ZVHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2023] AATA 2779

ZVHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 2779 (1 September 2023)
Division:GENERAL DIVISION
File Number(s): 2022/0730
Re:ZVHJ
APPLICANT

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

DECISION
Tribunal:Ms A E Burke AO Member
Date:1 September 2023
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Ms A E Burke AO Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether satisfied of identity of applicant – whether documentation was sufficient – whether made genuine attempt to obtain documentation from Iran/Iraq - consideration of DFAT Country Information Report – whether satisfied of life story - whether the application for citizenship should be approved – life story remained consistent – Tribunal unable to be reasonable satisfied of identity – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Ater and Minister for Home Affairs [2018] AATA 4677
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Secondary Materials
Attorney General’s Department National Identity Proofing Guidelines
Department of Foreign Affairs and Trade Country Information Report for Iran 14 April 2020
Department of Foreign Affairs and Trade Country Information Report for Iran 29 November 2013
Department of Home Affairs FOI release: Feyli (also Fayli, Faili Feili or Faylee) Kurds - obtaining identity & travel (undated)
Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (27 November 2020)
Immigration and Refugee Board of Canada: Iran: Current information on the use of fraudulent or counterfeit passports to exit Iran 1 April 1997
Landinfo report: Iran – Passports, ID and civil status documents 5 January 2021 Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
REASONS FOR DECISION
Ms A E Burke AO Member

The Applicant is a 43-year-old stateless Kurd born in Iraq, who resided in Iran from a very young age. On 21 July 2011, the Applicant sought asylum in Australia, on 27 March 2012 he was granted a Humanitarian Stay visa (subclass 449) and on the 6 August 2012, was granted a Protection Visa (subclass 866).
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 8 May 2016, the Applicant lodged an application for Australian citizenship by conferral with his application, he submitted a copy of his:
(a)Victorian driver licence;
(b)Victorian proof of age card;
(c)Medicare card; and
(d)Titre de Voyage issued by the Australian government.
On 24 December 2016, the applicant submitted a completed Form 1195 – Identity declaration.
On 8 September 2017, the Department sent a request for further information and on 2 October 2017, the Applicant replied submitting a completed Form 80 - Personal particulars for assessment, including character assessment stating that he was born in Badre Iraq and was a stateless Faili Kurd.
On 25 November 2019, the Department again requested additional information and on 12 December 2019, the Applicant submitted a statutory declaration stating:
I had not been registered with any government of which country that I could ask to issue me an identity document before I arrived in Australia
Since I remember I was struggling with my life as an undocumented stateless person facing lots of difficulties and suffering pain both mentally and physicaly, while living in a remote village. I was hiding and trying not to approach the authorites as I would be detained and punished without a good reason.
I did handy work, carring goods, lifting, loading and unloading apart from working in farms to afford my life.
A smuggler organised my departure having some connections in different organisations to issue me with a passport that I could use only on a certian day to pass through the gates of the airport. I was told that the passport would be useless after I left the country on that date. The passport was taken from me before I board the boat from Indonesia to Christmas Island.
My parents are old and my three sisters are looking after them.
I have been working for Metal and Fabrications company since 2012 when I arrived in Melbourne. Also recently, I have become an uber driver as my second job.
I was born in a village close to the border between Iraq and Iran
(sic).
On 6 April 2021, the Applicant was invited by the Department to comment on adverse information he had provided in his application which they advised may lead to a decision to refuse his application for citizenship. The delegate identified the following information which was of concern:
Discrepancies and concerns in respect of your identity that have been identified during the processing of your application.
The lack of credible information or evidence to establish your identity prior to your arrival in Australia.
“Citizenship – Character Summary” sheet - a summary of the factors that may be relevant to consideration of the good character requirement
The Applicant responded to the request for information submitting the following information:
(a)Statutory Declaration declared by Sam on 23 April 2021, a friend attesting to the Applicant’s character and identity
(b)Statutory Declaration declared by Applicant on 25 April 2021 responding to the delegate’s concerns
(c)Second Statutory Declaration declared by Applicant on 25 April 2021 responding to the delegate’s concerns
(d)Form 80 – Personal particulars for assessment including character assessment
(e)A letter from his previous employer stating the Applicant was employed there between 2012 and 2016
(f)Completed Form 1195 – Identity declaration completed by a friend dated 27 April 2021
On 12 January 2022, a delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act). The application was refused as the Department was prohibited from approving the application because the Delegate was unable to be satisfied of the Applicant’s identity. The delegate stated:
I have given regard to the documents that you have provided to support your claimed identity. These include certified copies of your Titre de Voyage, Medicare Card and Victorian Driver licence.
While these documents give important insight into establishing your identity, I must also consider the period of time over which they were issued and to consider whether I am satisfied of your identity since birth. All of the documentation you have provided in support of your Citizenship application has been issued to you since your arrival in Australia when you were approximately 31 years of age.
In terms of assessing your identity, I have considered the documentation and information that you have provided to the Department in support of your citizenship application. This includes giving consideration to the issues the Department raised in the two (2) Requests for Information sent to you on 08/09/2017 and 25/11/2019. In summary, this letter outlined that Subsection 24(3) may prohibit a delegate from approving your application if they could not be satisfied of your identity, outlined example documents that an applicant (or their families) may be able to obtain in support of your identity prior to arrival in Australia, outlined what was required in a statutory declaration should the applicant be unable to provide these documents to assist with the assessment of identity, and counselled that a decision may be made on your application based on the information held by the Department in the absence of a satisfactory response.
In response to these two letters, you did not provide any documents supporting your identity prior to your arrival in Australia and provided a statutory declaration dated 25/04/2021 in which you reiterated that neither you, nor your family, have ever been issued with identity documents in either Iran or Iraq.
I have given regard to available open source and country information to gauge the likely veracity of your life story. In the absence of anything else, this is a fundamental element of my assessment.
In all of your statements to the department since your arrival in Australian you have maintained that you were never issued with identity documents from your time prior to your arrival in Australia. Departmental information suggests that since 2002, refugees in Iran 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.
2. Law enforcement forces must confiscate expired cards
3. If this card is found, please place it in a post box.”
I find it highly unlikely that you were able to reside in Iran for a period of 9 years – since 2002 – and access services such as property rental, banking and health insurance without one of these cards.
Departmental information suggests there is no evidence of reluctance on the part of Iranian authorities to document refugees, including those who claim to be stateless, within their borders, and there are considerable benefits to obtaining and maintaining identity documents. I find it highly unlikely that your family, including your siblings, continues to reside in Iran, do not hold identity documents and carry out the life you have described to departmental officers and in your statutory declaration.
In your Protection visa application, you stated that you departed Iran via Imam Khomeini Airport in Tehran using a fraudulent passport. Information held by the Department indicates that forged visas or visas obtained through false information exist but exit from the Imam Khomeini International Airport with false documents 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 a land border.
In the Form 80 provided with your Citizenship application you state that your parents and three of your siblings are residing in Iran. I also note that one of your sisters has since deceased. You have not provided identity documentation or supporting statements from your family members confirming their status as Faili Kurds living in Iran (which would in turn assist in verifying your claims). I find it highly unlikely that your family members continue to reside in Iran without identity documentation.
I find that it is very unlikely that you would have been allowed to remain undocumented in Iran for 31 years and after 2002 considering your life story. It is more likely that you were issued a white card in or around 2002 to ensure that Iranian registration records were current. At a minimum, I find it likely that you or one of your family members in Iran has at least one identity document in their possession and/or that a genuine effort could be made to obtain one. This includes, but is not limited to, a death certificate for your deceased sister. It is therefore reasonable to expect that you have a level of documentation attesting to your identity that you deny being able to provide. For the purposes of satisfying Citizenship requirements, a statutory declaration of limited length and detail that states you cannot provide any overseas documents is insufficient.
I note that when undertaking your identity interview for the purpose of your claims for protection you stated you were undocumented and your identity was accepted on face value. However, for the purpose of acquiring Australian Citizenship, the threshold is higher in terms of determining and being satisfied of a person’s identity.
I find that you have provided documents and character references attesting to your identity since your arrival in Australia. While I note that this covers the period since your arrival in Australia in 2011, and I further accept that these documents are consistent to each other, as there is an absence of any earlier documentation, I place less weight on this evidence.
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 definitive finding as to whether or not your circumstances satisfy criteria, or whether they might in future, but I cannot be satisfied that you meet the criteria based on the information before me at this point in time.
In summary, I am unable to be satisfied of your identity, and am prohibited from approving your application under Subsection 24(3) of the Citizenship Act.
On 30 January 2022, the Applicant lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal stating:
Because I don't have any birth certificate or any ID in Iran. As a Kurdish Fali I used to live in a small city close to Iraq border And so many times my family and I tried to get some ID that could show our identity but unfortunately we couldn't. Some of the Kurdish people whoever moved to the capital of Iran they could get some sort of IDs. Even when I was granted a permanent protection Visa in Australia, my identity was approved. Unfortunately, there are still some Kurdish people who they born in Iran and recently Iranian government tried to give them ID after long time. They live in a city by name of Sistan Balochestan. When I came to this country I was 30 years old and I told myself finally after 30 years I got the country where they treat me like a human. That's why for 11 years I never went out of Australia even for seeing my family. When I don't have any ID in my past life how I'm able to show ID to you guys. I believe Australia is the best country in the world and of course with a good law and good rules. Do not assume that every country around the world is the same as this country which is lawful. What do you expect of the countries where they always make trouble for their own people.
A person's life story is central to identity and delegates must assess each person's story on an individual basis. In my case, my life story has not been assessed based on my individual circumstances, but it has been assessed based on open source and country information which does not reflect the reality in all aspects, so it is not fair.
Referring to the delegate's decision on page 6 paragraph 8, his assumptions, that I had access to some services, are wrong. I have never mentioned accessing to such services, on the contrary, I have claimed that I did not have access to such services because of my particular situation. Additionally, I have explained my departure via Imam Khomeini Airport yet the delegate does not mention my genuine explanation. Also, the delegate place less weight on documents and character references attesting to my identity which is not fair.
At the hearing on 14 April 2023 and 21 July 2023, the Applicant was self-represented and assisted by an interpreter in the Kurdish language. Ms Sophie Roberts, solicitor of Mills Oakley Lawyers, appeared on behalf of the Respondent. At the conclusion of the first hearing, the Tribunal requested the Respondent provide an explain of material tendered at the hearing.
ISSUE FOR THE TRIBUNAL
The issue is whether the Tribunal is satisfied of the Applicant’s identity 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). Additionally, the Citizenship Procedural Instruction 16 (CPI 16), published and used by the Department in relation to decision-making under the Citizenship Act, also contains relevant guidance about assessing an individual's identity, specifically for the purposes of determining whether the prohibition in section 24(3) of the Citizenship Act applies.
When considering whether a decision maker is satisfied of an Applicant's identity, the three pillars of identity are set out in CPI 16 at 4.4 namely:
(a) Biometrics - personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies;

(b) Documents - which may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. CPI 16 relevantly states that "only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features"; and

(c) Life story - being the narrative of the events that happened to them from birth to present, which may include "descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence".

The CPI further provides that:
Officers should not rely on a single pillar to establish a person’s identity.
Considering a single pillar in isolation is generally inadequate for providing a
reliable basis on which to establish a person’s identity. In order to comprehensively
test and evaluate a person’s claims with regard to their identity, decision-makers
should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity
assessment process. The citizenship applicant is likely to be well documented,
information provided to the Department will have remained consistent over a long
period of time, and no inconsistencies or concerns will have been identified.
Through their reliability and comprehensiveness, identity documents testify to
important events in the applicant’s life story. Through personal identifiers contained
in identity documents the applicant’s biometrics held on departmental records are
matched and confirmed.
…
4.12 How do I assess a person’s identity – an evidence-based approach
In order to make an informed assessment of a person’s identity, officers must seek
to establish a person’s identity from birth using an evidence-based approach. It is
not sufficient to be satisfied of a person’s identity at one point in time, as a person’s
identity is not a point in time concept; it must be verified incrementally throughout a
person’s life and considered historically.
The way in which officers should approach the concept of assessing a person’s
identity from birth is to create an identity timeline, thus creating a complete picture
of the person’s identity from birth to present. The objective is to link the applicant’s
identity at birth to the identity provided in their application for Australian citizenship
by considering key chronological events in the person’s life. The three pillars are
the methodology for establishing a person’s identity, and officers must turn their
mind to the individual characteristics in order to piece together a person’s identity
timeline and create an ‘identity picture’.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application,
officers should seek to create a complete identity ‘picture’ of the person from birth.
This is not done by asking a person to recite their life story in interview. Instead, a
practical way in which to begin an assessment of a person’s identity, while at the
same time considering their life story, is to consider their identity timeline.
…
There may be cases where one pillar may be given more weight than the others.
For example, cases where the applicant claims they are stateless and therefore
undocumented. In such cases, the available pillar (for example, life story) may
become more significant when assessing the person’s identity. There is also likely
to be a heightened need to explore further material. This may include, but is not
limited to researching credible open source country information. This research will
enable the officer to test and verify whether the applicant’s claims, relevant to
aspects of their life story, are consistent with the situation in a particular country.
Credible country information will support and add weight to a decision, and can be
cited in the decision record.
Example - undocumented arrival: potential avenues of research where one
pillar may be given more weight than the others.
A citizenship application is received from a person claiming: they are stateless,
undocumented, and are unable to provide any evidence of their identity prior to
arriving in Australia as an Illegal Maritime Arrival (IMA); they exited their country of
residence on a bogus travel document; and they previously held an identity card
issued to stateless people by the Government of the country they resided in. They
do not have the card now.
Issues
No documentary evidence of the person’s identity from birth to arrival in Australia
No biometrics which can be used for comparison purposes.
Potential action
In order to test the veracity of the above claims and make an informed assessment,
it is necessary for the officer to research country information. This research will
provide an informed basis on which to assess whether the claims are factually
accurate or plausible, and align with country processes.
….
The officer must then consider, assess, and weigh the country information and
evidence provided by the applicant, ensure that natural justice requirements have
been met, and make a determination whether they are satisfied of the applicant’s
identity. The decision must show the link between the law, facts, clearly explain the
reasons they considered and the weight given to the evidence that ultimately led
them to reaching their decision.
EVIDENCE
The evidence before the Tribunal included three 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 lodged a witness statement, additional identity documents, other supporting documentation and provided the following documentary evidence to establish his identity prior to his arrival in Australia:
·Photos from his childhood with explanation;
·An identity declaration from the Applicant’s parents with an official translation stating that they:
We,…, are the parents of,… the individual in the attached photos.… has been residing in Australia for the past eleven years.
We have asked friends and neighbours who are fully aware that our family belong to the Feyli Kurds tribe and are currently living in Aliabad village in Ilam and our family does not possess any birth certificates or essential identity documents to kindly sign this statement as witnesses.
and;
·A Holy Book with the names of the Applicant and his siblings with their birth dates handwritten on the inside cover page and a translation.
At the hearing, the Respondent relied upon Country Information documentation and tendered at the hearing 2 birth certificates (national identity documents) purporting to be that of the Applicant’s father and mother. The Tribunal requested the Respondent provide:
(a) the provenance of the two birth certificates tendered by the Respondent at the hearing of this matter on 14 April 2023;
(b) the Respondent’s view, if any, on whether the birth certificates are genuine or falsified documents; and
(c) how the birth certificates came to be in the Respondent’s possession.
The Respondent advised the documents had been lodged with the department on 2 December 2014 in connection with a visitor visa application by the Applicant’s mother. The visitor visa application was refused on 18 December 2014 on the basis that the delegate was not satisfied the Applicant’s mother genuinely intended to visit Australia temporarily.
Country Information
The Department of Foreign Affairs and Trade Country Information Report for Iran (the DFAT Iran Report) provides the best judgement and assessment of the country at the time, based on credible sources of information. It provided an overview of Iran documentation as follows:
Despite Iran’s strong legal framework and some high-profile arrests and prosecutions (including a former prosecutor-general of Tehran), international observers report that corruption remains endemic. Iran ranked 146th out of 180 countries in Transparency International’s 2019 Corruption Perceptions Index, denoting a high degree of corruption. Local sources told DFAT that some law enforcement officials accept bribes, including in instances where an individual has breached moral codes of behaviour like consuming alcohol or attending mixed-gender parties. The GAN Business Anti-Corruption Portal claims that a powerful system of political patronage, nepotism and cronyism pervades all sectors of the economy; irregular payments, bribes and the trading of favours are often required to obtain services, permits or public contracts; authorities do not effectively enforce anti-corruption laws in practice; and impunity is pervasive.
Faili/Feyli/Iraqi Kurds
The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a sub-group of the larger Kurdish population. They originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border. Most, but not all, Faili Kurds originate from Iraq (some have lived in modern-day Iran for centuries). Faili Kurds in Iran typically reside either close to the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a), their location and their distinctive dialect. Three main groups of Faili Kurds live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders). Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available. A local Kurdish source told DFAT that the number of Faili Kurds in Iran is not significant as a proportion of Iran’s population.
Upon seizing power in the 1960s, the Ba’athist Government in Iraq adopted several policies with the effect of excluding Faili Kurds, who the Iraqi authorities considered to be Iranian. The most notable of these – Decree No. 666 (1980) – cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’, including Faili Kurds. 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: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is at the high end). Most Faili Kurds expelled from Iraq settled in Iran’s Kurdish-populated north-western provinces.
Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates (see Refugees and Undocumented Afghans). Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons de- naturalised by the former government have their Iraqi citizenship restored). DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran.
Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
PREVALENCE OF FRAUD
Iranian identity documents include sophisticated security features and are 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.
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. Passports and national identity cards have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge. These features also make fraudulent passports and national identity documents easy to detect. Secondary forms of documentation like military exemption cards are technically more vulnerable to fraud, as they have less robust security features, but are expensive to obtain. Paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easier to obtain through fraudulent means.
Multiple layers exist to protect against the issuance of fraudulent documents. In addition to being prohibitive financially, the potential consequences for officials involved in the fraudulent procurement of primary or secondary forms of identification, if caught, act as a major deterrent (including imprisonment). While DFAT cannot discount the existence of corruption in relation to official documentation, it does not assess it to be prevalent, particularly in relation to primary and secondary forms of documentation. DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.
According to Article 34 of the Penal Code, the penalty for leaving Iran without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (approximately AUD1-5 at current market rates). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances. This procedure also applies to people who are deported back to Iran and who are not in possession of a passport containing an exit visa. The UK Home Office, in a February 2019 Country Policy and Information Note, assesses that individuals who exit Iran illegally and have not previously attracted the adverse attention of the authorities – for example, for their political activism – face a low risk of prosecution. If prosecuted, the most likely punishment is a fine. DFAT understands that, where prosecution for illegal departure occurs, it often does so in conjunction with other, unrelated offences.
Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.
The Respondent tendered and relied on the following document identified as a Department of Home Affairs FOI release: Feyli (also Fayli, Faili, Feili or Faylee) Kurds - obtaining identity & travel (undated):
In 1980, Iraq’s Revolutionary Command Council issued Decree No.666 which allowed for the citizenship of ‘Iraqis of foreign origin’ to be revoked. Subsequently a large number of Feyli Kurds were forced across the border into Iran. They were stripped of their Iraqi nationality and had their property, assets and personal documents confiscated.
Over the years, refugees in Iran have been issued with different types of registration documents including the so-called blue, green and white refugee registration cards. The UNHCR reported that Feyli Kurds who arrived prior to 1979 were mainly issued with white cards, while the majority of those who arrived in the 1980s received green cards. In 2002 the majority of Iraqi refugees residing in Iran were registered during a comprehensive registration programme referred to as Amayesh registration. From 2002-3 the Amayesh scheme had replaced previous refugee registration processes, becoming the sole system through which a refugee status could be renewed.
Refugee registration cards (or ‘temporary resident cards’), referred to as Amayesh cards, are renewed annually. Amayesh registration enable refugees to access basic services and work permits, and contain information about the town and province the card holder is permitted to reside in. Children born to Amayesh card holders are also generally issued with Amayesh cards. To renew an Amayesh card, refugees are required to pay municipal taxes and a card renewal fee. Amayesh cards are renewable provided that the relevant conditions, such as the payment of municipal taxes, are met.
Apart from Amayesh cards, Feyli Kurd refugees in Iran may be able to present other documentary evidence that may assist in establishing their refugee status in Iran, including a registration slip issued by Iran’s Bureau for Aliens and Foreign mmigrants Affairs (BAFIA), documents issued by refugee camps and settlements and health insurance cards.
The majority of Feyli Kurd refugees are likely to be registered and hold valid Amayesh cards. There are also Feyli Kurds who live in Iran without documentation and/or being registered with the authorities. These may include refugees who failed to renew their Amayesh cards in time or comply with the terms of their prior registration, and those who exited and then returned to Iran (through official border crossings). The number of unregistered Feyli Kurd refugees in Iran is unknown, with the actual number likely to be low.
The 2006 Iraqi Nationality Law repealed decree 666 and states that all persons that had been denaturalized by the former government should have their Iraqi nationality reinstated. According to the Iraqi Ministry of Displacement and Migration (MODM), since 2003 about 20,000 families (or roughly 100,000 individuals) have had their citizenship reinstated. In order to reacquire Iraqi citizenship, Feyli Kurds need to show that they were registered during the 1957 Iraqi national census.
A May 2013 report by The Institute for International Law and Human Rights (IILHR) reported that according to Iraqi authorities 97 per cent of “denaturalised” Feyli Kurds, both those living in and outside Iraq, have had their Iraqi nationality restored.
Over the past 30 years the majority of Feyli Kurds expelled from Iraq, and their children, have managed to obtain Iranian nationality through paternal lines or marriage (female Feyli Kurds marrying an Iranian national) or have been recognised as Iraqi citizens by the Iraqi authorities and issued with Iraqi Identity cards and passports.
Numbers of Feyli Kurd refugees in Iran have reportedly decreased since 2003, with voluntary repatriations to Iraq. It was likely that the majority of Feyli Kurds were registered as refugees under the Amayesh program.
(sic)
CONTENTIONS
Applicant
The Applicant’s submitted that:
(a)he was stateless.
(b)he had never been issued with any form of identity documents from any country.
(c)his parents had never been issued with any form of identity documents from any country, not from Iran or Iraq.
(d)his parents left Iraq for Iran when he was 6 months old.
(e)he has three sisters; one of whom is deceased.
(f)he grew up in a remote region in the mountains, a small village where people lived a simple existence surviving on subsistence farming and a few sheep, living in tents moving with the seasons to provide water for their small flock.
(g)in the village they had no need for any form of identity documentation. All transactions were in cash.
(h)he had no formal education and worked in numerous labouring jobs to assist his parents financially.
(i)he was not married and had lived with his parents prior to coming to Australia.
(j)in 2002 he had unsuccessfully attempted to secure identity documentation in Iran, he had approached a checkpoint, but it resulted in a fight with the police.
(k)he had never travelled prior to his departure from Iran to Australia, it was the first time he had ever been in a city.
(l)the passport he had been provided by the people smugglers to leave Iran via Khomeini Airport was genuine, they had put his photo on it, he could not recall what this document had looked like.
(m)the birth certificates shown to him by the Respondent were not that of his mother or father.
(n)his mother had been born in Iraq and not Ilam Iran as indicated on the documentation supplied by the Department.
(o)his mother had never applied for a visitor visa to travel to Australia.
(p)he had no family in Australia.
(q)his referee Sam was a friend, not his uncle.

The Applicant contended that:
(a)without money or connections, it was not possible to secure documentation in Iran, particularly for poor people in remote areas.
(b)without documentation, he and his family had not been able to secure documentation in Iran or Iraq.
(c)he disputed the country information put to him by the Respondent, which indicated he would have been able to secure some form of identity documentation from Iran or Iraq.
(d)it was only wealthy people in the cities who would have been able to secure documentation.
(e)that Iran is not like Australia, in that Iran did not have good laws or follow rules.
(f)it was culturally very different in Iran; he was not even allowed to eat in front of his parents, so he had no way of knowing many things.
(g)he has been living in Australia for 13 years, where he felt safe and secure, he had worked 2 jobs prior to his workplace accident, and he wished to become a citizen so he could travel out of the country more freely to visit his family.
(h)he had been able to send money home to his family. Other friends had been able to access the funds in Iran for his parents, but this did not mean he was lying about his parents being undocumented.
(i)he had not made any attempts to seek Iran citizenship as he did not want to be an Iranian; he had done his best to become an Australian citizen.
(j)he had not approached the Iranian or Iraqi authorities as he does not believe in them, their laws, regulations or polices; he wants nothing to do with their religion, behaviour or attitudes. He had fled his country as he hated his life and did not care if he lived or died when he fled.
(k)the hearing had made him feel like he was an actor in a movie; that he had led a hard life; had put his life on broken timber to come to this country which he loved; he was very happy he had his permanent visa; that he had no documentation and that everything he had told the Tribunal was true.
Respondent
The Respondent contended the Tribunal must be persuaded to a degree of reasonable satisfaction as to the Applicant’s identity, having regard to his particular circumstances and in light of the significant consequences flowing from a grant of citizenship. The Respondent submitted this did not require a 100% satisfaction, but a reasonable degree of satisfaction.
The Respondent contended it was not enough for the Tribunal to be satisfied as to the Applicant’s identity at one point in time; rather, the available evidence should establish a “consistent persuasive timeline” from birth to present.
The Respondent submitted the CPI provides that the onus is on the Applicant to provide information or evidence to support their identity. Critically, there is no discretion available to any decision-maker (including the Tribunal) to grant Australian citizenship unless the decision-maker is satisfied as to the identity of the applicant.
The Respondent submitted that little, if any, weight should be given to the documents, photographs and a self-translated copy of a Holy Book submitted by the Applicant that appear to pre-date his arrival in Australia.
The Respondent submitted the Applicant has not provided any primary identification documents relating to his identity prior to his arrival in Australia, nor has he provided any documentary evidence to substantiate his claim to be stateless. The Respondent contended it was not sufficient for the Applicant to merely state that he is unable to obtain these documents without demonstrating that he has made any effort to obtain them.
The Respondent contended there was extremely little evidence before the Tribunal to substantiate the Applicant’s life story. The Respondent submitted the Applicant has repeatedly stated that he does not have a birth certificate; that neither he nor his family has any identification and that his family had made attempts to gain identification documents but were unsuccessful.
The Respondent contended the Applicant’s evidence regarding his family’s efforts to obtain documentation in Iran is undetailed and he has made no effort to substantiate these claims with any independent evidence. Additionally, the Respondent contended there was evidence that the Applicant’s parents had identity documentation, namely the material purportedly submitted by the Applicant’s mother in her visa application in 2014.
The Respondent submitted it was unable to confirm whether checks were undertaken to verify the authenticity of the Applicant’s parents’ birth certificates. The Respondent submitted the documents were provided to the Department almost nine years ago, and its visa processing operations at the Australian Embassy in Iran had shut down in 2018.
The Respondent contended there was nothing in the Applicant’s mother’s file which indicated any concerns were raised about the authenticity of the birth certificates or any of the other identity documents she provided in connection with her visa application in December 2014.
The Respondent further submitted the Tribunal should place no weight on the statutory declaration supplied by the Applicant’s friend, Sam. The Respondent contended that Sam was not the Applicant’s friend but was his uncle, as evidenced in the Applicant’s mother’s visitor visa application and by evidence that Sam had changed his name. Additionally, Sam’s failure to appear at the hearing to be cross-examined on his written material left too many questions unanswered for the Tribunal to accept any of his claims.
The Respondent contended that based on Country Information, the ability for the Applicant’s parents to receive money transfers, and the documentation held by the Department, it was more likely than not that the Applicant’s parents were Iranian citizens and not undocumented Kurds. The Respondent contended that the Applicant’s claim about being a nomadic Feyli Kurd, having no knowledge of his ability to be granted refugee status in Iran or having his Iraqi citizenship reinstated and fleeing Iran on a false passport were not credible.
The Respondent contended in the alternative, the Tribunal could dispose of the matter without refence to the documentation submitted by the Department during the hearing as the Applicant had not by his own admission taken reasonable steps, to seek out documentation to prove or disprove he was a citizen of another country.
The Respondent reiterated the policy set out the three pillars of identity: biometrics, documents, and life story; submitting that the Applicant had no biometrics data to rely upon, no reliable documentation had been submitted and therefore, the onus fell to the Applicant to provide a complete picture of his identity from birth to present.
The Respondent contended the documentation held by the Department was likely genuine, which indicated the Applicant was an Iranian national.
The Respondent contended the Applicant’s life story was not consistent, not truthful and was contrary to open-source Country Information.
Fundamentally, the Respondent contended the obligation was on the Applicant to provide all the information he can gather to support his identity claims. In circumstances where the Applicant has provided extremely limited evidence as to his identity before his arrival in Australia, the Tribunal cannot be satisfied of the Applicant’s identity pursuant to s 24(3) of the Act. Therefore, the Respondent submitted that the correct and preferable decision is to affirm the decision under review.
CONSIDERATIONS
Documentation
Respondent: The Applicants’ parent’s “birth certificates” and visitor visa application
The Tribunal was not assisted in its determination by the Respondent’s actions of tendering prejudicial documentation during the course of the hearing. The Tribunal found that the ambush of the Applicant with information held by the Department since 2014 did not meet the standards of a model litigant. This action was egregious as the Applicant was self-represented and the Department has had 7 years to put this information to the Applicant.
The Tribunal placed no weight on this evidence put by the Respondent. The Tribunal did not accept the Respondent’s assertion that the documentation was most likely genuine. There was nothing before the Tribunal to assist it to verify the documentation as genuine. The Tribunal also accepted the Applicant’s assertion he had never seen the documentation and that he was unaware of any visitor visa application submitted by his mother.
The Tribunal was perplexed by the visitor visa application submitted by the Respondent, finding it hard to reconcile that a mother would make an almost throw-away reference to her only son in her application.
Applicant: Photos from his childhood with explanation; declaration from the applicant’s parent and copy of insert page of the family holy book
The Tribunal placed no weight on the photos submitted by the Applicant as there was no way of verifying these were indeed of him or his family. The Tribunal placed limited weight on his parent’s statement but accepted it was consistent with the Applicants’ life story. The Tribunal placed limited weight on the insert page of the Holy Book, again accepting this was consistent with his life story.
The Tribunal notes the Policy indicates that assessment of the person's identity must be on an evidenced-based approach, which seeks to establish a person's identity from birth. Also, it 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. When assessing a person's identity, the objective is to determine whether inconsistencies are identified with any aspect of a person's life story, biometric data and documentary information.
Further, the Policy clearly identifies that individual 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 Policy articulates that an informed assessment is necessary, based on research of country of information and weighed against the evidence provided by an Applicant.
The Pillars of Identity
Pillar 1 – Biometrics
The Tribunal finds there are no biometrics data relevant to the Applicant to be relied upon. The Tribunal placed no weight on the photographs provided by the Applicant, finding there was insufficient evidence to satisfy the Tribunal in respect of his personal identifiers.
Pillar 2 – Documents
The Applicant has provided a range of identifying documents which he has obtained after his arrival in Australia. Whilst of value to his life in Australia now, they do not assist the Tribunal in confirming the Applicant’s identity prior to his arrival in Australia. The Tribunal recognised limited weight can be placed on documents issued following the Applicant’s arrival in Australia, as these documents are most likely issued on the basis of the Applicant’s identity stated in the Australian identity documents such as a protection visa, and as such provide little indication as to the Applicant’s identity prior to his arrival in Australia.
Other than the copy of his family Holy Book (which the Tribunal places some weight on as the family composition is consistent with that provided by the Applicant throughout this process) the Applicant’s identity prior to coming to Australia is entirely undocumented.
The Applicant has admitted that he and his parents had never had any verifiable documentation. However, the Tribunal had nothing before it, outside of the Applicant’s testimony and the statutory declaration from his parents that supported his claim that he was an undocumented stateless Feyli Kurd. The Tribunal notes that the Applicant’s claims are at odds with the country information that has been provided.
The Tribunal accepts the Applicant’s jaundiced view of the country information relied upon by the Respondent. The Tribunal accepts that DFAT reports often do not accord with the lived experience of many asylum seekers. However, the Tribunal cannot discount the information out of hand without additional information from the Applicant to substantiate his claims.
There is no evidence that the Applicant, or any member of his family, has made any inquiry as to their possible status as Iraqi or Iranian citizens. Nor had the Applicant made any attempts with either the Iranian or Iraqi governments either directly or via their Embassies in Australia to ascertain documentation or corroboration that he was entitled to none. The Applicant’s statement that he had no faith in the laws of Iran or Iraq was not justification for his failure to make any attempts to seek some validation of his identity prior to his arrival in Australia.
The Tribunal has placed no weight on the Applicant’s corroborative statements from his friend, Sam. This statement was untested as Sam did not appear as a witness and its contents are disputed in line with the information tabled by the Respondent at hearing.
The Tribunal finds that the Applicant has not done enough to substantiate his identity in respect to fulfilling the requirements of Pillar Two – Documents. The Tribunal, whilst appreciating the Applicant’s views of his former homeland, finds that he has not done enough to demonstrate he has exhausted all avenues available to him to substantiate his identity from birth.
Pillar 3 – Life Story
The Tribunal finds the Applicant has provided a consistent life story throughout his citizenship application. He has provided a consistent family composition, birthdate, and place of birth throughout the process. The Tribunal was frustrated by the gaps in the documentary records provided to the Tribunal, particularly the lack of any record of the Applicant’s interviews on arrival on Christmas Island. This lack of documentary evidence from the Respondent left the Tribunal without the ability to assess if the Applicant had provided a consistent life story since his arrival in Australia.
Whilst the Tribunal found the Applicant to be a truthful witness, his testimony was nevertheless frustrating. The Applicant’s belligerent attitude to his former country of birth and residency may be valid, however, his attitude that he wanted to forget everything from the past did not assist the Tribunal in being able to be satisfied of his life story.
The Tribunal had no evidence before it of the Applicant’s life story of which he was not the original source. Other numerous Tribunal Members have noted that in order to assess the plausibility of the Applicant’s claims, it is necessary to consider the cogency and consistency of his story over time, having regard to his age and the extent to which his claims are corroborated by family members and others with direct knowledge of relevant events.
The Applicant may indeed be a stateless undocumented Feyli Kurd. However, there is simply insufficient evidence before the Tribunal to allow it to be satisfied as to his identity from birth to his arrival in Australia. The Tribunal accepts that the circumstances of his life and departure from Iran may be plausible, observing that even credible country information can often be at odds with lived experience. The Tribunal also notes the Norwegian Country of Origin Information Centre, Landinfo, tabled by the Respondent observes:
Many children of parents without legal stay in Iran are not registered. This is partly because local officials may refuse registration if no residence permit is presented, and partly because illegal migrants tend to avoid contact with the authorities for fear of being deported from the country (Samadi 2017, p. 44). This applies in particular to the large group of unregistered Afghan refugees and migrants who have resided in Iran for many years. Many of the children of unregistered Afghans were born in Iran but have neither Iranian nor Afghan ID documents (Samadi 2017, p. 45).
The Tribunal simply has no independent verifiable evidence before it to be satisfied at any level of the Applicant’s life story such as family circumstances, education, and work history.
CONCLUSION
The Tribunal, having considered the totality of the evidence regarding the three pillars of identity remains unable to be reasonably satisfied of the identity of the Applicant. Section 24(3) places a prohibition on the exercise of the power to confer citizenship unless the Tribunal can be reasonably satisfied of the Applicant’s identity.
The Tribunal arriving at its determination noted the following determinations:
(a)In Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 the Deputy President, the Hon R Nicholson, noted in relation to a Tibetan refugee who was unable to produce identity documents relating to the period prior to his arrival in Australia at [117] that:
“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.”
(b)In CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 the Member noted in relation to stateless Feyli Kurds, who were unable to produce identity documents relating to the period prior to their arrival in Australia at [9] that:
“...production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the Applicants. Furthermore, I must form a view that other evidence given by the Applicants as to the personal background must be reliable.”
(c)In Ater and Minister for Home Affairs [2018] AATA 4677, the Member noted in relation to an applicant originally from South Sudan who did not have any identity documents at [72] that:
“...there is an expectation that the Applicant demonstrate reasonable efforts to obtain those documents or other supporting evidence that may assist in satisfying a decision maker as to his identity. In the Tribunal’s view, it is not sufficient for the Applicant merely to state that such documents are not able to be produced in order to satisfy the Tribunal. Further, in the Tribunal’s view even where an applicant has demonstrated that reasonable efforts have been taken to obtain identity documents, if the applicant is unable to obtain those documents, it falls upon an applicant to provide other forms of evidence on which the Tribunal may be satisfied as to the identity of an applicant.... in the absence of documentary evidence confirming identity, persuasive evidence in other forms, for example third party statements and other material relevant to an applicant’s individual circumstances, may be required to enable a reasonable degree of satisfaction to be achieved.”
The Applicant will be rightly aggrieved that the Tribunal has determined to affirm the decision as it has been unable to be reasonably satisfied of his identity. Particularly in light of the fact he has been living and working in Australia for 13 years, has been unable to travel safely to visit his family and has waited 7 years for this determination to be made. The approval of Australian citizenship under s 24(1) is a significant matter with serious consequences, the gravity of which the Tribunal readily accepts. The privileges, rights and responsibilities of Australian citizenship cannot be conferred upon a person unless the Minister is satisfied of their identity and all other essential or applicable criteria are met.

This decision should not be taken as a final straw for the Applicant in his quest to become an Australian citizen. He is at liberty to reapply at any time and may be successful in another application if he can demonstrate the steps, he has taken to verify his identity prior to his arrival in Australia.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.......................[sgd].....................................
Associate
Dated:    1 September 2023
Dates of hearing:  5 December 2022 and 23 July 2023
Applicant:  Self-represented
Advocate for the Respondent:  Ms Sophie Robert
Solicitors for the Respondent:  Mills Oakley Lawyers