Kurdish and my parents have been deported by Iraq government to Iran, they didn’t give us any Iranian identity. I would like my application to be considered by Department of Immigration and Border Protection, however I can’t provide my birth certificate due to the above reasons. I am Ali Rezaei, I am born in [name of village redacted] Iran on [date redacted] 1985.

15. On 29 November 2019, the Department wrote to Mr Rezaei requesting additional documentation to support his identity prior to his arrival in Australia (TD, p 163). A list of documents that may assist in the Department’s consideration included an Amayesh refugee registration card from Iran, various church or school-issued documents, birth or marriage certificates, nationality certificates from Iran or Iraq and other suggested documents.

16. In response to the letter, Mr Rezaei provided UNHCR Asylum Seeker certificates dated 2012 and 2013 issued in Indonesia and provided a further statutory declaration dated

    
    

    12 December 2019 in which he declared (in full): “I do not have birth certificate.”

17. As mentioned above the delegate refused Mr Rezaei’s application on 20 February 2020 and noted that with the exception of the UNHCR Asylum Seeker certificates issued in Indonesia, all the documents the Applicant had provided in support of his identity were issued since his arrival in Australia.

18. In considering the ‘third pillar’ in CPI 16, Life Story, the delegate stated that the Department of Home Affairs (‘the Department’) information indicates that since 2002 refugees in Iran have been issued with an Amayesh or ‘white card’ for identity purposes and found it ‘highly unlikely’ that Mr Rezaei had lived in Iraq for 26 years without such a card. The delegate also noted that in his interview prior to being granted a visa, Mr Rezaei stated that he had left Iran through Imam Khomeini Airport in Tehran using a fraudulent passport and that he had paid $8,000 US dollars (‘USD’). The delegate found this unlikely due to the cost and due to strict border control measures at the airport.

19. The delegate found it likely that either Mr Rezaei or a family member had at least one overseas document in their possession, or that a genuine attempt could be made to obtain one, and believed no such genuine attempt had been made, in spite of the Department’s letter requesting further information.

    ORAL EVIDENCE AT THE HEARING

    The Applicant (Day One of the hearing)

20. Mr Rezaei confirmed he was born in Iran in March 1985 and is employed as a factory worker in Victoria. He said he was born at home. Mr Rezaei said he had a green (ID) card but that he did not have it now. He said this green card was how he knew his date of birth. He said the green card was issued to him in Iran, but he did not remember what year. He remembered that he had the card as a child but lost it at sea, when travelling to Indonesia.

21. Mr Daly referred to the DFAT Country Information Report Iran which states that birth registration is compulsory and where a child is born at home and not in a hospital, a note from the delivering doctor is required. Mr Daly asked Mr Rezaei whether he was aware whether his parents obtained a doctor’s note. He replied: “I don’t know. They went to the council in the village and they sent to somewhere and they then sent the card.”

22. Mr Daly asked Mr Rezaei whether this green card was the only Iranian identity document he has, which he confirmed.

23. Mr Daly then referred to a form Mr Rezaei submitted to the Department (TD, p 78) in which he stated he went to ‘T’ village school in Abanar for his primary education and then to ‘F’ village school, also in Abanar, for secondary education.  Mr Rezaei said he attended ‘T’ school for grades one to five and ‘F’ school for grades five to nine. Mr Daly asked the Applicant whether he had attempted to obtain a record from either of the schools that he had attended, and Mr Rezaei responded: “I asked and they said they would not give because you have no ID card”.  He then added that he had asked his father to get something from the schools.

24. Mr Rezaei said he worked with his father on a farm growing mainly fruit, tomatoes and cucumbers and similar crops. He said his father was paid a wage and then his father gave him a portion of these wages.

25. In 2009 Mr Rezaei said he went to Tehran on the suggestion of a friend who was working there and suggested he come and that he could stay with the friend. He said the friend was working as an electrician and he worked as his assistant. He said he was paid wages, in cash. He said he would write down his name and hours and at the end of each month his friend would pay him and other employees.

26. Mr Daly asked Mr Rezaei whether he had tried to get any evidence of this period of employment. The Applicant said: “I don’t know after ten years”.  He believed that this friend was still in Tehran.  He had contacted another friend in January 2021, but this second friend had told him the building he had worked on was now finished.  Mr Rezaei said he had never received a receipt from this employer, and they were paid ‘on trust’.

27. Mr Rezaei estimated that he saved around $2,500 to $3,000 in USD values in the two years he was employed as an electrician or electrician’s assistant. When Mr Daly asked him to confirm the amount, the Applicant said: “maybe it was $5,000.”

28. Mr Rezaei said that his parents had fled Iraq in 1980 and went to Abanar, where he lived with them until he went to Tehran. He said that his parents are still alive, his father born on (a named day in) August 1950 and his mother on (a named day in) November 1952. When asked how he knew their exact dates of birth, Mr Rezaei said he had contacted them and asked.

29. Mr Daly asked Mr Rezaei why the translated copies of cards of his parents (Exhibit A6) had other dates of birth for his parents – July 1948 for his father and August 1953 for his mother.  The Applicant said that the difference could be the Persian calendar.

30. The Tribunal noted to the Applicant that the year 1327 (Solar Hijri calendar) on the card submitted relating to his father is equivalent to 1948 in the Gregorian calendar. Mr Rezaei said: “Maybe the translation is right. I made a mistake. Our year and calendar are different.  What the translation says from the card is correct.”

31. Mr Daly asked the Applicant about his siblings. He said he has one sister in Australia living in Melbourne, whose name is Leila. He also has one sister he names as Shahnaz, and one brother, Pourya, who are both in Iran. Mr Rezaei said Pourya lives in Tehran, he was not sure where Shahnaz lives. He said he speaks to them every couple of months.

32. Mr Rezaei said that his sister Leila was born in May 1987 and Pourya was born in 1989.  Mr Daly asked the Applicant why he had listed three different dates, 1 December, 28 May, and 20 October as the birthday of his sister in the year 1991. Mr Rezaei said he believed it was owing to problems with the translation from the Persian.

33. Mr Rezaei was then asked why he had listed three different birthdates for his brother Pourya, 1 January, 30 June and 5 October. He responded: “In Indonesia, I just told them the year.”

34. Mr Rezaei confirmed that he was a Faili Kurd of Iraqi origin.  Mr Daly asked him if his parents registered as refugees. He replied: “I don’t know if they registered. They were in a camp.” 

35. He was then asked if a refugee card was a form of registration. Mr Rezaei responded:

    They took the card to the council and told to register it. My father has cancer and is not well. He couldn’t go to the State to register it in the computer; they told him it needs to be registered and in the computer. My father is old and has cancer. My mother is deaf and she doesn’t speak Persian.

36. Mr Rezaei said his parents had got the cards from the council in the village where they lived and were told they would need to pay around $250 to $300 (equivalent to Australian dollars) to register the cards, which was the amount he understood was payable in 2011 when he left.

37. Mr Rezaei said his siblings did not have refugee cards. He said: “My sister applied but I don’t know. She got married”.  Mr Daly asked the Applicant if his brother had issues getting married. He responded: “His wife helped him a lot. I’m not sure how they registered”. He agreed with Mr Daly that his brother would have needed identity documents.

38. When asked whether he had tried to get a copy of a green card, Mr Rezaei responded: “Not really. I asked my father and they said they aren’t going to give to you. I’m not going to push my father because if they know his kid is out of the country, they would hassle him.”

39. Mr Rezaei confirmed that he left Imam Khomeini International Airport in Tehran on a passport provided to him; he did not know whether it was a false passport or a genuine one, provided fraudulently. He said that a man he worked with had helped him obtain it. 

40. Mr Daly asked the Applicant whether he considered leaving Iran on a genuine passport, by going through normal channels. The Applicant responded: “It isn’t possible for me. I didn’t even try. The guy said you don’t need to worry about the passport”. When asked directly by the Tribunal whether the passport he was given was in someone else’s name, Mr Rezaei responded: “To be honest, I didn’t look at it. I just know if I got caught…I just followed, and it got stamped through. I didn’t ask any questions.”

41. Mr Rezaei was taken to an interview report by the UNHCR (TD, p 35) which recorded: “The PRA also stated that he had to obtain fake Iraqi passport in order to leave Iran”. Mr Rezaei said: “No, I didn’t say that.”

42. Mr Rezaei agreed that he had paid around $8,000 USD to leave, with $3,000 USD for the passport. He said he has saved around $2,500 USD a year for two years and borrowed $5,000 USD from friends and family. He said that he had since given a friend $5,000 AUD to pay back to those he had borrowed from when his friend went back to Iran ‘two or three years ago’.

1. Mr Rezaei said he had to pay back friends but did not have to pay back quite the amount he had borrowed to his family. He said he had given the friend, who took the money back, cash and this friend gave the money to the Applicant’s brother, to pass on as necessary.

2. Mr Daly referred to the DFAT Country Information Report Iran, which states (at paragraph 5.45):

   Security procedures at Imam Khomeini International Airport in Tehran are robust.  They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures and Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.

3. In response to this, Mr Rezaei responded: “At that time it was a different government. You could do what you want. I just trusted my boss. He said I don’t have to be scared. He said that he ‘had people’ and I don’t have to worry.”

4. Mr Daly referred to colour photographs of the Iranian Government Bureau for Aliens and Foreign Immigrants Affairs (‘BAFIA’) cards lodged by the Applicant (Exhibit A6) and noted that the black text is in sharper focus than the red text, and asked Mr Rezaei if he had any comment on that. The Applicant responded: “Not really”. He added that he did not know how they were produced. He said the photos on the cards were of his parents and when issued to his father they were told they were just ‘simple’ cards and he would need to go to a larger centre to get a more official card.

5. Mr Daly said that there is a suggestion from the Australian Embassy in Tehran that the cards may not be genuine because the colour of the cards does not correlate with cards understood to have been issued in the relevant years. The cards have a yellow background but the date on the card is more consistent with the example card (at STD, p 5) which shows a pink background. Mr Rezaei said he did not know, because he left Iran 10 years ago. He said he can only say that these were the photographs of the cards that his parents sent.

   Mr Mansour Taghinejad (the Applicant’s friend)

6. Mr Taghinejad gave evidence that he is a friend of the Applicant and has known him for more than 10 years, having first met him around 2010 or 2011 in Indonesia.

7. Mr Taghinejad said he had not known Mr Rezaei before and met him when they were both waiting for UNHCR consideration of their application for an Australian visa. He said he was from Tehran and was an Iranian citizen and has since become a naturalised Australian citizen.

8. Mr Taghinejad said he left Iran through the airport, using what he described as a ‘fake’ passport. When asked by Mr Daly about Mr Rezaei’s claim to be a Faili Kurd, the witness responded that the Applicant’s language is Kurdish.

9. When asked whether he knew any of Mr Rezaei’s family Mr Taghinejad told the Tribunal that he had met the Applicant’s brother in Tehran about two or three years ago. He said

   
   

   Mr Rezaei had given him $5,000 AUD in cash to take back to Iran and give to his brother, which he changed into Iranian currency. He said that it is permissible to take amounts of up to $10,000 AUD into Iran.

10. Mr Taghinejad said he has not met the Applicant’s mother but has spoken to her on the telephone and has also spoken to Mr Rezaei’s sister and brother-in-law.

    Ms Leila Rezaei (the Applicant’s sister)

11. Ms Rezaei gave evidence by telephone. She confirmed she was born in April 1987 and works at the same place as her brother but lives elsewhere with her family. Ms Rezaei said she did not have any copies of identity documents from her parents and only had her refugee paperwork and information provided for her protection visa when she applied for Australian citizenship.

12. Ms Rezaei said that the Iranian documents she did provide to the Department related to her husband. Mr Daly asked Ms Rezaei whether she had ever asked her parents for documents from Iran. She responded: “Yes, both are sick. Dad has cancer and Mum has a heart condition, and they are living in a village dealing with Covid-19.”

13. Ms Rezaei said she did not know what documents the Applicant had obtained from their parents and provided in support of his application.  Mr Daly said that the Australian Embassy in Tehran has suggested that the cards provided may be bogus. She responded:

    The only thing I’d say is that a long time ago whenever we asked, we were told it won’t be updated on computer. Back then it was all paperwork which has not been updated on a computer. You can’t search and find out information. We weren’t part of that country, so it is not in their system.

14. When asked whether her parents had ever said they had Amayesh cards, Ms Rezaei responded: “When they move to Iran, they got a white card, or it may have been a green card to live in the village.”

15. When asked why they had not provided copies of these cards, Ms Rezaei responded: “I think they lost them. They have never been educated. They live in a village. Dad is a farmer.  They never used them.”

16. Ms Rezaei said she had grown up with her brother in Iran. Mr Daly suggested to her that the fact that the Applicant has apparently provided fraudulent cards means that he may be an Iranian citizen. Ms Rezaei replied: “I don’t get it.”

17. Ms Rezaei agreed that if her parents were Iranian citizens it would be possible for them to obtain documents from Iran but said that neither she nor her brother are Iranian citizens.

18. Mr Daly asked Ms Rezaei what state does she claim? She responded: “We don’t know where we belong; Iran or Iraq”. She said she did not know where her parents were from in Iraq. Ms Rezaei confirmed that she and her family claimed statelessness in Iran and identify as Faili Kurds.

19. Mr Daly suggested to Ms Rezaei that the fact that she did not provide documents relating to her parents in her own application for Australian citizenship might mean that the documents the Applicant has provided have been produced for this hearing. Ms Rezaei responded: “No.”

20. When asked the date of birth for her sister, Shahnaz, Ms Rezaei responded: “I can’t remember really. She is younger than me. Our calendar is different. I’m not good with dates.”

21. When asked the date of birth for her other brother, Pourya, Ms Rezaei responded: “He is older than me but I’m not sure of the date. My sister is the youngest and Ali is older than me.”

    Ms Zahra Sarvari (the Applicant’s friend)

22. Ms Sarvari gave evidence by telephone. She said she has known Mr Rezaei when they were both in Indonesia and said she is a friend of him and of his family.

23. Ms Sarvari said she knew that the Applicant was Kurdish: “I know from his language and his accent.”

24. When asked whether she knew what country Mr Rezaei had come from before he arrived in Indonesia, Ms Sarvari said she did not.

25. Ms Sarvari said she was born in Tehran and believed Mr Rezaei was Kurdish because she knows other Kurdish people, but she did not know what “type” of Kurdish person the Applicant might be.

26. Ms Sarvari said that apart from knowing Ms Rezaei, she also knows his sister, Ms Leila Rezaei, and her husband. She did not know of any other members of the family but did know that they had told her that their father was unwell.  She said she did not know where the Applicant’s parents live, nor whether Mr Rezaei has any other siblings.

27. In questions in reply the Applicant asked Ms Sarvari whether she knew which country he had come from to Indonesia. She responded: “Ilam in Iran.”

28. The Tribunal permitted Mr Daly to ask further questions of the witness. He asked why she did not say before that the Applicant was from Ilam in Iran.  Ms Sarvari responded: “I couldn’t understand the question in English.”

29. Mr Daly said to the witness that the Applicant claims he is a stateless Faili Kurd and did she have anything to say about that?  Ms Sarvari responded: “No.”

30. In answer to a direct question from the Tribunal, Ms Sarvari said she was an Australian citizen.

    The Applicant (Day Two of the hearing)

31. With the permission of the Tribunal, Mr Daly asked further questions of Mr Rezaei. He put to the Applicant that the Australian Embassy in Tehran states that the Amayesh cards he had provided are bogus, and did he have any response to that. Mr Rezaei said:

    The Embassy is not going to the village. I told my father I needed these documents. He can’t speak Persian properly, only Kurdish. Whatever they are searching for on the computer, they won’t find.

32. Mr Daly put to the Applicant that the Faili Kurd report says that document fraud is prevalent and that the majority of claimed Faili Kurds are Iranian citizens. He responded: “Yes, that’s true. Richer ones know someone.”

33. Mr Daly said that the report says the majority of Faili Kurds in Iran are not stateless and there is a lot of document fraud claiming that people are stateless. He responded:

    I am a person who does not have ID. Many were in the same position as me. I can’t even apply for the documents. Maybe if I had shown a letter from the Council, then you ask and the people at the top don’t accept it. The local people know. They ask who the stamp is, it is their stamp.

34. When asked by the Tribunal whether he meant that the Government in Tehran does not accept locally issued documents, Mr Rezaei responded: “Yes. They won’t even talk to you.  They say: ‘we let you in; just go’.”

    THE APPLICANT’S CLOSING SUBMISSION

35. Mr Rezaei submitted: “I never did anything wrong. I pay my taxes. I have a house. I am working. I have not done anything wrong. As a human I want the Australian Government to help me. I am hard-working.”

    THE RESPONDENT’S CLOSING SUBMISSION

36. Mr Daly said it remains the contention of the Minister that the Tribunal should not be satisfied of the Applicant’s identity and that the evidence re-affirms the Department’s position. In terms of the three pillars in CPI 16, Mr Daly said there was some inconsistency in the Biometrics pillar; in terms of the Documents pillar, there is a paucity of material, and in terms of the Life Story pillar, there is some inconsistency.

37. Mr Daly submitted that the evidence from the Australian Embassy in Tehran confirms that the Amayesh cards submitted by the Applicant relating to his parents are bogus. He said that it was appreciated that Mr Rezaei asked his parents who obtained the cards from the local village. Mr Daly said that Ms Leila Rezaei’s evidence was that she was unaware of provisional Amayesh cards being issued before official ones were obtained. He noted that Ms Rezaei had not submitted any identity documents for her parents and contended it was therefore remarkable that these cards have subsequently appeared. Mr Daly noted that

    
    

    Ms Rezaei had been granted citizenship on the basis of her relationship with her husband.

38. In terms of the evidence of Ms Sarvari, she was unclear on the country of origin of the Applicant. Mr Daly submitted that Mr Rezaei could be a citizen of Iran and not in fact stateless. In any event, it was the Respondent’s submission that there are unanswered questions in this matter and therefore the Tribunal should not be satisfied of the Applicant’s identity.

39. Mr Daly said it was accepted that the Applicant was forthcoming and has made efforts to try and provide documents. He submitted that Mr Rezaei was able to leave Iran on an official passport which he says was fake, and in so doing was inviting the Tribunal not to accept the DFAT Country Information Report Iran contents about security at Imam Khomeini International Airport and the evidence from the Australian Embassy in Tehran.

40. Mr Daly said that the authenticity of the BAFIA identity cards is highly questionable. He submitted that Mr Rezaei has been granted a refugee visa but the standard for the approval for a grant of Australian citizenship is different. He noted, citing Senior Member Tavoularis in Re: Eidson and Minister for Immigration and Border Protection [2017] AATA 1354 (‘Eidson’), at [60]:

    A refusal of this application by this Tribunal is not determinative or, nor does it serve as a bar to, any application for citizenship in the future. The Applicant is clearly entitled to re-apply for citizenship. Assuming she is permitted to remain in Australia on her permanent non-citizen visa, it is difficult to identify any real detriment to either her personal or business life.

41. Mr Daly submitted that the Applicant has failed to avail himself of opportunities to gather all the evidence available.

    CONSIDERATION

42. In considering Mr Rezaei’s application for Australian citizenship, the Minister’s delegate noted that they were satisfied that the Applicant was aged 18 or over at the time of the application (section 21(2)(a) of the Act). They were further satisfied that Mr Rezaei was a permanent resident at the time of application and time of decision (section 21(2)(b)); and that he satisfied the general residence requirement (section 21(2)(c)). Section 21(2A) of the Act provides that the demonstration by an applicant that they understand the nature of the application, possess a basic knowledge of the English language and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship (thus satisfying section 21(2)(d), (e) and (f) of the Act) were not assessed. Other mandatory provisions of the Act, such as the good character requirement found in section 21(2)(h) of the Act, were also not assessed. This is because the delegate halted consideration when they decided they were not satisfied of Mr Rezaei’s identity.

43. Section 24(3) of the Act, reproduced above, is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied of the identity of the person seeking the conferral.

    What is meant by ‘satisfied of identity’?

44. The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is “satisfied” of a requirement. The leading authority is Briginshaw v Briginshaw [1938] HCA 34 (‘Briginshaw’), and its line of reasoning has been frequently and contemporarily re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86, by Toohey J for the Court, at [2]).

45. In Briginshaw, Dixon J (as he then was) said:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

46. The Tribunal therefore must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

47. The Parliament of the Commonwealth of Australia has decided that being reasonably satisfied of the identity of a prospective candidate for Australian citizenship is essential because, once citizenship is conferred, the citizen becomes entitled to a range of significant rights and privileges and has certain responsibilities. An Australian citizen can enrol to vote, stand for elective office, become an officer of the Australian Public Service, and apply for an Australian passport and avail themselves, if necessary, of consular assistance abroad.  I interpret this reasonable satisfaction, following Sir Owen Dixon’s reasoning, to require more than ‘probability’ divorced from reality. It means, in this case, that the Tribunal must be actually persuaded of a person’s identity.  The state of satisfaction must be as the date of the Tribunal’s decision, not the reviewable decision, so new information supporting, or detracting from, an applicant’s case, may be taken into account.

    Documents of identity – their source is important

48. Mr Rezaei has provided a number of documents in support of his identity. From his time in Indonesia, he provided a UNHCR Asylum Seeker Certificate issued on 17 February 2012, which recorded a date of entry into Indonesia on 1 October 2011. He also provided other UNHCR documents issued in Indonesia and an Indonesian Red Cross donor card (TD, p 132). 

49. From his time living in Australia, Mr Rezaei had provided a State of Victoria driver licence (TD, p 131); a Medicare card; and copies of the data page of two Australian Titres de Voyages, issued respectively on 15 February 2016 and 31 January 2019 (TD, p 161). He has also provided a utility bill dated February 2017.

50. All of these documents contribute to painting a picture of Mr Rezaei’s identity. However, the first category are documents issued in Indonesia by reputable agencies but based on information given to them by the Applicant, without apparent reference to documents from Iran. The second category are documents issued in Australia, again on information provided by Mr Rezaei, possibly supplemented by the Indonesian documents and his Australian visa.

51. It is necessary, for a person to successfully negotiate the hurdle placed in the Act by section 24(3) that the decision-maker be positively satisfied of the person’s identity. That means that documents issued which support a consistent name and date of birth are important, but they assume less importance when the chain linking the person today with their identity at birth is broken. The Tribunal can allow some tolerance in situations where a person may have difficulty in obtaining primary documents, or where they may not have been issued with them, however where there are no primary documents, it is significantly difficult for a decision-maker to be positively satisfied of a person’s identity.

52. Mr Rezaei has provided some family photographs which he says show him with his parents and with other family members. His sister, Leila, has given oral evidence, and the Tribunal accepts that they are siblings. This is bolstered by the material in the STD which relate to Ms Leila Rezaei’s own visa and citizenship applications, which have a commonality in terms of their parents and other siblings with the Applicant. However, Mr Rezaei has provided no other documents, or copies of documents, about his own time growing up and as a young adult in Iran.

    Migration and citizenship - different identity requirements

53. Mr Rezaei appears to claim in his application for review that the delegate’s decision was wrong because the information he provided was accepted as sufficient for the granting of his visa to come to Australia. That assumption must be immediately corrected. The issuance of visas is under a different legislation, the Migration Act 1958 (‘the Migration Act’). Different criteria are applied to satisfy identity and other requirements under the Migration Act. Australian citizenship, as set out above, confers nationality on a person and the right to reside in Australia and travel in and out of Australia without restriction. The criteria in the citizenship legislation are different. Put more plainly, owing to the significance of the grant of citizenship, the bar is set higher in the Act and in the CPIs to which decision-makers refer in making decisions under it. It is not a correct, or indeed logical, comparison for a person to say that information that satisfied the Australian Government for the grant of a visa should be sufficient to serve also to satisfy the Government for the conferral of citizenship.

    The problem with the registration cards

1. In attempting to satisfy the Tribunal of his identity, Mr Rezaei obtained copies of two BAFIA registration cards which he said were issued to his parents; in his oral evidence he told the Tribunal directly that the photographs on the copies of these cards were of his mother and father.

2. In October 2020 (STD, p 2) the Department contacted the Australian Embassy in Tehran, specifically Department officers attached to the Embassy. The Department recorded that Mr Rezaei had provided BAFIA registration cards for his parents, in Farsi with English translations attached, with some of the writing appearing to be ‘out-of-focus’. The Department posed three questions to the mission in Tehran:

   ·Would these be acceptable evidence of identity that post [i.e. the Australian Embassy] would generally see?

   ·Is there anything in the format or printing that would be of concern?

   ·We seek Post’s view – we do not see the need for verification with the issuing authority.

3. The email to the Embassy then referred to the Applicant providing a statement from the Islamic Council of Abanar, and noted that Abanar is a small village in Ilam Province, and that the statement sets out that Mr Rezaei’s parents are Faili Kurds who were deported from Iraq in 1980 and have lived in Abanar since then. The email went on:

   The document looks like a reference/attestation that the applicant has drafted and got the members of the Council to sign.

   ·Would there be feeder documents required for such an attestation?

   ·Are such attestations common/worth weight?

   ·We seek Post’s view – we do not see the need for verification with the issuing authority.

4. The Australian Embassy in Tehran responded to the request by cable on 9 November 2020 (STD, p 1). The officer responding first outlined that the Amayesh programme was instituted by the Iranian Ministry of Interior in 2001-2002 for the purpose of creating a database for Afghan and Iraqi immigrants in Iran. The Iranian Government called for all Iraqis and Afghans to register and gave them between six months and a year to approach BAFIA for registration. The Amayesh cards which followed (which are known as Amayesh, 2, 3 and so on up to Amayesh 15 in 2021) are, the officer states, generally to renew original cards issued in 2001-2002 (i.e. Amayesh 1), and not to register new cases. The cable notes that there are exceptions, such as children of registered refugees and vulnerable refugees who approach BAFIA. The colour and format of the Amayesh cards change, and they are generally referred to, in a colloquial sense, by their colour, e.g. white card, green card.

5. The cable then states:

   Please find attached samples of Amayesh 14 and Amayesh 15 cards for your information.  The red writing on top centre of the Amayesh cards belonging to [Mr Rezaei’s] parents indicate Amayesh 14 with the expiry date of 21/06/2021 on the bottom right corner.  My concerns about these cards are:

   -As you mentioned, the red writing on top centre of the Amayesh cards is out of focus

   -As you can see on the attached samples, the expiry date of cards issued during Amayesh 14 is 20/06/2020 (Iranian calendar 31/03/1399) and the expiry dates of cards issued during Amayesh 15 is 20/06/2021 (Iranian calendar 31/03/1400). Based on the “out-of-focus red part” on the cards provided by [Mr Rezaei], although the cards are of Amayesh 14 but their expiry dates are 20/06/2021 which relates to Amayesh 15.

   The “attestation” document provided by applicant which is signed by community members of his village is not considered a legal document. I have seen this type of document [before]… and can say that they are not considered credible documents, especially when it comes to identity/nationality verification. Any one of [Mr Rezaei’s] acquaintances, friends or relatives could sign an attestation without requiring to see identity documents.

   Based on the above, I have concerns regarding Amayesh cards provided by [Mr Rezaei] and would suggest referring them to the authorities for verification.

6. The sample Amayesh card 14 has a yellow background and the sample Amayesh 15 card has a pink background.

7. It would seem on this evidence that the cards Mr Rezaei has submitted in evidence are not authentic. In saying this, the Tribunal stresses that these documents do not come within the definition of ‘bogus document’ in Division 3 of the Act. The definition of ‘bogus document’ in the Act is stated to have the same meaning as the phrase in section 5(1) of the Migration Act. I do not consider that the copies of these cards come into that category because they do not relate to the Applicant. Even so, there is no evidence before me that Mr Rezaei submitted them knowing that the cards are not authentic. He has been sent the colour pictures of the cards and has passed them on. I do not consider this is a case where a person has deliberately provided documents knowing them to be fake.

8. However, in any event, the cable from the Australian Embassy in Tehran appends copies of authentic Amayesh cards. The cards submitted by the Applicant do not correlate with those example authentic cards. I find that I am not satisfied the cards are authentic.

   The lack of other documents from Iran

9. Mr Rezaei has told the Tribunal and included in his citizenship application form the names of the primary and secondary schools he attended in Iran. He says that he had approached the school seeking attendance records, but that they would not provide them because he does not have an ID card. He did not provide evidence that he had made this inquiry, nor of the response from the schools. He said that his father was following up but did not say in his evidence what the outcome of that inquiry was.

10. It is difficult for the Tribunal to accept that Mr Rezaei does not have access to primary documents from Iran. This is not a case where he left Iran as a child. On his own evidence he was born in 1985. He arrived in Indonesia in October 2011 (TD, p 28).  He was therefore aged around 26 when he departed Iran. After leaving school in 1998 (TD, p  30) Mr Rezaei told the UNHCR that he farmed with his father for 11 years (1998 to 2009) and then went to Tehran and worked there, on his evidence, as an apprentice electrician from 2009 to 2011. 

11. The Tribunal accepts Mr Rezaei’s evidence that he had an ID card as an adult (what he described as ‘a green card’) and would also have other personal documents which could contribute to his life story, such as pay records. If the Tribunal accepts Mr Rezaei’s evidence that he lost his Iranian personal documents at sea, that does not account for the minimal efforts he has undertaken to obtain copies or other corroborative documents.

12. In addition, apart from his parents, the Applicant has two adult siblings in Iran, both of whom could provide documents which could contribute to his life story, and both of whom could provide statements about their brother, what they knew of his schooling and background, and other material which would go towards the life story that CPI 16 discusses, including documents relating to their own identities.

13. In terms of the witnesses Mr Rezaei called, the Tribunal considers their evidence only marginally of assistance to his claim that the original decision was wrong. Ms Rezaei’s evidence was useful because she corroborated the Applicant’s evidence about his parents and siblings, but she was unable to furnish any of her own identity documents from a government source that might have been of assistance. 

14. Mr Taghinejad’s evidence was useful to the extent that he corroborated the Applicant’s evidence about taking back some money borrowed to repay persons in Iran, but for little more than that because he did not know Mr Rezaei in Iran. He said he first met the Applicant in Jakarta. Mr Taghinejad did say he met Mr Rezaei’s brother in Tehran, when he returned the money on the Applicant’s behalf. 

15. Ms Sarvari’s evidence was that she did not know from what country the Applicant had come to Australia, so while her genuineness in wanting to assist the Applicant as a friend is understood, she does not have information that materially assists in addressing the question before the Tribunal. I note that her evidence is however generally supportive of the character of Mr Rezaei.

    The egress from Iran

16. The Respondent submitted that the Tribunal should doubt what the Applicant has said about the way he departed Iran through Imam Khomeini International Airport, referring to the remarks in the DFAT Country Information Report Iran which states that security at the airport is strict. Mr Rezaei said he did not know whether the passport he left the country on was fake; it might have been an authentic passport either in his name or the name of another person. 

17. If it was an authentic passport, the question that remains unanswered is: did Mr Rezaei obtain the passport because he is not stateless and is in fact an Iranian citizen?  If I accept the Applicant’s evidence that it was given to him by the person facilitating his departure at the airport, I have significant doubts about Mr Rezaei’s evidence that he did not even open the passport. One would expect, in the circumstances as he outlined, that a person would at least check that the photograph was right, knowing that the document would be imminently scrutinised by a government official, as the Applicant went to embark on his flight. The circumstances surrounding Mr Rezaei’s departure remain unclear, but there is not sufficient evidence for me to make a pronouncement that the Applicant has misled the Tribunal, nor indeed the Department or the UNHCR in this respect.

    CONCLUSION

    Insufficient material to satisfy identity requirement

18. Paragraph 4.15 of CPI 16 refers to the assessment by decision-makers of a person’s ‘Life Story’.  It lists a number of life events and potential supporting documentation that a person might provide. Examples given are a birth certificate or registration; a national ID card; an immunisation certificate, book or record; school enrolment, such as reports, records and school photographs; a driver licence from the country of reference; and medical records.  Mr Rezaei has provided none of these. 

19. CPI 16 also refers to citizenship applications from persons who claim to be stateless or who arrive irregularly into Australia. The first of these is relevant to Mr Rezaei. In such cases family composition can be important in helping to establish a person’s identity. Mr Rezaei’s sister gave evidence at the hearing and provided a written statement that he is her brother and that they share common parents. In her own application for citizenship (FTSD, p 10), Ms Rezaei listed the Applicant and his birth date in March 1985. She also listed her parents with her mother’s birthdate as (a date in) November 1952 and her father’s as (a date in) August 1950. I am therefore persuaded she and the Applicant are brother and sister. Ms Rezaei listed the birthdates of her other siblings, Shahnaz as a date in October 1991 and Pourya as a date in October 1989. This was the third date Mr Rezaei had listed for his brother and sister in Iran, so I am also persuaded they are common siblings.

20. While I might accept these facts, no other documents were provided, nor any statements from the Applicant’s parents or his other two siblings who are still in Iran, in spite of the fact that Mr Rezaei is in regular contact with them. The errors in the dates of birth of his siblings may, as the Applicant suggests, be a result of confusion with the Gregorian calendar or with errors he said were made by Persian translators. But even if this is accepted, there is no document whatsoever from either of his Iran-based siblings or his parents, other than the copies of his parent’s registration cards which I have found I am not satisfied is authentic.

21. The key difficulty for Mr Rezaei is that he has provided insufficient documents and other evidence that would actually persuade me, following the jurisprudence laid out in Briginshaw, that I am satisfied of his identity. In coming to this conclusion, the Tribunal does not consider the Applicant has done anything that would cause me to question his character, noting that aspect was not assessed by the delegate, as it must ultimately be under section 23(2)(h) of the Act, for applicants seeking citizenship by conferral.

22. The Applicant, as set out above, does not seem to have especially exerted himself to obtain information from Iran that would corroborate his life story and potentially provide source documents to aid his application. He has not obtained information from the schools he attended that I would consider his parents would be entitled to have. He has not obtained any proof of work in Tehran. He has not provided anything from his two siblings in Iran placing them in his life growing up, even though he said he speaks to both of them regularly.  It was not plausible to me that, given his evidence was that he talks to her ‘every couple of months’, he does not know where his sister Shahnaz lives.

    The effect of affirming the decision

23. The Respondent cited the Tribunal decision in Eidson for its passage relating to the effect of a decision under the Act. This decision is not on point, because in that case the learned Senior Member was considering the revocation of citizenship. That can have different and more serious consequences, because it can leave a person with a non-citizen visa which permits them to reside in Australia but, if they leave, not to re-enter. That is not a consequence for Mr Rezaei of my affirming the reviewable decision in this case.

24. It is, however, important to note that Mr Rezaei can apply afresh for citizenship. The visa which he holds giving him permanent residence in Australia is not affected by this decision.  However, before he applies again, he should make strenuous efforts to obtain documents, preferably from official sources, ideally placing him in Iran from birth until he travelled to Indonesia in 2011 – or at least for parts of that period.  This would help complete a consistent and coherent life story that is persuasive to a future decision-maker.

25. The Tribunal accepts that Mr Rezaei is gainfully employed in Australia. He is contributing productively to the national economy. There is no evidence before me that he is not a law-abiding person. However, without more, I cannot be positively satisfied of his identity to the degree implicit in the requirements of the Act. Therefore, standing in the shoes of the Minister, the prohibition on approval of the application for citizenship by conferral applies. The reviewable decision was correct.

    DECISION

26. The Tribunal affirms the decision under review.

122.    I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated:  22 October 2021

Dates of hearing:	10 June and 26 August 2021
Applicant:	Mr Ali Rezaei (Self-Represented)
Advocate for the Respondent:	Mr Matthew Daly
Solicitors for the Respondent:	Mills Oakley Lawyers