XJDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 4912

XJDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4912 (3 December 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0991
Re:XJDS
APPLICANT

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

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:3 December 2020
Place:Perth

The Tribunal affirms the decision of the delegate to refuse the Applicant's citizenship by conferral, dated 31 January 2019.
....................................[sgd].................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – national of Iran – eligibility –
refusal of citizenship – statutory prohibition – Tribunal not satisfied of identity –
decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 24(1), 24(3)
CASES
Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1716
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2576
Minister for Home Affairs v G (2019) 266 FCR 569
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (Identity Guidelines), 2016 – chapter 2.1
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) 16
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) - Chapter 13
Department of Immigration and Border Protection Revised Citizenship Procedural Instructions – CPI 16 Assessing Identity under the Citizenship Act
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
3 December 2020
INTRODUCTION

The Applicant seeks review of a decision under s 24 of the Australian Citizenship Act 2007 (Citizenship Act) of a delegate of the Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs (the Delegate) made on 31 January 2019 to refuse to approve the Applicant becoming an Australian citizen by conferral.
The basis for the refusal was that the Delegate was not satisfied of the Applicant’s identity (T2/3-7).
The hearing was conducted by telephone conference on 9 November 2020.
The Applicant was self-represented and gave evidence on affirmation. Mr A Gerrard of the Australian Government Solicitor represented the Respondent.
An interpreter attended the hearing in person and assisted the Tribunal in the Farsi language, although the Applicant required only minimal assistance.
BACKGROUND
The Applicant is a national of Iran who advised that he first arrived unlawfully in Australia in 2001 before being relocated to Nauru. At that time he declared to the Australian authorities that he was from Afghanistan and that his name was ‘Mohammad Hassan’ or ‘Mohammad Hussain’ which was the name upon the false Afghani passport he had used.
The Applicant remained on Nauru for a significant period before being removed voluntarily to Afghanistan. At no time during this period did the Applicant disclose his real identity.
(The Respondent notes that the Department of Immigration and Border Protection does not have a record of this arrival, but generally accepts the Applicant’s claim of his arrival in 2001 (Exhibit R1, para 4)).
On 7 November 2011, the Applicant arrived on Christmas Island as an irregular maritime arrival and was granted a Humanitarian Stay (Temporary) (Subclass 449) visa on 26 April 2012. On 9 July 2012, the Applicant was granted a permanent Subclass 866 Protection visa enabling him to reside permanently in Australia. On 2 February 2018, the Applicant was granted a Subclass 155 Resident Return visa.
On 29 April 2016, the Applicant lodged an application for conferral of Australian citizenship (T5/41-51). In support of his application, he provided a travel document from Australia,
an Australian drivers licence, a Medicare card, and an Australian bank card.
On 24 July 2017, the Applicant attended an interview with the Department at which time he provided:
(a)copies of his Iranian educational documents (with translations) (T10/126-129);
(b)a copy of his marriage certificate (with translation) (T10/133-137);
(c)a copy of his Iranian birth certificate (with translation) (shenasnameh) (T10/121-122);
(d)copies of identity cards for his father and grandfather;
(e)correspondence received from the Iranian Vital Records Department (T10/130-132);
(f)completed Personal Particulars Form (Form 80) dated 2 November 2016 (T7/59-76);
(g)completed Declaration of Service (Form 1399) (T77-85) dated 2 November 2016; and
(h)three statutory declarations (T7/87-92).
At the interview on 24 July 2017, the Applicant advised that his original Iranian birth certificate was destroyed by accident and that he has since made unsuccessful attempts to replace that document (T2/5).
Following the interview, the Department sought verification of the documents provided by the Applicant from the overseas post in Iran. The overseas post advised that the documents were unable to be verified with the Iranian authorities although they could confirm some details in respect of the Applicant’s father. The delegate also noted that the overseas post raised concerns regarding the Applicant’s claims in respect of his identity documentation and assessed his claims in this regard as misleading or false information and of serious concern (T2/6).
On 11 January 2018 the department invited the Applicant to comment on the adverse information from the overseas post (T11/140-142), and on 5 February 2018 the Applicant responded (T12/143-144).
The delegate refused the Applicant’s application for citizenship by conferral on 31 January 2019 because he was not satisfied of the Applicant’s identity (T2/3-7).
The Applicant lodged an application for review within time on 25 February 2019.
He gave his reason for the application as: ‘All information, documents and details I provided, comments I gave to them, were not taken into account’ (T1/2).
LEGISLATION AND POLICY FRAMEWORK
The relevant legislation is contained in the Citizenship Act.
Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(3) of the Citizenship Act provides that the Minister must not approve an applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
‘Identity’ is not defined in the Citizenship Act and should be given its ordinary meaning. However, the Department of Immigration and Border Protection Citizenship Policy in Chapter 13 (the Citizenship Policy) refers to the concept of identity at p158 as described in the Attorney-General’s Department, National Identity Proofing Guidelines
(Proofing Guidelines) (2004) (the Guidelines). Chapter 2.1 of the Guidelines relevantly provides:
2.1.1A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
2.1.2 A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
The Respondent relevantly notes that in the introduction of the Australian Citizenship Bill 2005 (Cth) the Supplementary Explanatory Memorandum explained that:
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 (Exhibit R1, para 15).
The Citizenship Policy at Chapter 13 at p158 states that:
The identity provisions prohibit the approval of a citizenship applicant [sic] in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
The Department of Immigration and Border Protection Revised Citizenship Procedural Instructions, CPI 16 Assessing Identity under the Citizenship Act (CPI 16), at [4.4] provides that: ‘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’. The three pillars of identity are Biometrics, Documents and Life Story
(see Exhibit R1, para 18).
In its consideration of the three pillars of identity in the matter of MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2576,
the Tribunal found at [75] that:
The three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant. The Guidelines emphasise the combination of characteristics and attributes which allow an individual to be distinguished from others. In that context, to be satisfied if an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.
CPI 16 at [4.12] states that:
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.
Applicants are required to make at least some effort to obtain material and documents to assist the decision maker to establish their identity. CPI 16 at [4.12] states that ‘…the onus is on the applicant to provide information or evidence to support their identity’. Evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of an applicant (Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [32]).
In its consideration, the Tribunal not only has regard to the provisions of the Act, but also to the relevant policy contained in the Citizenship Policy, the Guidelines and CPI 16.
The Tribunal, as a decision maker, will generally apply the guidance provided in these materials unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645).
ISSUES
The Tribunal must determine whether it is satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act. If the Tribunal is not positively satisfied as to the Applicant’s identity it must affirm the decision under review.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T14, pp1-151);
·Applicant’s written statement filed 9 December 2019 (Exhibit A1);
·Applicant’s bundle of documents (Exhibit A2) including:
oa statement by the Applicant,
otranslated letter from Tehran Civil Registration Department dated
10 July 2007; and
oa translated letter from Ghasem Pourabbas dated 11 May 2019;
·Translated letter from Ghasem Pourabbas dated 11 May 2019 (Exhibit A3);
·Statement of Issues, Facts and Contentions of the Respondent dated 1 September 2020 (Exhibit R1); and
·The oral evidence of the Applicant.
Applicant’s oral evidence
The Applicant told the Tribunal that although he was born in Iran, lived there and studied there, he was not Iranian because his parents were not Iranian (Transcript p8).
He said that when he arrived in 2001 by boat he had travelled from Iran using an Afghani passport provided by a people smuggler. He was on Nauru for three or four years and maintained throughout that time that he was ‘Mohammad Hassan’ (or ‘Hussain’) from Afghanistan (Transcript p12). He accepted a financial payment of ‘I think around $2000…’ to be removed to Afghanistan, and after ‘maybe two, three days…’ in Kabul he travelled to Herat and then crossed the border into Iran (Transcript p13). The Applicant could not remember which year he returned to Iran.
The Applicant said that after ‘[s]even, 10 years, something like that’ he left Iran again for Australia with a false passport provided by a people smuggler and subsequently taken back from him in Indonesia (Transcript p14).
The Applicant told the Tribunal that he did not include his earlier arrival in Australia in his citizenship application because he cannot read or write and someone had helped him to fill out the form (Transcript p15). He also said that because someone helped him to complete the forms, ‘just maybe it was a mistake’ that only the years of his children’s births had been provided rather than the full dates (Transcript p19).
The Applicant said that his wife destroyed his shenasnameh in the washing machine,
and that he had never possessed an Iranian National Identity Card (NIC). He agreed with the Respondent that the reason he did not get a NIC was that the issue of a NIC required a shenasnameh and he knew that his shenasnameh was not genuine (Transcript p16).
The Applicant confirmed that he has not made any attempts to obtain evidence relating to his identity and life story from his siblings who reside in Iran and with whom he sometimes has contact, from Nauru or from anyone else in Iran (Transcript p19). This despite his evidence that he has been back to Iran ‘[m]aybe five, six times, maybe more’ since he left Nauru (Transcript p20).
CONSIDERATION
To assist the Tribunal’s considerations, the Respondent refers the Tribunal to the Department of Foreign Affairs and Trade Country Information Report (the DFAT Report)
on Iran, dated 14 April 2020, which advises that:
Birth Certificates (Shenasnameh)
Birth registration is compulsory and must occur within 15 days of birth.
Hospitals issue birth certificates for newborn children. The certificate includes the parents’ national identity card and shenasnameh numbers, and, where the parents have settled on one, the newborn’s name. Parents then submit the birth certificate along with their own national identity card or shenasnameh to the local ONOCR, which then issues the child’s shenasnameh (the ONOCR is the sole issuing authority for shenasnameh).
Where a child is born at home, a doctor’s note stating all of the particulars of the birth is required for a birth certificate and subsequent issuing of a shenasnameh. The shenasnameh itself is a small passport-style book issued to all Iranians.
The first page is the inside of the cover page and includes the bearer’s fingerprint.
The second page contains a photograph (for bearers over the age of 15), the names of the bearer’s parents, the date and place of birth, the location where the shenasnameh was issued, the name of the issuing officer and a serial number.
The third page contains information on the bearer’s marriage(s), divorce(s) and children. The current style of shenasnameh was introduced in 2013.
To obtain a replacement shenasnameh, a person must attend the national ONOCR and produce an official identity document (such as a passport or national identity card) that confirms their identity. An affidavit of identity must also be presented.
The replacement shenasnameh features a diagonal printing across the centre of all pages stating ‘duplicate’, and a new date of issuance.
National Identity Cards
Every permanent resident of Iran over the age of 15 (including non-citizens)
must hold [sic] national identity card. National identity cards are compulsory for a range of activities, including obtaining passports and driver’s licences and using bank services. ONOCR initially issues applicants with temporary cards upon receipt of a completed application form, an original copy and photocopy of all pages of the applicant’s shenasnameh, and two photographs. Applicants must present all of this documentation in person at either a local branch of the ONOCR or an Iranian diplomatic mission abroad. Applicants’ fingerprints are also taken.
The ONOCR then issues a permanent card with a 10-year validity.
The front of the national identity card includes the bearer’s photograph, national identity number, full name, date of birth and shenasnameh number. The reverse features the bearer’s residential numerical code, validity date, and the numerical identifier of the issuing office. National identity cards do not specify the bearer’s religion. National identity cards are biometric The ONOCR is the issuing authority.
There is no requirement for Iranians to carry either or both of their shenasnameh or national identity card at all times. They are required only when it is necessary to prove identity – not having them will prevent individuals from being able to complete their business. Different offices require different forms of identification: banks require only a national identity card, while notary public offices require both NID and shenasnameh. Iranians generally check with offices ahead of time to see which form of identification is required, or carry both as a means of security.
DFAT is not aware of the existence of a ‘Foreign National Identity Card’.
As far as registered refugees are concerned, an Amayesh card is the sole form of identification issued.
Passports
Iranian passports are burgundy, with the Iranian Coat of Arms emblazoned on the top of the front cover. Passports serve as proof of Iranian citizenship.
All Iranian passports are biometric (since February 2011). Iranian passports include the following data: holder’s signature; country of residence; place of issue; name and position of the issuing authority; passport type; country code; passport number; national identity number; holder’s name; father’s name; date and place of birth; sex; date of issue; and date of expiry. Passport applicants are required to provide their original shenasnameh, photocopies of all of the pages of the shenasnameh containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the last three months. Applications can be lodged at police stations. New passports are dispatched by registered post and arrive 10-15 days after the application’s date of lodgement. As with driver’s licences and other forms of identification, women must have a headscarf covering their hair completely in their passport photographs. The Iranian Passport Office is the issuing authority for Iranian passports.
Other
The minimum age for driving in Iran is 18 years. The Traffic Police issue driver’s licences. The issuing authority for Iranian driver’s licences does not change. Passport-sized photographs are required for driver’s licences.
Iranian citizens are able to obtain court documents and documentary evidence of convictions or fines like traffic offences by applying for a personal certificate or personal record from the police. A small fee is involved. Recordkeeping practices by the police are robust and well-developed (Exhibit R1, para 25).

The Respondent also cites the DFAT Report as stating that ‘Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use’ and that:
Local sources told DFAT that document fraud is ‘extremely difficult’ for primary forms of documentation like passports, national identity cards, shenasnameh and driver’s licences. Obtaining these documents is considered beyond the technical and financial means of most Iranians (Exhibit R1, para 26).
The country information indicates that the critical identity documents for Iran are the shenasnameh and the NIC. The Applicant has provided neither document.
The country information advises that all permanent residents of Iran over the age of 15, including non-citizens, must hold a NIC. In circumstances like the Applicant’s where he has resided permanently in Iran, studied, married and had children, the Tribunal considers his explanation (see paragraph [30] above) for never possessing a NIC to be inadequate.
With respect to the second critical Iranian identity document, the Applicant explains:
‘My shenasnameh was destroyed in washing machine. I tried many ways to get replica even I consulted to a lawyer [sic]. But it was not possible’ (T12/143). The Respondent contends that the Tribunal should reject the Applicant’s claim that his shenasnameh had been destroyed because it is implausible that such an important document would be treated so recklessly (Exhibit R1, para 30). The Tribunal agrees.
In his written submission explaining his inability to obtain a replacement shenasnameh,
the Applicant states:
My grandfather had migrated from Afghanistan to Iraq. So my father grew up in Iraq. They were forced to leave Iraq. One of my father’s friend [sic] helped him to buy an Iranian shenasnameh from a family whose document owner was died already [sic]. Years after that family declared their docment [sic] was stolen. My father was not aware of that attended to one of civil status registration office but they seized [sic]. After years [sic] when my shenasnameh was destroyed in washing machine I applied for replacement instead. I received a letter indicating I was not able to get new [sic one because my father’s shenasnameh was usurped. My shenasnameh was genuine but because my father’s document was not genuine. I was not able to get Iranian document. (Exhibit A2)
In the present consideration, the Tribunal is unable to afford any significant weight to the Applicant’s explanation because the country information indicates that registration of birth and the subsequent requirement for a shenasnameh would have applied to the Applicant, and advises that document fraud is extremely difficult for documentation like a shenasnameh.
In support of his citizenship application, the Applicant relies on documents which by his own admission are invalid and not accepted by Iranian authorities (Transcript p18; see also paragraph [10] above). Relevantly, the Respondent cites the matter of Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020]
AATA 1729 at [47] in submitting that Australian authorities should not accept the validity of the Applicant’s documents when the Iranian authorities do not: ‘[t]he validity of …a document as evidencing identity is reliant on the document being issued in accordance with the relevant legal process applicable to the document’.
The Tribunal draws no adverse conclusions from the methods employed by the Applicant in leaving a country where he may have felt fear to pursue a better life in Australia.
However, the Applicant maintained the identity of ‘Mohammad Hassan’ in his dealings with the department and over an extended period in Nauru, before taking a financial benefit to be removed to Afghanistan still under that false name. The Applicant used a second identity and false passport during his return journey to Australia in 2011, before adopting the present name integral to his claimed identity and the subject application for citizenship.
The Applicant presents as a poor historian regarding elements of his life story. His failure to record the full birthdates of his children and the imprecise recall of the time spent in Nauru, the length of time back in Iran between his two arrivals in Australia and the number of times he has returned to Iran serve to exacerbate the Tribunal’s difficulty in establishing the Applicant’s life story and satisfaction of his identity. Further, he has not taken reasonable steps to assist decision makers and mitigate the Tribunal’s difficulties (Paragraphs [22] and [31] above refer).
CONCLUSION
The Tribunal’s considerations have regard to the high standard of satisfaction of identity required for Australian citizenship and the statutory prohibition on approval of a person becoming an Australian citizen when the decision maker is not satisfied of the applicant’s identity. The Tribunal has consistently held that a certificate of Australian Citizenship is a legal document of extraordinary significance, and that the Tribunal should not countenance an outcome which could lead to certificates being issued in circumstances where the identity of the applicant is far from clear.
In the present matter, the Applicant has not provided evidence which the country information indicates should be available. The Applicant provided Australian authorities with a false identity and maintained this over a sustained period, and the identity now claimed and integral to the citizenship application is at this time not independently verifiable.
The overseas post has expressed concern with documents relied on by the Applicant.
The Applicant confirmed in his own evidence that he has not taken steps which could reasonably be expected to have been taken to assist in satisfying his identity.
The Tribunal finds that it is not satisfied as to the Applicant’s identity to the standard expected for the conferral of Australian citizenship.
The spirit of the Citizenship Act provides an enduring right for the Applicant to apply again for citizenship. At this time the Applicant’s identity is uncertain, but it is open to him to seek further information to meet the evidentiary burden necessary for the satisfaction of his identity.
DECISION
It follows from the above that the correct and preferable decision is to affirm the decision under review.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner,
AM LVO (Retd), Member

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Associate
Dated: 3 December 2020

Date of hearing: 9 November 2020

Applicant: In person

Counsel for the Respondent: Mr Arran Gerrard

Solicitors for the Respondent: The Australian Government Solicitor

Date of hearing:	9 November 2020
Applicant:	In person
Counsel for the Respondent:	Mr Arran Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor