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

Taei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4728 (26 November 2020)
Division:GENERAL DIVISION
File Number: 2019/7134
Re:Mohammad Taei
APPLICANT

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

DECISION
Tribunal:Deputy President J Sosso
Date:26 November 2020
Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter to the Minister with a direction that the Minister is satisfied of the identity of the Applicant for the purposes of s 24(3) of the Australian Citizenship Act 2007 (Cth).
....................................[SGD]....................................
Deputy President J Sosso
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – whether Applicant’s identity satisfied under s 24 of the Australian Citizenship Act 2007 (Cth) – decision under review set aside and remitted – direction that Minister is to be satisfied of Applicant’s identity
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Iraqi National Law (No 26 of 2006)
CASES
Al-Hussani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v Minister for Immigration and Border Protection [2018] FCA 1229
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
SECONDARY MATERIALS
Christian Science Monitor, “How Iranian dissidents slip through Tehran’s airport dragnet” Article, 8 February 2010
Citizenship Policy Instructions, 19 April 2019
Department of Foreign Affairs and Trade, COUNTRY INFORMATION REPORT IRAQ, 17 August 2019
Department of Foreign Affairs and Trade, COUNTRY INFORMATION REPORT IRAQ, October 2018
Department of Foreign Affairs and Trade, ‘Exit procedures from Iranian airports’ Report, May 2015
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
Danish Immigration Service, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc’ Report, 30 April 2009
Immigration and Refugee Board of Canada, ‘Iraq: Requirements and procedures to obtain a passport from within and outside of Iraq, including procedures to obtain a passport for youth, women, and Bahais; length of time to issue passports; features of the new A-series passport; validity of the G-, S-, H-, M-, and N-series passports’ Report, 23 December 2011
Landinfo, ‘Iraq: Travel documents and other identity documents’ Report, 16 December 2015
National Identity Proofing Guidelines 2016
REASONS FOR DECISION
Deputy President J Sosso
26 November 2020
INTRODUCTION

In November 2015 Mr Mohammad Taei (the Applicant) applied under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act) for conferral of Australian citizenship – Exhibit 1 T4 pp. 151 – 169. The Applicant claimed that he did not hold, and had never held, citizenship of any country.
On 23 October 2019 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) refused the Applicant’s application – Exhibit 1 T2 pp. 13 – 19. The delegate was not satisfied of the Applicant’s identity pursuant to s 24(3) of the Act. Subsection 24(3) provides:
“(3) Identity The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.”
It is not disputed that the Applicant was born in Yazd, Iran in 1983 – Exhibit 1 T4 p. 151. It is also not disputed that the Applicant arrived in Australia on 17 November 2010 as an Irregular Maritime Arrival – Exhibit 2 T10 p. 231. On 16 February 2011 the then Department of Immigration and Citizenship found the Applicant (referred to as Mohammad Heywari) to be refugee as defined by the “Refugees Convention” – Exhibit 2 ST7 p. 497.
On 11 July 2011 the Applicant (under the name of Mohammad Heywari) applied for a Protection (Class XA) visa – Exhibit 2 ST7 pp. 433 – 484. The Applicant claimed that he was born stateless and held no other citizenship – Exhibit 2 ST7 p. 454.
The Applicant testified that when his family moved to Iran from Iraq the Iranian Government forced Faili Kurdish refugees to change their surname to an Iranian surname. His father changed the family name from Taei to Heywari. Subsequently the Applicant’s father attempted to revert back to the surname Taei, but this was rejected by the Iranian authorities – Transcript (Tr.) 24.9.2020 p. 23.
After arriving in Australia the Applicant changed his surname from Heywari to Taei – Tr. 24.9.2020 p. 24.
The Applicant is ethnically a Faili Kurd (also spelt “Feyli”). Historically Faili Kurds inhabited both sides of the Zagros Mountain Range in both Iraq and Iran. The Department of Foreign Affairs and Trade (DFAT) in the DFAT COUNTRY INFORMATION REPORT IRAQ dated 17 August 2020 (“DFAT Country Report”) estimated that approximately 1.5 million Faili Kurds live in Iraq, speak a distinct dialect of the Kurdish language and follow Shia Islam (para 3.8).
Faili Kurds have been the subject of persecution in Iraq. Following the second Ba’ath Party coup in 1968, the Iraqi Government commenced large scale deportation of Faili Kurds from Iraq to Iran. Further deportations followed the 1979 Iranian Revolution. The DFAT Country Report estimates that between 150,000 and 500,000 Faili Kurds were deported to Iran following the Iranian Revolution – (para 3.9).
State-sanctioned persecution of Faili Kurds ceased after the regime of Saddam Hussein was deposed. The Preamble to the Iraqi Constitution recognises the Faili Kurds as victims of oppression and massacres. The DFAT Country Report also contains the following information (paras 3.10 – 3.11):
“3.10…The Iraqi Nationality Law (2006) established the right to regain Iraqi nationality for those previously denationalised on political, religious or ethnic grounds, and many Faili Kurds have been able to have their Iraqi nationality reinstated. However, the process of reinstatement is reportedly slow and bureaucratic, sometimes taking years to complete, an often requiring applicants to pay bribes to officials. Moreover, the documentary requirements are onerous, requiring the applicants to provide a copy of their registration from the 1957 census, among other documents that many Faili Kurds are unlikely to possess. While the Iraqi government claims that 97 per cent of expelled Faili Kurds have regained citizenship, community activists claim thousands of families remain stateless.
3.11 Without nationality documents, Faili Kurds cannot access public services such as education and health care. They are also unable to obtain other documents such as birth, death and marriage certificates…Faili Kurds who have managed to obtain nationality documents have reported that the identity cards issued are a different colour than those of other Iraqis, or show them as citizens of ‘Iranian origin’, which could open them up for discrimination. Reportedly, Faili Kurd files and records are still being kept in the foreigners’ section of the General Nationality Directorate. Some community members have reported facing insults, harassment and humiliation when visiting government offices.”
THE APPLICANT’S BACKGROUND
On 1 December 2010 the Applicant was interviewed on Christmas Island by an officer of the then Department of Immigration and Citizenship – Exhibit 5 Annexure A. The information set out below is taken from that interview.
The Applicant confirmed that he was born in July 1983 in Yazd, Iran, was of Faili Kurd ancestry and was living in Yazd before leaving Iran for Australia – Lines 106 – 150. The Applicant told the officer that he had lived in Yazd all of his life and provided three addresses in Yazd where he lived at various times – Lines 130 – 220.
The Applicant informed the officer that he was a Shia Moslem, was not engaged, was not married, had never been married and had no children – Lines 435 – 470. The Applicant’s father was born in 1950 and died when the Applicant was 19 years old (Line 376). His mother (Sadieh Showhani) was born in 1953 and in 2010 was living in Yazd – Lines 475 – 510. Although it not clear, it appears that the Applicant’s father died whilst he was at work and his family received compensation after his death, but only 10% of his legal entitlement – Lines 985 – 1010.
In a Statutory Declaration dated 30 September 2019, the Applicant deposed that his father was born in Kut, and his mother in Hay, both of which cities are located in Wasit Province of Iraq – Exhibit 1 T6 p. 223.
The Applicant’s mother died in Yazd in July 2016 – Exhibit 1 T6 pp. 198 – 199.
The Applicant stated that he had two sisters (Sawad and Miad) and three brothers Yos (also known as Yaas), Adel and Haidar – Lines 515 - 580.
According to the Applicant, his parents were removed from Iraq by the Iraqi Government in 1978 or 1979 and forced to travel to Iran – Lines 745 - 755.
The Applicant’s education was relatively brief. He told the officer that he attended primary school for seven or eight years, middle school for only one year and he left for the workforce when he was 16 or 17 years of age – Lines 335 – 375.
In 2003, after leaving school, the Applicant started working for a computer company and from approximately 2008 was employed as a stonemason – Lines 385 – 430.
The Applicant denied that either he or any members of his family had been involved in any political activity in Iran or been associated with, or involved with, any activities or protests against the Government. He also denied in being involved with any armed groups or religious groups or having ever been arrested or detained by the police or a security organisation – Lines 1105 – 1155.
Iran has a policy of issuing various identity documents to non-citizens. Amongst those documents are “Green” and “White” Cards. White Cards give the holder more rights, including the ability to work and go to school, than those holding a Green Card. The Applicant informed the officer that he couldn’t do anything in Iran and was prohibited from going on a holiday or leaving the country without seeking permission. Further, the Applicant stated that he was unable to open a bank account. He also stated that the White and Green Cards identified the holder as being a foreign resident – Lines 710 – 735 and 965.
The Applicant informed the officer that he held a White Card which was issued in Yazd, but the card was taken from him when he departed Iran from Imam Khomeini Airport – Lines 220 – 235. Nonetheless, the Applicant had taken copies of his family’s identification material, including information pertaining to his mother, aunt, and brothers and sisters – Lines 235 – 245.
The Applicant informed the officer that prior to holding a White Card he held a Green Card, which was also issued in Yazd – Lines 295 – 315.
In response to questioning by the officer, the Applicant said:
(a)prior to leaving for Australia, he had never travelled outside of Iran – Lines 675 – 680;
(b)he had never lived more than one month in any country outside of Iran – Lines 680 – 685;
(c)he had never had contact with the United Nations High Commissioner for Refugees – Lines 685 – 690;
(d)he decided to leave Iran because of ongoing persecution involving;
(i)not being eligible for government subsidies that were given to Iranian citizens – Lines 775 – 805;
(ii)being discriminated against by the Police and during legal proceedings – Lines 805 – 840;
(iii)not being able to obtain a motorbike driver’s licence – Lines 840 – 845;
(iv)being discriminated against by the Government in obtaining employment and being forced to work illegally – Lines 900 – 925;
(v)one of his sisters being denied attendance at a government university because she was a foreign resident and being forced to attend a private university some distance from her family – Lines 1020 – 1035;
(vi)being constantly discriminated against because of his ethnicity. From primary school the Applicant had problems with people calling him “Arab, Arab” and he was in general “fed up” – Lines 1070 -1090.
The Applicant started making arrangements to travel to Australia in July 2010 – Lines 1180 - 1185.
According to the Applicant his friends gave him the telephone number of a man named “Ali” who made false passports. Contact was made with Ali in Tehran and the Applicant told him that he wanted to travel to Australia. Ali then informed the Applicant that he would make him an Iraqi passport – Lines 1195 – 1265. The Applicant paid Ali US$700 for the passport and he informed the officer that it was a Green colour – Lines 1635 – 1640, Lines 1684 - 1685. The Applicant reported that the Iraqi passport had his name and photo, his date of birth and had many stamps – Lines 1705 – 1715.
In October 2010 the Applicant flew from Imam Khomeini Airport, Tehran to Kuala Lumpur, Malaysia, on Iran Air – Lines 1270 – 1310, 1490 – 1505. According to the Applicant he travelled alone – Lines 1660 – 1665.
On arrival at Kuala Lumpur the Applicant was met by a man holding a placard with his name. The Applicant then was placed in a taxi and taken to a hotel where he stayed for 14 days – Lines 1325 – 1350.
Whilst in Kuala Lumpur the Applicant was provided with a false United Arab Emirates passport and a SIM card. After 14 days, the Applicant was taken to Kuala Lumpur International Airport. The following exchange is recorded – Lines 1410 - 1420:
“Mr Taei:  We go to exit and then we have to show the Iraqian pass.
Immigration Officer:    Yes.
Mr Taei:And then when they put the stamp and then they allow you to leave and then you have to change your passport.
Immigration Officer:    Yep.
Mr Taei:And when I arrived at the airport I showed the other passport in Malaysia.”
The Applicant flew from Malaysia to Jakarta, Indonesia, and was again met at the Airport and taken to an apartment where he remained for approximately 10 days – Lines 1425 - 1530.
The Applicant remained at his apartment until he was met by a people smuggler one afternoon who took his cash and both passports. At approximately 6pm that day another person visited the Applicant and drove him to a boat. The car trip took approximately two hours – Lines 1520 – 1565.
According to the Applicant he and other persons were transported by a small boat to a larger boat which took approximately 15 minutes. The Applicant was on the larger boat for 3 days and arrived at Christmas Island on 17 November 2010 – Lines 1765 - 1770.
The Applicant said that the total cost of his travel arrangements to Australia was US$11,000 and that he paid the people smugglers in Malaysia US$4000 and US$6000 to the Indonesian people smugglers – Lines 1590 – 1620.
In his application for a Protection (Class XA) visa dated 11 July 2011, the Applicant enclosed a Statement of Claims dated 23 January 2011 – Exhibit 2 ST7 pp. 481 – 484.
The Applicant outlined at length the discrimination he suffered whilst living in Iran, including his unhappy educational experiences, his inability to find legitimate employment, obtain a drivers licence, get married, open a bank account or to travel within Iran and being discriminated against in court proceedings for compensation – Exhibit 2 ST7 pp. 481 – 482.
In addition, the Applicant made the following statements – Exhibit 2 ST7 pp. 482 – 483:
“When I departed Iran via the International Airport on a false passport, I had to give my white card to the authorities at the airport. They probably new that my passport was false but they allowed me to go because they want to get rid of all Faili Kurds in Iran…
I have no means of returning to Iran because my only source of ID was taken at the airport as I departed.
Iran is not my country and I do not have a right of entry into any other country. Why should they even allow me back?
If they do allow me back there I will face serious harm and persecution which would be far worse than before.
They will put me in jail without any legal representation. I would probably rot in jail for the rest of my life….
The Iranian government authorities at the airport would be first to persecute me. The secret police would be the next party interested in me…
I do not belong in Iran. I have not citizenship rights in Iran…
They will not protect me because I am a stateless Faili Kurd. I am not an Iranian citizen…
It would be impossible and unreasonable and/or impracticable to relocate. I will not be allowed to enter Iran. As a Stateless Faili Kurd I do not have the freedom to relocate to any other city in Iran. My white card restricted me to Yazd (not valid to used in any other province). I am not allowed to leave the Country legally based on the fact that I cannot have a passport due to my ethnicity.”
DEPARTMENTAL INVESTIGATIONS OF THE APPLICANT
On 5 September 2019 an officer of the Department of Home Affairs (the Department) wrote to the Applicant outlining various concerns about his citizenship application – Exhibit 1 T5 pp. 171 – 177.
The concerns which were raised are set out below – Exhibit 1 T5 pp. 172 – 173:
“Departmental information suggests that you have relatives in Australia who have provided evidence of their Iraqi citizenship. The Department has conducted further investigations to confirm their Iraqi nationality. These checks have confirmed that one of your uncles (i.e. a brother of your mother) was an Iraqi citizen. This indicates that you are also an Iraqi citizen, as your mother would have acquired Iraqi citizenship in the same manner as her brother, and in turn has afforded it to you. According to open sources information, this means you have the right to obtain documents from the Iraqi authorities to prove your identity, marital status and Iraqi citizenship, as according to Iraq’s Nationality Law (Law No. 26 of 2006), anyone born to an Iraqi mother or father is an Iraqi national.
The Department has also information to suggest that you and your brother travelled to Iraq by land and obtained Iraqi passports in Iraq, then returned to Iran before you and other family members departed Iran legally through Tehran Airport. This information further suggests that you had Iraqi passport in your possession when you departed Iran for Australia.
In the context of the strict and reliable processes that exist in Iran around departures via International airports, you have provided no plausible explanation about your means and manner of exiting from Iran, including details about your conduct at the Airport in order to bypass these strict controls. Based on the above information and having examined your claims, I find it is more likely that you have departed Iran on a genuine Iraqi passport genuinely issued to you in your true identity.
Based on Departmental information held with regards to your nationality, it is now the Department’s position that you are not a Stateless person as previously claimed, and that you have made a number of false and misleading claims to attempt to conceal this fact. This raises significant character and identity concerns with regards to you.”
The Applicant provided the Department with a Statutory Declaration dated 30 September 2019 in which he responded to the above analysis – Exhibit 1 T6 pp. 223 – 224.
The Applicant deposed that he was a stateless person, had never been into Iraq, and, in particular, had never travelled to Iraq with his brother. He deposed that he departed Iran on a false passport and he was allowed to leave because the Iranian authorities wanted to rid themselves of all Faili Kurds – Exhibit 1 p. 223 paras 1, 4 and 5. With respect to his Australian relatives, the Applicant provided the following response – Exhibit 1 p. 223 para 5:
“In relation to your letter dated 5-9-2019, in which you referred to an information that you have in relation to my relatives in Australia, you suggested that I have a maternal uncle who was an Iraqi citizen, I confirm that this information is incorrect, because I don’t have an Iraqi maternal uncle, my relatives in Australia are distant relatives who are not directly linked to me, accordingly, if the source of information that you have is related to my distant relatives in Australia then their situation is not applicable to me, my parents never have an Iraqi citizenship, as a result I don’t have any Iraqi citizenship, I never travelled outside of Iran at all, I never applied for any citizenship in any country.”

On 17 December 2017, an Integrity Officer with the Department stationed at the Australian Embassy in Tehran made telephone contact with the Applicant’s brother, Mr Yaas Heywari – Exhibit 2 ST5 pp. 361 – 362. The purpose of the phone call was to verify details in documents provided and general information about the Applicant. The Integrity Officer noted that Mr Heywari was initially not cooperative and gave evasive responses.
Mr Heywari confirmed that his family had been expelled from Iraq and had not been provided with Iraqi official documentation to prove Iraqi nationality. He also stated that his family was living in Iran legally as refugees.
After further questioning, Mr Heywari gave the following information about his family – Exhibit 2 ST5 pp. 361 – 362):
“Mr Yaas HEYWARI was questioned about his family in A/a but he was not keen to answer. Anyway, after 20 minutes phone conversation and when he noted I am ware of his family in A/a he confirmed he has got two brothers in A/a (Adel and Mohammad). He said both Adel and Mohammad were residing legally in Iran as a refugee. He said they were registered with BAFIA [the Iranian Bureau of Alien and Foreign Immigrants] as an Iraqi national and had Amayesh Card/refugee card. He said Adel had his own business (making pillow and mattress) and mohammad worked with Yaas (stone seller). Mr HEYWARI confirmed both Adel and Mohammad travelled to Iraq by land and obtained their Iraqi passports in Iraq and then returned to Iran. He didn’t know if they had Iranian visa upon their return to Iran but he confirmed both departed Iran legally through Tehran Airport and then arrived in Australia.
Mr Yaas HEYWARI said his brothers identified themselves as stateless to Australian government but in fact they had Iraqi passport when departed Iran to Australia.
Mr Yaas HEYWARI refused to provide further information and requested a favourable decision to be made on his brothers application.”
The Applicant made a further Statutory Declaration dated 16 June 2020 wherein, inter alia, he responded to the information provided by Mr Yaas Heywari – Exhibit 4.
The following information was provided by the Applicant about his relationship with his brother Yaas and the remainder of his family – Exhibit 4:
“4. I confirm that the IDBS conclusions about my Iraqi citizenship was based on the wrong information that was provided by my brother Yaas, I confirm that Yaas said what he said about me being an Iraqi citizen with the intention of damaging my future in Australia, because I do have family problems with Yaas, I Confirm that my brother Yaas is drug addict and have mental problems, Yaas constantly requested that me and Adel send him money to iran, but me and Adel refused to do so because we did not wan’t to feed his addiction on drugs, me and Adel knew that if we to send him money then he will use it to buy more drugs from the streets, therefore Yaas was very angry with us and threatened us many times over the phone, our relationship with Yaas stopped in 2015 completely.
5. I confirm that I do have family problems with the rest of my family members including Adel, that is why I opted not to join the two matters before the AAT, the rest of my family members hated me because they think that I did not want to help them or yaas financially.
6. I was never told by any of my family members about the call between the departmental officer in Tehran and Yaas, however, I assume that such contact was made and I believe that Yaas stated that we were Iraqi citizens out of revenge due to his mental issues and drug addicitons.
7. I believe that Yaas’s statement to the departmental officer in Tehran was with the intention of harming me and adel because we did not send him money, nothing more, nothing less.”
RESPONDENT’S CONTENTIONS
In summary, the Respondent contends Respondent’s Statement of Facts, Issues and Contentions (RSFIC) para 27, Respondent’s Final Closing Submissions (RFCS) paras 3 - 15 that the Tribunal cannot be satisfied of the Applicant’s claimed identity when regard is had to his life story, in particular:
(a)the Applicant’s claims of statelessness is inconsistent with the information received by the Respondent and his family composition;
(b)the Applicant has provided an implausible explanation of his journey to Australia, particularly his passage from Imam Khomeini Airport;
(c)the Applicant’s evidence of how he raised $US 11,000 to travel to Australia should not be accepted as this evidence is highly unlikely; and
(d)the Applicant’s evidence on how he obtained and used his false passport is not plausible and should not be accepted.
THE HEARING
A Hearing was convened in Brisbane on 24 September 2020. The Applicant was represented by Mr. A Alkafaji and the Respondent by Ms J Liang.
The Hearing was conducted by means of Microsoft Teams. The Tribunal was assisted by Mr Dassiri, a Persian speaking interpreter.
The only person called to give evidence was the Applicant.
CONSIDERATION
1(a) Introduction – Legal Overview
Division 2 of Part 2 of the Act deals with the acquisition of Australian citizenship by application. Subdivision B of Division 2 deals with citizenship by conferral. Pursuant to s 21 a person may make application to the Minister to become an Australian citizen. General eligibility requirements are outlined in s 21(2) and more specific requirements are outlined in other subsections.
Importantly, as previously noted, s 24(3) provides that citizenship cannot be approved unless the Minister is satisfied of the identity of the applicant.
The Explanatory Memorandum circulated with the Australian Citizenship Bill 2005, which subsequently became the Act, outlines the task required by the Minister in making a decision as to identity:
“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.”
“Identity” is not defined by the Act, but guidance is provided by the Australian Citizenship Policy and the National Identity Proofing Guidelines.
It will be noted that s 24(3) has been drafted in a manner that places, in effect, a prohibition on the Minister approving citizenship unless the Minister is satisfied of the identity of the applicant. In short, the issue of identity is a fundamental threshold issue that must be dealt with before other issues, such as character, can be addressed.
It will also be noted that the Minister must be “satisfied” of the identity of the applicant. The Respondent drew the Tribunal’s attention to the decision of Senior Member Morris in Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579. After referring to this requirement and quoting Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, Senior Member Morris made the following observations:
“56. Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges…”
The Respondent also drew the Tribunal’s attention to a passage in the recent decision of Al-Hussani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267. Senior Member Puplick, in a very comprehensive decision, made the following observations:
“99. On the evidence before it, it is not possible for the Tribunal to come to a definitive conclusion on all those questions, although it does find that the First Applicant was married to Mohammed Ali by way of a sigheh arrangement.
100. The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts…
102. However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which odes not potentially compromise the integrity of the citizenship process.
103. What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.”
The Tribunal accepts, as the Respondent contends, that where there are doubts as to an applicant’s identity, citizenship cannot be approved. However, each case has to be determined on the evidence presented. I do not read Senior Member Puplick as saying that if there are any doubts then a citizenship application would fail on the basis of identity. Rather, I understand him saying that where are sufficient doubts such that a definitive determination cannot be made, then an application must fail.
Assessing identity under the Act where an applicant has come from troubled and unstable circumstances can be difficult and much will depend on issues of credit. Where an applicant has given evidence on identity matters which the Tribunal finds unconvincing, then a negative finding would usually follow – CDNB and Minister for Immigration and Border Protection [2018] AATA 757.
Often it will be the case that an applicant in such circumstances may have little or no documentary evidence to support their case. The absence of documentary evidence is not fatal to proving identity, however if an applicant has not chosen to avail themselves of contemporary opportunities on arrival in Australia of obtaining such evidence, it may result in the Tribunal making adverse findings.
What is critical in each case is whether an applicant has provided to the relevant Australian authorities a consistent life story. It is of central importance in ascertaining identity whether an applicant has provided consistent and cogent information of their time and place of birth, their ethnicity, the composition of their family, their schooling, work history, medical care, raising of funds, travel information and any other matters that are of relevance.
In this matter some key characteristics of the Applicant that distinguish him and help establish his identity have not been the subject of dispute, namely:
(a)his place of birth (Yazd, Iran);
(b)his date of birth (July 1983);
(c)the name by which he was first known (Mohammad Heywari);
(d)the identity of his parents;
(e)the identity of his siblings;
(f)his ethnicity (Faili Kurd).
1(b) Citizenship Policy Instructions
The Department has issued Citizenship Policy Instructions (CPI) which, in Chapter 16, provide guidance in relation to assessing identity under the Act. The Tribunal has on numerous occasions has had regard to the CPI, unless there was a cogent reason not to: see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267 at [15] – [16].
Nonetheless, the CPI does not have the force of law, and the Tribunal Is not bound by government policy – Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28]. The CPI is an aid to assist the Tribunal in reaching the correct or preferable decision. Her Honour Justice Mortimer succinctly summed the matter when she observed in G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210):
“…policy is not to become the rule of law. The statue is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”
When assessing identity, the CPI prescribes an evidence based approach which is based on a combination of three elements, which are referred to at the three pillars of identity; namely, biometrics, documents and life story. The CPI states that reliance should not be placed on a single pillar to establish a person’s identity, and consideration should be given to every pillar. Nonetheless the CPI recognise that in some cases one pillar may be given more weight than others, and one example given is where an applicant claims that they are stateless and therefore undocumented. In such cases the life story pillar may become more significant when assessing that applicant’s identity.
The relevant part of the CPI is set out at length below:
“4.4 Three pillars of identity
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
Table 3 – The three pillars of identity

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 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.

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…
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek to establish a person’s identity from birth using an evidence-based approach. It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
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’…
However, in some complex cases, sketching the person’s identity timeline, as per the below example, may assist with the assessment or their identity.
When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person’s life story, officers should consider:
·the significance and corresponding weight of the inconsistencies in the broader context of the person’s claimed identity; and
·what further research, or information, is necessary in order to be satisfied.

If it is determined that the inconsistencies are relevant and critical to the identity assessment, the applicant should be provided with natural justice so that they have an opportunity to explain the inconsistencies.”

In this matter, the applicant’s claim he is stateless has resulted in importance being place on his life story. The relevant part of the CPI is set out below:
“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.
Example – corroborating evidence
A citizenship applicant may provide their date of birth in their application for Australian citizenship, however, information pertaining to their life story, such as education or employment history, may not align with their claimed date of birth.
In this example, it would be open to the officer to:
·seek to corroborate the information with the other two pillars of identity, in order to assess why the applicant’s claimed age is not plausible;
·research country information, for example, the school requirements of a child to attend a school in a particular country, or the qualifications/requirements for a specific job;
·request school certificates – keeping in mind that lack of documentary school evidence may be due to the particular country’s record keeping processes, not that the applicant did not attend school.
Officers should then seek to chronologically list the information provided, plotting the information on an identity timeline. This information can then be presented to the applicant, and used to explain whether the applicant’s claimed age is plausible.
Note: corroborating evidence is evidence (documents, photographs) that provide a separate account of the same facts. That is, you have more than one piece of evidence that proves a fact.
The characteristics of a person’s life story can also extend to other events that have occurred in their life. Information and/or documentation pursuant to these life events can be valuable when officers are trying to piece together a person’s identity timeline. For example, where a person fled their country of origin and resided in a country of refuge, officers could seek to determine whether the person was registered with the UNHCR. If they were, it may be possible to verify with the UNHCR the identity the person used at that point in time.
Historic documentary records are invaluable in contributing to a person’s identity timeline and their life story. Examining historical information will enable officers to identify whether information has remained consistent throughout the individual’s life from birth to present.
The characteristics of a person’s life story are very broad and cover everything about a person. In cases where there are gaps in a person’s life story, officers may need to identify corresponding events/characteristic of the person’s life story and request evidence from the applicant to fill the gap…
There may be cases where one pillar may be given more weight than the others. For example, cases where 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 credible1 open source country information. This research will enable the officer to test and verify whether the applicant’s claims, relevant to aspects of their life story, are consistent with the situation in a particular country. Credible country information will support and add weight to a decision, and can be cited in the decision record.
Example - undocumented arrival: potential avenues of research where one pillar may be given more weight than the others.
A citizenship application is received from a person claiming:
·they are stateless, undocumented, and are unable to provide any evidence of their identity prior to arriving in Australia as an Illegal Maritime Arrival (IMA);
·they exited their country of residence on a bogus travel document; and
·they previously held an identity card issued to stateless people by the Government of the country they resided in. They do not have the card now.
Issues
·No documentary evidence of the person’s identity from birth to arrival in Australia.
·No biometrics which can be used for comparison purposes.
Potential action
·In order to test the veracity of the above claims and make an informed assessment, it is necessary for the officer to research country information. This research will provide an informed basis on which to assess whether the claims are factually accurate or plausible, and align with country processes.
Country research can include, but is not limited to:
·information contained in the National Identity Toolbox;
·reports obtained from CISNET. CISNET also contains information with regard to a country’s exit procedures;
·information obtained from the relevant Post;
·information from IMtel and NIS.
The officer must then consider, assess, and weigh the country information and evidence provided by the applicant, ensure that natural justice requirements have been met, and make a determination whether they are satisfied of the applicant’s identity. The decision must show the link between the law, facts, clearly explain the reasons they considered and the weight given to the evidence that ultimately led them to reaching their decision…”
1(c) National Identity Proofing Guidelines

The Respondent drew the Tribunal’s attention (Respondent’s Statement of Facts, Issues and Contentions (RSFIC) para 9) to the Commonwealth Attorney-General’s Department National Identity Proofing Guidelines (NIPG) which were issued to strengthen the identity proofing process and increase trust through a standardised and transparent national approach.
Relevantly, para 5.1 of the NIPG establishes that where a person cannot meet the minimum identity requirements, alternative proofing processes may be undertaken, including:
·acceptance of alternative types of identity evidence;
·verification of a person’s claimed identity with a trusted referee whose identity has been verified to an equal or greater level of assurance;
·verification of a person’s claimed identity with reputable organisation or bodies known to them; and
·a detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
1(d) Iraqi Nationality Law
The Respondent also drew the Tribunal’s attention (RSFIC para 18) to the relevant provisions of the Iraqi Nationality Law (No 26 of 2006) (INL) which replaced the Iraqi Nationality Law (No 46 of 1963).
Articles 3 - 5 of the INL provide:
“Article 3
A person shall be considered Iraqi if:
a. he/she is born to an Iraqi father or an Iraqi mother;
b. he/she is born in Iraq to unknown parents. A foundling found in Iraq shall, in the absence of proof to the contrary, be considered to have been born therein.”
Article 4
The Minister may consider Iraqi any person born outside Iraq to an Iraqi mother and an unknown or stateless father, if he chooses the Iraqi nationality, within one year from coming of age (reaching the age of maturity), unless he fails to do so, due to difficult circumstances, provided that he is residing within Iraq at the time of application for the Iraqi nationality.
Article 5
The Minister may consider Iraqi anyone who was born within Iraq to a non-Iraqi father, who was also born in Iraq, had come of age and had been habitually residing therein at the time of child’s birth, provided the child will apply for the Iraqi nationality…”
Article 18 of the INL is of particular relevance to any person of Faili Kurd ethnicity:
“Article 18
I– Any Iraqi, who was denaturalized on political, religious, racist or sectarian grounds, shall have the right to restore his Iraqi nationality, subject to submission of an application to this effect. In case of his death, his children, who have lost their Iraqi nationality consequent to his father’s loss of nationality, shall have the right to submit an application to restore Iraqi nationality.
II– Excluded from the benefit of item I of this Article shall be those Iraqis who had lost their nationality pursuant to Law No. (1) Of 1950 and Law No. (12) of 1952.”
2. Citizenship and statelessness
The Respondent has made a number of submissions that focus on information relating to the Applicant’s family which it is contended contradict the Applicant’s claim that he is stateless. Each of these submissions are discussed below.
2(a) Information provided by Mr Yaas Heywari
The Respondent contends (RSFIC para 28) that the Applicant’s claim that he is stateless is contradicted by the information provided by his brother Mr Yaas Heywari, which was set out previously.
The Applicant was questioned about the information provided by his brother and he gave the following testimony – Tr. 24.9.2020 pp. 24 - 25:
“MR ALKAFAJI: Now, according to the tribunal documents, one of your brothers, Yaas, advised the Department of Immigration, at some point of time, that you are actually an Iraqi citizen, what’s your comments?
INTERPRETER: I have problem with my brother, we don’t have a good relationship, he’s on drugs and he has been knocking on our door a few times and asking for money.
MR ALKAFAJI: Do you know that he was contacted by the Department?
WITNESS: No.
INTERPRETER: We re not talking to each other. I don’t know what he’s doing.
MR ALKAFAJI: He’s your brother, why’s he doing this? Is there a further motivation that – I mean why is he telling lies? He was contacted over the phone and he answered immediately, he said that you are Iraqi citizens, why?
INTERPRETER: He is on drugs and he keeps asking for money, so why should I provide financial help? When I was in Iran I had some problem with him.
MR ALKAFAJI: What kind of problems?
INTERPRETER: Because of his addiction. He’s using drugs, illicit drugs.”
Under cross-examination the Applicant gave this testimony – Tr. 24.9.2020 p. 53:
“MS LIANG: Mr Taei, your brother Yass [sic] has told the department that both you and your brother Adel travelled to Iraq by land and obtained your Iraqi passports in Iraq, and then you returned to Iran. Is that correct?
INTERPRETER: No, I don’t accept this. I could obtain the Iraqi passport why I went to Iraq? Why I couldn’t just go to the Iraqi Embassy, if I had enough documents to apply for a passport?
MS LIANG: Did you try to apply for a passport in an Iraqi Embassy in Iran?
INTERPRETER: How could I apply when I don’t have any evidence to prove by identity?”
The Tribunal accepts that Mr Yaas Heywari was initially reluctant to provide information to the Departmental Officer who contacted him and concluded the interview with a request that a favourable decision be made on his brothers’ applications – Exhibit 2 ST5 p. 361.
Unfortunately, the Tribunal did not have the benefit of observing Mr Yaas Heywari give evidence. Likewise, the Tribunal was only presented with the written notes of the Departmental Officer, as the interview was not recorded.
It is open to the Respondent to contend that one interpretation of the interview is that Yaas Heywari was reluctant to give adverse information to the Departmental Officer, and that his initial reluctance and request for favourable consideration of his brothers applications, is indicative of the fact that he bore them no animus and was simply, albeit reluctantly, telling the truth.
The alternative interpretation, as propounded by the Applicant, is that Yaas Heywari was not telling the truth and was motivated by anger that his brothers refused to provide him with money to pay for his purchase of illicit drugs. The fact that he may have been reluctant to initially cooperate with the Departmental Officer is open to multiple interpretations as is his belated request, after providing damning information, for his brothers to receive favourable consideration.
The Tribunal observed the Applicant give evidence. He provided short and direct responses and, overall, did not attempt to give evasive answers. The Tribunal was generally impressed with the evidence he gave and formed the view, with one caveat, that he was a witness of credit. The caveat relates to the Applicant’s testimony on his passport, which is discussed below. Conversely, the Tribunal did not receive oral evidence from Yaas Heywari. The Tribunal is in no sound position to form a view if Mr Heywari is a witness of credit, or, as the Applicant contends, a drug addict with a desire to harm the interests of his brothers.
In these circumstances, on the balance, the Tribunal prefers the version of events given by the Applicant to that provided by his brother, Mr Yaas Heywari.
2(b) Extended family composition
The Respondent also contends (RSFIC para 28) that the Applicant’s family composition supports a finding that the Applicant is not stateless.
The Respondent contends that the Applicant is the second cousin of Mr Reza Heywari (as well as his siblings Emad Heywari, Rana Heywari and Heidar Heywari) – Exhibit 2 ST11 p. 625. Mr Reza Heywari’s parents are Mr Abdulamir Heywari and Ms Sabria Piryai. Both Mr Abdulamir Heywari and his wife Ms Pirayi were citizens of Iraq and the Department was provided with their Iraqi ID cards – Exhibit 2 ST9 p. 593.
Further, in support for an offshore spousal visa, Mr Reza Heywari provided his Iraqi National ID Card and Iraqi Nationality Certificate to the Department. Mr Reza Heywari claimed the documents were forged, but the following information is contained in a Departmental report – Exhibit 2 ST8 p. 588:
“When both his Iraqi National ID card and his Iraqi Nationality certificate were put to the applicant for comment, he replied ‘I paid someone to make these documents for me’. He stated that he obtained both documents when he returned to Iraq in 2014. It was put to the applicant that his Iraqi Nationality certificate was issued on 22 August 2010 and he replied ‘That’s just a date they can forge that’s not an issue’. The applicant’s Iraqi National ID card was issued on 22 February 2014 and clearly displays the word ‘Tajdid’ on the document which means his ID card is a renewal. When this information was put to the applicant for comment, he stated ‘I had one before that but that was a forged document as well.’
The applicant was shown the English translation of his Iraqi Marriage Certificate issued by the Iraqi courts. He confirmed it was his marriage certificate and also confirmed that his marriage certificate was genuine and not a forged document. It was put to the applicant that his marriage certificate which was issued by a judge in an Iraqi court displays the same serial number on his Iraqi National ID card. The applicant stated ‘The person I paid to forge these documents he worked in the government I don’t know to what extent he has forged these documents I don’t know about these things.’”
After an extensive investigation the Department found that Reza Heywari’s Iraqi National ID card was “legitimately manufactured” and “is evidence of Iraqi citizenship.” – Exhibit 2 ST10 p. 603.
Based on the material admitted into evidence, the Tribunal accepts, on the balance, that Mr Reza Heywari is an Iraqi citizen.
The Tribunal also accepts that Mr Reza Heywari’s parents had obtained Iraqi citizenship.
In this context, the Respondent made the following submissions (RSFIC paras 38 – 39):
“38. In this context, it is apparent that the Applicant has familial ties with persons who haver very likely acquired Iraqi citizenship. The significance of this connection is that, due to the operation of Iraqi law, the Applicant is very likely also an Iraqi citizen. This is because, if Mr Abdulamir Qasim Heywari is an Iraqi citizen, it means that he likely acquired citizenship by descent from his parents and grandparents (who may also confer citizenship upon their other children). This is because Iraqi Nationality Law…may operate to confer Iraqi nationality on the Applicant….
39. Furthermore, as the Applicant’s family have very likely regained Iraqi citizenship, it means that they were able to establish their Iraqi origins. In those circumstances, the Applicant was also very likely to be able to establish his Iraqi origins, particularly in circumstances where he may have family members who are Iraqi citizens and may be able to confirm his nationality/assist with his application to re-avail himself with citizenship… “
In response the Applicant made the following submissions (Applicant’s Final Submissions (AFS) paras 3 – 4):
“3. The applicant maintain that the respondents contention that the applicant’s family composition supports a finding that the applicant is not stateless as he claimed was not based on any evidence, because apart from the applicant’s brother’s presence in Australia, the applicant have no direct relatives in Australia, during the Tribunal’[s] hearing, the applicant explained how the people referred to in the delegate’s decision were not in fact the applicant’s direct relatives, but rather distant relatives of the applicant, which means the nationality status of those distant relatives is not connected to that of the applicant, because the Iraqi Law for 2006 stipulate that a person should only acquire Iraqi citizenship through his father or mother, there is no section in the Iraqi law that says that an applicant can acquire Iraqi nationality through his distant relatives, in this case the applicant refer to article 3-6 of the abovementioned Iraqi nationality Law.
4. The applicant confirms that the respondent’s submission (at 35, 36) in reference to Reza Heywari and Abdulamir Qasim Heywari was made in error because Abdulamir Qasim Heywari is not the brother of his mother (Saediah Shohani), they don’t even have the same father’s name or surnames, so how are they considered a brother and sister?, the applicant have no aunt, cousins in Australia, the applicant have no idea how the department established that he applicant have uncle, aunt, or cousins in Australia?, the department agreed that the applicant have no maternal uncle in Australia (page 15 of T2), all what the department said is that ‘it appears you have an aunt-,,, wife of your maternal uncle Abdulamir Qasim Heywari), the applicant confirms that this is incorrect, because Qasim Heywari is the maternal cousin of the applicant’s father, which means that the applicant’s grandmother and Reza’s grand mother are sisters (from the father’s side), now you may say that if Reza’s grand mother and the applicant’s grandmother were sisters then the applicant have an Iraqi ancestor?, the applicant maintains that the applicant’s grand mother was stateless in Iraq all the time, if the department established that Reza was an Iraqi Citizen then it is open to consider that Reza acquired the Iraqi citizenship through his mother.”
There are some problems with the Applicant’s submission, not the least of which is it, is at times, difficult to understand. Certainly, the suggestion that the Respondent contended that Abdulamir Qasim Heywari was the brother of the Applicant’s mother is misplaced. This is clear from a diagram which appears in para 38 of the RSFIC which illustrates that the shared lineage of the Applicant and Mr Reza Heywari is through the Applicant’s father and then the Applicant’s paternal grandmother. There is no suggestion by the Respondent that the shared lineage is via the Applicant’s mother.
The evidence presented to the Tribunal (RSFIC paras 18 -20) suggests that although the Iraqi Constitution of 2006 establishes gender equity, the 2006 Nationality Law limits the ability of Iraqi women to confer nationality on their children born outside of Iraq. In these circumstances the Tribunal does not place much weight on the Applicant’s contention that Mr Reza Heywari obtained his Iraqi citizenship through his maternal line. Having regard to the citizenship law of Iraq, this contention is implausible.
The Tribunal also accepts that the Applicant has distant familial ties with Faili Kurds who previously resided in Iran, who are now resident in Australia and who have very likely obtained Iraqi citizenship. Certainly, as previously noted, the Tribunal accepts that Mr Reza Heywari lawfully obtained Iraqi citizenship. To obtain Iraqi citizenship Mr Reza Heywari would have needed to convince the relevant Iraqi authorities of his Iraqi origins, and this would have been the same for any other members of his family who obtained Iraqi citizenship.
The Respondent, however, goes further (RSFIC para 39) and invites the Tribunal to accept that the Applicant would have been able to establish his Iraqi origins and obtain Iraqi citizenship.
The Tribunal has some concerns with this submission.
First, the Respondent drew the Tribunal’s attention to the following extract from the October 2018 Iraq Country Information Report (RSFIC para 39):
“Since 2003, Faili Kurds have returned from Iran to Iraq, and mainly live along the border with Iran, including in the provinces of Basrah (where an estimated 10,000 Faili Kurds live), and eastern parts of Diyala, Wasit and Maysan. Faili Kurd communities also live in Baghdad and may live in other areas. While most were initially stateless on their return to Iraq, many have now been able to regain their citizenship. Legislation to return citizenship is now in place, although the process can be administratively complex if an individual lacks sufficient documentation to demonstrate their Iraqi origin.”
As the DFAT Report highlights, the process of obtaining Iraqi citizenship can be administratively complex. The Tribunal is not a position to accurately assess exactly what documentation Mr Reza Heywari had in order to obtain Iraqi citizenship, nor the period of time it took or the administrative difficulties he faced. Whilst the Tribunal accepts he did acquire such citizenship, the path he took to obtain that result is unclear.
Second, the Tribunal has previously quoted from the more up to date DFAT Country Report.
At para 3.10 of the Report, it is highlighted that the regaining of Iraqi nationality is “reportedly slow and bureaucratic, sometimes taking years to complete, and often requires applicants to pay bribes to officials.” The Report goes on to note that “the documentary requirements are onerous” and community activists claim that “thousands of families remain stateless.”
It is tolerably clear, based on the DFAT Country Report, that the process of regaining Iraqi citizenship is fraught with difficulty and the requirements placed on applicants are onerous and time-consuming. It would also appear from the DFAT Country Report that there is widespread corruption, with bribery often present.
If the Applicant had, in fact, obtained Iraqi citizenship, then it is likely that this would have been a difficult and time-consuming exercise. Apart from the statement of Mr Yaas Heywari, there is no evidence before the Tribunal that the Applicant acquired Iraqi citizenship. Whilst the Applicant has the same paternal great grandparents as Mr Reza Heywari, the Tribunal is not in a secure position to assume that both Mr Reza Heywari and the Applicant had the same documentation that would have convinced the Iraqi authorities of their respective Iraqi origins.
The DFAT Country Report, for example, notes that the Iraqi authorities require applicants to provided a copy of their family’s registration from the 1957 census that, as the Report notes, “many Faili Kurds are unlikely to possess.”
The Applicant drew the Tribunal’s attention (AFS para 5) to reports which highlighted the systematic deportation of Faili Kurds from Iraq by the then Baathist regime, with consequent coordinated efforts to strip the deportees of their identification documents. In short, the task of regaining Iraqi citizenship for many Faili Kurds is a difficult and problematic exercise.
Third, whilst the Tribunal accepts that the Applicant would, in ideal circumstances, be able to prove his paternal Iraqi lineage, and thus be able to obtain Iraqi citizenship, there is no evidence before the Tribunal that he has obtained such citizenship.
Fourth, there is no evidence before the Tribunal that the Applicant has wilfully failed to take reasonable and available steps to obtain Iraqi citizenship. Reference can be made to the following observations of Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117]:
“Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.”
The Tribunal, then, is reasonably satisfied that although the Applicant has distant relatives residing in Australia, some of whom secured Iraqi citizenship, this does not support a finding that the Applicant is not stateless.
2(c) Mr Adel Taei
The Respondent contended (RSFIC paras 41, 43) that the Applicant’s brother, Mr Adel Taei, may be an Iraqi citizen and if so then it would suggest that the Applicant is an Iraqi citizen. The Respondent contends that if Adel Taei was able to obtain Iraqi citizenship by demonstrating his Iraqi lineage, it follows that the Applicant could do the same.

Unfortunately, the Tribunal did not have the benefit of receiving evidence from Mr Adel Taei. The Tribunal was, then, unable to observe him giving evidence or form a view as to his credit. Importantly, he was not subjected to cross-examination.
The Respondent relies on an Identity Assessment Report which was prepared by an Identity Officer of the Department and is dated 20 October 2017. A redacted copy of the report was admitted into evidence – Exhibit 2 ST11 pp. 610 – 631.
The report deals with the statement of Mr Yaas Heywari which has been discussed above.
First, the Identity Officer discussed at some length Mr Adel Taei’s change of surname from Heywari to Taei. It is not contested that Taei was his father’s original name, and the Report contains a photo of the father’s tombstone where his name is inscribed as “Kaidari Mohommad Karram Taei” – Exhibit 2 ST11 pp. 620 – 621.
The Identity Officer records Adel Taei as stating that “Taei” is a family tribal name, and this highlights the family’s strong Iraqi links and possible Iraqi nationality.
The Tribunal agrees with the Identity Officer that the use of the surname “Taei” rather than the Iranian surname of “Heywari” suggests that the Applicant, his brother and their father, retained strong links with Iraq and identified with that country. However, the use of the surname Taei does not suggest the holding of Iraqi nationality. In reality the fact that the two brothers changed their surname from Heywari to Taei has no logical bearing on whether they acquired Iraqi citizenship. All that the use of the surname Taei logically suggests is that it was the surname used by their father and their paternal uncles when they lived in Iraq.
Second, reference is made to Mr Adel Taei’s trip to Iran and Iraq in 2012. There is no evidence that the Applicant accompanied his brother on this trip.
According to the Identity Assessment Report, Mr Adel Taei visited his family in Iran for approximately 50 days and then went on a religious pilgrimage to Karbala in Iraq. He stayed in Iraq for less than a month and visited Baghdad for one night and later his paternal uncles and aunt in Wasit (near Kut) – Exhibit 2 ST11 p. 629.
Again whether Mr Adel Taei failed to avail himself of reasonable opportunities to acquire Iraqi citizenship whilst he was visiting Iraq is not germane to the question of the Applicant’s claimed statelessness. The Tribunal is not in a position to speculate on Mr Adel Taei’s visit to Iraq as no direct evidence was led. Certainly it is common knowledge that Iraq at that time was experiencing civil unrest which shortly thereafter led to the rise of ISIS. Whether, in fact, Mr Adel Taei could have taken steps, with the assistance of his Iraqi relatives, to obtain citizenship is not a matter the Tribunal can speculate on.
2(d) Other immediate family members
The Respondent made further submissions about the Applicant’s immediate family – RSFIC paras 44 - 47.
First, the Tribunal’s attention was drawn to a photograph of Mr Yaas Heywari’s health insurance booklet – Exhibit 2 ST12 p. 689. The Respondent contended that the document appeared to show his birth certificate number and may suggest an ID number in support of his Iraqi national identity.
The document in question is written in Persian in apparent Arabic script. The Tribunal was not provided with a translation of the document and it is impossible to ascertain what the document says. In these circumstances the Tribunal is not in a position to form a view if it contains a birth certificate number or not.
Second, the Tribunal’s attention was drawn to suggested inconsistencies in the Iranian identification documents for the Applicant’s father.
Particular attention was drawn to the father’s work permit which is said to show a passport number of 274033 – RSFIC para 44(b). There is a degree of confusion in this matter, and much depends on the accuracy of the English translation of the documents in question.
The Tribunal was provided with a English translation of the Applicant’s father’s death certificate and an Affidavit from the Iranian Ministry of the Interior. The translation was organised by an officer of Identity NSW, Identity and Biometric Division of the Department. The relevant parts of the translation of the Affidavit are set out below – Exhibit 2 ST12 p. 665:
“As per certificate no. 247 dated 23/05/2002 issued by the Births, Deaths and Marriages Registry of the city of Yazd, it is confirmed that Mr Khudair father’s name: Mohamad, grandfather’s name: Kurram, surname: Heywari, an Iraqi citizen holding (refugee) green card no. 274033 issued in Yazd died on 20/05/2002 of a heart attack…”
The translation of the death certificate is as follows – Exhibit 2 ST12 p. 666:
“On 20/05/2002 Mr Khudair Heywari father’s name: Mohamad, grandfather’s name: Kurram, citizen of Iraq, holding refugee status document no. 274033, residing in the city of Yazd, died of a heart attack.”
The Tribunal was also presented with the translation of a “Court verdict” which appears to be an Iranian Court in the Probate Division which was dealing with the distribution of the estate of the Applicant’s father. The document refers to the “late Khudair Mohamad Kurram birth certificate no. 274033 passed away on 20/05/2002.”
The Tribunal also has before it a photocopy of the Applicant’s father’s work permit which also refers to an identity document No 274033. It is not clear from this document if it is referring to a passport number or a Green Card number – Exhibit 1 T9 p. 230.
The Tribunal is unable to obtain much assistance from these various documents. The more likely interpretation is that the identification number refers to a Green Card number, and this is the translation that appears in the Applicant’s father’s death certificate and accompanying official affidavit.
Having regard to the state of this aspect of the evidence, the Tribunal is not prepared to draw any adverse inferences against the Applicant’s version of events as contended by the Respondent.
3. Funding for departure
The Respondent contends (Respondent’s Final Closing Submissions (RFCS) paras 3 -6) that the Tribunal should not accept the Applicant’s evidence that he raised $US 11,000 for his travel from Iran to Indonesia.
The Respondent correctly points out (RFCS para 3) that:
(a)between 2008 – 2010 the Applicant worked as a stonemason and was paid approximately US$ 300 – 400 per month;
(b)the Applicant worked privately as a computer repairer for an unspecified income; and
(c)the Applicant’s family financially assisted him, with one sister working as a hairdresser and his mother selling her jewellery for funds.
The Respondent contended (RFCS para 4) that the Applicant did not provide clear evidence to demonstrate how he was able to pay $US 11,000 to people smugglers and referred to an IDBS Identity Analysis Report: Feyli Kurd Cohort (“IDBS Report”) (Exhibit 2 ST4 pp. 330 – 360) where it was pointed out that in 2009 the average weekly wage of an Afghan male living in Iran was $US 37.10 per week or approximately $US 148.40 per month.
At the Hearing the Applicant was directly questioned by his representative, Mr Alkafaji, on how he raised this amount of money – Tr. 24.9.2020 p. 17:
“MR ALKAFAJI: How did you get this money? I mean, taking into consideration that you’re stateless person, I understand you… have a white card. You have a right to work, of course, but how did you manage this money? We know the country information talks about the difficulties facing refugees in Iran. So, how did you manage this money?
WITNESS: Yes, that’s why I was back in 2010, they asked me…My sister was working hairdresser, so my sister helped me, and my mum, my brothers. They helped me with this money.
MR ALKAFAJI: Did you have savings yourself?...
WITNESS: …3000 or 4000. So, that’s my brother, my mum. They was have jewellery, everything…
The Applicant was also cross-examined by Ms Liang. He testified that from 2003 to 2008 he worked with a private company fixing computers and said that he received no wages during that time – Tr. 24.9.2020 p. 30. Instead, the Applicant testified he was a “volunteer” but that he made money from assembling and repairing computers at home. It may be the case that he learned his computer skills from his volunteer work and that he also gained customers from that employer.
The Applicant also testified that from 2008 to 2010 he worked as a stone cutter and also did computer and other work – Tr. 24.9.2020 p. 31:
“MS LIANG: Mr Taei, between 2008 to 2010 where were you working?
INTERPRETER: A stone cutter.
MS LIANG: And how much money were you making from that job?
INTERPRETER: Monthly 300 to 400 Iranian currency. And sometimes people were giving me some tips, and sometimes when I was just, you know, doing more jobs for them they were paying me more…
MS LIANG: Mr Taei, was the wage at the stonemasons job more or less than what you were making when you were fixing computers?
INTERPRETER: It’s a bit more.
MS LIANG: A bit more?
INTERPRETER: Yes. Yes, it – mainly while I was working as a, you know, a stonemason, I was fixing the computers at home after work, and sometimes I used to go and install the dishes, satellite dishes, and just adjust them.”
The Applicant further testified (Tr. 24.9.2020 p. 32) that he lived with his family and contributed to the rent payments as well other expenses such as electricity and groceries and was still in a position to save money:
“Yes I was not expending all of my money relatively to my income. I had my savings, yes.”
The account given by the Applicant of his work and savings is not implausible. The raising of $US 11,000 in Iran in 2010 would have been difficult, and it would have been almost impossible for the Applicant to have done so on the income stream he had. However, it would not have been an impossible task if other members of his family contributed income, and if his mother sold her jewellery.
As previously noted, the Tribunal had the benefit of listening to the Applicant giving testimony and formed a positive view of him. On the balance, the Tribunal is satisfied that the Applicant’s version of events on how he raised $US 11,000 is a truthful account of what occurred.
4. Fraudulent Iraqi Passport
The Respondent quite properly raised a number of issues about the Applicant’s account of how he obtained a fake Iraqi passport – RFCS paras 7 – 8.
In summary, the Applicant gave the following account of his fake Iraqi passport:
(a)the passport contained his photograph and the photo was physically placed on the passport, not digitally – AFC para 10;
(b)the passport contained his name, but the Applicant was not sure if it also contained his date of birth – Tr. 24.9.2020 p. 39;
(c)the passport was a green colour and had “many stamps” – Lines 1635 – 1665;
(d)the Applicant testified that he did not check if the details in his fake passport were correct – Tr. 24.9.2020 p. 39;
(e)the Applicant further testified that he had never previously had a passport – Tr. 24.9.2020 p. 39;
(f)the Applicant testified he didn’t know whether the passport he was provided was a fake or genuine passport – Tr. 24.9.2020 p. 37.
The Respondent made the following contentions – RFCS para 8:
(a)the Applicant’s testimony that he did not check his passport to ensure it contained the correct information was not plausible. If the passport was a fake, then the Applicant would have known that he was committing an offence by using a fraudulent document and he would have at least made an attempt to ascertain it looked like a legitimate document prior to his departure through Imam Khomeini Airport;
(b)the Applicant’s testimony that he was not concerned about using a fake passport was implausible, because if caught he would likely have been arrested by the Iranian authorities;
(c)the Applicant’s suggestion that he did not know whether his passport was fake or genuine gives rise to significant doubts about his claimed identity. If in fact the passport was genuine, it necessarily follows that he must have acquired Iraqi citizenship as he could not have obtained genuine Iraqi identity documents without acquiring citizenship.
The Tribunal was not impressed by the Applicant’s testimony about acquiring his passport, in particular by the Applicant’s testimony that he didn’t know if the passport was genuine or fake.
The following testimony was given by the Applicant – Tr. 24.9.2020 p. 37:
“MS LIANG: And, Mr Taei, you acquired two fake passports; is that correct?
INTERPRETER: Yes, I had never before had obtained or hold any passport in my life, and at the beginning of this hearing I mentioned that as well. I didn’t know if that passport was fake or not.
MS LIANG: So are you saying that you think you could’ve acquire a real passport?
INTERPRETER:…Still I’m telling you I had never a passport in the past in my life, all right, so I cannot tell that – if that passport was a fake or genuine passport. I don’t have any comments in that regard.
DEPUTY PRESIDENT: Just one second, Ms Liang. Mr Taei, the person you visited was he from the government?
WITNESS: No.
DEPUTY PRESIDENT: You knew when you went to him you were obtaining a fake passport, is that what you’re telling me?
INTERPRETER: The thing is that I just say this again, in the past in my life I had never another passport, so I didn’t open that passport to see if it’s a fake or the genuine passport. I didn’t know.”
The Applicant was reluctant to testify who told him where to go to obtain a fake passport – Tr. 24.9.2020 p. 36. Subsequently he appeared evasive when questioned about the fake passport. His testimony that he didn’t know if the passport was fake or genuine was implausible. When asked if the person he visited in Tehran was from the Government he answered in the negative. It is tolerably clear that the Applicant knew he was purchasing a fake passport, and it is inconceivable that a back street counterfeiter could produce a genuine passport.
It is unclear why the Applicant said that he wasn’t sure if the document he received was a genuine or fake passport.
Looking at the totality of the evidence, it is tolerably clear to the Tribunal that the Applicant purchased a fake passport. It is not clear to the Tribunal why the Applicant testified that he was not sure if the document was genuine or fake, because his earlier testimony was that he couldn’t obtain a genuine passport and deliberately intended to obtain a fake document. The fact that he had never held a passport previously is not to the point. The Applicant would have known that the document he purchased was a fake because that was the point of visiting and paying a counterfeiter.
5. Passage from Iran to Australia
The Respondent contends that the Tribunal should not accept the Applicant’s account of his departure from Imam Khomeini International Airport as it is inconsistent with available country information in relation to security measures/departure procedures at that Airport – RSFIC para 48, RFCS para 10.
Under cross-examination by Ms Liang, the Applicant gave the following information about his transit through Imam Khomeini Airport – Tr. 24.9.2020 pp. 40 – 41:
(a)his passport was only checked once;
(b)after being checked the passport was stamped;
(c)he could not remember if the passport was scanned;
(d)after his passport was stamped, officials asked for his White Card;
(e)Airport officials seized the Applicant’s White Card and did not return it;
(f)Iranian officials are happy for Faili Kurds to leave the country and they “don’t care about anything else.”
The Respondent referred the Tribunal to relevant extracts from the IDBS Report dealing with exit procedures from Iran – Exhibit 2 ST4 p. 347:
“The overall impression is that whilst it is possible to get forged documents in Iran, obtaining a forged or fraudulent Iranian passport of sufficient quality to pass through Iranian departure controls is highly unlikely due to the checking of exiting passports against a computer system and multiple persons responsible for the ultimate authority to board, meaning multiple people would all need to be bribed if a person was to leave.
These departure controls appear to be effective…
The Department of Foreign Affairs most recent assessment is that
‘…it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. DFAT agree with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visa…Forged visas or visas obtained through false information are common but exit from the Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved…”
The IDBS Report before the Tribunal is heavily redacted with the bulk on the information on exit procedures from Iran being redacted. All of page 350 is redacted with the exception of one sentence which is itself partially redacted. The part sentence is set out below:
“Recent advice from [redacted] suggests that it is plausible that where [redacted] is presented perhaps less scrutiny is given [redacted] and that under those circumstances it may thus be possible to evade the stringency of the passport checks.”
Unfortunately, the Tribunal is unaware of what information/documentation can be presented to evade the stringency of the Iranian passport checks, although as this report relates purely to Faili Kurds it is reasonable to surmise that it documentation that such a group of persons would possess.
The Respondent also provided detailed information on procedures at Imam Khomeini International Airport which are found in a 2009 Report of the Danish Immigration Service at page 147 – RSFIC para 54. The information provided suggests up to four separate security checks were then conducted. Relevant extracts from this report are set out below:
“After passing through the luggage check the passenger goes to the check-in counter. At the check-in counter, flight personnel will check the passenger’s luggage, check the visa and issue a boarding pass. If anything is wrong in terms of visa or passport, the flight personnel will contact the Immigration Police.
After check-in, the passenger goes to a counter where Immigration Police conduct a third security check. The Immigration Officer sits inside a booth behind a glass window. He checks the passport and personal information on a computer system.
The passport and exit visa are verified. The data of the passport holder appears on the screen, together with a photo of the traveller…If the passport holder is registered on a list of individuals who have an outstanding issue with the government or for other reasons are not allowed to leave Iran, this information will appear on the screen.
When the security check is completed, and if the person is allowed to leave Iran, an exit will be stamped in the passport. The person travelling now enters the duty free zone.
Before entering the area with flight gates, yet another security check is conducted. This is a physical check where the hand luggage is scanned and the passenger goes through a metal detector. The security check is conducted by the Revolutionary Guards. The Immigration Police and airline personnel conducted the previous checks.
The very last check is done just before boarding, where the traveller shows his or her boarding pass. Airport personnel conduct this check.”
The Respondent contends (RFCS para 10(b)) that having regard to security procedures at Imam Khomeini International Airport, it is very unlikely that the Applicant could have departed on a fake passport as a stateless person without being identified during the verification process.
The Respondent also contends (RFCS para 10(c)) that the Applicant did not satisfactorily explain how he provided his White Card to the Iranian authorities at the Airport and was able to depart. The holding of a White Card for a refugee would be inconsistent with simultaneously holding an Iraqi passport.

In response the Applicant contends (AFS para 10) that he more likely than not held a fake S-Series passport, as such passports lacked the required security features and that his photo was physically placed on the passport as distinct from digitally.
The Tribunal was presented by the Applicant with an extract from a “Landinfo December 2015” Report which contains information on Iraqi passports.
The Tribunal has viewed the whole report. The Norwegian Country of Origin Information Centre, Landinfo, is an independent body within the Norwegian Immigration Authorities. Landinfo provides country of origin information to the Norwegian Directorate of Immigration, the Immigration Appeals Board and the Norwegian Ministry of Justice and Public Security. In short, the information contained in a Landinfo report is used for official Norwegian government purposes and is specifically designed to provide balanced and authoritative information.
The Landinfo Report – “Iraq: Travel documents and other identity documents” (“Landinfo”) is dated 16 December 2015 and relevant parts are summarised below.
Iraqi passports are given a letter indicating the date of issue: M, N and H Series passports were issued under the Baath regime and remained valid after the overthrow of Saddam Hussein. From July 2004 S-Series passports were issued. In the second half of 2006 G-Series passports were issued. The G-Series passports are machine-readable and are of a far better quality than previous passports. A further improved edition, the A-Series was introduced on 1 October 2009 – Landinfo pp. 6 – 7.
In the section “Manipulation and Forgery of Passports” the following information is given – Landinfo pp. 13 - 14:
“Iraqi passports are relatively easy to manipulate. The Norwegian police have uncovered several fake Iraqi passports in the G-series and A-series. One forgery method has been to split the personal data page in a genuine passport and replace layer of the page with a counterfeit…This way, it is possible to alter the personal data in an existing passport…
According to information Landifo has obtained through the Norwegian embassy in Amman, which in turn is based on statements from document experts, Iraqi documents generally have low notoriety. It is found that a large proportion of Iraqi documents are either fake or forged…”
The DFAT Country Report contains the following information on passports:
“5.59 The current ‘A’ series passports and the previous ‘S’ series passports are of an international standard with good security features, including a hologram image and seal and water marks. ‘S’ series passports (issued between 2003 and 2006) are more vulnerable to fraud and inexpensive counterfeit versions are reportedly available in Iraq. While the current ‘A’ series passports have good security features, the supporting documents listed above can be vulnerable to fraud and counterfeit, increasing the risk of the passports being obtained on the basis of counterfeit information.”
The Applicant also drew the Tribunal’s attention (AFS para 10) to a report of the Immigration and Refugee Board of Canada entitled: “Iraq: Requirements and procedure to obtain a passport from within and outside Iraq, including procedures to obtain a passport for youth, women, and Bahais; length of time to issue passports; features of new A-series passport; validity of the G-, S-, H-, M-, and N-series passports”. The report was published on 23 December 2011, shortly after the Applicant departed Iran.
The following information on the continued use of S-Series passports is provided:
“In addition to the A passport, the Iraqi embassy official said that the G- and S- series are also valid types of Iraqi passports…However, an official at Canada Border Services Agency (CBSA) told the Research Directorate through correspondence that ‘Canada remains one of the few countries that still recognize the S series as valid for travel with an appropriate Canadian visa…
The validity period for the still-active G- and S- series passport is, according to the Iraqi embassy official, eight years….”
When the Applicant was interviewed on Christmas Island, he told the Departmental Officer that his fake Iraqi passport was a green colour – Lines 1635 – 1640. This is consistent with the Landinfo Report which states that the S-Series passports were of a dark green colour – Landinfo Report p.6.
Finally, the Applicant drew the Tribunal’s attention to information about security at Imam Khomeini International Airport in the early years of its operation.
The Airport was brought into full service in 2007, having originally opened in 2004, but was occupied by the Revolutionary Guards hours after its inauguration.
The Applicant drew the Tribunal’s attention to an article in the Christian Science Monitor of 8 February 2010 entitled “How Iranian dissidents slip through Tehran’s airport dragnet”. The article points out that in 2010 the boarding gate security at the Airport was run by the Revolutionary Guards and passengers entering and leaving Iran were checked against two watchlists issued by the Ministry of Intelligence and Security and the Revolutionary Guards. The following comments were made about security at the Airport:
“the Turkish constructed IKIA is a ‘middle-level security standard international airport like a Turkish or Egyptian one.’ Although cameras are fitted, it is unknown whether they are equipped with facial recognition technology or the equipment to machine read passports. Officers tap names and passport codes manually into computers.”
The evidence presented to the Tribunal suggests that in 2010 S-Series passports were still is use, and these passports were vulnerable to fraud and inexpensive counterfeit copies were in circulation. In addition, Imam Khomeini International Airport had a troubled history in the period 2004 – 2010 with an apparent focus by the Revolutionary Guards on monitoring the arrival and departure of persons who were perceived to be a threat to the Government. Further, security measures at the Airport, despite being said to be strict and effective, would appear to have been less than ideal.
The security checks in place at the Airport in 2010 were, in theory, similar to the security checks at most international airports of that time. When considered carefully, however, it would appear that the only time a person’s passport was forensically verified was at the third security check when an Immigration Officer would check the passport and personal information on a computer system.
A May 2005 DFAT Report (Exit Procedures from Iranian airports – 24 May 2005, CX 124083) contained the following observation:
“A.C.1 Passport officials use a computerised database to track the movement of Iranian and other individuals through Iran’s international airports. We have heard of some trouble operating the system at the newly opened Imam Khomeini International Airport south of Tehran.”
Rather than a smoothly operating system, the security operations at Imam Khomeini International Airport in the years leading up to 2010 were, it appears, less than optimal, and it would also appear that there was a significant amount of counterfeit Iraqi documents in circulation at the time.
In these circumstances, and also having regard to the precarious position of Faili Kurds in Iran and the discrimination they faced, the Applicant’s version of events is plausible and the Tribunal accepts, on the balance, that it is the more likely version of events.
The Respondent also raised issues with the Applicant’s version of events with respect to his movement from Malaysia to Indonesia, in particular the reason for him obtaining a second fake passport. The second passport, a fake United Arab Emirates (UAE) passport, being one obtained whilst he was staying in Malaysia and using a new photograph.
The Respondent contended (RFCS para 12(a)) that the Applicant had not satisfactorily explained why he obtained a fake UAE passport when his fake Iraqi passport had permitted him to successfully travel from Iran to Malaysia.
Ms Liang cross-examined the Applicant on this matter, and the following exchange occurred – Tr. 24.9.2020 p. 43:
“MS LIANG: Mr Taei, if your Iraqi passport worked in the Iranian Airport, and it went through the Malaysian Airport with no difficulties why did you buy – why did you pay another $US 4000 to get another fake passport?
INTERPRETER: The smugglers were – because I was with the smuggler I didn’t know what to do. It was his condition.”
As Ms Liang quite properly queried, there is no ostensible good reason why the Applicant would have needed a second fake passport. However, as the Applicant answered, it was not his plan of action, rather it was a course of action determined by people smugglers. The reason why the people smugglers would have required a second passport is impossible to ascertain. It is open to assume that it may have been simply to get more money out of the Applicant or it may have been as an added security measure to lessen the risk of detection or it may have had an element of both.
Having listened to the Applicant give his evidence, I formed a favourable view of his testimony and, on balance, do not believe that he was lying or being evasive when he answered Ms Liang.
CONCLUSION
The evidence presented is sufficient for the Tribunal to be satisfied as to the Applicant’s identity.
The decision under review, being a decision of a delegate of the Minister of 23 October 2019, refusing the Applicant’s Application for Citizenship, will be set aside.
The matter will be remitted to the Minister with a direction that the Minister be satisfied of the identity of the Application for the purpose of s 24(3) of the Australian Citizenship Act 2007.
The decision of the Tribunal is limited to the question of identity pursuant to s 24(3).
The matter is remitted in order that the Applicant’s application for citizenship can be assessed in accordance with the other mandatory criteria prescribed by the Act. This determination has no bearing on those assessments.
DECISION
The matter is remitted to the Minister with a direction that the Minister is satisfied of the identity of the Applicant for the purposes of s 24(3) of the Australian Citizenship Act 2007.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

....................................[SGD]....................................
Associate
Dated: 26 November 2020

Date of hearing: 24 September 2020

Date final submissions received: 21 October 2020

Advocate for the Applicant: Mr A Alkafaji

Solicitors for the Respondent: Clayton Utz

[2020] AATA 4728

26 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Standing

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 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.

Date of hearing:	24 September 2020
Date final submissions received:	21 October 2020
Advocate for the Applicant:	Mr A Alkafaji
Solicitors for the Respondent:	Clayton Utz