RLTL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 4696

RLTL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4696 (25 November 2020)
Division:GENERAL DIVISION
File Number: 2019/5941
Re:RLTL
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:25 November 2020
Place:Sydney

The decision made by a delegate of the respondent on 11 September 2019, refusing the applicant’s application for citizenship, is affirmed.
...........[sgd].............................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – eligibility – where application for Australian citizenship by conferral is refused – failure to meet “identity” requirement – where applicant claims to be stateless – where applicant is on a protection visa – three pillars of identity – documents – biometrics – life story – where the applicant has provided insufficient material to establish his identity – decision under review affirmed
LEGISLATION
Administrative Tribunals Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Al Temimi and Minister for Immigration and Border Protection [2014] AATA
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
GJURA and Minister for Home Affairs [2018] AATA 4222
Qasimi and Minister for Immigration and Border Protection [2016] AATA 378
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Sinnathamby and Minister for Immigration and Border Protection [2018] [2018] AATA 2579
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Attorney-General’s Department National Identity Proofing Guidelines (2004)
Australian Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act
Citizenship Policy (1 June 2016)

REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
25 November 2020
INTRODUCTION

On 4 February 2016, the applicant applied for Australian citizenship by conferral. On 11 September 2019, a delegate of the Minister refused the application, being not satisfied as to the applicant’s identity as required by subsection 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act). On 17 September 2019, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
The question for the Tribunal is whether it is satisfied as to the applicant’s identity, as required by subsection 24(3) of the Act.
CONFIDENTIALITY ORDER
On 22 April 2020, the representative for the respondent filed both a redacted and unredacted copy of a report entitled IDBS Identity Analysis Report: Feyli Kurd Cohort (the Report).
On 16 June 2020, the Tribunal made an Order under subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) restricting the publication and disclosure of the unredacted Report to, inter alia, the respondent, its legal and professional advisers, and members and staff of the Tribunal. The Order provided for the applicant to receive a redacted copy of the Report, however prohibited the applicant from publishing, distributing or disclosing the redacted Report. The Order was granted at the request of the respondent, to protect certain information contained within the Report.
I note that the Order was not intended to restrict the Tribunal from referring to the existence of the Report where necessary in the reasons of the Tribunal, or from referring explicitly to non-redacted information contained within the Report.
THE HEARING
The hearing was conducted by videoconference on 8 September 2020. The applicant was assisted by an interpreter of the Farsi language.
Material before the Tribunal included, for the applicant:
·form 80 – Personal particulars for assessment including character assessment;
·statement of EF, the applicant’s father; and
·photos of family members taken in 1997 or 1999.
The respondent’s material consists of:
·the ‘T documents’, filed by the respondent under section 37 of the AAT Act on 21 October 2019;
·supplementary ‘T documents’;
·a redacted document entitled IDBS Identity Analysis Report: Feyli Kurd Cohort (the Report);
·an un-redacted version of the Report; and
·a Statement of Facts, Issues and Contentions dated 21 May 2020.
The applicant gave evidence and was examined by the respondent’s solicitor. He made the following claims:
·He was born in Karaj, a city close to Tehran, in 1988;
·He was a Feyli Kurd;
·He spoke Farsi and Kurdish but spoke to his parents in Arabic which he spoke about 80-90% of the time;
·Both his parents lived in Tehran and were reasonably well off;[1]
[1] ST5, 98.
·He also had two brothers living in Iran and a sister in Iraq. She did not have Iraqi citizenship;
·The applicant’s mother was born in Baghdad to Iraqi parents. Her father acquired an Iranian birth certificate in the period leading up to the Second World War. He moved with his family to Iran voluntarily and the applicant’s mother acquired an Iranian birth certificate – based on her father’s Iranian citizenship;[2]
[2] ST5, 87.
·The applicant’s father was also born in Baghdad to Iraqi parents but was expelled to Iran before the Iran-Iraq war in 1980.[3] His father’s attempts to obtain both Iraqi and Iranian citizenship were unsuccessful.[4] He was stateless;
[3] ST5, 91.
[4] ST5, 91.
·The applicant’s attempts to obtain both Iranian citizenship and Iraqi citizenship were unsuccessful. He could not get Iranian citizenship unless his father was an Iranian citizen;
·He was stateless because Iran did not accord citizenship status to Feyli Kurds, even if they were born in Iran;
·He tried very hard to get a birth certificate because he wanted to get married to an Iranian girl. Her father refused to allow it unless he could produce a birth certificate;[5]
[5] ST5, 89.
·Members of his family told him that it was not possible under his circumstances to get Iraqi citizenship;[6]
[6] ST5, 93.
·He was employed for about a year in an electrical store in Tehran owned by a distant relative of his mother but was payed substantially less because of his Feyli Kurd ethnicity. He was only paid $200 whereas other people were paid $200-350 plus insurance;
·He finished 12 years of schooling, together with a further year of pre-university studies;
·He described his life growing up in Iran as one of frustration, humiliation and resentment. As a Feyli Kurd, he did not have the same privileges and opportunities as Iranian citizens. This affected his schooling, employment, and his personal relations;
·He also experienced harassment by members of the Basij, the religious moral police, by reason of his ethnic status as a Feyli Kurd;
·He was trying to get out of Iran from the age of 16 or 17;[7]
·He did not have identity papers in Iran. He said he had to get permission to travel from one city to another. He had a white card which was used to show that he was expelled from Iraq. He did use it to enrol at school with the additional payment of a bribe;
·His paternal uncle is a member of the executive committee of the Feyli Kurd mosque in Tehran; [8]
·In 2009, he made up his mind to leave the country. He decided to go to Europe. He hoped to settle in Sweden or Norway. His parents did not want him to leave. At a very late stage, some three or four weeks before he left Iran, he decided to focus on Australia, rather than Scandinavia;
·He had no Iranian identity papers that would have allowed him to depart the country by legal means, or to travel by air;
·In November 2010,[9] he made arrangements to leave Iran with the assistance of a network of people smugglers. He was asked for a substantial sum of money for the trip to Australia. He paid US$13,000 to a people smuggling syndicate;[10]
·In November 2010, he was escorted over the land border between Iran and Iraq in the Kurdistan region. He travelled by road to Baghdad where he was given a false Iraqi passport, on which he flew to Malaysia. In Kuala Lumpur, he was given an Omani passport, and the Iraqi passport was taken back. He used the Omani passport to enter Indonesia. He then flew domestically to Mataram, Indonesia. He was escorted to the shore and put on a small boat to go out to a fishing vessel. The Omani passport was taken back by the people smugglers. After six days at sea, his boat was intercepted by the Australian Border Force. He was taken to Christmas Island;
·On 1 December 2010, he arrived in Australia as an unauthorised maritime arrival;[11]
·He arrived with no identity documentation of any kind; and
·On 9 November 2011, he was granted a Protection (subclass 866) visa, on the basis of interviews conducted on Christmas Island on 19 December 2010,[12] and 26 January 2011.[13] He continues to hold this visa.[14]
[7] ST5, 98.
[8] ST5, 95.
[9] ST2, 53.
[10] ST1, 15, 97.
[11] T6, 156.
[12] ST1, 1.
[13] ST5, 85.
[14] RSFIC, para 11.
LEGAL AND POLICY FRAMEWORK
A grant of Australian citizenship is rightly prized by migrants as an important and valuable rite of passage. It is therefore not surprising that the eligibility requirements are strict, especially in relation to the question of identity and good character.
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:
If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Relevant to this application, subsection 24(3) of the Act provides that:
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Department has issued the Citizenship Policy and the Australian Citizenship Procedural Instructions (CPI) which contains relevant guidance in relation to assessing identity under the Citizenship Act. The Tribunal will ordinarily consider and apply lawful Government policy unless there is a cogent reason not to: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.[15]
[15] RSFIC, para 19.
The CPIs aligns with the Attorney General's Department National Identity Proofing Guidelines (2014) (NIPG).[16] While the NIPG is not specifically concerned with assessing identity for the purposes of the Citizenship Act, it provides high level principles to guide identity security initiatives and is valuable in understanding the whole of government approach to identity security.[17]
[16] The Guidelines are attached to the Respondent’s SFIC. For ease of reference, see also <accessed 26 October 2020>.
[17] T3, 97.
According to ‘CPI 16: Assessing Identity under the Citizenship Act’ (CPI 16), a person's identity is a combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context. The assessment of identity relies on three elements, referred to as the ‘three pillars of identity’. These are biometrics, documents, and life story.[18]
[18] T3, 99; CPI 16 – Assessing Identity under the Citizenship Act, section 4.4.
The first pillar is biometrics, which refers to personal identifiers, which include fingerprints, facial images, or a person's signature. Biometrics can be used for comparison, with, for example, facial images held by the Department, or other domestic or international agencies.
The second pillar is identity documents. Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
The third pillar is a person's life story. This is a narrative of the events that happened to them from birth to present. A person's life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
The CPI 16 states:
Officers should not rely on a single pillar to establish a person's identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person's identity. In order to comprehensively test and evaluate a person's claims with regard to their identity, decision-makers should consider each pillar.[19]
[19] Ibid.
The CPI 16 provides decision-makers with advice as to how to assess identity within each of the three pillars. For example, in relation to the third element, life story, section 4.12 states:[20]
The way in which officers should approach the concept of assessing a person's identity from birth is to create an identity timeline, thus creating a complete picture of the person's identity from birth to present. The objective is to link the applicant's identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person's life. The three pillars are the methodology for establishing a person's identity, and officers must turn their mind to the individual characteristics in order to piece together a person's identity timeline and create an 'identity picture'.[21]
[20] T3, 106.
[21] T3, 103.
Furthermore, section 4.15 of CPI 16 states:
4.15 Assessing pillar three – life story
When assessing a person's life story in the context of a citizenship application, officers should seek to create a complete identity 'picture' of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person's identity, while at the same time considering their life story, is to consider their identity timeline.
The objective is to link the applicant's identity at birth to the identity provided in their application for Australian citizenship. This can be done by considering key chronological events in the person's life, and using pillar one (biometrics) and pillar two (documents), to piece together and corroborate information.
In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, officers should locate the information provided during these interactions, plot it on the person's identity timeline, and compare it with information provided at the time of applying for Australian citizenship.[22]
[22] T3,106; CPI 16 – Assessing Identity under the Citizenship Act, section 4.15.
Paragraph 5.1 of the NIPG establishes that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include:
·verification of the person’s claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance; and/or
·a detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[23]
[23] RSFIC, para 25.
The respondent referred to a number of Tribunal decisions involving the issue of identity.[24] The decisions of the Tribunal illustrate that an absence of identity documents is not fatal to establishing identity, provided the applicant has acted with candour and can establish his or her trustworthiness.[25]
[24] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [34] to [48] (no identity documents and conflicting evidence regarding identity); Confidential and Minister for Immigration and Citizenship [2013] AATA 144; Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97 at [28] to [31] (change of name documents lodged); Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 [95] to [100], [111] to [121] (previous use of fraudulent papers); YMPL and Minister for Immigration and Border Protection [2017] AATA 1458 [32] to [35] (wedding certificate tendered, other steps taken); Sinnathamby and Minister for Immigration and Border Protection [2018] [2018] AATA 2579 (bogus documents); GJURA and Minister for Home Affairs [2018] AATA 4222 (applicant using different identities).
[25] See, for example, Qasimi and Minister for Immigration and Border Protection [2016] AATA 378 (DNA test).
CONSIDERATION
The respondent’s solicitor contended that the decision of the delegate should be affirmed on the basis that the applicant had failed to provide any documentation to establish his identity prior to coming to Australia, that he had made no effort to acquire informal or formal documentation that might assist in the process of identification, and that he had made some inconsistent statements in his dealings with the Australian government. She noted that the onus of proof is on the applicant. She argued:
In particular, the onus is on the applicant to establish his identity. As noted, he has not provided primary documents about his identity from before he arrived in Australia. He has also not provided other corroborative material for his life story. He has also not provided evidence of his attempts to obtain such documentation and it’s for these reasons that the respondent considers that the decision under review should be affirmed.
The respondent’s solicitor accepted that identity documents are not essential, although there needs to be a good explanation for the lack of documents.
She noted that when applying for a protection visa in 2011, the applicant said that he was issued a white card in Tehran, and that it had to be renewed every year. In responding to questions put to him at the time, the applicant said:
I went to have [the white card] renewed but they kept telling me to go back in a few weeks or a few months and I pursued it for a while and then I gave up. I gave up pursuing it. Where we had to go was outside Tehran, a fair distance from Tehran, and they would charge us some money – $15 to $20 to renew it. But the card was of no value at all.[26]
Every year when I wanted to enrol for school I had to produce identity and when I would produce the white card, the school registry would wonder what the hell that was, you know. What is this that you've got, why haven't you got a proper birth certificate? You couldn't even register as a member of the sporting club [indistinct] or something, the white card was of no value.
Interviewer: Did it give you any rights at all?
No. When we showed that, it showed that we were Iraqi, we were expelled, but that white card itself wasn't enough for us to enrol at school. We had to pay bribe in addition to the showing the white card before we could enrol at the school.[27]
[26] ST5, 87.
[27] ST5, 96.
Her examination of the applicant included testing his claim to be stateless. In this context, she argued, that it is wrong to assume that all Feyli Kurds in Iran are stateless, and that the applicant’s claim not to have held identity documents in Iran should be viewed with scepticism.
The Report suggests that the overwhelming majority of Feyli Kurds hold valid identity papers as Iranian citizens, that Feyli Kurds have a long history in Iran, especially in the provinces of Ilam and Kermanshah, and that it is ‘erroneous to assume that the entire people have been rendered stateless when the majority have a long, uninterrupted pedigree of Iranian citizenship’.[28] The Report notes:
Decision makers should not consider applicants of Feyli Kurdish ethnicity as stateless solely as a natural consequence of possessing that ethnic identity. There are conservatively, 2.5 million Iranian citizen Feyli Kurds. As the most generous number of Iraqi citizens of Feyli Kurdish heritage expelled from Iraq in 1980 is around 300,000, the most generous of assessments must acknowledge that Feyli Kurds are now, and always have been, overwhelmingly Iranian citizens of Iranian origin.[29]
[28] IDBS Identity Analysis Report: Feyli Kurd Cohort, 29.
[29] Ibid 30.

The Report recognises the historical fact that a significant number of Kurds were expelled from Iraq in 1980. The applicant said that his father was in this category. His father was born in Baghdad to Iraqi parents and expelled to Iran before the Iran-Iraq war in 1980.[30] Although his mother had an Iranian birth certificate, this did not entitle him to Iranian citizenship. He said that his father’s attempts to obtain both Iraqi and Iranian citizenship had not been successful.[31] The Report apparently recognises that at least some Feyli Kurds, having been expelled from Iraq, may not be eligible for citizenship in Iran. The Report is of limited assistance to the Tribunal in the present proceedings.
[30] ST5, 91.
[31] ST5, 91.
As noted above, the applicant was questioned at length about his journey to Iraq from Iran. He said that he went by bus to Mariwan in north western Iran. He was taken over the Iran-Iraq border by horse, not far from the official crossing. His group made their way to Penjwen in Iraq, and then by minibus to Baghdad. Information provided to the Tribunal suggested that it is impossible for the authorities in either country to control the border areas in the Kurdish region, and that traditionally, Kurdish families living on both sides of the border have travelled back and forth across the border for hundreds of years.
The applicant’s evidence as to the way in which he left Iran is credible. His story tends to support his claim that he did not have identity documents that would permit him to simply fly to Baghdad from Tehran.
The applicant speaks of the importance of identity. His yearning for a sense of identity and dignity is real and has driven the applicant on an arduous journey to this country. He said:
My mother was working hard so that we could sustain a decent standard of living. I didn’t leave the country because of poverty. But I’ve always longed for an identity. I always wanted to have my own identity. And I was deprived of it. I could never have an identity and I have come here so I could gain an identity and live in peace…[32]
[32] ST5, 98.
However, the absence of any corroborative material to support his life story is a serious impediment to establishing his identity; especially where, as here, it appears that such information may be available. There are avenues open to him to obtain relevant corroborative information. For example, I note:
·the applicant has family members in Iran and Iraq but has not provided any corroborative material from them. He is in contact with his mother, father and three siblings, all of whom live in Iran, or, in the case of his sister, in Iraq. None provided evidence in these proceedings;
·he worked for a while in Tehran, employed by a family relative;
·he attended school and a pre-university course in Tehran. Neither his employment nor his school attendance has been corroborated in any way. He has not provided any verifying material from either of the schools he attended, which are still operating; and
·he has not provided any evidence, whether in the form of photographs, documents, or statutory declarations, from family members, employees or teachers.
The applicant could contact his mother or his father and obtain a statutory declaration and family photographs. He could obtain a reference from his mother’s cousin, who employed him in the electrical shop in the arcade. That is a substantial connection. The applicant can write to the authorities and agencies in Tehran to seek information about his birth, education and employment. He does not appear to have explored or exhausted these avenues. Without such corroborative material, the Tribunal is unable to make a positive finding about his identity, given the lack of documentary or biometric evidence.
I note that the applicant’s stated reason for applying to the Tribunal was that the decision contradicted the ‘extreme vetting’ that he was subjected to before being granted a protection visa. The prohibition contained within subsection 24(3) of the Act operates so as to prohibit a grant of citizenship ‘unless the Minister is satisfied of the identity of the person’. A state of satisfaction must be reached on the evidence before the Tribunal. The fact that a protection visa was granted at some earlier point does not foreclose consideration of this issue.
Regrettably, his application is devoid of checkable and verifiable data going to his identity. People leave footprints as they travel through life. The challenge for an undocumented applicant for citizenship is to highlight those footprints, which regrettably the applicant has failed to do. The applicant has conspicuously failed to provide a single checkable fact linking unequivocally to the life he lived in Tehran.
DECISION
The decision made by the delegate on 11 September 2019, refusing the application for citizenship is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........[sgd]...................................
Associate
Dated: 25 November 2020

Date of hearing: 8 September 2020

Applicant: Self-represented

Solicitors for the Respondent: Ms E Cannon, Clayton Utz

Date of hearing:	8 September 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Cannon, Clayton Utz