KBVX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3986 (1 November 2021)

Division:	General Division
File Number(s):	2019/6522
Re:	KBVX
	APPLICANTS
And	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
	RESPONDENT
Decision

Tribunal:	Mrs J C Kelly, Senior Member

Date:	1 November 2021
Place:	Sydney

The decision under review is set aside, and the matter is remitted to the Minister for reconsideration with the direction that the Minister be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).

........................................[sgd]..............................
Mrs J C Kelly, Senior Member

Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – whether satisfied of identity of applicant – various dates of birth provided – Australian Citizenship Procedural Instructions – decision under review set aside

Legislation
Australian Citizenship Act 2007 (Cth) s 24

Cases
Bebe Beyan and Minister for Immigration and Border Protection [2015] AATA 256

CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials
Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act (reissued 26 February 2021)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

1 November 2021

Introduction
1.	In May 2010, the Applicant arrived in Australia by boat with two other people.  They claim they are brothers.  I will refer to the latter two people as the middle and youngest brother respectively.  They claimed to be members of a persecuted ethnic group, Faili Kurds, in their country of origin (CoO), Iran, who are stateless.  In 2012, They were granted protection visas after an independent merits review process.  In 2016 they applied for citizenship by conferral.  Their applications were refused in separate decisions on 13 September 2019.  In each case, the delegate was not satisfied of the Applicant’s identity under s 24(3) of the Australian Citizenship Act 2007 (the Act).  The Applicants sought review of those decisions in the Tribunal.  Their cases were heard together.  A direction was made was that evidence in one was evidence in the other matters.  Separate written decisions are being published.
The issue 
2.	The issue is whether I am satisfied of the Applicant’s identity under s 24(3) of the Act.
The legal framework
3.	The following summary of the legal framework is based on that provided by the Respondent.
4.	Section 24(3) of the Act provides that the Minister must not approve an applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the applicant. 
5.	In applying s 24(3) of the Act, the Tribunal may be assisted by policy that is relevant to the administration of the Act.  In this case, the Minister relied on Citizenship Procedural Instruction 16 - Assessing Identity under the Citizenship Act (CPI 16).  Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
6.	As set out in CPI 16, in order to comprehensively test and evaluate a person’s claims with regard to identity, each of the three pillars of identity should be considered, namely biometrics, documents and life story.  When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent.
7.	In Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999 at [12], the Tribunal stated that:
The decisions of the Tribunal recognise that the issue of identity is of particular importance because of the very significant benefits conferred by Australian citizenship. The Tribunal has also emphasised the need to consider each case on its individual merits, including considering particular impediments to obtaining documents related to identity.
8.	The Respondent accepts that the production of documentation supporting the claimed identity is not essential to satisfying a decision-maker of identity in every case.  However, as found in CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9]:
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 their personal background must be reliable.
9.	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 be rejected: see Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].
The parties’ contentions
10.	The Respondent contended as follows. 
11.	A certificate of Australian citizenship is a legal document of extraordinary significance.  The Tribunal should not accept an outcome which could lead to a certificate being issued in circumstances where the Applicant’s identity if far from clear.
12.	The Applicant has provided several dates of birth which he admits were not correct, and in one case was given intentionally to mislead.  The lack of documentation supporting his identity from the CoO weighs heavily against him.  It also pointed to other inconsistencies in his evidence and relied on country information about the circumstances of Faili Kurds in the CoO, most of whom are citizens of the CoO, the difficulty of forging identity documents, including passports, and the difficulty of leaving the CoO through Imam Khomeini International airport using a fraudulent passport.  
13.	The Applicant contended that he was and is unable to obtain identity documents from his CoO for himself or any member of his family, including those who remain there, because he is a Faili Kurd who is unregistered in the CoO.  He gave examples of being harassed and assaulted by nationals of the CoO from childhood on, including by members of the Basij, a paramilitary organisation that operates in the CoO.  He and his brothers claimed to have left Iran through Imam Khomeini International airport using false passports.
Country information
14.	The Respondent relied on a number of country information reports about the CoO.  
15.	The DFAT Country Information Report – Iran dated 14 April 2020 (the 2020 report) acknowledges that there are Faili Kurds who are undocumented with the government and are not legally entitled to work, access government services or obtain birth, death and marriage certificates.  
16.	The 2020 report refers to various pieces of information and reports about the difficulty of manufacturing identity documents for fraudulent use and concluded that the likelihood of a person leaving through the Imam Khomeini International airport with a fraudulent passport is extremely low.  
17.	The 3 December 2014 DFAT Thematic Report - Faili Kurds in Iraq and Iran states the following.  Reliable estimates of the number and location of unregistered Faili Kurds in the CoO are not available.  Information is difficult to access but DFAT had not seen evidence of widespread official discrimination or harassment.  In relation to registration, expired cards cannot be replaced.  Government officials may show some leniency in individual cases.  Officially, unregistered members of the group would be deported if detected, but that rarely occurs.  A person has to have a valid registration document to get a child registered.  There is difficulty if it has lapsed, or the person has failed to comply with regulations relating to registration, including annual re-registration.  Citizenship is required to register the birth of a child and receive an Iranian birth certificate.  An official or unofficial birth record is issued if a child is born in hospital, depending on whether certain documents have been provided.  
18.	Unregistered refugees and those without documents do not generally enjoy access to services, although access to education for children is theoretically possible because of an Iranian Government policy allowing all children access to education. In practice, undocumented children usually miss out on available places, because Iranian citizens and documented refugees are prioritised.  In some cases, a hospital birth record and separate vaccination book may be sufficient to secure schooling for a child.  Also, attendance at school risks bringing undocumented family members to the attention of Iranian authorities.  
19.	Normally, identity documents would be required to buy a house, car, mobile phone or establish a utilities account.  A legally recognised lease would also require identification, but it is possible that private, undocumented arrangements could be made between a lessor and lessee that would avoid the requirement to provide identification.  Accessing healthcare services without identification is possible but requires payment without drawing on health insurance.  Faili Kurds without identification would not normally be able to access the formal education system.
20.	Formally, unregistered refugees in the CoO, of whatever origin, have no right to work.  It is unlikely that a Faili Kurd could apply for a work permit.  Sources have said that in practice, many Faili Kurds, whether registered or unregistered, have informal access to employment.  This is normally tolerated by authorities.  Some members of the ethnic group are self-employed while others might find employers prepared to disregard the law.  Faili Kurds are frequently employed in low-paying manual labour.  Their conditions and pay are often significantly worse than for nationals doing the same work.  Harassment, detention, or physical assault is not widespread but cannot be ruled out in individual cases.
21.	The majority of Faili Kurds is probably registered.  Many could produce nationality documentation when pressed, for example when applying for visas for family members. 
22.	It is possible that individual members of the Basij discriminate against ethnic and religious minorities.  In Tehran, the Basij patrols, usually late at night.  Identity cards may be checked. Inspections are infrequent and are not a normal part of everyday life.  However, the frequency of inspections fluctuates, and the presence of security forces varies.
23.	A 2009 report included the following.  The human rights situation for Kurds had been deteriorating over the past few years, with increasing difficulties with government authorities, including discrimination and harassment solely on the grounds of ethnicity.  There was in increased presence of the Basij in the streets of Tehran in 2008.  They operated arbitrarily.  A western embassy stated that it was very difficult to leave Iran illegally through an airport because of the security checks, although it may be possible to bribe airport personnel but that would involve a lot of airport staff because there are several check points.  Two sources said that some people managed to leave through the airport on forged documents.  A small number of specific cases were mentioned.  In such cases bribery might be involved.  Before departing Imam Khomeini International Airport, a number of security checks are conducted which include checks of the individual’s passport.
24.	The report from the Immigration and Refugee Board of Canada dated 3 April 2006 included the following information about Iranian passports.  A UNHCR official stated that while counterfeit Iranian passports can be purchased rather easily on the black market with prices fluctuating “according to the quality of the counterfeit work”, authorities were “generally adept” at identifying false passports.  It referred to a 2003 report which had stated that “in the past, forged or fraudulent Iranian passports have been abundantly encountered”.  In August 2005, the director general of the Iranian Police Passport Department was reported in the press as stating that since the creation of a new passport application system in March 2005, there had been no reports of forged passports.   
Various  dates of birth
25.	The various birth dates given by each of the applicants was central to the Respondent’s argument.  On 20 June 2016, the Applicant applied for conferral of Australian citizenship.  He provided copies of documents issued in Australia: his visa evidence card, driver’s licence, Medicare card, Health Care Card and Titre de Voyage.  The Medicare card and Health Care Card do not show the date of birth.  Each of the other documents shows 19 June 1983 as the Applicant’s date of birth.
26.	The calendar used in Australia differs from that used in the Applicant’s CoO.  The Applicant did not claim that any error arose because of converting a date of birth from one calendar to the other.  He has provided the following dates of birth:
•	9 September 1984 in the Biodata Interview record dated 13 May 2010 and completed with the assistance of an interpreter in the Applicant’s second language (the Biodata sheet);
•	9 September 1984 was crossed out and 16 February 1993 inserted in the record of interview (RoI) conducted on 17 June 2010 with the assistance of an interpreter in his first language.  At question 5 in Part B, the Applicant said that his mother told him he was 17½ years old and the previous date given was incorrect because they were advised by an Indonesian on the boat the minors would be deported on arrival.  He repeated that he was born in 1993 in his written statement dated 6 August 2010.
•	A date of birth in 1996 in an unsigned undated Detention Client Interview – Part C.
•	15 February 1993 was given in the Form 80 - Personal particulars for character assessment dated 6 August 2010 (the Form 80) which he signed underneath a declaration that the information he had supplied was “so far as I know or could reasonably find out, correct in every detail”, and he had read and understood the information he had supplied and a warning that “Giving false or misleading information is a serious offence”.  
•	19 June 1983 in his application for Australian Citizenship and Australian identity documents provided with the application. 
•	A date he claimed was his actual birth date at the hearing (the claimed date of birth).
27.	The Applicant claimed at the hearing that the dates of birth in the Australian issued documents he and his two brothers provided to prove their identify were given to them by “the judge” and they did not contest the correctness of that date because it did not affect their lives very much.   
28.	The date 19 June 1983 was the result of an assessment of the Applicant’s age by the Department.  He was interviewed for that purpose but refused to attend the Department’s health service provider for its consideration of his claim.  He told the Tribunal that he did not attend the age assessment because he knew he was older than 18.  The decision notified by letter dated 4 January 2011 was that he was not under 18 years of age and that the date of birth that would be used would be “the date that you originally provided, that is 19/06/1983 unless you can show why another date should be recorded.”  That date appears to be an error.  The first date the Applicant gave was in the Biodata sheet:  9 September 1984.  The date was also written according to the calendar of the CoO which included “19/6”.  The Respondent’s legal representative suggested that this was the origin of the “19/06” in the age assessment date.  The Applicant has used 19 June 1983 since the assessment decision.
29.	In the Biodata sheet the Applicant stated that his youngest brother was 26 and the middle brother was 21 years of age.  In the record of interview, he wrote that they were 16 year old twins.  In response to the question in the record of interview “What were you told would happen to you when you reached Australia?”  the Applicant wrote:
Nothing  - only advice was that if you give real age they will not accept you – if you under age they will send you back to your country.  
30.	The Applicant repeated in the Form 80 that his middle and youngest brothers were born in 1994.  
31.	The document titled People in Detention – Request Form dated 17 January 2011 is written in two languages.  The Applicant said that he can write both Kurdish and Farsi.  He wrote the letter in Farsi.  The English translation appears not to have been prepared by a qualified interpreter.  The letter is signed by the Applicant and the middle brother.  They explained that when they arrived on Christmas Island, they pretended to be underage because they did not want to be separated.  When they were moved to the main camp, they realised the youngest brother was not happy.  They were told “by others” that if they stated their true ages they might be separated, so they had better declare that they were under-age.  They were sorry for telling a lie about their age.  Their mother had given the youngest brother to their care.  They apologised again and said that they hoped that they would be forgiven.  They were concerned about the youngest brother. 
32.	The Applicant claimed at the hearing that he had given the correct dates of birth in this document, but a page was missing.  The content of the letter and signatures at the end do not support that claim. 
33.	During the hearing the Applicant said that they were told on the boat that ages were not important.  In the adult camp, they were told that minors would be deported.  He denied giving the wrong date of birth on arrival because he did not want his identity found out or that he had been told that he had a better chance of staying in Australia if he was under 18. 
34.	When asked about the 1996 date, the Applicant said that he did not know who filled out the form and it was a mistake but not his.  He said he told the officer his actual birth year.  I accept that is so because they are almost identical.
35.	A psychological report dated 21 November 2011 demonstrates how stressful the Applicant had found the responsibility of caring for his two brothers during their journey and detention in Australia. 
36.	During his oral evidence, he said that his brothers were aged 26 and 30 but he did not know the day and month of their births, and it was not common to celebrate birthdays in Iran.  Those ages were consistent with the oral evidence of each of the middle and youngest brother.
37.	The Respondent questioned whether the new date of birth given at the hearing can be relied on given the false dates given in the past and contended that this could only be cured by documents that corroborated the correct date of birth, including testimonial evidence.  
38.	The Applicant and his brothers provided incorrect dates of birth to Australian authorities at least twice.  When they arrived, they all gave dates of birth so that they were all 18 or over.    The youngest brother was then 15.  Later when the youngest brother was finding it difficult being in an adult camp, they gave dates of birth so that they were all minors.  They did so because of advice they had received from others.  I accept the reason for giving incorrect dates of birth was to stay together with the youngest brother.  In the circumstances it was understandable.  The Applicant has continued to use the date of birth determined by the Department in 2011, including in the citizenship application where he did not disclose that he had had a different date of birth and declared that the information was true.  His explanation for that answer was that he had assistance completing the form.  
39.	While reviewing the material in this matter after the hearing, I found a reference to a letter from the Applicants’ mother in a decision of the Independent Merits Reviewer dated 22 February 2012 which was possibly consistent with the evidence of one of the brothers near the end of the hearing that the Applicants had provided a letter from their mother which set out their dates of birth.  In response to my request, the Respondent provided a copy of it.  It had not been translated.  It was very brief.  In response to my further request, the Respondent obtained and provided a translation of that letter which had been written in Persian.   
40.	The dates of birth were the same as those each of the brothers claimed was their actual date of birth at the hearing.  The mother wrote that she gave birth to her children at home.  The letter stated that the Applicant’s sister wrote the letter because the mother is unable to read and write.  The mother’s signature was a thumb print, which was consistent with the evidence of the brother who remembered that the letter had been sent.
41.	In a written submission, the Respondent argued that I should give the mother’s letter limited weight because: 
(a)	The applicants did not appear to be aware of it and had not relied on it in the proceedings.
(b)	It did not demonstrate on what basis she considered they were the Applicants’ dates of birth and whether she has some other documentary record of those dates and she was not cross-examined. 
(c)	Directions had been made on 13 October 2020 in each matter that the Applicant were to ensure the availability of their mother as a witness “at the hearing as re-listed”.  
(d)	On the first day of the hearing, the applicants advised that she would not be giving evidence without providing cogent evidence why not.  The applicants said that they contacted their mother, she was ready to give evidence, but then the family was not agreeable with that because of security and matters like that.  The Respondent claimed that it was unclear what security issues would have arisen as she had already provided “various written statements” for the applicants. 
(e)	The letter has limited probative value compared to genuine identity documents from the CoO.
(f)	The letter shows that she would have been a critical witness about dates of birth and circumstances in the CoO, including obtaining identity documents, and their schooling.  I may infer that they decided not to call her because her evidence would not have been helpful to their case.
(g)	The fact that the applicants had previously obtained evidence about their dates of birth from their mother shows that they did not take all possible steps in these proceedings to obtain identity information.  It was only through the requests from the Tribunal that the document was identified.  The applicants appear either to be not making attempts to obtain information from Iran about their identity, or to be deliberately obscuring further conflicting information about their identity.  
42.	Contrary to the Respondent’s submissions, I give the letter considerable weight.  At the hearing, each of the applicants gave a different date of birth from almost all the dates previously given, which increased concerns about their credibility.  Those dates were consistent with the dates in their mother’s letter.  I find that that letter was probably provided to the Department before the independent merits review process in 2011.  I infer that because no translation was provided, it was not considered.  I draw no adverse inference from the fact that the applicants did not rely on it at the hearing.  Considering all the evidence, I find that they are unsophisticated people and generally truthful.  I do not know why they did not mention it earlier in the hearing.  Perhaps they had forgotten about it until questioning caused one of them to recall it, given that it was provided at least 10 years ago in very stressful circumstances.  It had not been included in the documents provided by the Respondent. 
43.	For each of the applicants to give a different date of birth at the hearing from the dates previously given and referred to in the Respondent’s Statements of Facts, Issues and Contentions, was not consistent with the conduct of applicants who are scheming for a positive outcome.  An alternative possibility, that they are unintelligent or lack common sense, is not the assessment I have made of each of the applicants.  Rather, each was truthful about their age.
44.	The respondent did not have the opportunity to cross-examine the applicants’ mother.  I am not prepared to infer that the applicants decided not to call her as a witness over the telephone because her evidence would not have been helpful to them.  I accept that there were security concerns about her giving evidence over the telephone, that is, that she might be overheard or recorded by the regime of the CoO giving sensitive evidence that may adversely affect her family.  I do not accept the Respondent’s argument that there was no such concern because the mother had sent a letter in support of the applicants.  I infer that the security concerns relating to telecommunications and traditional mail are different and less in the case of the latter.
45.	I do not accept that because the mother does not demonstrate the “basis” on which she gave the dates of birth, little weight should be given to her evidence.  As a matter of common experience, I doubt a mother has to refer to a birth certificate to recall a child’s date of birth.  If there is no birth certificate, memory would be more important.  
46.	I accept that each of the applicants gave his actual date of birth at the hearing and that they had understandable reasons for given incorrect dates of birth on arrival in Australia and later when the youngest brother was having difficulty in an adult detention camp.
Lack of documentation from the CoO  
47.	The Applicant provided the following evidence to the Department to support the citizenship application:
•	A photograph of the Applicant with his mother, father, sister and younger brother who remains in Iran, claimed to be taken in 2007.
•	A recent photograph of his mother and the same sister and brother in a well-known location in Tehran.  
•	A statement by the Applicant in English dated 28 July 2020.
•	An undated letter from his mother and a translation. 
•	A submission in response to the reviewable decision. 
•	Three references from people who have known the Applicant in Australia. 
48.	When asked why there were no photographs of him with his middle and youngest brother in Iran, the Applicant said that he asked for photographs that included himself and for the family together.  His mother could not find any photographs of the middle and youngest brothers with the family. 
49.	There are no photographs that show his two older brothers who remain in Iran.
50.	In the record of interview, the Applicant provided a land line telephone number for his mother as a contact if there was an emergency.  The Applicant wrote in his 6 August 2010 written statement that he had telephoned his mother that day.  She told him that the authorities had taken hers and his father’s identification cards in 2002 and did not replace them despite their applying for new identification cards on several occasions. 
51.	At the hearing, the Applicant said that the landline was that of a neighbour who was a friend of his mother. 
52.	During cross-examination the Applicant said that the family rented their home from a friend of their father whose name he did not know.  His father paid cash for the electricity together with the rent and there was no record.  	
53.	The Applicant acknowledged during his oral evidence that his sister used a smart phone to send the recent photograph to him and that all of them have mobile phones.  He did not accept that a person needed identification in the CoO to get a mobile phone.  He said that there is an area in Tehran where mobile phones and registered SIM cards can be easily bought for dollars.  He denied ever having the identification document containing family details held by citizens of the CoO.
54.	The Applicant gave generally consistent evidence about the nature of his employment in the country of origin.  He was self-employed selling clothes in the street around the area where he lived.  He had worked as a cleaner/labourer in a welding shop where he was not paid wages owing after being unable to provide an identification document.  There were inconsistencies in the dates of work which I find arose because he had to adjust them when he changed his date of birth.  During the hearing, he said that he earned 200,000 to 300,0000 toman a month.
55.	When challenged about the capacity of his family to save the more than US$20,000 paid to a people smuggler, the Applicant said that the money had been saved over the years and if they had saved more, they could all have been here. 
56.	When challenged about being able to transfer more than $100,000 to the CoO from 2012 to 2020 to two different people, the Applicant said that one was his mother’s friend and another her friend’s brother.  Those people in turn gave his mother the local currency.  I do not find that implausible.  The Applicant was also challenged about his capacity to obtain that amount of money.  He explained that he and his brothers worked and before that received Centrelink benefits.  They were trying to help the family.  I accept that is so.  Such a capacity to save money supports the evidence that the family was able to live frugally and save money while working in Iran.  Transferring that amount to the CoO is also consistent with repaying borrowings for their trip to Australia.
57.	During cross-examination about the family members, including his father and older brothers, not being registered, the Applicant became very upset.  He said that his father and brother had tried very hard to get registered.  They did their best.  When they did not get it, “we could not receive it”.  I find that it is consistent with the country information about the system of registration.  Re-registration was possible after 2007 but not registration.  If the rules were not satisfied, re-registration was not possible.  
58.	When the Applicant returned to the hearing after a break, he said that the questions took him back and were very annoying for him.  While he was in detention, he regularly saw a psychologist which helped him a lot.  The psychologist told him to forget the past.  The questioning brought back memories of the past, flashbacks which make him feel shaky and unable to talk.  He thought that was over after the time in detention and he would have an ordinary life and not remember all those things.  He said that what is in papers is different from reality. 
59.	The Respondent contended that it was implausible that the Applicant and members of his family were not able to be registered.  
60.	The 2020 report acknowledges that there are Faili Kurds who are undocumented with the government and are not legally entitled to work, access government services, or obtain birth, death and marriage certificates.  That supports the Applicant’s claims.  The Respondent relied on information in the report about birth registration generally to suggest that the Applicant would be entitled to a birth certificate.  That is inconsistent with the information in the report specifically about undocumented Faili Kurds. 
61.	The Applicant’s evidence was that his parents had Green Cards which they had to hand back when the system of documentation changed and despite trying, his father was unable to register under the new system and get a White Card.  The information in the report about the current registration and re-registration requirements is consistent with the Applicant’s claim that his older brother unsuccessfully pursued his father’s registration and unsuccessfully sought to be registered himself, after his father’s death in 2008. 
62.	The evidence of his mother was contained in a letter written by her daughter and signed with a thumb print.  She wrote that after being in detention they received a Green Card which had no value: she could not work or access a hospital and her kids could not enrol in school.  She had been waiting for the White Card forever.
63.	I do not accept that being able to rent a property, use electricity, and have access to a landline in the circumstances described demonstrate that the family was registered.  Nor do I accept that being able to access mobile telephones in the CoO more recently requires registration.  I accept the Applicant’s evidence about the availability of mobile telephones and SIM cards.  I infer that unregistered Faili Kurds in the CoO find ways to live, including renting premises which includes access to electricity, and accessing use of a landline. 
Educational history  
64.	Another matter relevant to documentation was the Applicant’s educational history.  The Respondent contended that the Applicant’s claims about his education in the country of origin were inconsistent.  
65.	In the record of interview dated 17 June 2010 the following information was set out about the Applicant’s educational history:
Dates	School/University	Qualification	
(1991-1995 crossed out)	METHAM	5YRS  (2 words crossed out)	
2001-		Private tutoring
Neighbour taught	
66.	I infer that the dates 1991-1995 were crossed out because they were inconsistent with his then claimed age of 17½.
67.	When questioned about the reference to “Metham” during his oral evidence, he said that the interpreter spoke a different dialect and did not understand when he told him the term they used to refer to their teacher.  The interpreter said that he had a son called Metham, and to write that down.  The Applicant explained that they had just got off the boat, the form was put in front of him, it was not his handwriting and there was a lot of crossing-out on the form.  He had signed the document because the interpreter told him to.  He did not know what was in it. 
68.	This form was filled in after he had been in Australia for about a month. 
69.	The Applicant was recalled and cross-examined after the middle and youngest brothers had given evidence.  In the youngest brother’s Biodata sheet completed on 13 May 2010, the Educational history showed “Mytham” in the “School/University” column and “5 years primary school” in the “Qualification” column.  When asked about that name, the youngest brother said that the title of the teacher was general, and he was asked to give a name.  “Mytham” was the name of the teacher’s son.
70.	When the inconsistency between his and the youngest brother’s explanations for using similar names was put to him, the Applicant initially obfuscated and then said that they did not know the teacher’s name, but used a respectful title given to ladies in the CoO.  They knew her son’s name and wrote that.  His explanation for the change in his evidence was not persuasive.  
71.	In the Form 80, the Applicant claimed that from 2000 to 2005 he had had an “informal education in the neighbourhood – 4/5 years – off and on”. 
72.	The evidence raises a doubt about whether the Applicant and his youngest brother were taught informally by a neighbour or formally in an institution.  The country information allows that some unregistered members of the ethnic group may attend school.  The Applicant maintained that he did not attend a school.  It is likely that both the Applicant and the youngest brother attended some kind of educational institution for five years.  That is not a lengthy period of formal education.  
73.	Given his actual date of birth, the Applicant’s education would have occurred prior to the change from Green Cards to White Cards in 2001/2002.  The youngest brother’s education was likely to have overlapped both periods.  The country information does not specifically address the access to education by unregistered Faili Kurds during the period when Green Cards were in use.  However, I infer that if unregistered Faili Kurds may have got access to education as described in the country information when White Cards were in force, the same access applied when Green Cards were in force. 
74.	Both the Applicant and the youngest brother were apparently conscious that admitting that they had attended an educational institution may adversely affect their case and sought to conceal that fact, although unconvincingly.  I infer that they became aware of that while they were in immigration detention because the information disclosed in documentation after the first few months referred to informal education by a neighbour and both the brothers maintained that position thereafter.  When confronted with the inconsistent adverse evidence from 10 years ago, both tried to explain it away, but unconvincingly.  This evidence does not cause me to change my assessment that they have not been scheming for a positive outcome.   
Departure from country of origin 
75.	In the record of interview, the Applicant explained that his family paid US$23,000 to US$24,000 to people smugglers, his older brother borrowed from family, relatives and friends, and each of the three brothers contributed US$1-2,000.  The people smuggler provided false passports.  His showed a false name but his photograph.  The three brothers left together from Imam Khomeini International Airport.  The people smuggler took the passports before they boarded the boat to travel to Australia.  
76.	The Applicant’s oral evidence was consistent with that evidence.  It is of some significance that the older brother or brothers of the three applicants organised their departure.  They remain in the CoO.  That the applicants did not know details of the arrangements, such as bribery, is not inconsistent with their evidence.
77.	The Respondent relies on the country information summarised earlier in this decision to contend that it is unlikely that the three brothers could have left through that airport using false passports. 
78.	I accept that the weight of the country information suggests that it was unlikely that the three applicants left the CoO together through Imam Khomeini International airport using fraudulent passports, but it also demonstrates that it was possible.  Country information is not definitive.  For example, the 2009 country information report lists the sources of the information obtained and states:
It is not exhaustive; if some information is not included, this should not be taken to imply that it does not exist; simply that it was not obtained by the mission team.
79.	I conclude that it is possible that the three applicants left the CoO using fraudulent passports as they claimed.
Conclusion
80.	This is an unusual case.  I accept that the Applicant and his brothers are unable to provide documentation from the CoO confirming their identity because they are unregistered Faili Kurds in the CoO.  Such documentation would include biometrics.  I accept the Applicant’s life story.  I have found the three to be generally truthful witnesses.  At times, they have not been truthful for good reason, for example when they changed their dates of birth while in detention because of concern for the youngest brother, but they did try to provide correct information from their mother when the issue arose, as discussed earlier in this decision.  The evidence of the Applicant and the youngest brother about their education was evasive and their attempted explanations unpersuasive.  However, I have formed the view that their conduct has not been consistent with the conduct of Applicants who are scheming for a positive outcome by concealing their true identity.
Decision
81.	The decision under review is set aside, and the matter is remitted to the Minister for reconsideration with the direction that the Minister be satisfied of the Applicant’s identity for the purposes of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member	
.....................................[sgd]...................................
Associate
Dated: 1 November 2021

Date(s) of hearing:	15 & 16 February 2021
4 March 2021	
Date final submissions received:	25 April 2021	
Applicant:	In person	
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor