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

The Applicant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 372 (17 February 2020)
Division:GENERAL DIVISION
File Number: 2019/3157
Re:The Applicant
APPLICANT

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

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:17 February 2020
Place:Melbourne

The Tribunal sets aside the decision of the Delegate dated 22 May 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, that it is satisfied of the Applicant’s identity.
[sgd]...............................................................
Ms Anna Burke AO, Member
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether satisfied of identity of applicant – whether the application for citizenship made by the applicant should be approved – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Migration Act 1958 (Cth)
Cases
ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3045
Secondary Materials
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
Department of Foreign Affairs and Trade, Country Information Report: Iran (7 June 2018)
REASONS FOR DECISION
Ms Anna Burke AO Member
17 February 2020
INTRODUCTION

The Applicant is a 37 year old stateless Faili Kurd (also spelt Feyli, Feili), who was born and raised in Iran. On 3 July 2010 the Applicant sought asylum in Australia arriving by boat on Christmas Island. On 8 December 2011 he was granted a protection visa. The Applicant is single, lives alone and has been working in a packaging business since 2013.
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person’s capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant holds a protection visa, the Tribunal has decided it is appropriate to refer to the Applicant as “the Applicant” throughout this decision.
On 12 December 2015 the Applicant lodged an application for Australian citizenship by conferral. On 1 September 2017 a Delegate from the Department of Immigration and Border Protection (the Department) (as the Department then was) wrote to the Applicant, requesting required forms to be completed and additional documentation be provided to satisfy the Minister of his identity.
On 21 September 2017 the Applicant, as requested by the Delegate, provided a completed Form 80 “Personal particulars for assessment including character assessment” and additional identity documents.
On 25 March 2019 the Department sent a letter inviting the Applicant to comment on adverse information regarding his application for citizenship by conferral. The Delegate stated:
The Australian citizenship policy (the Policy) states that in addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity. This means that Identity assessments with regards to Australian citizenship are different to those undertaken to those during a visa or migration process, and a decision maker must be satisfied before Citizenship can be granted.
The Policy states the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016). The Identity Proofing Guidelines aim to strengthen identity proving processes by providing a set of recommended processes and requirements which are aligned with international standards.
The guidelines identify that in some cases individuals may genuinely face difficulty in providing the necessary evidence to identify themselves to the required level and that organisations may develop alternative identity proofing processes.
The three pillars methodology for assessing a person’s identity is utilised by the department’s citizenship decision makers in order to establish the veracity of a person’s identity claims and reach the required level of satisfaction under the Act. The three pillars are: (1) documents (including biodata); (2) personal identifiers/biometrics and (3) life story which can include amongst other things: any documented evidence of a person’s social footprint, family composition, ethnicity, nationality, place of residence, education, employment, marital status, travel history, social connections and financial history.
The three pillars approach is underpinned by the identity proofing objectives outlined in the Identity Proofing Guidelines.
In response to the Department’s request, on 26 April 2019 the Applicant again provided a completed Form 80 “Personal particulars for assessment including character assessment” and a statutory declaration from his employer.
On 22 May 2019 a Delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act), as the Department was prohibited from approving the application as the Delegate was unable to be satisfactorily satisfied of the Applicant’s identity. The Delegate stated:
I find that there are several points in your life story which are inconsistent or implausible, as explored above. This, together with your purported inability to supply non—Australian documents which it is reasonable to expect that you would be able to provide (or at least make a genuine effort to obtain), means there is significant doubt as to your true identity. It is not possible to make a definite finding as to whether or not your circumstances satisfy criteria, or whether you might in future, but I cannot be satisfied that you meet the criteria based on the information before me at this point in time.
On 3 June 2019 the Applicant lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal stating: “The applicant’s identity should be accepted and he should not be denied the ability to apply for Australian citizenship.”
At the hearing, the Applicant was represented by Mr Bilal Amani of Amani Lawyers and assisted by an interpreter in Farsi (Persian). Ms Inshani Ward, solicitor of Sparke Helmore Lawyers appeared on behalf of the Respondent Minister.
ISSUE FOR THE TRIBUNAL
The issue is whether the Tribunal is satisfied of the identity of the Applicant, to fulfil the requirements of s 24(3) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
The stated role of the Australian Citizenship Policy (the Policy) is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth).
EVIDENCE
The evidence before the Tribunal included two sets of documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), referred to as the “T documents” and the “Supplementary T documents”. The Applicant also lodged a witness statement.
Identity
In an email inviting the Applicant to comment on adverse information in relation to his application for citizenship by conferral, the Delegate stated:
In assessing your application for conferral, review has been undertaken of departmental records in relation to you. The review has considered information provided by you in your application for Australian citizenship as well as previous dealings with the department and other checks in order to establish identity to the required level of satisfaction.
…..
No overseas documents, family in Iran
Department information suggests there is no evidence of reluctance on the part of Iranian authorities to document refugees within their borders, and there are considerable benefits to obtaining and maintaining identity documents. I find it highly unlikely that your family continues to reside in Tehran and does not hold an identity documents.
Departmental information suggests you have made a number of financial remittance to family members in Iran…
Departmental information also suggests that to claim financial remittances in Iranian, a person would need to present identity documents to confirm they are the intended recipient. This undermines your prior claim that none of your family members hold identity documents.
Departmental information suggests that since 2002, refugees and around have been issued with a “White Card” (Amayesh). Departmental sources show that the back part of this card reads as follows:
1. This card is for identity purposes and is valid in the issuing province for opening savings accounts, issuing health insurance booklets, issuing rental contracts and power of attorneys…
I find it highly unlikely that you are able to reside in Iran and access services such as property rental, banking and health insurance without one of these cards.
In your Protection Visa interview, you stated that you departed Iran via Imam Khomeini airport in Tehran using a fraudulent Iranian passport. Information held by the Department indicates that forged visas or visas obtained through false information exist but exit from Imam Khomeini International airport with false documentation would be difficult due to the strict border control procedures in place. It is more plausible that a person would depart Iran either using a genuine passport at an international airport or by crossing via land border…
On 1 October 2010 the Applicant made the following statement in respect of his application for protection visa:
I left Iran because I did not have any country of citizenship
I did not have a good job there. I did not have documents, I did not have a home country, I did not have citizenship.
If I was stopped anywhere I was harassed by the Basij and the police because I was a Kurdish Faile and I did not have any documents. They say to me go back to your home.
They said you have to go back to your home country. They say to us go to Iraq. However, even Iraq did not accept us. Iraq expelled all my family around the war, the Iranian-Iraq war. This was before I was born.
I did not have any documents as citizen. Anyone who does not have citizenship, you enrol in school. You could not attend public school. You could not even attend private school. Anyone who wanted to enrol in school needed citizenship. They could only go to informal adult schooling.
I could not obtain a driver’s license, passport and to serve military service.
I could not open up a bank account. Even in a bank, you need citizenship.
They did not have Social Security for follow Faile Kurd.
I cannot get married because with an Iranian girl because we do not have citizenship. We cannot go to an office to have a contract of marriage. We do not have any paperwork. I can marry another Faile Kurd but I cannot obtain a marriage certificate. This is in an illegal marriage in Iran.
If I need to get treatment, I cannot afford it. As a non-citizen, I do not have access to health system insurance. I can do there, but there are no benefits, we have to pay for it privately.
I did not have a right a vote, public officer or work in government.
I cannot own property or buy a car.
I got by with my father’s money. He saved money through years of working illegally.
When I worked at the market, the police took away my cart/trolley from me. In Iran, we have a registration license for it. Because we were there as a Kurdish Failee, they would not issue this to us. Because we did not have any documents, any license, we could not do this.
Because we did not have citizenship, they did not give me a license to do this at all.
About 2 to 3 years ago, when I was working, the police took my cart from me. I asked them why this was as I needed to work. However they still took my cart away from me beat me with a baton. I have remnants of the assault at the top of my left elbow. I escaped from the police at this time. Usually for someone in my situation, you would be taken to the police station. I had to get hospital treatment which cost 300000 Tuman.
About 5 years ago, I was working as a construction labourer, a ranger from the council with the Police came and took me away. They asked me about Iranian citizenship and I said I did not have. That took me to the Police station. For 7-8 hours, I was detained there. Whilst I was being detained, I was being beaten by hands and by batons, and that took me to the other room. They were yelling at me swearing and saying I was an illegitimate child. I was however never sexually assault. The people who were detained were all Afghans and Kurds as well. They put me in a room packed with 20-30 people. My father was able through a contact organised for me to be released. My father also paid a ransom however I do not know how much.
Friends of my father told him to send your son outside Iran.
The Respondent contended that the Applicant has provided implausible and inconsistent information. The Respondent contended that this included information with respect to his identity documentation in Iran, his birthplace, his citizenship and his parents’ citizenship, his education, his employment history in Iran and remittance of monies to his family in Iran. As such, they contended the Tribunal cannot be satisfied of the Applicant’s identity. The Respondent contended therefore that the decision should be affirmed as the prohibition in s 24(3) of the Act applies.
The Applicant maintained throughout the hearing that he was unable to obtain any identity documents from Iran as he is a stateless Faili Kurd. In his witness statement and in his oral evidence at the hearing, he advised the Tribunal that he had been born in a village on the border between Iran and Iraq and as a child he had moved with his family to Tehran, where he lived until he came to Australia. He advised that his grandfather was Kurdish from Iran and had migrated to Iraq seeking work there. His grandfather had married and his children were born in Iraq, but his children (the Applicant’s parents) were not granted citizenship by Iraq as they were Iranian by descent. During the war between Iraq and Iran, Saddam Hussein forcibly deported Faili Kurds back to Iran. Subsequently, the Applicant’s parents were never given citizenship, and whilst he was born in Iran he also was not granted citizenship. As such, he and his parents are stateless, undocumented Faili Kurds. He advised the Tribunal that neither Iran nor Iraq recognise him or any members of his family. The Applicant also advised the Tribunal that he and his family had “tried a lot” to obtain an identity document from Iran, however had never been able to.
The Tribunal noted the DFAT Country Information Report Iran which corroborates the Applicant’s recount of his family history of forced migration from Iraq to Iran; the report states:
The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border… They are distinguishable from other Iranian Kurds by their religion (most are Shi’a), location, and distinct dialect. Three main groups of Faili Kurds live in Iran: Iranian citizens, those of Iraqi origin who are registered refugees, and those of Iraqi origin who are not registered refugees.
Upon seizing power in this 1960s, that Ba’athist government in Iraq adopted several policies with the effect of excluding Faili Kurds, most notably Decree Number 666 (1980) that cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War… Reports suggest that many Faili Kurds of Iraqi origin have applied for Iranian citizenship. However, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and high cost involved….. Others have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian nationality…
The Respondent contended that the Applicant had made inconsistent claims in respect of his and his parent’s place of birth and citizenship. The Respondent drew the Tribunal’s attention to the Applicant’s application for Australian citizenship, submitted online on 12 December 2015. In this document the place of birth of himself, his mother and father is listed as Tehran, Iran and citizenship as Iranian.
The Applicant advised the Tribunal he had sought the assistance of a legal firm in Footscray to complete this application, having been referred there by a friend. He advised that the law firm completed the form on his behalf and he had provided the information to them without the aid of an interpreter. He stated he did not blame the law firm, which was not the one representing him at the hearing, for the mistakes but himself for not understanding the significance of the document. He advised the Tribunal that his English was not good, and therefore he had misunderstood the questions and thought he was advising where he and his parents were living.

The Applicant advised the Tribunal that in his original statement on arrival on Christmas Island he had indicated he and his parents were stateless Kurd Faili, and that he had been born in a village in Iran. Further he indicated that the two subsequent Form 80s he had submitted to the Department as requested indicated he and his parents were “Kurdish Faily (stateless)”, and again had noted his birthplace as a village in Iran. He indicated he had completed these subsequent Form 80s with the assistance of a friend who was able to translate the questions and answers for him.
The Tribunal noted the electronically submitted application for citizenship for conferral dated 12 December 2015 had not been signed, whereas the Form 80s dated 18 August 2017 and 18 April 2019 were both signed by the Applicant.
The Respondent contended that the Applicant had made inconsistent claims in respect of his education. The Respondent drew the Tribunal’s attention to the Form 80 dated 18 August 2017 where the Applicant had said he never had an education, and compared that to the Form 80 dated 18 April 2019 which stated he had studied “just four years” at a Mosque.
The Applicant advised the Tribunal that he had never received any formal education in Iran as he was prohibited from attending schools as he was stateless. He said he had not meant to indicate that he had no education on the Form, but that he had no access to official study in a school. Like many others, he was unable to attend school in Iran and had attended the Mosque in the evenings, where he learnt to read and write. The Applicant indicated he has limited literacy skills in Farsi. He stated again it was his misunderstanding of the question but that he had not intended to misrepresent his level of education.
The Respondent contended that The Applicant had made inconsistent claims in respect of his work history as he had advised the Tribunal he had worked from a very young age. The Respondent drew the Tribunal’s attention to the Form 80 dated 18 April 2019 where the Applicant indicated he had never worked between 1982 and 2011, then compared that to the Form 80 dated 18 July 2017 where he indicated that from 1994 to 1999 he had done trolley work; and also other statements where he had indicated he had worked in construction.
The Applicant advised the Tribunal that he had worked in various forms of illegal labour in Iran, as his father had, in the markets pushing trolleys and in construction. He stated that he had taken any work available to assist his family financially. He did concede he had provided inconsistent information in respect of his employment but that this had not been in an attempt to deceive, but again a result of his misunderstanding of the English language and his misunderstanding of the question. He reiterated that it was a misunderstanding of the notion of formal and informal work.
The Respondent contended that it was implausible that the Applicant was unable to obtain identity documents through his parents, such as a birth certificate, citing information contained in the DFAT Country Information Report Iran which states birth registration in Iran is compulsory. The report states:
Birth registration is compulsory and must occur within 15 days of birth. Hospitals issue birth certificates for newborn children. Parents then submit these certificates along with their own national identity card or shenasnameh to the local Office of the National Organisation for Civil Registration (ONOCR), who then issues the child’s shenasnameh. Where a child is born at home, a doctor’s note stating all the particulars of the birth is required for a birth certificate and subsequent issuing of a shenasnameh.
The Applicant reiterated to the Tribunal that the problem was that he was born during the Iraq-Iran war and neither country would accept his family as citizens. He explained that he was not born in a hospital like other children and had never been issued with an Iranian birth certificate.
The Respondent contended that it was implausible that the Applicant and his parents had never been issued with a White card in Iran, relying upon information contained in the Delegate’s determination of 22 May 2019, in which he stated:
Your comment conflicts with departmental advice which indicates that refugee identification cards offer refugees the legal right to stay in Iran and avoid the risk of deportation. They offer access to education, health insurance and can be used as identification to open a bank account. I find it unlikely that you and your family were able to reside in Tehran for many years and access services such as property rental, banking and health insurance without one of these identification cards. It is more likely that you were issued a white card in around 2002 to ensure that you were compliant with Iranian registration record requirements.
The Applicant reiterated to the Tribunal that he had claimed from the day he arrived in Australia that he and his family were stateless. He had indicated that his family had been issued with a card so the authorities could identify them as migrants, but they had not been issued with any formal documentation, such as a birth certificate, which would have resolved his complex situation of being completely “identity-less”. In his witness statement for the hearing, the Applicant stated:
I was not issued with any identity documents in Iran except a green card. My green identity card was taken by Iranian authorities with a view to issue me with a White card. However, once I handed in my green card, I was not issued a White card.
The Tribunal noted in the Applicant’s original interview on Christmas Island dated 4 September 2010 he stated:
Why did you leave your country of nationality (country of residence)?
For security for my life, for financial reasons and social reasons too. To be stateless and have no rights as a citizen force me to take this journey to come here. Tell me about your work? It wasn’t easy, it wasn’t secure there was social pressure and security pressure. I didn’t have ID but my trolley had ID… Because we had no ID, we weren’t recognised as a citizen, they were trying to send us to Iraq but Iraq says we are Iranian. Who? The Iranian regime. Did you see Iranian officials? Because I had no ID they were harassing me, the authorities, not allowing me to work, taking the trolley away from me so I had to go back. These people were government officials…. What else was difficult for you? Because I didn’t have ID, we didn’t have medical or insurance cover. If I was sick I had to pay lots of money for medical treatment…. Under pressure of not having ID, being stateless, couldn’t open bank accounts or have an official business. Most of all we didn’t have security.
Do you have any reasons for not wishing to return to your country of nationality (residence)?
.. Because, as a stateless person, how I left the country is very important. It would cause problems for my father and his friend also. I don’t like to see my children to be stateless like his father.
The Respondent contended that it was implausible that the Applicant’s parents had been able to open a bank account in Iran without some form of documentation, relying upon information contained in the Delegate’s decision and the DFAT Country Information Report Iran. They further contended that the Applicant’s claim his parents paid a bribe to open a bank account in Iran was also implausible.
The Applicant advised the Tribunal that he was aware it was impossible to open a bank account in Iran without identification; however his father had opened a bank account many years ago by paying a bribe. He stated that he sent much needed financial support to his family, when he could afford to, through this account.
The Respondent contended that it was inherently implausible that the Applicant had been able to depart Iran from Tehran airport on a fraudulent passport, relying upon information contained in the DFAT Country Information Report Iran, which states:
Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.
In his witness statement for the hearing the Applicant stated:
I purchased and used someone else’s genuine passport by paying a bribe to exit Iran.
Expanding on this statement, the Applicant advised the Tribunal that he did not own a passport, and that the passport he had travelled on was not his nor was it forged. He stated that it was a genuine passport that had been purchased illegally so that he could depart the country. He disagreed with the contention of the Respondent, stating it had been quite easy to depart via the airport on a flight out of Iran as the passport was not fraudulent, but a genuine passport with a photo that resembled him slightly, and he had been advised to go through a specific gate. He understood the immigration official at this specific gate was linked to his father’s friend who was assisting him to depart Iran.
The Tribunal noted this story is consistent with the Applicant’s original interview on Christmas Island dated 4 September 2010, where he stated:
Who made those arrangements (travel to Australia) for you?
My father’s friend organised a ppt. I departed from Tehran airport, gate 2. I flew to Dubai, transited there and then went to Jakarta. Who told you to take this route? My father’s friend. They told me to go to Indonesia and from there someone will help you
What arrangements were made?
My father had a friend who made a ppt for me to get out. I flew on 23 June unsure what airline on an Iranian ppt. In Tehran airport they asked me where I was going, I said Indonesia. The person who was at immigration there was linked to my father’s friend…
CONSIDERATION
Mr Amani, the Applicant’s representative, argued that the Respondent’s contentions had been easily explained. He argued that the Applicant’s action of submitting one online form with mistakes should not preclude him from becoming a citizen. He argued that the Applicant had no criminal matters before any courts in Australia or anywhere else. He contended that things were different in Iran to Australia, especially in respect of legal identification documents, and regardless of this the Applicant’s story had remained consistent. He argued that the Applicant, as a stateless Faili Kurd, should not be denied the ability to become an Australian citizen because he had been unable to obtain any identity documentation due to his stateless status from birth.
Ms Ward, on behalf the Minister, submitted that the Tribunal must be positively satisfied of the Applicant’s identity, as it is to be the foundation of his identity moving forward. She reiterated that the Tribunal could not assess the Applicant’s identity to any level of satisfaction, and as such the Delegate’s decision should be affirmed. She contended that the Applicant’s entire story was implausible and inconsistent. She further argued that the Applicant had made no attempts to demonstrate he had attempted to obtain the necessary identification documents to prove his identity, and that this should weigh adversely against his application. She noted that the Applicant had not sought a statement from his father or other members of his family in respect of supporting the claims he had made, nor requested his father appear as a witness to these proceedings. She argued that the Applicant was fully aware of the importance of these identification documents, but had failed to treat the matter with any seriousness.
To further support her argument, Ms Ward drew the Tribunal’s attention to the Revised Citizenship Procedural Instructions (RCPI), which state:
that assessing identity for citizenship is not a point in time concept. A person’s identity must be considered from birth to present. When applying for a Visa, a person may not have had to meet this legislative and policy identity requirement. Therefore any previous assessment for a Visa may be considered as evidence; however, it must not be the sole determining factor for citizenship identity assessment.
Additionally, Ms Ward drew the Tribunal’s attention to the matter of ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3045 where the Member found:
The Tribunal notes commentary in Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310 at paragraph 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 accepts that a certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256).
The Tribunal, having considered all the evidence before it, given that the ZVNT and MFYW were issued with pink cards, finds that ZVNT, MFYW and SWQL, should be required to make an attempt to secure certified copies of pre requisite documents required for citizenship. The Tribunal supports the contention of the Respondent that there was no effort made to do so, and consequently, this has impacted adversely on the success of this application.
…
Having considered all the evidence before the Tribunal, the Tribunal holds the view that further inquiries and production of documents are required to satisfy the criteria for identity under the Citizenship Act.
Mr Amani indicated that the Applicant’s father had not been asked to provide a statement in this matter as he was elderly and suffering from health issues, and additionally the Applicant had not wanted to cause his father any further distress.
The RCPI provides that assessment of a person’s identity must be on an evidence-based approach, which seeks to establish a person’s identity from birth. The Tribunal cannot be satisfied of a person’s identity at one point in time as a person’s identity is not a point in time concept, but must be verified incrementally through a person’s life and considered historically. It provides that when assessing a person’s identity, the objective is to determine whether inconsistencies are identified with any aspect of a person’s life story, biodata and documentary information (i.e. individual’s birth certificate).
Further the RCPI clearly identifies that individuals seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arriving in Australia. In this situation, the RCPI articulates that an informed assessment is necessary based on research of country information and weighed against the evidence provided by the applicant.
The Tribunal finds the Applicant has provided a consistent life story from the time he arrived on Christmas Island to the Tribunal hearing. He has continually asserted that he was an undocumented stateless Faili Kurd born in Iran to parents who were also undocumented stateless Faili Kurds.
The Tribunal recognises that the one inconsistency in this chain was the undated, unsigned, electronically lodged citizenship application, noting all other information provided by the Applicant had been hand written, signed and dated. Based on this evidentiary fact, the Tribunal accepts the Applicant’s testimony that he had misunderstood the questions asked when filling in his original citizenship by conferral application. In the subsequent Form 80s submitted at the request of the Department, the Applicant’s life story remained consistent. The Tribunal therefore places significant weight on the Applicant’s evidence.
The Tribunal was not persuaded by the conjecture of the Respondent’s argument that the Applicant’s claims in respect of being an undocumented stateless Faili Kurd were implausible based upon the evidence of the DFAT Country Information Report Iran. The Tribunal does not dispute in any way the report, but did question the interpretation of this information in respect of the Applicant’s claims, and subsequently has not arrived at the same conclusions as the Respondent. Indeed, the Tribunal found the DFAT Country Information Report Iran corroborated many aspects of the Applicant’s life history. Ms Ward accepted that the Applicant’s account of his family’s plight as Faili Kurds was clearly the same as documented in the report.
The Tribunal finds the Applicant’s account of his life story and inability to provide any documentation as plausible. Additionally, the Tribunal did not find that the Applicant had failed to avail himself of opportunities to secure evidence of identity as he clearly articulated that over the years his family had attempted to secure such information and had not succeeded. Indeed this was one of the reasons for which he had left his family in Iran and sought asylum in Australia.
The Tribunal relies upon the DFAT Country Information Report Iran which indicates that reports found many Faili Kurds were undocumented migrants, and does not rely on the information cited by the Delegate that the Applicant’s family would have been issued with a White card in 2002, as this was supposition. Additionally the information cited by the Delegate and relied upon by the Respondent in this matter, “Your comment conflicts with departmental advice which indicates that refugee identification cards offer refugees the legal right to stay in Iran and avoid the risk of deportation” was not corroborated with documentary evidence before the Tribunal.
CONCLUSION
The Tribunal, having considered all the evidence placed before it, is satisfied of the Applicant’s identity. As such, he should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the Delegate dated 22 May 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act, that it is satisfied of the Applicant’s identity.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

[sgd]............................................................
Associate
Dated: 17 February 2020

Date of hearing: 20 January 2020

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Bilal Amani

Amani Lawyers

Advocate for the Respondent: Ms Inshani Ward

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 372

17 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Date of hearing:	20 January 2020
Advocate for the Applicant: Solicitors for the Applicant:	Mr Bilal Amani Amani Lawyers
Advocate for the Respondent:	Ms Inshani Ward
Solicitors for the Respondent:	Sparke Helmore Lawyers