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

Soroush and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 41 (14 January 2022)
Division:GENERAL DIVISION
File Number: 2019/8243
Re:Hiwa Soroush
APPLICANT

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

DECISION
Tribunal:Member K. Parker
Date:14 January 2022
Place:Melbourne

The Tribunal is satisfied as to the Applicant’s identity. The Tribunal sets aside the Decision Under Review and remits this matter for reconsideration with a direction that approval of the Applicant’s citizenship application is not prohibited under s 24(3) of the Australian Citizenship Act 2007 (Cth).
................................[sgd]........................................
Member K. Parker
Catchwords
CITIZENSHIP – refusal of application for citizenship by conferral – whether Tribunal satisfied as to Applicant’s identity – Applicant arrived in Australia by boat as refugee – no primary or secondary identity documents pre-dating Applicant’s arrival in Australia – Applicant’s parents fled from Iraq – Applicant born in Iran and was raised by an Iranian citizen in Iran without identification papers – Applicant undertook education and employment in Iran on an unofficial basis – Applicant left Iran with no possessions when his Iranian guardian died – significance of inconsistencies in the information provided by Applicant about his life story and departure from Iran – whether Applicant provided adequate explanations for those inconsistencies – consideration of Applicant’s life story – Tribunal satisfied as to Applicant’s identity – Decision Under Review set aside and remitted for reconsideration with a direction that approval of Applicant’s citizenship application is not prohibited under s 24(3) of the Australian Citizenship Act 2007 (Cth)
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016)
Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) - National Identity Proofing Guidelines (homeaffairs.gov.au)
Supplementary Explanatory Memorandum, the Australian Citizenship Bill 2005 (Cth)
Revised Citizenship Procedural Instructions, Chapter 16
REASONS FOR DECISION
Member K. Parker
14 January 2022

The Applicant, Mr Hiwa Soroush, seeks review of a decision made on 28 November 2019 to refuse his application for Australian citizenship by conferral (Decision Under Review). This decision was made on the basis that the relevant delegate was not satisfied as to Mr Soroush’s identity and that approval of his citizenship application was prohibited by operation of s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
The Tribunal’s jurisdiction in his application arises under s 52(1)(b) of the Citizenship Act.
For the reasons set out below, the Tribunal is satisfied as to Mr Soroush’s identity. The Tribunal sets aside the Decision Under Review and remits it for reconsideration with a direction that approval of Mr Soroush’s citizenship application is not prohibited under s 24(3) of the Citizenship Act.
BACKGROUND
This application is about a man in his late-thirties, Mr Soroush, who states he was born in Iran. Mr Soroush states his parents were born in Iraq, with Kurdish Faili ethnicity, and were deported from Iraq to Iran during the Saddam Hussein regime.
Mr Soroush states he was an only child and he lived with his parents in Iran, until the age of four. At that time, Mr Soroush states that his parents’ identification papers were handed in and not renewed by Iranian officials. As a consequence, Mr Soroush states his parents were required to live in Kurdish areas of multiple cities and towns in Iran. Mr Soroush states that from the age of four he was raised in Tehran, Iran, by an elderly Iranian woman who acted as his guardian, and his parents would visit Mr Soroush from time to time.
Mr Soroush states that his parents and grandmother all died together in a car accident in 2002.
Mr Soroush states he was schooled and worked in Iran, unofficially, up until his mid-twenties and when his Iranian guardian died, he left Iran and travelled to Christmas Island (via a flight to Malaysia and then by boat to Indonesia, and subsequently onto Christmas Island). He states he was assisted by smugglers to make this journey and arrived in Australia in February 2010. He considered that it was too difficult to remain living in Iran without his Iranian guardian and without any identification papers. Having been granted a protection visa and now residing in Australia, Mr Soroush has applied for Australian citizenship by conferral.
DOCUMENTARY EVIDENCE
Mr Soroush lodged four witness statements in support of his case (including his own witness statement and witness statements of three other persons stating they knew Mr Soroush as a child when he lived in Iran. Primary official Iranian identity documents for each of those persons, translated into English, were lodged with the Tribunal. The veracity of the Iranian identity documents for those three persons were not challenged by the Minister at any stage, including at the hearing when two of those witnesses were called by Mr Soroush to give evidence in support of his case.
In addition, the Minister lodged with the Tribunal the following documentary evidence:
(a)a set of documents lodged on 6 February 2020 (and electronically on 3 June 2020) pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents);
(b)a further set of documents lodged on 17 March 2020 pursuant to its obligations under s 38AA of the AAT Act (ST-Documents);
(c)a further set of documents lodged on 7 August 2020 (Respondent’s Additional Materials).
SUBMISSIONS
Both parties lodged submissions in this matter as listed below:
(a)Minister’s Statement of Facts, Issues and Contentions dated 7 August 2020 (Minister’s SFIC);
(b)Minister’s further submissions lodged on 15 July 2021 (Minister’s Further Submissions);
(c)Mr Soroush’s further submissions lodged on 31 July 2021 (Mr Soroush’s Further Submissions).
ISSUES
The issue arising for determination by this Tribunal is whether the prohibition under s 24(3) of the Citizenship Act applies to Mr Soroush in respect of his citizenship application. This will require the Tribunal to decide whether it is satisfied as to Mr Soroush’s identity.
LEGISLATIVE FRAMEWORK
A person may apply for conferral of Australian citizenship under s 21 of the Citizenship Act. Upon making such application, s 24(1) of the Citizenship Act requires the Minister to approve or refuse the person becoming a citizen. Section 24(3) of the Citizenship Act provides as follows:
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.
CITIZENSHIP POLICY
As a general principle, the Tribunal will take into consideration relevant policy in coming to its decision, unless there is a cogent reasons not to do so such as the policy being inconsistent with the relevant legislative framework.[1]
[1] Refer Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
On 1 June 2016, the then Department of Border Protection (now the Department of Home Affairs) issued a policy entitled “Citizenship Policy” providing guidance on the interpretation and the exercise of powers under the Citizenship Act and its regulations (Policy). The introduction to the Policy states that the Policy cannot constrain the exercise of delegated powers under the Citizenship Act or its regulations.[2]
[2] Refer T-Documents T19/141.
Chapter 13 of the Policy deals with “Identity”. The Policy states:
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.[3]
[3] Refer Citizenship Policy, Chapter 13.
The Policy provides that the concept of identity is as described in the Attorney-General’s “National Identity Proofing Guidelines” (NIPG). The Policy refers to the NIPG issued in 2004. The Tribunal notes the NIPG was updated in 2016.[4]
[4] Refer National Identity Proofing Guidelines (homeaffairs.gov.au)
Further policy which should be considered by the Tribunal in assessing identity include the Australian Citizenship Policy Instructions (CPIs), which were last revised by the Department on 1 June 2019. As set out in Chapter 16 of those CPIs, there are three elements that should be considered in assessing an identity described as the “three pillars of identity”:[5]

[5] Refer Australian Citizenship Policy Instructions, Chapter 16 at [4.4].

Three pillars of identity Individual characteristics

Biometrics 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.

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.

Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life Story A person’s life story is a narrative of the events that happened to them from birth to the present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

Policy guidance on the issue of identity in circumstances of limited biometrics and/or documentation

This is a case where the identity claimed is not supported by primary or secondary documentation pre-dating arrival to Australia.[6] As such, there is no evidence upon which the Tribunal can determine whether it is satisfied as to Mr Soroush’s identity by reference to the first two pillars of biometrics and documents.
[6] Refer the Minister’s SFIC at [4].
Chapter 16 of the CPIs provides guidance when assessing identity in such circumstances:
There may be cases where one pillar may be given more weight than the others. For example, cases were the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information.[7]
[7] CPI 16 at [4.15].
Chapter 5 of the NIPG provides further guidance as assessing the identity of applicants who are unable to meet minimum identity proofing requirements. Relevant to this application, those guidelines provide as follows (emphasis in bold added):
5.1.1 Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
5.1.2 Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents, for example because they were raised in institutional or foster care; people with limited participation in society; and young people or those over 18 who are yet to establish a ‘social footprint’ in the community.
5.1.3 Alternative identity proofing processes that organisations MAY consider for these exceptions’ cases include (note different combinations of these processes may be appropriate depending on the individual circumstances).
1. Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2. 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.
3. Verification of a person’s claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4. A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
5. Alternative methods of providing information or documents (such as provision of certified copies by trusted third parties instead of attending an in-person interaction where a person can demonstrate they live in a very remote area).
6. Providing support for individuals to obtain evidence (such as assisting a person to register their birth with an RBDM).
This is not an exhaustive list of options. It is the responsibility of each organisation to consider, on a risk basis, appropriate alternative processes SHOULD include robust processes to confirm identity. This is not to disadvantage those people who may be unable to meet the standard requirements. Importantly, it is to prevent these exceptions processes from being exploited through criminals targeting people who may have identities that are more vulnerable to misuse.
In applying this policy, the Tribunal acknowledges and considers the following statement set out in the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 in respect the principle now contained in subsection 24(3):
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
MINISTER’S CONTENTIONS
The Minister contends that the Tribunal cannot be positively satisfied of Mr Soroush’s identity for the purposes of s 24(3) of the Citizenship Act, because:[8]
(a)the accounts given by Mr Soroush in relation to his claimed life story are inconsistent with relevant country information (although at the hearing, Mr Soroush was only questioned about a few of the inconsistencies raised by the Minister in the Minister’s SFIC);
(b)the accounts given by Mr Soroush in relation to his claimed life story contain internal inconsistencies (although at the hearing Mr Soroush was only questioned about a few of the inconsistencies raised by the Minister in the Minister’s SFIC);
(c)where relevant, the accounts given by Mr Soroush in relation to his claimed life story contain similarities with the Department's investigations into fraudulent claims made by a cohort of persons claiming to be stateless “Feyli Kurds” (although this ground was not pressed further at the hearing of this application);
(d)Mr Soroush has not been able to provide a plausible explanation for the inconsistencies;
(e)Mr Soroush’s claimed identity is not otherwise supported by primary or secondary source documentation pre-dating his arrival in Australia in 2010; and
(f)Mr Soroush has not demonstrated that he has taken reasonable steps to obtain material that would support his application for citizenship.
EVIDENCE
[8] Refer Minister’s SFIC at [4].
Evidence of Mr Soroush
Mr Soroush lodged a statement with the Tribunal on 2 March 2020 setting out information about his background, life story and matters relating to his identity (Mr Soroush’s Statement). In Mr Soroush’s Statement, he asserts as follows (as at the time of making his statement):
(a)he is a 36-year-old male born in Tehran, Iran;
(b)his ethnicity is “Kurdish Faili”;
(c)his parents were born in Bagdad, Iraq. They were forced to leave Iraq in 1977 or 1978 during the Saddam Hussein regime, due to their ethnicity. They fled to Iran;
(d)from the age of four, he lived with an elderly woman, and Iranian citizen, named Aziz Khanoom;
(e)in Iran, Mr Soroush and his parents were denied citizenship and recognition;
(f)living “without documents” in Iran, he was “stopped, harassed and detained many times by Basij/Police for having no ID card”;
(g)in Iran, he did not have any right to remain in Iran, travel, study, or work on an official basis and did not have the right to complain to authorities;
(h)his parents passed away in car accident, following which Aziz was the only person he could rely upon;
(i)he left Iran two months after Aziz died because “living in Iran was not possible for me”. He states that the house he was living in with Aziz in Iran was rented and after Aziz died there was only three months remaining on the rental contract. He states that “after that I even didn’t have anywhere to sleep in, I had to leave Iran and it was the only option I had to survive”; and
(j)he states the only way he could prove his identity before he arrived in Australia was for him to find some people in Iran, via the internet, and to ask them to write a statement to prove his identity. He states that it was hard to find them because ten years had passed since he lived in Iran. He obtained three witness statements from people that knew him in Iran and lodged these statements with the Tribunal (referred to in further detail below).
At the hearing, Mr Soroush gave the following oral evidence:
(a)he was born on 29 February 1984 in a house in an area called “Meydan Khorasan” (Meydan being the Persian word for Square), in Tehran, Iran which was rented by his parents;
(b)he does not have any documents confirming his date of birth, but he said his parents had informed him of this date;
(c)his mother’s name is “Behnaz Soroush”, and his father’s name is “Ghasem Soroush”;
(d)he does not have any siblings;
(e)his parents become acquainted with Aziz through a friend of Mr Soroush’s father by the name of “Sharif”;
(f)two or three years after Mr Soroush was born, his parents and Mr Soroush moved from Meydan Khorasan to a place called “Shush”, which is an area in Tehran. He said they went to the place that Aziz had rented;
(g)he lived with his parents until the age of four and after that, he lived with Aziz. No other persons lived with Mr Soroush and Aziz and he said Aziz did not have any other family members. He said the reason he went to live with Aziz at the age of four was that Tehran was a dangerous place for his parents to continue to live, because the Persian they spoke had a very strong “Kurdish-Iraqi-Kurdish-Persian” dialect. He said it was very beneficial for him to live with Aziz and through her, he was able to learn the Farsi dialect. He said his parents went to live in Kurdish areas in multiple cities and towns, and to search for his maternal grandmother and uncle (who were missing), and that it was easier for his parents to leave him with Aziz;
(h)when his parents moved to the Kurdish cities, once, twice or three times every year, they would visit him;
(i)after he finished attending school (at the end of “Grade 10”), for about two years, he worked for a blacksmith by the name of “Akbar Amineon” working as a shop hand;
(j)in 2002, both of Mr Soroush’s parents (and his maternal grandmother) were involved in a car accident, en route to Tehran (to visit Mr Soroush as explained at the hearing), and all passed away. Mr Soroush confirmed that he was 18 years old at this time, and he attended their funeral. He said that Aziz and Sharif had gone to the district where the accident had happened and had brought the bodies back to Tehran for the burial. Mr Soroush said that Sharif and Aziz had arranged for a small ceremony. He said that they did not have any family, and a few of the neighbours had visited. Mr Soroush said he was not given any papers or possessions of his parents because his parents did not have any papers, and that his parents were only living in Kurdish areas for short periods of time (for one year or less);
(k)between 2002 and 2010, Mr Soroush worked for Sharif as a painter;
(l)Aziz died in 2009;
(m)Mr Soroush departed Iran and arrived in Australia by boat on 26 February 2010 on Christmas Island;
(n)he did not live anywhere other than Iran before arriving in Australia;
(o)when he lived in Iran, he did not have any form of identification;
(p)he lived in Tehran when he was living in Iran, except for a period in about 2007 of between four and six weeks, when he stayed as a guest with a friend, Rasul, who was a University student there, and some of his friends, in Najafabad, in the Esfahan Province;
(q)he had been told by his father that when his parents first came to Iran, they were given a “green card” in Iran which they had for a few years. His father told him that the Iranian Government had asked his parents to hand in that card and were told they would be given a new card, known as a “white card”. Mr Soroush said his father told him that they handed in the “green card”, but the authorities did not provide them with a “white card” in return, which left his parents without an identification card in Iran; and
(r)the benefits of having an identification card in Iran was that the holder of the card could access medical and educational services.

Mr Soroush did not have any primary or secondary identification documents pre-dating his arrival in Australia in February 2010. However, the Applicant produced the following evidence seeking to prove his identity:[9]
(a)a statement signed by an Iranian citizen, Mr Arzhang Arshad Riaahi Dehkordi, dated 5 December 2019 (Arzhang’s Statement) stating that Arzhang has known Mr Soroush since the age of eight and that Mr Soroush used to live near Arzhang’s grandmother’s house in the suburb of [Shush] in Tehran.[10] Arzhang states that when he visited his grandmother, he would see Mr Soroush. He states that Mr Soroush moved from Shoush, Tehran, in 1999 to Shemirannou. Arzhang states that Mr Soroush had told him how “hard and dangerous” it was in Iran if you did not hold an identity card. He states that Mr Soroush left Iran in 2010;
(b)a statement signed by another Iranian citizen, Mr Ashkan Arshad Riaahi Dehkordi,[11] dated 9 December 2019 (Ashkan’s Statement) stating the Ashkan has known Mr Soroush since the age of eight and that Mr Soroush used to live with an elderly lady called “Aziz Khanoom”.[12] Ashkan states that Mr Soroush was dealing with numerous obstacles since he did not have an Iranian identity and finally left Iran at the age of 26 when Aziz Khanoom passed away;
(c)a statement signed by a third Iranian citizen, Mr Afshin Mohammednezhad Zirdeh, dated 12 December 2019 (Afshin’s Statement) stating that Afshin has known Mr Soroush since the age of 12, until the time he left Iran in 2010. Afshin states that they both lived in the suburb of “Shush” and they used to work as construction painters for a few years. He states that Mr Soroush was always hard working, but he was paid a low wage because he did not have an identity card.
[9] The witness statements from Arzhang, Afshin and Ashkan were lodged with the Tribunal in Arabic on 22 May 2020. Another set of statements made in English by Arzhang, Afshin and Ashkan were lodged on 16 August 2020 and the identity cards of Arzhang, Afshin and Ashkan were lodged 5 May 2021.
[10] Refer Exhibit A1.
[11] Brother of Arzhang.
[12] Refer Exhibit A2.
The National ID Cards (issued by the Minister of the Interior, National Organization for Civil Registration, Islamic Republic of Iran) for Afshin, Arzhang, and Ashkan, showing their respective National ID numbers, and photographs of each of them, were produced to the Tribunal to verify their identity and status as Iranian citizens. As mentioned above, this verification evidence was not challenged by the Minister.
Evidence of Arzhang
At the hearing, Arzhang gave evidence that he has known Mr Soroush for about 30 years, since he was about seven or eight years old. He said he met Mr Soroush when he saw him on the streets in his grandmother’s neighbourhood, when he was visiting his grandmother. He said as they got older, he would see and meet Mr Soroush more and he was aware of the problems he was having that led him to leave Iran, but “not about the specifics of them”.[13] Arzhang said he did not think he had any photographs from their childhood, or at least, nothing that came to mind. Arzhang he last saw Mr Soroush a year or two before his departure from Iran. When asked when he had any photographs from that time, he said he did not.
[13] Refer Transcript Day 3 at P-48. In these Reasons for Decision, the Tribunal has made transcript references as follows: Transcript Day 1 for 5 March 2021; Transcript Day 2 for 16 June 2021; and Transcript Day 3 for 17 June 2021.
Arzhang said had not kept in contact with Mr Soroush after he departed Iran. He said that about four or five years ago he contacted Mr Soroush via telegram and found out where he was. He said that Mr Soroush had subsequently contacted Arzhang about his citizenship application.
Arzhang confirmed that he was an Iranian citizen, and that he went to school in Iran. Arzhang said he did not go to school with Mr Soroush because he lived in a different neighbourhood. During cross-examination, Arzhang confirmed that there were children at his school without any form of identification, and that especially at his school, he remembered Afghans “like that”. Arzhang said he went to a government school and did not have to pay school fees.[14]
[14] Refer Transcript Day 3 at P-49.
Arzhang gave evidence that when he first met Mr Soroush “on the street”, as far as he could remember, Mr Soroush’s parents were not living with him. He said he visited his grandmother’s house once every few months. Arzhang said he was aware that Mr Soroush was living with Aziz, and that he had met her because she was “one of the people in the neighbourhood”. Arzhang said he was aware that Aziz had died (Mr Soroush had told him this), that Mr Soroush was scared and that his situation in Iran was “not good”.[15] He said he thinks that Mr Soroush had told him this over the telephone while he was still living in Iran.
[15] Refer Transcript Day 3 at P-50
Arzhang gave evidence that during the time he knew Mr Soroush, he did not believe that Mr Soroush had any form of identification. He confirmed that he had been assisting Mr Soroush to obtain documents about his past. Arzhang gave evidence that he had contacted Mr Soroush’s primary/middle school and was not successful in obtaining any documents. Arzhang said that Mr Soroush had provided him with the details of this school. He said that the school told him that it did not keep any records of the students who do not have any form of identity documents and if a person wants something from the school, they should attend in person and submit a written request. Arzhang said the Department of Education had told him that it does not provide such letters or statements and that if someone wants something, they should attend themselves. In answer to a question from the Tribunal, Arzhang said that he had requested that the Department give him a letter confirming that he had made those inquiries and that this request was denied by the Department.
Arzhang said he also attended Mr Soroush’s high school, and the “same scenario replayed itself”.[16] He said he went to the place where the high school was, but “apparently, it had moved to a different location”.[17] He said he could not find the high school. Arzhang gave evidence that the name of the high school was “Mehr”.[18]
[16] Ibid at P-52.
[17] Ibid-53.
[18] Ibid.
Evidence of Ashkan
At the hearing, Ashkan gave oral evidence that he had known Mr Soroush since they were children and he said, “maybe around 30 years or something like that”.[19] He said he used to visit his grandmother which was when he would meet with Mr Soroush. He said they used to play soccer together and “other childhood plays”.[20] He said his grandmother lived in Asdeshush and that it was famous by the name of “Shush”.[21]
[19] Refer Transcript Day 3 at P-57.
[20] Ibid.
[21] Ibid at P-58.
Ashkan gave evidence that from the memories of his childhood, Mr Soroush went to a house where an old lady used to live. Ashkan said that he knew that Aziz used to live there for a very long time and that Mr Soroush used to live with her.[22] Ashkan said he never went to the house and that “we were on the neighbourhood, on the street, playing with other children there. And it was a childhood environment for us: we didn’t pay a lot of attention to other things, we only care about play”.[23]
[22] Ibid.
[23] Ibid at P-59.
When asked by Mr He during cross-examination, Ashkan said he could not recall the last time he had seen Mr Soroush in person. He said he was not very close with Mr Soroush himself and that “this story goes back several years”. Ashkan said he did not know, before his departure, that Mr Soroush was going to leave Iran to go to Australia. Ashkan said he had reconnected with Mr Soroush through his brother (that is, Arzhang). When asked by the Tribunal, Ashkan said he did not recall ever having a photograph taken with Mr Soroush “because a photo camera was not a very common thing back then, that everyone would have one to be able to take photos” and he suggested that the opportunity did not arise because they were playing together on the streets.[24]
[24] Ibid at P-60.
Cross examination of Mr Soroush at the hearing
During cross-examination, Mr Soroush was asked how his father had obtained a Green Card. He said that his father had informed him that there were a large number of Feylis Kurds expelled from Iraq to Iran and that during that time, Iran tried to “manage those people” by issuing some of them with identity cards and to provide them with basic primary services. He said the cards were provided to some, but not all; or subsequently, taken away. He said his father did not know why those privileges were taken away from him. Mr Soroush said his father had tried to get a card back from the Iranian Government, without success. Mr Soroush said that Aziz, Sharif and one of his neighbours had tried, three or four times, to obtain an identity card for Mr Soroush. He said he did not follow it up himself, as he would have risked being deported to Iraq, which Mr Soroush said he was fearful about. The Tribunal accepts this evidence.
During cross-examination, Mr Soroush gave evidence that he did not drive a car while he was in Iran, because he had no right to do so (he could not obtain a driver’s licence).
Upon questioning, Mr Soroush said that he did not have any documentation in relation to his work for the blacksmith in the two-year period after he completed “Grade 10”. He said this was because his work for the blacksmith was considered illegal.
Mr Soroush said that when he worked for Sharif as a painter, Sharif would pay him low wages (about half of the wages he paid to his “Iranian workers”) or at times, not pay him at all. He said that Sharif knew that Mr Soroush could not “go anywhere to complain”, and because the work he was doing for Sharif was illegal.[25] Mr Soroush gave evidence that he worked longer hours than the other workers. He said that in 2002, when he started working with Sharif, he was paid between 3,000 and 5,000 tomans per day. Later, Mr Soroush gave evidence to the effect that when he became more experienced, he was paid 15,000 to 18,000 tomans per day.
[25] Refer Transcript Day 2 at P-12.
Absence of primary identification documents pre-dating 2010
The Minister highlights that Mr Soroush has not produced any primary source identification documents such as a passport, birth certificate or government issued identification card, in support of his identity that pre-dates his arrival in Australia in 2010.[26]
[26] Refer Minister’s SFIC at [23].
The Minister contends that it is reasonable to assume that Mr Soroush would have been issued with a certificate at birth and that the onus was on him to provide a plausible reason why he would not have such a document, based on the following information produced by the Minister’s representative:[27]
(a)country information stating that:[28]
Iran adopted a Birth Registration law in 1918. The law stipulates that all births must be registered within 15 days… Although MICS data showed the rate of birth registration to be 87%, the 2003 United Nations Common Country Assessment recognised that wide disparities persist between regions; and
(b)a report prepared by the Department of Foreign Affairs and Trade entitled “DFAT Thematic Information Report, Faili Kurds in Iraq and Iran, 3 December 2014”[29] (DFAT Thematic Report) confirming that all children born in hospital in Iran should receive an official birth record stating the time, date and place of birth, and parents' details.[30]
[27] Refer Minister’s SFIC at [23] and [26].
[28] Refer T-Documents T17/419.
[29] Refer T-Documents T12/289-306.
[30] Ibid at page T12/301 at [3.40].
The Tribunal notes that the DFAT Thematic Report states that significant variation is possible, and the birth record does not establish any citizenship rights for the child. For the birth of a child to be registered and to receive an Iranian birth certificate, an official marriage certificate – not a religious document – and Iranian citizenship are required.[31] In other cases, this report states that an unofficial hospital certificate recording the birth is usually provided.[32] This report explains that the Shenasnameh is a small book (passport style) issued to “all Iranians” at birth. It contains family details and a unique identification number.[33] The Minister contends that the birth registration of all newborn children in Iran is stated in this Report as being compulsory. However, the Tribunal notes that this statement was made in the context of a discussion about the Shenasnameh, which the Tribunal notes is only available to Iranian citizens.[34]
[31] Ibid at [3.41].
[32] Ibid at [3.41].
[33] Ibid at [3.45].
[34] Ibid at [3.46].
The Tribunal accepts Mr Soroush’s oral evidence that he was born in a private home, and not in a hospital, and that his parents were not Iranian citizens. There was no evidence before the Tribunal to place into doubt the veracity of Mr Soroush’s account about his birthplace. Based on this finding in circumstances where his parents were not Iranian citizens, the Tribunal does not consider there to be any basis upon which to expect that an official Iranian birth record or unofficial hospital certificate would have been or was likely to have been issued to him when he was born, in those circumstances.
Absence of secondary identification documents and accounts of Mr Soroush’s life story
Educational history
During cross-examination, Mr Soroush said that Aziz and his father had tried their best to officially enrol Mr Soroush into a school in Iran, but none of the schools agreed to register him because “[he] did not have any identity”.[35] He said that eventually, Aziz and his father were able to get Mr Soroush into a school. He said he was permitted to attend that school but was not registered or issued with any form of qualification. He said that his father had worked for the school, painting the classrooms and walls for them, and in return, the school allowed Mr Soroush to attend the classes. He said there were other people like him attending this school, including an Iraqi boy. Mr Soroush gave evidence that in his second year of attending High School (equivalent to Year 10), they stopped him, and two other students like him without identification documents, from attending the school, and that the school did not give them a report card at the end of the year.
[35] Refer Transcript Day 2 at P-12.
During cross-examination, Mr Soroush explained his schooling history as follows:
(a)the first school he attended was in the Hifdahishaheva area (or the 17^th Shaheva area) and it was called “Tharni”. This school changed its name to “Timsa Salahi”[36] or “Timsa Shaheed Falahi Primary School”.[37] He attended this school for the entire duration of his primary school (for five years), plus the middle or secondary school. Mr Soroush said he started at this school in 1991 in Grade 1, when he was about seven years old; and
(b)the second school he attended was “Rezai Rad” on Langberry Street, where he completed two years of high school, following which he was not permitted to continue his studies any further.
[36] This reference appears in the transcript with the spelling “Salahi” and subsequently, as “Thalahi” (see paragraph below). The Tribunal expects this was a typographic error on the part of the transcriber.
[37] Refer Transcript Day 2 at P-13.
During cross-examination, Mr Soroush was asked to provide further details about his school. He gave evidence that the first school he attended was named “Timsa Tharani” and that this school had changed its name when he was in Grade 2 or 3 to “Timsa Thalahi, or they would also call it Timsa Shaheed Falahi”.[38] He said that in short form, some people would call the school, “Alahi”. After the first five years, Mr Soroush said he attended the same school, but in a different part of the school (where the older students were kept separate from the younger students), where he completed Grades 6 and 7. Mr Soroush said he moved to the “Rezai Rad” (high school) for Grades 8, 9 and 10.
[38] Refer Transcript Day 2 at P-15.
Mr Soroush agreed that he attended school for a total of ten years. He said there were no tuition fees, but when his father would visit him two or three times per year, he would undertake painting or handyman jobs at the school to allow Mr Soroush to stay in the school. Mr Soroush confirmed this was the case up until he was in Year 10, when the Principal and authorities said it was not possible for him to continue because it was illegal for him to be at school because “he was not Iranian” and did not have identity documents. Mr Soroush gave evidence that many times the school had tried to prevent him from attending school, but that Aziz would attend and convince the school to allow him to continue. He said that later on, the school “decided not to do that anymore”.[39]
[39] Ibid at P-17.
Mr Soroush said he did not have any documentation or other information that would confirm he had attended the two schools. He said that through Arzhang, and through his own approaches, he had tried to get a letter from the school confirming his attendance, but he was unable to do so. Mr Soroush explained the attempts that he had made to try to find one of his former school teachers to attest to him being a student at his schools. He said he had written down the names of his teachers from Grades 1 to 5 and tried to contact them by searching on the internet, social media platforms, or by contacting the school to get a contact email address for them. He said his primary school does not have a website. He said he tried to call some telephone numbers he had found on the internet, and he called them but “they were not the phone numbers for the school”.[40]
[40] Ibid at P-18.
Mr Soroush said he had asked Arzhang to go to the school to request the required information or to find out the telephone number for the school, and also to ask for a letter from the school. He said that the answer Arzhang had received from the school was that because Mr Soroush was not registered at the school, he had no identification and was not Iranian, he would have to attend the school himself in person to make a formal request. Further, the school had reportedly informed Arzhang that they had not keep records of students over the years who had attended without any form of identification.
Mr Soroush gave evidence that he had also asked Arzhang to attend the Education Department’s branch in the area (Zone 12 in Tehran), to see if someone at the branch could provide some direction or guidance. He said that Arzhang was informed by the Education Department that there was nothing that could be done, “legally”, because there was no record kept of “foreign students”, especially if they did not have identification documents.[41] Mr Soroush gave evidence that he had tried to obtain a letter from the Department confirming the above, however, he said they told him they could not do so and could not provide an answer in written form. He said that Arzhang has made the same request, that they told Arzhang that they could not issue such official statements.
[41] Ibid at P-19.
Mr Soroush gave further evidence about his efforts to confirm his attendance at the Rezai Rad High School. He told the Tribunal that in 2020, he had tried to find an email address for this school. He said that he had obtained information that this school had been converted from a boys’ school to a girls’ school and that the boys’ school had moved to a different location and changed its name to “Merh”.[42] He said he tried to find some of the teachers or the contact number for that high school (Merh), but his attempts were unsuccessful.
[42] Ibid at P-25.
In 2021, Mr Soroush said he had asked Arzhang to get the contact details or to find the teachers. Mr Soroush gave evidence that Arzhang efforts to do so were also unsuccessful. He said that Arzhang went to the area to find the school, and that Mr Soroush had asked him to also attend the Education Department in that area in an effort to get some information because a lot of the schools were closed due to the Covid-19 pandemic. The Education Department had given Arzhang the same response as they did in Zone 12, being that they were unable to provide any form of official letters or statements.
Circumstances surrounding the death of his parents and why he did not have death certificates for them

The Tribunal asked Mr Soroush whether he was issued with death certificates in relation to the death of his parents, or whether there existed a process for such a certificate to be issued in Iran. Mr Soroush informed the Tribunal that Sharif took care of such matters and because his parents did not have “IDs”, Sharif made arrangements for his parents to be buried in an area called Lavasan. He gave evidence that Sharif had to arrange for the burial to happen at night, and that “people had to be paid to allow…that to happen”.[43] Mr Soroush also said they received guidance from another neighbour “Taghi” (or “Tagher” or “Tagar”). Mr Soroush said that in 2020, through Arzhang, he had tried, unsuccessfully, to get in touch with Taghi or Sharif.
[43] Refer Transcript Day 2 at P-22.
The Minister challenged the evidence given that Mr Soroush’s parents were buried in Lavasan on the basis that this is a luxury area in Tehran, and it was implausible that his parents would have been buried there.[44] At the hearing, Mr Soroush acknowledged that Lavasan was “a high end of town now, and it’s very luxury place “, but he said that “back then it was only a village”.
[44] Refer Minister’s SFIC at [65].
There was no probative evidence presented to the Tribunal, relevant as of 2002, being the time his parents had died, that would give rise to a reasonably held doubt about the veracity of Mr Soroush’s account about where his parents were buried. The Tribunal is satisfied that this aspect of Mr Soroush’s life story is accurate, and that Mr Soroush’s parents were buried unofficially at night in Lavasan, unofficially due to their status, as arranged by Sharif, and this provides an explanation as to why Mr Soroush does not possess death certificates in relation to his parents.
Circumstances surrounding Aziz’s death and Mr Soroush’s departure from Iran
During cross-examination, Mr Soroush was asked what had become of Aziz’s possessions after she had died. He said that in the years prior to her death that he had given his earnings to Aziz for safekeeping. Mr Soroush said that a few months before Aziz’s death, Aziz had handed him a large portion of the money she had (made up of her money and Mr Soroush’s earnings). Mr Soroush gave evidence that Sharif and Taghi had decided where Aziz’s possessions were to go.
Mr Soroush gave evidence on the second day of the hearing that the amount of money Aziz had given him was “maybe a little more than” one or two million tomans.[45] Mr Soroush gave evidence that after Aziz had died, Sharif gave him a further sum (from Aziz) of “about one-point-something” million tomans. He said he sold the belongings in the house (carpets, television, radio, and some other things), for “somewhere close to 3 million tomans”.[46] Mr Soroush said that, as far as he was aware, Aziz did not have any debts.
[45] Refer Transcript Day 2 at P-29.
[46] Refer Transcript Day 2 at P-30.
During cross-examination, Mr Soroush was questioned about what had happened to the rental contract for the house he lived in with Aziz, after her death. He said that this contract was between Aziz and the landlord, and that the only thing he did, was to leave the premises. He said he did not think there was any more than three months left on the contract and that because Aziz was an Iranian, she was able to rent the property.
During cross-examination, Mr Soroush was asked whether he had any photographs of himself and Aziz in his life. Mr Soroush gave evidence that that he did not bring anything with him when he left Iran because a smuggler (see below) told him not to bring anything with him.
Circumstances of Mr Soroush’s passage from Iran to Australia
Mr Soroush was asked to explain the circumstances of how he had obtained the services of a smuggler. He gave evidence that a few months before Aziz’s passing, knowing that she was ill, someone had referred him to a smuggler (Smuggler) who “took the money” and “made most of the arrangements”.[47] He said he met the Smuggler in an alley. He said that the Smuggler had an agent (Agent) who was due to meet Mr Soroush at the airport on the day of his departure. He said evidence to the effect that he gave money and his photograph for a passport, to the Smuggler, before he departed Iran. He was told by the Smuggler that they would make all the arrangements.
[47] Refer Transcript Day 2 at P-32.
On the day of his departure from Iran, Mr Soroush gave evidence that the Agent, four other persons (two women and two men), and himself, passed through the departure gates together at the airport in Tehran. He said that passports for him, and the others in the group, were in the hands of the Agent. He said the Agent did not hand the passports to him or to the other men or women. Mr Soroush said the Agent took them to Malaysia.
Mr Soroush said the passports were dark in colour and he believed that it was an Iraqi passport (based on information he obtained from the people who were in Malaysia with him), and that the writing was in Arabic. He said he had seen a photograph of himself in the passport. He said that the Agent had kept the passports with him at all times, including when the passports were shown to “security”. When asked by Mr He, on behalf of the Minister, whether he thought this to be strange, Mr Soroush said that he needed to leave Iran and for that, he was required to pay a Smuggler who prepared the documents and knew what to do with them. He said that before then, he had “not stepped foot in an airport” or flown anywhere.[48] He said he was “stressed and very scared” because he knew they were smuggling him out of Iran.[49] He said he did not think it was strange, because:
in countries like Iran, they have connections, they have channels, and they bribe people that they are able to do such things. But I was very much frightened of getting caught and if we were caught, what could have or would have happened to me.[50]
[48] Refer Transcript Day 2 at P-33-34.
[49] Ibid at P-34.
[50] Ibid.
Mr Soroush gave further evidence that he paid the Smuggler about four or five thousand US dollars to smuggle him out of Iran. He said that when he went to the alley, he gave the money in tomans (in two payments) “to someone” and they gave him US dollars.[51] He said he thinks he paid about “four to five million tomans”.[52] At the start of the third day of the hearing, Mr Soroush gave evidence that he thought that this was “a little less than $US4,000”.[53] Mr Soroush gave evidence that he was taken from Malaysia to Indonesia by boat. He said he made another payment to someone in Indonesia in the sum of about $4,000 in US dollars and that person took him from Indonesia to Christmas Island.
[51] Ibid at P-36.
[52] Ibid at P-36.
[53] Refer Transcript Day 3 at P-43.
During cross-examination, Mr Soroush was asked whether he had stayed in touch with Sharif. Mr Soroush said that his attempts to contact Sharif had been futile because in Iran, his relationship with Sharif had not been “very good”, because Sharif was “a religious person” and Mr Soroush was “not a religious person”. He said that it did not “sit well with” Sharif that Mr Soroush was not interested in religious matters. He said that after the death of his parents, until when he left Iran, his relationship with Sharif had deteriorated and he had not tried to visit Mr Soroush. Mr Soroush said that he had only worked for Sharif. Mr Soroush said that Sharif had moved to an area called Farmanhir, and he had not been contacted by him.
Mr Soroush said that attempts had been made to find the rental documents for the property in Tehran that he and Aziz had resided in. Mr Soroush informed the Tribunal that his friend, Arzhang, in Iran has tried to find the landlord, but was unsuccessful. It was reported that Arzhang had found the landlord’s wife but that she had cancer and had passed away in 2015. It was reported that the landlord had sold the property and has left the suburb.[54]
[54] Refer letter from Mr Soroush to the Tribunal dated 21 May 2020.
CONSIDERATION
Due to the absence of primary or secondary identification documents pre-dating Mr Soroush’s arrival in Australia, Mr Soroush’s case relies upon the veracity of his own evidence and the evidence given by Arzhang and Ashkan (in their witness statements and given orally at the hearing).
Ashkan and Arzhang gave evidence at the hearing by videoconference. The Tribunal was able to positively identify the two witnesses who gave evidence at the hearing, as being identical to the persons shown the photographs on the National ID cards for Ashkan and Arzhang. The Tribunal did not place any great weight on Afshin’s Statement because he did not appear to give evidence at the hearing. However, Ashkan and Arzhang both appeared as witnesses at the hearing, and Mr He had an opportunity to cross-examine those witnesses. There were virtually no matters raised during cross-examination of those witnesses challenging any aspect of the evidence given by Arzhang and Ashkan. It was not put to them that they were not who they said they were, or that that the evidence about their childhood association was false. Nor were that questioned about whether they had received a bribe of any kind to give such evidence. They impressed the Tribunal as credible witnesses at the hearing of this proceeding, as there were demonstrated inconsistencies in the evidence they gave when compared to the evidence given by Mr Soroush.
For those reasons, the Tribunal accepts the evidence given by those witnesses, specifically, the evidence given by Ashkan and Arzhang that they knew Mr Soroush during their childhood, could attest to the fact that he lived in the neighbourhood of “Shush” in Tehran, Iran, and that he lived with a woman by the name of Aziz, as detailed above under the headings “Evidence of Arzhang” and “Evidence of Ashkan”. These witnesses were also able to attest to the fact that they were aware that Mr Soroush did not hold identification papers, and that this made life in Iran difficult for him. The Tribunal does not consider it significant that they could not cite specifics about how life was difficult for him (being a criticism made by the Minister), as they were childhood friends, and it is possible that discussing personal hardship may not have been the focus of their interactions.
Mr Soroush was cross-examined at length at the hearing about some of the inconsistences in his accounts of his life story and as to why he had been unable to present secondary and primary evidence as to his identity and life in Iran.
Minister’s contentions about inconsistencies as to Mr Soroush’s life story
Mr He, on behalf of the Minister, questioned Mr Soroush’s evidence relating to only a few aspects of his life story. He did this by challenging the assertions made by Mr Soroush about:
(a)(Mr Soroush’s level of income and inheritance from Aziz, and how he had managed to depart Iran, by being smuggled out for a fee, as claimed, given the amount of funds available to him at this time; and
(b)the account given by Mr Soroush as to how he passed through the security check points at Tehran airport in the manner he did, and with the Agent (instead of himself) holding the passports.
Account given about fees paid to smugglers to facilitate passage to Australia
The Tribunal was not satisfied that the submission by the Minister about the first of those issues was sufficiently clear by the end of the hearing. Further written submissions were lodged with the Tribunal after the hearing, about the issue of the amount funds that were available to Mr Soroush at the time he departed Iran and the Minister’s submission that this did not match the quantum of fees he claims to have paid to the Smuggler and Agent to secure his passage to Australia.
Mr Soroush gave a breakdown of the funds that were available to him at the time he left Iran as follows:[55]
All amounts are approximate due to the passage of time (more than 10 years ago)
The money I had (my saving): 1.5 to 1.7 million toman
The money that Aziz gave me before she died: 1.7 to 2 million toman
The money I had from selling home appliances: 3 to 3.5 million toman
House rent deposit return: 1.2 to 1.5 million toman
Minimum estimate: 1.5 +1.7 + 3 + 1.2 = 7.4 million toman
Maximum estimate: 1.7 + 2 + 3.5 + 1.5 = 8.7 million toman
[55] Refer Mr Soroush Further Submissions.
The Minister, in response, submitted that Mr Soroush’s statement was inconsistent with the evidence he had given at the hearing.[56] The example provided was that Mr Soroush had referred in his written submission to having received a “rent deposit return” of 1.2 to 1.5 million tomans, in circumstances where he had not given evidence about this at the hearing, despite having been asked by the Tribunal, whether he had any other funds available to him. Further, the Minister highlighted that Mr Soroush was unable to correlate his evidence at the hearing, that he spent between 8 and 9 million tomans to facilitate his journey from Iran to Australia, with his evidence that he had, at best, up to 7 million tomans available in funds to him at the time. The Minister submitted that the Tribunal could not be satisfied as to Mr Soroush’s life story in circumstances where he has provided inconsistent statements about this issue, particularly when Mr Soroush had had multiple opportunities to clarify his evidence during the hearing.
[56] Refer Minister’s Further Submissions.
The Tribunal accepts that there were some numerical discrepancies in Mr Soroush’s account of his financial position at the time he left Iran, and what it had cost him to depart Iran in the way he had described, using the Smuggler and Agent to facilitate his journey. However, this discrepancy is in the order of about one or two million tomans, being a deviation of between approximately 10 and 20 percent of the total estimated figure from the initial rough estimate provided by Mr Soroush at the hearing. Mr Soroush gave evidence, which the Tribunal accepts, to the effect that the exchange rate for tomans can fluctuate dramatically from one day to the next and that it is a “weak” currency.[57] No evidence was tendered by the Minister to refute this assertion.
[57] Refer Applicant’s Post-Hearing Submission at page 1.
The Tribunal takes into account the context in which Mr Soroush provided those estimates, namely, he was doing his best to recall details about events that took place over a decade ago and was doing so on the spot during questioning at the hearing. In that context, the scale of the numerical discrepancy in the information provided by Mr Soroush, as identified by the Respondent, was relatively minor and the Tribunal regards it to be within an acceptable margin for error. The Tribunal considers that to take any other approach, in the circumstances, would be pedantic. Further, Mr Soroush expressed that when he was giving evidence at the hearing, and making his written statement, that he was only providing estimates, as to what he believed to be the case. For these reasons, the Tribunal does not consider that this is sufficient reason upon which to conclude that the Tribunal cannot be satisfied as to this aspect of Mr Soroush’s life story.
Account given about passage through security check points at airport in Tehran
The Tribunal has considered the Minister’s further submission that Mr Soroush’s account about how he passed through the security checkpoints at the Tehran airport was implausible, based on country information in relation to security at Tehran airport.[58]
[58] Refer Minister’s SFIC at [47] and [48].
Mr He questioned Mr Soroush at length at the hearing about the details of his passage through the airport in Tehran when he departed Iran. The Tribunal notes that the country information produced, does not rule out the possibility that bribery might occur in Iran or at its airports. Mr He asserted Mr Soroush had not mentioned at any time before this proceeding, that a bribery may have occurred to allow him to get through the security checks at the airport.[59] However, the Tribunal does not accept this criticism of Mr Soroush because when Mr Soroush had first arrived in Australia in 2010, he disclosed that he had paid a fee to smugglers to facilitate his passage to Australia.[60] The Minister has accepted that based on information available to it and which it produced to the Tribunal, bribery may occur at the airport in Tehran from which Mr Soroush departed Iran, even if it was likely to be difficult. The Tribunal does not consider the Minister’s submission as referred in the paragraph above, to be sufficient to create doubt in the mind of this Tribunal as to the veracity of the account given by Mr Soroush as to the circumstances by which he passed through customs and the security check points at the airport in Tehran and departed Iran.
[59] Refer Transcript Day 3 at P-66.
[60] For references to past disclosures by Mr Soroush, see T1/16, 17 & 26; T4/68 and T13/312, 313.
The Tribunal does not accept the further contention by the Minister that it is likely that Mr Soroush used a genuine passport at the airport in Tehran to depart Iran and that therefore, he possessed an identity document (that is, the passport) which he was able to and should produce to the Tribunal. The Tribunal is not satisfied that there is sufficient evidence to conclude that Mr Soroush held or holds a genuine passport which he has failed to produce to the Minister or the Tribunal, or that Mr Soroush’s account of having departed Iran by the assistance of the Smuggler and the Agent was false.
On the balance of probabilities, the Tribunal finds that Mr Soroush departed Iran in the way he described in his Statement and at the hearing.
Other inconsistences raised in Minister’s SFIC
Mr Soroush was not questioned about many of the matters raised in the Minister’s SFIC in relation to which the Minister contends the Tribunal should not be satisfied as to Mr Soroush’s identity.
Specifically, at the hearing Mr Soroush was not questioned about the contention made by the Minister in the Minister’s SFIC that Mr Soroush had given an answer previously that there was no compulsory military service in Iran, in circumstances where country information revealed that there is compulsory military service in Iran. It was not put to Mr Soroush at the hearing why he had previously given this answer, nor was he questioned about the circumstances of completing this form in May 2010. There may have been an explanation for why this question was answered in the negative, given that in May 2010 Mr Soroush had only just arrived in an English-speaking country. The form shows that he was assisted by an interpreter. However, it also apparent from the form that another person by the name of Miss Leigh Holland from a law firm/registered migration agent had assisted Mr Soroush to complete the form.[61] It is not known whether she, and not Mr Soroush, may have answered the question about compulsory military service in Iran, or the extent (fi any) she had discussed this question and answer with Mr Soroush.
[61] Refer T-Documents T13/329.
Further, Mr Soroush was not questioned during cross-examination about why he had provided approximations as to the years of birth of his parents in 2010 and subsequently, in 2017, he was able to provide specifics dates of birth, as referred to in [62] of the Minister’s SFIC. Again, there may have been an explanation for this, but those contentions were not put to Mr Soroush at the hearing.
There are many unknowns with respect to the contentions about inconsistences in the Minister’s SFIC which were not put to Mr Soroush during the hearing. The Tribunal found the evidence of Mr Soroush, Arzhang and Ashkan to be more compelling than the contentions raised by the Minister, some of them ventilated at the hearing (and many not), about the inconsistences in the accounts of Mr Soroush’s life story given at different times. Upon hearing Mr Soroush’s oral evidence and comparing that evidence against his previous “life story” accounts provided in earlier years, the Tribunal is not satisfied that the minor inconsistences that have been raised by the Minister are sufficient to create doubt in the mind of the Tribunal as Mr Soroush’s “life story”.
Consideration of third pillar and efforts made to obtain primary and secondary identity evidence

The Tribunal accepts Mr Soroush’s account of his life story as given at the hearing and in Mr Soroush’s Statement, as corroborated by the evidence of Arzhang and Ashkan. The Tribunal considers that Mr Soroush provided plausible explanations as to why he was not in a position to provide identification documents given his illegal status, life history, and the illegitimate circumstances of his passage from Iran to Australia as a refugee seeking asylum.
The Tribunal was satisfied that by the end of the hearing of this application, Mr Soroush and Arzhang, as his personal representative, had all taken reasonable steps available to them to obtain secondary identification documents from Iran relating to Mr Soroush, to support his application for Australian citizenship, even though their searches for corroborating documents did not yield results. The Tribunal is satisfied with Mr Soroush’s explanations as to why their efforts were unsuccessful. For this reason, the Tribunal does not accept the Minister’s contention as set out in paragraph [‎‎22(f)] of these Reasons for Decision.
At the end of the hearing, Mr He, on behalf of the Minister, submitted that three pillars must be considered when assessing one’s identity: biometrics, documents, and the person’s life story. The Minister submitted that Mr Soroush was unable to provide any documentation in relation to the first two pillars being biometrics and documents. For the reasons set out in paragraphs [18] to [20] of these Reasons for Decision, the Tribunal has placed greater emphasis on the third pillar in assessing the identity claimed by Mr Soroush.
In relation to this third “life story” pillar, the Minister submits that the information provided by Mr Soroush was provided by way of his own statement and three other witnesses, two of whom gave evidence at the hearing. The Minister submitted that Mr Soroush had lived in Iran for 26 years before leaving the country and by his own evidence, did not have any identification during this time. It was submitted that it was “very unlikely that Mr Soroush did not try to make every effort to obtain some form of identification” in circumstances where his father decided to leave Tehran because he did not have any identification.[62]
[62] Refer Transcript Day 3 at P-26.
The Tribunal does not accept the Minister’s submission in this regard and considers that Mr Soroush’s and his parents’ circumstances were very different. By living with Aziz, Mr Soroush, unlike his parents, had learnt to speak in a different dialect to the dialect spoken by his parents, and he did so during his formative years, which would have made it easier for Mr Soroush to live in Tehran without coming to the notice of the authorities. Further, Mr Soroush was raised by an Iranian National who was able to act as his guardian or protector while he was raised and lived in Tehran without any identification documents. Once Aziz passed away, Mr Soroush considered that he would not be able to continue living in Iran, being his stated reason for departing Iran. Mr Soroush gave evidence about the arrangements made for him during his life in Iran, through the efforts of Aziz and Sharif, to participate in educational and employment pursuits, unofficially, without the need for him to hold identification papers. In those circumstances, the Tribunal does not agree with the basis upon which the Minister submits that it was unlikely that Mr Soroush did not obtain identification documents during the period he lived in Tehran.
The Minister highlights that Mr Soroush was unable to provide any documentation about his schooling, employment, and rental history. This was dealt with comprehensively in Mr Soroush’s Statement and in oral evidence at the hearing, as addressed above in paragraphs [‎44], [‎52] and [59] in relation to his education; paragraphs [‎‎38], [39], [59] and [64] in relation to his employment; and paragraphs [58], [59] and [65] in relation to his rental history. Much of Mr Soroush’s explanations as to why he did not hold such documentation and his evidence describing the extensive efforts he went to obtain such documentation, was not challenged as to its veracity or accuracy by Mr He at the hearing. The evidence given by Mr Soroush about his enquiries to obtain information from his primary/middle school, high school, and the Department of Education branch office, was consistent with the oral evidence given by Mr Arzhang as to the enquires that he had made, on Mr Soroush’s behalf, with those various entities.
The Tribunal considers that the explanation proffered by Mr Soroush as to why he departed Iran without any documentation was feasible given the accounts provided by Mr Soroush at paragraphs [40] to [43], and [59], which the Tribunal accepts. The Tribunal accepts Mr Soroush’s evidence that he participated in educational and employment pursuits during his life in Tehran on an unofficial basis, under the guardianship of Aziz (and with the assistance of Sharif). For this reason, the Tribunal is satisfied that there would not exist any contemporaneous official documents relating to Mr Soroush as generated when he was born, or by his two schools or his past employers that he could produce to confirm details of his birthplace, schooling, or past employment.
Further, the Tribunal is not surprised about the lack of success of Mr Soroush and Arzhang in their pursuits to obtain verifying information from Mr Soroush’s two schools or the Department of Education, on account of the significant passage of time, the relocation of one of his schools, and the apparent reluctance by the schools and the Department to assist Mr Soroush when he was unable to attend the school or Department in person to make those enquiries. Even if he had done so, the Tribunal accepts the evidence given that Mr Soroush and Arzhang were informed of the school (and departmental) policy, against providing such documentary information in relation to students who did not have identification documents and were not officially registered as students.
In terms of rental documentation, Mr Soroush was not a party to any rental agreement in Tehran. The Tribunal accepts Mr Soroush’s evidence that he made efforts through Arzhang to contact to the landlord and could not do so, for reasons beyond their control, as outlined in paragraph [65].
CONCLUSION
Despite the absence of any primary or secondary identification documents pre-dating Mr Soroush’s arrival in Australia in 2010, the Tribunal is satisfied as to Mr Soroush’s identity. This satisfaction is based on the accounts of his life story given in Mr Soroush’s Statement and at the hearing, and his explanations as to why he did not possess identification documents pre-dating 2010. The account of Mr Soroush’s life story was corroborated by Arzhang’s and Ashkan’s Statements and the oral evidence they gave at the hearing, which the Tribunal accepts. Arzhang and Ashkan provided indisputable evidence to verify their identity and the Tribunal was able to identify those two individuals at the video hearing and made comparisons with the Iranian identification documents showing their photographs. The Tribunal has accepted the evidence of Mr Soroush.
The Tribunal has considered the Minister’s contentions as to why the Tribunal should not be satisfied as to Mr Soroush’s identity, as set out above in these Reasons for Decision, but does not accept those contentions. The Tribunal carefully compared the various accounts given by Mr Soroush about his life story at various times over the years (including his earlier accounts as contained in the T-Documents, as highlighted in the Minister’s SFIC). The Tribunal does not agree that there were inconsistencies in Mr Soroush’s life story sufficient to create doubt about the veracity of the accounts of Mr Soroush’s life story.
Accordingly, based on the evidence given by Mr Soroush, Arzhang and Ashkan, the Tribunal is satisfied as to Mr Soroush’s identity. The Tribunal sets aside the Decision Under Review and remits it for reconsideration with a direction that approval of Ms Soroush’s citizenship application is not prohibited under s 24(3) of the Citizenship Act.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

......................[Sgd]..........................
Associate
Dated: 14 January 2022

Date of hearing:

Date last submission lodged:

Representative for the Applicant:

5 March 2021, 16 & 17 June 2021

2 August 2021

Self-represented

Advocate for the Respondent:

Mr Zeng He

Solicitors for the Respondent:

Clayton Utz

[2022] AATA 41

14 January 2022

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

*Three pillars of identity*	*Individual characteristics*
*Biometrics*	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.
*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. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
*Life Story*	A person’s life story is a narrative of the events that happened to them from birth to the present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.