ZYHV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 3717
•8 October 2021
ZYHV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3717 (8 October 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7685
Re:ZYHV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:8 October 2021
Place:Sydney
The Tribunal affirms the reviewable decision dated 16 November 2020.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
CITIZENSHIP – Application for citizenship by conferral – Good character – Identity – Whether the Tribunal can be satisfied of the applicant’s identity – Whether the Tribunal can be satisfied the applicant is of good character – Where limited evidence of identity provided – Applicant’s life story not credible – Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 24
CASES
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kahzadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1137
SECONDARY MATERIALS
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
DFAT Country Information Report, Iran (2020)
DFAT Thematic Report – Faili Kurds in Iraq and Iran (2014)
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
8 October 2021
BACKGROUND
The Applicant seeks merits review of a decision made by a delegate of the Respondent not to grant him Australian citizenship by conferral.
The delegate found that the Applicant was not of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
The delegate was also prohibited from approving the application for citizenship because they could not be satisfied of the Applicant’s identity under s 24(3) of the Act.
The Applicant arrived with his wife and 2 children on Christmas Island on 21 July 2010.
On 18 January 2011, an officer of the Refugee Status Assessment Unit of Victoria found that the Applicant and his family were owed protection obligations.[1]
[1] T-Documents, 423.
On 14 July 2011, the Applicant and three of his sons made an application for a protection visa[2], which was granted on 20 July 2011.
[2] T-Documents, 424.
The Applicant applied for Australian Citizenship on 8 August 2019.[3]
[3] T-Documents, 21.
On 26 February 2020 he was asked for further information[4], including any overseas issued identity documents and an explanation of his life story. He was asked to provide a statutory declaration which explained whether he had held any identity documents, what happened to them, what attempts he had made to obtain further identity documents, his family composition and an account of his life story. This request was returned to sender unclaimed.[5]
[4] T-Documents, 45.
[5] T-Documents, 82.
On 30 April 2020, the Applicant was invited to comment on why he did not have any identity documents in Iran and how he was able to leave Iran on a false passport.[6] He was told that Departmental records indicated that he had been making financial transactions to his family members in Iraq and Iran and that they would need identity documents to receive those funds.[7]
[6] T-Documents, 81.
[7] T-Documents, 83.
On 12 May 2020, the Applicant’s representative provided country information[8] and a statutory declaration from the Applicant dated 11 May 2020[9].
[8] T-Documents, 93-153.
[9] T-Documents, 154.
On 16 November 2020, the Applicant’s application for citizenship was refused.[10]
[10] T-Documents, 8.
On 20 November 2020, the Applicant applied for review by this Tribunal.[11]
THE LEGAL FRAMEWORK
[11] T-Documents, 1.
Identity
Section 24(3) of the Act relevantly provides (emphasis added):
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Explanatory Memorandum to the Australian Citizenship Bill 2005 (which is the Bill that became the Act) 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.
A person’s identity will be determined by many factors, including date of birth, parentage, place and country of birth, name, siblings, schooling, marriage, children and overall history. The Department’s guidance on assessing identity is set out in CPI 16 – Assessing Identity under the Citizenship Act (CPI 16).
CPI 16 identifies at [4.4] three pillars of identity: biometrics, documents and life story. Those pillars are explained as follows:
Pillar Individual characteristics
Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
CPI 16 further states that relying on a single pillar to establish a person’s identity is inadequate and that to comprehensively test and evaluate a person’s identity claim, a decision maker should consider each pillar of identity.
Good character
Section 21 of the Act relevantly provides as follows:
21 Application and eligibility for citizenship
…
General eligibility
(2) A Person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
CPI 15 covers the assessment of ‘good character’ under the Act. CPI 15 provides that:
As a general proposition, a person who is of good character would:
- respect and abide by the law in Australia and other countries;
- be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
- not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
THE ISSUES
The issues before the Tribunal are:
(a)Whether the Applicant is of ‘good character’ for the purposes of s 21(2)(h) of the Act;
(b)Whether the Tribunal can be satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.
THE EVIDENCE
The Applicant
The Applicant gave evidence that he was born in 1970 in Iraq. He did not know in which city he was born but said that he was not born in a hospital. He said he was never given any identity documents by the Iraqi government.
The Applicant arrived with his wife and children on Christmas Island on 21 July 2010. He was granted a protection visa on 20 July 2011. He said he had come to Australia because he had heard that Australia accepted refugees and treated all refugees equally. He wanted to provide a better life for his wife and his family.
The Applicant was refused Australian citizenship on good character and identity grounds.
He said he did not hold citizenship in any other country and that he had not applied for Iraqi citizenship because he was very young when he moved from Iraq to Iran. Although he did not know why his family had moved from Iraq to Iran, he thought it was because Iraq had expelled all of the resident Feyli Kurds and therefore they had had to move to Iran.
The Applicant said that he had lost his father at about six months of age and that his mother had remarried when he was about six or seven and had moved to live with her new husband, leaving the Applicant to live with his grandfather who he said was very elderly. His grandfather died when he was 8 to 10 years old. They had lived in a village on the Iran / Iraq border and he said that the closest Iranian city was 50 or 60km away.
The Applicant’s family had never been granted any identity documents in Iran. He said he had never raised the question of identity documents with his grandfather as he was too young to know about them at the time. He also said that in the village that he lived in many people were stateless. He did not know whether his brother, who continues to live in Iran had ever been granted identity documents because they were not close and he did not have regular contact with him. He was also unaware of whether his mother had Iranian identity documents of any kind as he had lost contact with her until she found his telephone number and contacted him in Australia.
The Applicant had moved to Tehran where he said he used to work as a trolley man in the markets. It was unlawful employment, but he said that he had no problems. The Applicant said that he had married in Tehran but did not have a marriage certificate as neither he nor his wife had identity documents in that country. He described the marriage as informal. He and his wife had three children in Iran, none of whom had identity documents. He said the children had not been born in hospital and when questioned about the discrepancy in his refugee status assessment, which referred to a payment made to a private hospital, he said that he had made payments to the hospital which then sent people to assist his wife give birth at home. Whilst in Tehran they had lived in rented houses in the outer suburbs. The children did not attend school.
The Applicant said that he had made an effort in Iran to get identity documents but said that an official had refused to issue him any such documents and had also told him that it would be impossible to obtain the documents by going to a government office in another town. The Applicant said that when he was told that, he did not make any further effort to acquire identity documents. He left Iran with his family when he was about 40 years old.
The Applicant said that he had used a false Iranian passport in order to leave Iran. He said that he had paid a people smuggler who had created the passport and also had contacts at the airport to assist the Applicant in leaving. He said that he paid US$12,000 to travel to Indonesia via Dubai and another US$20,000 to travel from Indonesia to Australia. The Applicant said he had obtained the money through savings over the years and also through friends in the bazaar at which he worked who had lent him US$10,000. When asked why those people had not given any evidence to support his current application, the Applicant said that he did not want any problems with the Iranian authorities but that the Tribunal could call them on the phone.
The Applicant said he had no trouble at the airport when he left Iran and that he stopped in Indonesia where his family paid to have various documents filled out for them.
When questioned about the DFAT information in relation to the difficulties of being able to leave Iran through the airport, the Applicant said that he left around the time of the Iran/Iraq war when the Iranian Government were happy to see many people in his situation leave the country.
The Applicant was questioned extensively about discrepancies in various documents which he had signed and certified as true and correct. He said that he was illiterate, and that other people had filled the forms in on his behalf. There were numerous examples in a number of documents of significant discrepancies relating to his extended family.
The Applicant was questioned extensively as to transactions made on his money changing account. Some of the transfers were for minor amounts of money which he said was sent to his mother in Iran. The Applicant said that the address used by the money transfer company said Iraq because the money was sent by them via their office in Iraq. He said he did not know his mother’s address in Iran and did not have regular contact with her. She had located his telephone number when he came to Australia and contacted him here.
In addition to the transactions related to his mother, there had also been some quite large transfers of money from his account including a transfer to Basra in Iraq. The Applicant said that some of the transfers had been made by his brother-in-law who used the Applicant’s name and also his children’s names to transfer money. After the separation from his wife, the Applicant felt that his brother-in-law had abused his trust and sent money through his account. The Applicant said that when this was raised with him he had sought legal advice.
DISCUSSION
The Applicant has provided background information in a number of documents including his citizenship application and also gave evidence as to his background to the Tribunal. He claimed that he was born in about 1970 and that he was born in Baghdad, Iraq. He said that he did not have any documents recording his birth and that his parents also had no identity documents. He told the Tribunal that his parents were expelled from Iraq. Although he did not have a specific date for the expulsion, he thought he was about 10 years old at the time.
The Applicant said that his family lived in Tehran Town area, which is located on the Iran/Iraq border, after being expelled from Iraq. He said the town had only a few houses and that he had initially resided there with his grandfather and his brother until his grandfather died. He said his mother had remarried after the death of his father and that she had moved away and he did not hear from her again until he was in Australia. There was some inconsistency in the information he gave as to his mother’s name and her age. There was no explanation as to how his mother had been able to obtain his phone number in Australia. He said he did not know whether his grandfather ever had a green card (residency) or a white card (residency) in Iran.
The Applicant said he did not know about green or white cards at the time that he was living with his grandfather, and later with his brother, as he was too young to know about such things. He did not have any documents from this period, including documents relating to schooling or any hospital or medical treatment. The Applicant did not provide the name of his grandfather or any details about him but provided limited details about his brother, with whom he said he was not in regular contact.
The Applicant said that he had worked from the age of five, primarily in agricultural pursuits prior to moving to Tehran. In Tehran, the Applicant said he worked in a large bazaar where he had wheeled a cart and carried goods for people around the market. He said that he was self-employed, but that he used to stand outside a shop owned by the ‘Torani Brothers’. He said these people had befriended him and had helped him. In particular, the Applicant said they had given him US$10,000 to help him when he left Iran to come to Australia.
The Applicant said that he got married to his wife in about 1990. The couple had three children and lived in rented houses on the outskirts of Tehran. The Applicant said that neither he nor his wife had identity cards. He said that their marriage was an ‘informal’ one and that there was no official record of the marriage.
In relation to obtaining identity documents, the Applicant said that he had attended a government office on a number of occasions seeking identity documents but had been told by an official that such documents would not be given to him either at that office or at any other government office in Iran. The Applicant said that once he had been told this by an Iranian official, he made no further attempt to obtain documents because he knew he could not succeed.
The Applicant left Iran on a false passport, which he said he had paid for using savings and money lent to him by the Torani brothers. He said he had had no difficulty leaving Iran and travelling to Australia via Dubai and Indonesia.
When considering the above summary of the Applicant’s evidence it is of concern that he claims never to have had any identity document of any kind and has not produced any such document. On his evidence, he only made one attempt to obtain official documentation and having been told by an unnamed official that it would not be issued to him, never made any further attempt to gain any official residency document. This sits somewhat uncomfortably with the evidence that the Applicant was able to obtain a false passport through an intermediary and with official collusion. If he was able to make these contacts in relation to obtaining a passport it seems odd that he made no such efforts in relation to obtaining a green or white card, or any other identity document for himself or his children.
The Applicant’s evidence is also at odds with the DFAT information in 2014[12], which indicates that Feyli Kurds who were refugees in Iran were eligible for registration and issued an appropriate identity card. Other documents might also be issued including:
(a)An official refugee booklet issued by the Government of Iran prior to the Islamic Revolution.[13]
(b)A BAFIA Registration Program slip. There were issued during 2000 and 2001, but should since have been replaced by an amayesh card.[14]
(c)Various documents issued on an ad hoc basis between 1979 and 2001. Such documents were issued by camps, provincial authorities and government entities and should now have been replaced by amayesh cards.[15]
[12] DFAT Thematic Report – Faili Kurds in Iraq and Iran (2014).
[13] DFAT Thematic Report – Faili Kurds in Iraq and Iran (2014), [3.48].
[14] DFAT (2014), [3.48].
[15] DFAT (2014), [3.48].
Similar information is contained in the DFAT country information report on Iran issued in 2020.[16]
[16] DFAT Country Information Report, Iran (2020).
Further doubt is cast on the Applicant’s claim in relation to seeking documentation from the Iranian authorities by the fact that the possession of such documents conferred a range of benefits including access to government services and in buying or renting a house. It is difficult to see why the Applicant would so readily forego the benefits of registration, including the benefits to his children, based on a sole conversation with an official.
I also have concerns about the Applicant’s evidence in relation to the birth of his children in Tehran. Asked about inconsistencies in the statements as to where they were born, the Applicant claimed that he paid fees to a private hospital which then sent staff to assist his wife with the birth at home. Whether the children were born in the hospital or at home with assistance from the hospital, the DFAT information states that all children born in hospital should receive an official birth certificate which would normally record the date, time, place of birth and the details of the child’s parents. The Applicant failed to provide any proper explanation as to where the children were actually born and why no birth documents were made available.
In response to questioning by the Respondent’s counsel, the Applicant said that he had never made any attempt whilst in Australia to obtain documents either through the Iranian or Iraqi embassies, or otherwise. He said that his family in Iran were unable to assist him and in his evidence he gave scant details of his relatives in Iran and seemed to have very little idea of where they lived or any other aspects of their lives. He did not call anyone to give evidence in support of any aspect of his life in Iran, how he had left Iran and the status of his relatives in Iran. Rather, the Applicant said that the Tribunal could make its own inquiries, including by telephoning the Torani brothers, whom he said had provided him with a phone number. He gave no explanation as to why his lawyer or any other 3rd party had not made such inquiries on his behalf.
The Applicant was able to give some explanation about the transfers of money to his mother. The records of the money changer indicated that the money had been sent to Iraq but the Applicant said this was because the money changer did not have an office in Iran and needed to send the money to Iraq before forwarding it to Iran. Even if this explanation is accepted, there was no explanation as to how his mother received the money or whether she had a bank account. The Applicant said that the money was collected by his father-in-law and given to his mother, but no supporting evidence was provided.
The Applicant, in my opinion, failed to provide a full and proper explanation in relation to a number of money transfers made on his account, including money sent to Basra, Iraq on 30 July 2017[17] and 14 September 2017[18], and Baghdad, Iraq on 24 October 2017[19]. He provided a letter to the Tribunal from the moneychanger which said that monies transferred to Iran were sent through the company’s Baghdad office, but none of the above transactions gave any indication that the ultimate destination of the money was anywhere other than Iraq. This may provide a partial explanation but leaves many unanswered questions, including how the money finally reached his mother in Iran.
[17] T-Documents, 65.
[18] T-Documents, 63.
[19] T-Documents, 61.
It is of further concern that there were a number of other significant transfers of money on the Applicant’s account which he claimed were not made by him but by his brother-in-law who ‘defrauded’ him and spent money on his account without his knowledge:
(a)Transactions on 26 November 2018 of $100 to Basra, Iraq[20] and on 18 June 2018 $250 to Tehran, Iran[21]. The second of these payments was described as ‘family support’[22].
(b)Transactions on 4 July 2017 of $8054 to Tehran, Iran[23]; $7,553 on 19 December 2016 to Tehran, Iran[24]; $13,000 on 28 June 2016 to Tehran, Iran; $13,000 on 28 June 2016 to Tehran, Iran. These payments are described as for ‘family support’[25].
(c)Transactions on 21 July 2016 of $2,568 to Elam Iran[26]; $6,149 on 19 July 2016 to Elam Iran[27]. These payments are described as for ‘family support’[28].
[20] T-Documents, 51.
[21] T-Documents, 55.
[22] T-Documents, 56.
[23] T-Documents, 67.
[24] T-Documents, 69.
[25] T-Documents, 78.
[26] T-Documents, 71.
[27] T-Documents, 73.
[28] T-Documents, 72 and 74.
At the hearing the Applicant was unable to give any corroborating evidence in relation to these transfers, which should have been reported to AUSTRAC, and did not produce any evidence showing that he had reported these transactions to the authorities.
In further considering issues of money, there was no real explanation as to how the Applicant obtained some US$30,000 in order to obtain a false passport and leave Iran. It seemed implausible that the Torani brothers would give him US$10,000 without any surety because they had become friends during the time he was working in the bazaar. One also wonders how, in a country like Iran, it would be possible for them to transfer such a large sum of money to the Applicant without some record of the transaction. There was no explanation as to how the Applicant saved the additional US$20,000 plus and where he kept that money prior to paying it to the people smuggler in order to obtain his false passport, particularly if he did not have a bank account, which on the evidence he could not obtain in Iran without proper documentation.
I also have had regard to the Danish Refugee Council Report from 2009[29] which states as follows:
A western embassy stated that Iranians abroad might be misinforming foreign authorities by saying that they have left Iran illegally through an airport, as this is very difficult due to thorough security checks.
[29] T-Documents, 300.
Put simply, there are too many gaps in the Applicant’s evidence, both as to his life in Iran, how he left the country, and in relation to money he says he received in Iran for his life story to be credible.
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 and Multicultural Affairs [2021] AATA 1137; Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310; CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757; and Confidential and Minister for Immigration and Citizenship [2013] AATA 144.
In summary, when considered overall the Tribunal cannot be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Act. It is not necessary for the Tribunal to determine whether or not those inconsistencies are the result of an active attempt to conceal information from the Tribunal, however, the Applicant appears not to have been entirely open in his evidence before the Tribunal. He did not call a single witness to corroborate any aspect of his evidence. There were three almost identical statements from the Applicant’s sons filed with the Tribunal which set out their particular circumstances. None of them were called to give evidence.
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. However, an examination of the money transfers made on the Applicant’s account since coming to Australia also raises doubts as to his credibility and integrity, which goes to the question of good character. This is of course, an objective assessment, based upon a person’s actions and enduring moral qualities (see Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). There are too many inconsistencies in the Applicant’s evidence, particularly in relation to financial transactions, for the Tribunal to be satisfied that he is of good character.
DECISION
The correct or preferable decision is to affirm the reviewable decision dated 16 November 2020.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 8 October 2021
Date of hearing: 12 July 2021 Advocate for the Applicant: A Alkafaji, Migration Agent Solicitors for the Respondent: K Gawidziel, Australian Government Solicitor
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