WQHV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1115
•21 March 2022
WQHV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1115 (21 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/8046
Re:WQHV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2020/8162
Re:JZRX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2020/8163
Re:CJZJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:21 March 2022
Place:Sydney
The correct or preferable decision, in the matter of 2020/8046, is to affirm the reviewable decision dated 9 November 2020. The reviewable decisions in the matters of 2020/8162 and 2020/8163 are also affirmed.
.................................[sgd]......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – identity requirement not satisfied – good character not satisfied – where applications for children under 15 assessed in their own right – child’s identity requirement not satisfied – granting of application for citizenship is prohibited – decisions under review are affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21, 24
CASES
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Confidential and Minister for Immigration & Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration & Border Protection [2015] AATA 310
Kahzadi and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 1137
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship [Policy Statement]
Revised Citizenship Procedural Instruction (CPI) 14 Australian Citizenship by Conferral – Person under 18
Revised Citizenship Procedural Instruction (CPI) 16 - Assessing Identity
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
21 March 2022
BACKGROUND
The Applicant has applied for review of a decision refusing her application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (‘the Act’). The delegate found that the Applicant did not satisfy the requirement of s21(2)(h) and s24(3) of the Act; namely, the delegate was not satisfied of the applicant's identity due to the inconsistencies provided in her application form and correspondence with the Respondent.
The Applicant arrived in Australia on 21 July 2011 without a visa as an ‘irregular maritime arrival’. Upon arrival, the Applicant made claims for protection in Australia, and on 22 February 2012, she was granted a Subclass 866 (protection) visa.
On 8 March 2016, the Applicant lodged an application for conferral of Australian citizenship. The application included her two minor children.
On 9 November 2020, a delegate of the Respondent refused the Applicant’s application for citizenship by conferral on the basis that the Applicant did not satisfy the identity requirements under s 24(3) of the Act. While the Applicant’s children satisfied the requirement under s 21(5) of the Act, the delegate found that they also could not be satisfied of the children’s identity under s 24(3) and so was prohibited from granting their application for citizenship. Both children have lodged applications for review with the Tribunal.
ISSUE
The issue before the Tribunal is whether the Tribunal is satisfied that the Applicant and/or the children meet the identity requirements under s 24(3) of the Act, and if so, whether the Applicant herself meets the character requirements, pursuant to s21(2)(h) of the Act.
THE LAW
The decision-maker, and the Tribunal on review, is required to assess the Applicant's application for citizenship against the 'general eligibility' criteria at subsection 21(2) of the Act.
Subsection 21(2) provides:
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 21(5) of the Act supplies:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged under 18 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.
Section 24(1A) of the Act provides that a person must not be approved to become an Australian citizen “unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)”.
Section 24 provides for certain circumstances in which the conferral of Australian citizenship is prohibited. Section 24(3) relevantly provides that:
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Tribunal accepts that, if it is not satisfied of the Applicant’s identity, it does not need to assess the Applicant’s character under s 21(2)(h) as s 24(3) prohibits the granting of Australian citizenship.
THE RELEVANT POLICY
The relevant policy to be considered in this matter is relevantly provided below. The Tribunal also takes into account the Australian Citizenship [Policy Statement], which provides general guidance on citizenship applications to decision-makers.
Revised Citizenship Procedural Instruction – 14 Australian Citizenship by Conferral – Person under 18
Guidance on the policy considerations for applications made under s 21(5) (where the applicant is under 18) is contained within the Revised Citizenship Procedural Instruction (CPI) – 14 Australian Citizenship by Conferral – Person under 18. Relevantly, CPI-14 provides that where applications for citizenship have been made for a child on the same form at the same time as a parent, and the parent’s application is refused ‘…the child’s application must be considered as an individual application against the policy guidelines in section 7 of this instruction above.”
Section 7 of CPI-14 provides the following factors, which applicants 15 and under are expected to meet at least one of, and which are relevant in exercising the discretionary power in s 24(2) of the Act:
· Usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application
· Usually resident in Australia and living with a responsible parent, who is a permanent resident and who consents to the application
· Usually resident in Australia and living with a responsible parent, who is not an Australian citizen and who consents to the application
· Usually resident overseas and living with a responsible parent, who is an Australian citizen and who consents to the application.
· An unaccompanied humanitarian minor who falls under the Minister’s guardianship
CPI-14 provides further detail regarding what should be taken into account when considering the above factors.
Revised Citizenship Procedural Instruction - 16 – Assessing Identity
Guidance on the identity requirements of s 24(3) is found in the Revised Citizenship Procedural Instruction (CPI) 16 - Assessing Identity. The Tribunal accepts that it should apply the policy unless there are cogent reasons not to do so.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
CPI-16 states:
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.
Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.
Documents – reliable and secure identity documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Life Story – an account of the events that happened to a person during their lifetime.
Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.
The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.
THE APPLICANT’S EVIDENCE
It should be said from the outset that there are contentions in this matter relating to use of two different surnames by the Applicant in particular identity documents. As there is a confidentiality order over this matter to protect the Applicant’s identity, I will refer to these contentious surnames as ‘AK’ and ‘MK’.
The Applicant gave evidence that she was born in Iraq in 1973. She said that she had only been known by the surname ‘AK’ in Iraq, but that when she was in Iran the ‘A’ component of her name was not used and the surname ‘MK’ was used to better integrate with Iranian society. The Applicant said she had used her grandfather’s name as the prefix for her surname in Iran.
The Applicant said she left Iraq at the age of about six, most probably in 1980. She did not remember much about her time in Iraq.
She said that her father had left Iraq first and that they never returned to Iraq.
The Applicant travelled to Australia with her husband and two sons in 2011. When she arrived in Australia she said she only had a copy of a childhood identity document.
The Applicant said that she had used the name ‘AK’ when she arrived in Australia because that was her real name. She did not advise the authorities of the surname ‘MK’ because that was not her real name, just the name she had used in Iran. The Applicant said that some identity documents for relatives had been provided to the Australian authorities however she did not have any for herself as she had lost them many years ago and did not need them because she did not work and did not see them as ‘important’. When she arrived in Australia, she did not have any knowledge as to the status of her Iraqi citizenship or that it might be reinstated. At the time she applied for Australian citizenship she believed that she was stateless and that she had citizenship of ‘neither Iran nor Iraq’.
The Applicant said that when the family left Iran for Australia neither she, her husband, nor her children had a genuine Iranian passport. Rather, her husband had paid people smugglers for the passports and for the journey from Iran. She said she did not exactly know what her husband had done but she said that her husband did not have a genuine passport for himself because of the difficulties he faced with the Iranian authorities.
The Applicant said that they had paid for the passports in two instalments, half in Iran and half when they arrived Indonesia. The Applicant said that although the people smugglers guaranteed their departure from Iran, they did not guarantee their arrival in Australia.
The Applicant said they had no issues at all in leaving Iran, including clearing the airport in Tehran. She said that the main problem they faced was that the children were very scared when they were ‘on the water’ when coming to Australia.
The Applicant’s husband had earned a good living in Iran, installing illegal satellites, and the money to pay the people smugglers had come primarily from savings and some loans, but the Applicant did not know from whom her husband borrowed money although she said that she had also borrowed some money from her sister who was resident in the UK.
On arrival in Australia the Applicant said that they had applied for protection visas because of her husband’s problems with the Iranian authorities.
When asked why she had not given the name of her brother M to the Department as part of her family, the Applicant said it was because she had never seen him and he was a step-brother, and that she had ‘forgotten about him’.
The Applicant said that her father had died in Iraq in 2013 and provided what she said was a photograph of his grave in that country.
She said that she first became aware that she was an Iraqi citizen in 2021. Before that, she said that she did not know that her father or anyone else in the family was a citizen of Iraq. She also said she was aware that she could obtain Iranian citizenship as her husband was an Iranian citizen. She had taken no steps, however, in this regard because of her husband’s problem with the Iranian authorities.
The Applicant believed that all the information she had given the Australian government at the time of her visa application was true at that time for both herself and her husband.
When cross examined the Applicant was taken to inconsistencies between her statutory declaration of 11 June 2020 and her citizenship application. In particular, where she said no to the question as to whether she had ever been known by any other name and also her answer to the question of citizenship where she claimed that she was stateless.
When put to her during the hearing, the Applicant said that differences as to her mother’s name in her application to the Department were spelling errors, and that at the time that she had filled out her citizenship application in 2016 she had received help from ‘someone’ as she could not read or write English well. The Applicant said that she had not read the document before she signed it.
In response to questioning from the Respondent’s representative, the Applicant said that she had left Australia after her arrival here. The Applicant stated she had travelled to Iran with her children using an Australian travel document.
The Applicant said that her Iraqi citizenship had been reinstated because of the actions of her brother and that she had had no direct involvement in the process. The Applicant was not aware of whether she had Iraqi citizenship prior to her family being expelled from Iraq as she was only a child. She only found out about her citizenship through her other brothers in Australia.
The Applicant gave evidence that she had married her husband in Iran in 2004. The wedding had taken place at home. It was a religious ceremony and ‘someone’ came to help. The marriage was not registered because her husband was said to have problems with the government ‘over there’. This was said to be because the Applicant’s husband had not completed his military service and because he was in the business of installing satellites which was said to be illegal at that time in Iran.
The Applicant said that she had never approached the Iranian authorities to register her marriage either in Australia or in Iran because of her husband’s problems.
The Applicant had spoken to the Iraqi embassy ‘in Sydney’ where she was told that she could get citizenship but that she would have to go to Iraq in order to do so. She said she did not go to Iraq at that time because she was frightened of travelling during the pandemic and although she had a visa, the Applicant said that she feared that if she travelled away from Australia her visa could be cancelled.
THE EVIDENCE OF MR AK
Mr AK is the Applicant’s brother and was born in early 1972. He did not provide a written statement to the Tribunal.
He said that his citizenship was the same as that of the Applicant. He believes he is currently a citizen of Iraq and said he had had Iraqi citizenship until 1980 when it was removed but he thought it had been restored three or four months ago.
He said he believed it had been reinstated because he had been advised by the department. In particular, he referred to a report from the Australian embassy in Jordan saying that the Iraqi authorities had confirmed that he was an Iraqi citizen.
The witness said that he had travelled to Iraq in 2005 whilst he was resident in Iran. He went to Iraq for the purposes of trying to establish his citizenship. He said that he had crossed the borders between Iran and Iraq illegally. He said that he had been hoping for a better life in Iraq and that he wanted to get a birth certificate. He was unable to do so, in particular because it was not possible for his father to accompany him due to his age and health status.
Mr AK said there was nothing further that he could do.
After coming to Australia in 2011, he had only in the last three or four months found out more about his Iraqi citizenship. He said that he had spoken to the Iraqi embassy by telephone and was told that he would definitely be given citizenship but would need to go to Iraq to receive it.
The witness said that he had spoken to other family members in recent months and that one of his relatives had apparently been successful in regaining his Iraqi citizenship.
Mr AK confirmed that the Applicant was his sister and gave details as to the name of their mother, together with an explanation as to different spellings of the name. He and the Applicant had the same father. He said that his sister’s marriage was not recognised by the Iranian authorities.
Mr AK said that his sister was a citizen of Iraq until 1980, as all of the members of his family were citizens until that time.
He said his sister’s marriage was not recognised by the authorities in Iran.
THE EVIDENCE OF MR RZ
Mr RZ is the Applicant’s husband. He said he was born in 1962. He said he had married the Applicant in Iran. It was a religious ceremony, but not recognised by the Iranian authorities. At the time of his marriage, he thought his wife was Iraqi and had migrated to Iran, and that she and her family were stateless.
The witness said he did not seek to have the marriage legally recognised because he had not completed his military service and therefore did not have the required certificate in relation to completion of military service.
The witness said that he was virtually illiterate and that his memory had been badly affected by the long sea voyage from Indonesia to Australia.
The witness confirmed that he had worked in Iran trading and installing satellites and that he had earned a good living from this activity.
Mr RZ said that he was an Iranian citizen, but that he had never had an Iranian passport because he had not completed his military service. He had paid people smugglers to arrange passage for him and his family from Iran to Australia via Indonesia. Approximately half the money had been paid in Iran, and the other half in Indonesia.
He said that there had been no difficulties for him and his family leaving through the international airport in Tehran. The people he had paid organised everything, including their passage to Australia by boat from Indonesia.
The witness said that he was aware of his wife’s Iraqi citizenship because he was aware of the communication from the Australian embassy in Jordan.
He himself has a citizenship application with the Department and said that he applied “a few years ago”.
When asked about his children, the witness said that he and his wife had two children, one who is 16 and the other 14, although he could not remember their exact birth dates. The children had been born in Iran.
He was aware that his wife had siblings but did not know the details, saying that he was only in contact with his wife’s mother.
DISCUSSION
The Applicant provided background information in a number of documents, including her citizenship application and also gave evidence as to her background to the Tribunal. The Applicant said that she had been born in Iraq, and that although she had never been known by the name ‘MK’ she had not used her real name ‘AK’ so as to better integrate with Iranian society. She said that she had left Iraq when she was about six years old and that she did not remember very much about the time she had spent in Iraq.
There was no evidence as to the Applicant attending school in Iran, although it is difficult to believe that she did not have at least some education. It is of concern to the Tribunal that the Applicant did not have any record, formal or informal, of her education or any other major life events pertaining to her life before coming to Australia. She had no legal documents from Iran, pertaining to her identity, and that she claimed that any documents she did have she had lost, and that she did not see such documents as being important.
The Applicant travelled to Australia with her husband and two sons in July 2011 and said that when she arrived in Australia, she only had a copy of a childhood identity document.
There were numerous inconsistencies in the information the Applicant provided, in particular in relation to her citizenship status, her family composition, the name of her mother, and the citizenship of her parents.
The Applicant said she had used the name ‘AK’ when she arrived in Australia because that was her real name. She said that she did not advise the authorities of the surname MK because that was not her real name but rather the name she had used in Iran.
The Applicant stated she had always been known by the name ‘AK’ and that is why she provided it to the Australian authorities, and she did not provide the name ‘MK’ because that was not her real name. The Applicant said that although she had provided some identity documents for her relatives, she did not have any for herself as she had lost them and did not think they were important. When the Applicant arrived on Christmas Island, she claimed that she was stateless and that she had been forced to leave Iraq for Iran under Saddam Hussein and claimed that she had lived in Iran from the 1980s until she left to come to Australia. The Applicant said that she applied for protection visas when her family arrived in Australia because of the difficulties her husband had had with the Iranian authorities.
The Applicant claimed that she had only become aware that she was an Iraqi citizen in 2021, and she said that prior to that she did not know that her father or anyone else in her family held Iraqi citizenship – she only became aware through her brother.
The Applicant also claimed that although she knew she was entitled to apply for Iranian citizenship she did not do so due to her husband’s difficulties with the authorities.
In her application for Australian citizenship the Applicant declared again that she was stateless.
In her statutory declaration dated 11 June 2020 the Applicant stated ‘I had an old birth card from Iraq, which I provided a copy to the department as part of my application in 2011’ and that:
In 2011, my sister, [redacted], went to Iraq to find out the possibility of regaining our Iraqi citizenship. I gave him my old birth card for that purpose. She has to renew the birth card, however, she found out that reobtaining the Iraqi citizenship is impossibly difficult and even if we could spend a lot of money and time it was not guaranteed that we could get out Iraqi citizenship back. Therefore, we did not peruse that [sic]…
The Applicant claimed that at the time of her citizenship application, she did not believe that she was an Iraqi citizen. However, it is of concern that the Applicant does not seem to have made any effort at all to determine the status of her Iraqi citizenship even though she seemed to be aware of the possibilities of at least obtaining Iraqi citizenship and it is apparent that other members of her family were keen to pursue the issue. It is difficult to accept that the Applicant was unaware of changes being made to her citizenship status, and any changes in the position of the Iraqi government in granting or reinstating Iraqi citizenship.
There are also concerns as to the Applicant’s evidence, or lack of evidence, as to her life in Iran. The Applicant claimed that she never applied for Iranian citizenship. There was no evidence given the to the Tribunal as to where the Applicant lived in Iran from the time of her arrival in that country. Both the Applicant and her husband gave evidence that they had two children, both of whom were born in Iran. There did not appear to be any official documentation in relation to her children, all of whom were born in Iran, although she was entitled to register their births because her husband was Iranian. She said that she did not make any such application because of her husband’s difficulties with the Iranian authorities.
There was no evidence as to where in Iran the children had been born, whether or not they had been born in hospital, and if not, whether there had been any medical assistance of any kind. The Applicant gave no evidence at all as to the circumstances of the children’s births and why no birth documents were made available. I note that the Applicant’s husband has said that he and his wife had two children, one sixteen and the other fourteen, but was unable to remember their birth dates. There is no evidence that the children had been officially recognised in Iran, which is somewhat perplexing given that they must have had appropriate recognition in the travel documents used for the family to leave Iran.
The Applicant said that she had married her husband in Iran, but that it was an unofficial marriage because of her husband’s difficulties with the Iranian authorities due to non-completion of his military service. There was no evidence as to where or how the Applicant met her husband. The Applicant’s husband said that they had married in a religious ceremony which was not recognised by the Iranian authorities. There was no evidence as to when or where the couple were married other than that the marriage had taken place in Iran. There was no evidence as to where the marriage ceremony was conducted, or who had attended the ceremony. It is of concern that the Applicant claims never to have had any identity documents in Iran, but was able to obtain a false passport and seemingly travel from Iran, transiting in Dubai, without any apparent problems.
At the time of the marriage, the Applicant’s husband said he believed that both his wife and her family were stateless. He said he only became aware of his wife’s citizenship as a result of receiving the information from the embassy in Jordan.
Overall, there was a complete lack of evidence as to how the Applicant lived in Iran. There was no evidence as to the accommodation in which she and her family lived, for example if they owned or rented a house, and how it was possible for them to do either without any official documentation.
The Applicant said she left Iran on a false passport which she said had been paid for by her husband in two tranches, the first in Iran and the second in Indonesia. The Applicant’s husband confirmed that he had paid people smugglers to arrange passage for him and his family from Iran to Australia via Indonesia. He said that there had been no difficulties for them along the way, and that they had passed through the airport in Tehran without incident. There was no evidence as to the exact amount of money paid to the ‘people smugglers’ for the arrangements made in order for the family to leave Iran, and no evidence as to how the money was accumulated. The Applicant said that her husband had earned a good living in Iran, installing illegal satellites. She said the money to pay the smugglers had come from savings and some borrowings, but she as unaware from whom her husband had borrowed money, although she said she herself had borrowed some money from her sister, who is resident in the UK. The sister was not called to give evidence.
The Applicant’s husband gave no details as to how he had raised money for the people smugglers, and merely said that he had paid half of the money in Iran, and the other half in Indonesia.
The false passports were not produced before the Tribunal, but the boarding passes used by the Applicant and her family were produced.
I note that the Applicant’s husband said that he was virtually illiterate, and that his memory has been badly affected by the long sea voyage from Indonesia to Australia. Again, the lack of specific information as to the circumstances of the Applicant and the family leaving Iran raises doubts as to the Applicant’s story.
Returning to the Applicant’s application for Australian citizenship, there were inconsistencies relating the composition of the Applicant’s family.
In particular, the Applicant listed 14 family members in her form 80, submitted in March 2019. However, in the Protection Obligations Evaluation Outcome dated December 2011, she had listed an additional sibling ‘MJ’. Her reasoning for not including MJ on the form 80 was that MJ was a step-sibling and significantly older than the Applicant.
The Respondent later raised with the Applicant that she had made monetary remittances to four people in Iran under the heading ‘family support’, who had not been disclosed in previous correspondence or applications. All of the recipients shared the same last name.
By way of explanation, the Applicant said that she had used different names in sending money to her family in Iran, because they used the name ‘MK’ on their identity cards, which they had to produce in order to receive the money. She said that the family name had been changed in Iran in order to enable them to fit in more carefully.
I do not give any weight to the inconsistencies in relation to the Applicant’s mother’s name, which can be explained by differences in spelling due to translations from English to Arabic. There were, however, more serious inconsistencies in the documentation in relation the citizenship of the Applicant’s mother. In particular, in the form 80 provided on 12 November 2011, and in her application for Australian citizenship lodged on 8 March 2016 the Applicant claimed her mother was an Iraqi citizen, but on her form 80 she claimed her mother was stateless.
Overall, this case was characterised, in my opinion, by the complete lack of reliable information as to the Applicant’s background, inconsistencies in the information that had been provided, and the lack of any independent corroboration of the Applicant’s story.
When considered overall, there are simply too many gaps in the Applicant’s evidence as to her life in Iran, how she left that country, her family circumstances, and her Iraqi citizenship.
In determining identity, the Tribunal needs to apply much more rigour than would be the case in ordinary day to day life. This is well recognised in this Tribunal, and is illustrated by a number of cases including Kahzadi and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 1137 ; Dhayakpa and Minister for Immigration & Border Protection [2015] AATA 310 ; CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 ; and Confidential and Minister for Immigration & Citizenship [2013] AATA 144 .
On the basis of the evidence provided, the Tribunal cannot be satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Act. In coming to this conclusion, it is not necessary for the Tribunal to determine whether or not the lack of information and the inconsistencies in the Applicant’s evidence are the result of an actual intent to conceal information from the Tribunal, but the paucity of evidence indicates a lack of consideration of the seriousness of an application for Australian citizenship, even if there was no attempt to conceal evidence. The Applicant called only two witnesses: her husband who said he suffered from memory loss and indeed could not recall the date of birth of their children, and her brother, whose evidence was limited to confirming that the Applicant was his sister, that her marriage had not been recognised in Iran, and the circumstances pertaining to her Iraqi citizenship including that she and all members of her family were citizens of Iraq until 1980.
The almost total lack of specificity regarding important events in the Applicant’s life makes it almost impossible to be certain of the Applicant’s identity.
In light of my findings in relation to the Applicant’s identity, it is not necessary for me to deal with the question of the Applicant’s good character under s 21(2)(h), as s 24(3) prohibits the granting of Australian citizenship.
THE CHILDREN’S APPLICATIONS
The Tribunal notes that there was very little material put forward in support of either of the children’s applications, and very little by way of submissions from either party.
Under CPI-14, as I have found that I cannot be satisfied of their mother’s identity and therefore her application will fail, I must consider the applications of the children in their own right.
There are certain policy considerations that have to be taken into account under CPI-14 as are outlined above. I note that the delegate, in the original decision, made the observation that:
I am of the view that your child is not covered by any of the policy guidelines set out above and that it may be appropriate for me to use the discretion provided in subsection 24(2) of the Act to refuse to approve your child’s applications for citizenship.
However, it should be noted that the delegate did not use s 24(2) to refuse the application, but rather found that although the children met the requirements under s 21(5), the delegate could not be satisfied of their identity under s 24(3).
On the evidence before the Tribunal, I am also unable to be satisfied as to the identity of the children. There is no material before the Tribunal of the children’s lives in Iran, including no evidence of their birth, education or even where they lived in Iran. While I note that the Applicant has provided several reasons for this, including her husband’s issues with the Iranian government, this does not explain the complete lack of evidence about the children’s lives prior to their arrival in Australia. In fact, it is fair to say that there was no information at all provided other than the fact that they were frightened on the long sea voyage to Australia. Accordingly, I am unable to be satisfied of their identity as per the requirements of s 24(3) of the Act on the evidence before me.
Accordingly, I must refuse the children’s applications for citizenship.
CONCLUSION
The best course for the Applicant and her children would appear to be to make a fresh application for citizenship after she has obtained all of the relevant information necessary to ensure that there are no inconsistencies in the information she provides and that her life story can be more fully outlined, explained and to the extent possible corroborated by independent evidence. The Applicant would have the benefit of understanding how important it is for there to be full and frank disclosure in documents relating to an issue as important as Australian citizenship.
DECISION
The correct or preferable decision, in the matter of 2020/8046, is to affirm the reviewable decision dated 9 November 2020. The reviewable decisions in the matters of 2020/8162 and 2020/8163 are also affirmed.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.
..........................[sgd]..............................................
Associate
Dated: 21 March 2022
Date(s) of hearing: 20 & 21 December 2021 Date final submissions received: 15 February 2022 Solicitors for the Applicant: Mr E. Jahanandish, Smart Migration Group Solicitors for the Respondent: Ms S. Hardie, HWL Ebsworth Lawyers
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