1919254 (Refugee)
[2021] AATA 4301
•30 September 2021
1919254 (Refugee) [2021] AATA 4301 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1919254
COUNTRY OF REFERENCE: Stateless
MEMBER:Meena Sripathy
DATE:30 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 September 2021 at 11:11am
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Kuwait/Iraq – identity – inconsistent and contradictory information provided in application and documents – names and dates of birth – Kuwaiti birth certificate found to be genuine and Iraqi national identity card found to be counterfeit – Iraqi document obtained by father when applicant a minor – formats and transliterations of given names and surnames – errors in applicant’s details in child’s Australian birth registration – consistent and credible evidence – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 116(1AA)CASES
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMIA v QAAH (2006) 231 CLR 1
Zhao v MIMA [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 29 June 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 September 2021 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND AND EVIDENCE
The applicant arrived in Australia by boat [in] September 2010 at Christmas Island and claimed protection on the basis that he was a stateless Bidoon, born in Kuwait and residing in Iraq. He declared he was single and had parents and [siblings] residing in Iraq.
The applicant lodged an application for Refugee Status Assessment on 10 October 2010, which was refused by a delegate on 3 November 2010.
The refusal decision was reviewed by an Independent Merits Reviewer who, on 17 October 2011, found that the applicant met the definition of refugee on the basis that he had a well founded fear of persecution for reasons of his membership of the particular social group, [Occupation] in Iraq, being a Sunni Muslim living in a Shia area and his Bidoon ethnicity. The applicant was subsequently invited to apply for, and was granted, a Protection visa on 24 November 2011.
On 2 April 2014 the applicant was requested by the Identity Integrity Section of the Department to provide documents to verify his identity and in response to this request provided the original documents of his Kuwaiti birth certificate [Number 1] and Iraqi National Identity Card [Number 2]. These documents were assessed by the Document Examination Unit. The decision record indicates that he was advised by letter dated 19 June 2014 that the Iraqi National Identity card was counterfeit. The Kuwaiti birth certificate was found to be genuine and returned to him. The document found to be counterfeit was retained by the Department. (As indicated below, the applicant claims he never received this letter and his original documents were never returned to him. The Tribunal observes the 19 June 2014 letter is not included in the Departmental records provided to the Tribunal.)
On 24 May 2016 the applicant applied for Australian Citizenship submitting a Form 1300t in which he stated his name as [the applicant], that he was not known by any other names, he was born in Kuwait , and acquired Iraqi citizenship [in] May 2008. A copy and translation of a ‘Civil Status Identification’ (Personal ID) document No. [Number 2] was included with the application.
On 10 July 2018 the applicant was sent a Notice of Intention to Consider Cancellation under s116 of the Act (NOICC). The NOICC advised that the delegate was considering the cancellation of his Protection visa under s116(1AA) on the basis that the delegate was not satisfied as to his identity.
In summary, the NOICC set out the following information indicating that the ground may exist:
·Upon arrival at Christmas Island [in] September 2010 he claimed to be a stateless Bidoon, born in Kuwait and resident in Iraq. He stated he held an Iraqi passport in a false name of [Alias 1] born on [Date 1, Year 1].
·In the biodata information taken upon his arrival at Christmas Island he stated he left Iraq illegally using a passport in someone else’s name. He stated he had an Identity card number [Number 2] from Iraq issued [in] May 2010 (sic) in the name [Alias 2] and a Kuwaiti birth certificate [Number 1] issued [Date 2, Year 1] in the name [Alias 2, with extra name].[1]
·On a Personal Particulars for character assessment form 80 signed by him on 10 October 2010 he provided stated his family and given names as [the applicant], that he was known by the name [Alias 1] (name on false passport), [Mr A] was his paternal grandfather’s name. He provided his birthdate as [Date 1, Year 1], born in [Town] Kuwait and stated he had nil citizenship, stateless Bidoon, no to dual citizenship and refused Kuwaiti citizenship because he was Bidoon. He also provided information about the Iraqi ID card and Kuwaiti birth certificate documents and names and details of his parents.
·In his Statutory Declaration dated 10 October 2010 setting out his protection claims he stated he was born in Kuwait and is Bidoon. His family lived in Iraq since 1992 but his family did not have Iraqi citizenship. In recent times, his family was subject to terrible persecution because they are Bidoon and Sunni. In 2006 the visa holder claimed his brother [Mr B] was murdered by the Badr militia group. The rest of his family moved from Basrah and went into hiding. The Kuwait Government would not give his father or his family citizenship because they labelled his father an 'Iraqi'. The visa holder did not know why he was labelled 'Iraqi'. The visa holder's father was born in Kuwait but his parents (his paternal grandparents) never held Kuwaiti citizenship either. In 1992 the family was informed by the Kuwaiti government that they are Iraqi and therefore must leave Kuwait. They left for Iraq. The visa holder had no idea how he entered Iraq or whether he had any documents as he was too young to know about these things. The visa holder stated that he was afraid to return to Iraq, his life will be at risk from the Badr militia and he fears they will kill him just like they killed his brother. The visa holder stated he cannot return to Kuwait because he does not have citizenship there or any right to reside there. The visa holder stated that Iraqis think that Bidoons deceived Iraq and that they are spies as well as traitors and enemies of the Iraqi people. The visa holder stated everyone looks down on Bidoons because they have no nationality or identity. The visa holder was disliked in Iraq because he is Sunni and Bidoon. The visa holder also stated that the date of birth on his Kuwaiti birth certificate is an estimated date not the actual date. The visa holder's actual date of birth is as stated on the Iraqi identity card.
·The RSA delegate’s decision record noted that "The claimant confirmed that he and his family moved to Iraq in 1992 as refugees from Kuwait, and they were issued temporary residence permits. The claimant asserts that they had to renew this temporary Iraqi residence status on a yearly basis. Refugees recognised by the former Saddam regime held Iraqi identity cards, but with its fall the new Government ordered refugees to obtain residence permits from the Residence Directorate. The Iraqi government began issuing identity cards to refugees in mid-2008 ... I find that he was the holder of an Iraqi residence permit ...there are no country information reports to specifically indicate that Bidoons in Iraq are discriminated against or mistreated….”
·In a supplementary Statement of Claims dated 23 January 2011 the applicant stated there was much discrimination against Bidoons in Iraq and it had gotten worse since the fall of Saddam’s regime.
·Details of the translations of the Kuwaiti Birth Certificate and Iraqi National Identity card, assessed by the Department’s Document Examination Unit to be counterfeit, was set out.
·In his Application for Australian Citizenship made on 24 May 2016 the applicant stated his name as [the applicant], he was not known by any other names, was born in Kuwait and that [in] May 2008 he acquired Iraqi citizenship, providing the original (sic) copy in Arabic and translation of the Civil Status Identification (Personal ID) from Republic of Iraq Ministry of Interior number [Number 2].
[1] The Tribunal requested the evidence of the Biodata information record from the Department on 6 July 2021, and this was provided. It is noted that this document (signed on 10.9.2010) indicates the applicant’s name recorded as [the applicant]; father’s name: [C]; Grandfather’s name: [A]; Date of Birth [Date 1]; Citizenship: Iraqi. No response is given to Questions 12 asking Do you have any passports, identity documents or military papers. It is unclear therefore what ‘biodata information taken upon arrival’ document the delegate is referring to.
On the basis of this information the delegate concluded that the Iraqi Civil Status Identification document provided with the citizenship application indicates he is an Iraqi citizen. The delegate stated the details in this document have similarities to the document deemed by the Department to be counterfeit in 2014, the only difference being the translated spelling of the surname. On this basis, the notice stated, the information provided by the applicant to the Citizenship section indicates he is an Iraqi citizen and not a stateless Bidoon and does not match with the information contained in the Kuwaiti birth certificate, specifically relating to the names indicated for his father (the latter not mentioning [Surname]) and the date of birth (the latter stating [Date 3, Year 1], whereas the former states [Date 1, Year 1]) and therefore raises doubts as to his true identity.
The notice stated that it is considered the applicant has not provided reliable documentary evidence to support his identity and there is conflicting information provided to the Department in application forms and documents that raise serious doubts as to his true identity. On this basis the delegate was not satisfied as to the applicant’s identity and therefore ground under s116(1AA) exist to consider cancellation of his Protection visa. The applicant was invited to comment on this.
The applicant provided a response to the NOICC and supporting documents on 28 July 2018:
·Statement of applicant dated 24 July 2018 explaining Arab naming structures and providing details and supporting evidence of various Kuwaiti documents showing names used for his father, death certificate for his brother who was killed because of his Sunni faith, and an explanation of why he had an Iraqi ID card. The applicant reiterates that he has no citizenship or residency rights in any other country than Australia, and that he fled Iraq after his brother was killed there and he was a stateless Bidoon in that country.
·Supporting documents referred to in his Statement were attached including his Australian travel document, drivers licence, Medicare card; copy and translation of his Kuwaiti Birth Certificate.
·Translation of father’s Kuwaiti drivers licence renewal showing family name of [Surname]; translation of certification dated 22 April 1986 from [Employer] relating to his father’s employment as [an Occupation] in the [Employer] from 1 September 1977 to that date; translation of an Age Estimation form relating to applicant’s father issued by State of Kuwait; applicant’s father’s [Work-related document] dated 12 December 1991.
·Copy and translation of Letter of Support for Victims of Terror Committee issued by Office of [Sunni organisation], [December] 2010 confirming applicant is a member of the Sunni sect in their province and was subject of threats and attempted assassination by armed militia after they killed his brother [in] May 2010.
·Copy and translation of brother’s death certificate.
On 29 June 2019 the delegate, having considered the above NOICC and applicant’s response, decided that the grounds for cancellation exist, as he has provided inconsistent and contradictory information regarding his identity in his Protection visa and Citizenship applications and in his response to the NOICC. Specifically the delegate noted that the Death Certificate of the applicant’s brother submitted in response to the NOICC states that his brother is a Iraqi national and indicates that information pertaining to the Directorate of Citizenship and Civil Status Affairs was extracted from his Iraqi passport. The delegate was of the view that this suggests the applicant is not a stateless Bidoon as his brother was an Iraqi citizen. Furthermore the delegate was concerned that the applicant’s Iraqi national ID card was found by the DEU to be counterfeit and retained by the Department, yet he submitted a Civil Status Identification document similar to it in his citizenship application. The conflicting identity information raises doubts as to his identity claims and for these reasons the delegate was not satisfied he has provided reliable evidence of his identity. The delegate considered applicant’s reasons for why the visa should not be cancelled and determined that the visa be cancelled.
Evidence before the Tribunal
Before the Tribunal the applicant provided the following further information.
On 8 July 2021 the applicant’s representative provided an update regarding the applicant’s current circumstances. He is married to an Australian citizen, and they recently had a child, born [month] 2021. The applicant is a full time carer to another Australian citizen. The representative advised that she is in the process of compiling evidence in support of the matter and proposes to submit this shortly.
On 6 August 2021 the applicant’s representative submitted the following evidence in support of the application:
·Statement of the applicant – he explains the discrepancy in his date of birth between the Kuwait birth certificate document and his Iraqi ID card on the basis that he was only [Age] years old when his family fled from Kuwait to Iraq and he came to hold the Iraqi ID card as he grew up. He has always used the date of birth recorded there and it is the one he used since coming to Australia. While he believes the date on the Kuwait birth certificate is the correct one, he has always used the other one. Regarding the Iraqi ID card, he confirms he has only ever held one of these documents. He provided the original of this document to the Department after he was granted a visa and does not recall ever getting it back. The responses about his citizenship in his Citizenship application were filled in incorrectly. He paid someone to help him and this person completed the forms after the applicant gave him his documents. The applicant provided information about how he came to meet and marry his wife, [Ms D]. They married [in] February 2020 and in [month] 2021 their [child] was born. The applicant provided information about his relationship with [Mr E] and how he came to care for him. The applicant explained the hardship on him and his family if he is required to return to Iraq, given he has lived here for 11 years, is married to an Australian citizen and has an Australian citizen child.
·Statement of [Ms D], applicant’s wife- she is an Iraqi born, Australian citizen. She describes how she met and married the applicant, the birth of their son, and her connections to Australia and the hardship to her if the applicant returns to Iraq. Copies of her Australian passport, marriage certificate and birth certificate of their [child] is attached.
·Statement of [Mr E]- he is an Iraqi born, Australian citizen. He describes his health conditions, how he met the applicant in 2012 and the care the applicant has given him since 2014 to date and the hardship to him if the applicant is required to return to Iraq.
·Family photos depicting the marriage and photos of the applicant with his [child] and extended family.
The representative, in her cover letter, advised that the applicant had intended to obtain a statement from his father in Iraq, however, sadly, he was diagnosed with coronavirus and passed away the previous day. She also referred to errors in details contained in the applicant’s [child]’s birth certificate, which is in the process of being rectified with Service NSW.
On 11 August 2021 the Tribunal wrote to the applicant requesting clarification about whether he provided an original or certified copy of the Civil Status Identification (Personal ID) to the Department with his application for Australian citizenship. The Tribunal also requested a copy of his father’s death certificate if available.
On 25 August 2021 the applicant’s representative provided a response stating that the applicant instructs that he provided only a copy of the identification documents with his citizenship application because he no longer holds the original documents. He provided the original documents to the Department at their request in 2014, but these were never returned to him. The applicant instructs that the Iraqi National ID Card and Civil Status Identification (Personal ID) card are references to the same document. He has only ever held one Iraqi ID document [Number 2] and this has been referred to by different names in different translations but they are references to the same document. Attached with this correspondence were documents the applicant obtained from the Department under FOI including:
·Identity Information Form dated 31.3.2014 indicating presentation by applicant of original Iraqi ID document and Kuwait birth certificate
·Document Examination report dated 31.7.2014 confirming Iraqi Identity Card as counterfeit
·Letter dated 6 March 2019 to applicant requesting further information relating to Citizenship application lodged 24 May 2016
·Decision Record on Citizenship Application dated 13 June 2019.
On 2 September 2021 the applicant provided a further bundle of documents:
·Submissions by Counsel – setting out the evidence relied on by the applicant, and providing arguments in response to the delegate’s concerns about the applicant’s identity as recorded in the decision record. Specifically, it is submitted that the delegate was under the mistaken impression that the applicant had submitted another identity document with his citizenship application which contained different personal information, when in fact the documents submitted by the applicant was the same one, and only a copy of the original was submitted in 2016 as the original was provided to the Department in 2014 and retained by the Department. The differences in personal information can be explained as differences between the English translations. Regarding the concern that the applicant had declared he and his parents were Iraqi citizens in his citizenship application, it is submitted the applicant has explained in his statements this was an error on his part and explained the circumstances in which it was made. With regard to the concern about the omission of the [Surname] name on the applicant’s Kuwaiti birth certificate, the applicant has explained this in his statements and provided various statements from family members to further explain the origins of the [Surname] name. Explanations have also been provided by the applicant for the discrepancy in his birth date information before the Department.
·Supplementary statement of applicant – addressing his knowledge of where his family members currently live.
·Statement of [the] youngest brother of the applicant – stating he is in regular contact with the applicant by phone 4 times a week and lives with his mother. Confirms his father’s full name and that he recently passed away due to the coronavirus. States the names and locations of his [siblings]. Copy of his Iraqi National ID card is attached. A translation of this document was later provided to the Tribunal.
·Statement of [the] mother of the applicant- stating she is in regular contact with the applicant by phone. Confirms her husband’s full name and that of his father. Her husband recently died from coronavirus. Names her 11 children and their current locations. Copy of her Iraqi identity card is attached. A translation of this document was later provided to the Tribunal.
·Translation of death certificate of applicant’s father- stating his name as [C]/ Father’s name: [A]/Grandfather’s name: [deleted]. Place of Birth: [Town] Kuwait. Place of Death: Basra. Date of Death [August] 2021
Tribunal hearing 9 September 2021
At the hearing the applicant confirmed his address and current living arrangements. He lives with his wife and new baby. He is not currently working. Apart from his wife and child, he has no other family members in Australia. Overseas he has his mother, one brother and [sisters] in Iraq, one brother in [Country 1], one in [Country 2] and one in [Country 3] and a sister in [Country 4]. All of these siblings left Iraq after he left in 2010.
The Tribunal asked the applicant about the Iraqi travel document he provided to the Department. He confirmed that he did not have it with him when he departed Iraq. After he came to Australia and was in the camp at Christmas Island he arranged for a friend to send a copy of it to him by email. He did not bring any documents with him when he departed Iraq. Later someone from Iraq brought the physical card to Australia.
The Tribunal asked how he obtained the original document in Iraq. He said when he was young in Iraq his father applied for and obtained the document. His father applied for ID cards for all of the family in the 1990’s when they came to Iraq from Kuwait, and since then he renewed them on the applicant’s behalf. When asked why his father would have renewed his card in 2008 when the applicant was an adult by that time, the applicant explained it is cultural that his father does it for him. The Tribunal asked the applicant what he used the card for, in terms of what it allowed him to access. He said he had to show the card if stopped by the authorities. It was his ID document. He confirmed that he was able to access health and education services in Iraq. He confirmed that prior to departing the country, he worked with his brother as [an Occupation]. He confirmed he was educated to year [grade] level.
The applicant told the Tribunal, apart from his Iraqi ID card, the only other identification document he held was his Kuwait birth certificate. He never held an Iraqi nationality certificate because they were not Iraqi citizens. Unlike other citizens, they did not get government support for food and other living items. The ID card they held was only for identification and gave them no other citizenship benefits. The Tribunal put to the applicant that independent information before it indicates that a proportion of persons of Bidoon ethnicity who were expelled from Kuwait to Iraq in the early 1990’s were granted citizenship by the Ba’ath regime through an assistance package called the makremiayah and that those Bidoons who became citizens under this arrangement possess Iraqi ID cards, whereas those who do not hold Iraqi citizenship do not hold ID cards, nationality certificates or PDS cards.[2] This information may suggest to the Tribunal that his possession of an ID card indicates his family were among the Bidoons granted citizenship. In response the applicant stated that they did not have citizenship rights, they only had the ID card which was used for ID purposes only, and never held any other citizenship documents such as a nationality certificate or PDS card.
[2] United Nations High Commission for Refugees (UNHCR), 2010, Email ‘Bidoon in Iraq’, 8 September <Attachment>
The Tribunal asked the applicant to briefly explain his family’s history. He said the family left Kuwait in 1992 and came to Iraq. His father was [an Occupation 2]. In Kuwait he was [an] employee. The applicant said he was young so he doesn’t know exactly what his father did but knows he had [an] income. The Tribunal noted he has provided numerous documents to the Department relating to his father and asked where and how he obtained those. He stated that his father provided them to him. The family came to Iraq and lived in Al Zubair, Basra area. Since the troubles they had (when his brother was killed), his family moved and his mother and brother now live on a farm (‘masra’) outside the town. The applicant said he left Iraq after his brother was killed because he felt threatened and in fear for his life. His brother was killed because he was Sunni.
The Tribunal noted that in his application he stated two of his brothers were Iraqi citizens and asked why they had citizenship and not the rest of them. He said the two youngest brothers were born in Iraq and therefore had citizenship. They all have ID cards and he has provided copies of his youngest brother and mother’s cards with their recent statements.
The Tribunal asked the applicant what his view was of the Department’s conclusion that his ID card was counterfeit. He said he does not agree with that, the original of the document was sent over by his family. He gave the original to the Department along with his Kuwait birth certificate and they did not return either of these documents. The first time the applicant knew that the Department considered this ID document to be counterfeit was in this cancellation process. When he applied for citizenship he provided a copy of the same ID document he had given previously. He believed the Department had the original. He also provided copies of his Kuwait birth certificate and Australian travel document.
The applicant confirmed that the Iraq National ID document and Civil Status Identification document referred to by the Department in the NOICC was one and the same document. He has only ever held one identification document from Iraq and that is the one he gave to the Department.
The applicant told the Tribunal he has always used the family name [Surname]. It is a family surname from his paternal side. He stated his father and grandfather’s names. He said his younger brothers also use the [Surname] family name and it is indicated on their Iraqi ID cards. The Tribunal noted that he has not provided translations of these documents so it is unable to see that. The Tribunal invited the applicant to provide any other documents from other brothers showing the use of the [Surname] family name.
Regarding the issue of the discretionary factors, the Tribunal noted the information and submissions made to date. It noted that it would have regard to the hardship a decision to cancel his visa would cause them and the length of time he has been in Australia. It asked if there was anything else he wanted the Tribunal to consider. He said he had nothing further to add.
On 17 September 2021 the Tribunal received post hearing submissions from Counsel on behalf of the applicant. The submissions addressed two issues that arose during the hearing, being the use of the family name, [Surname], by members of the applicant’s family and whether he is or is not an Iraqi citizen. The submissions indicate that the applicant is ready and willing to provide NAATI accredited translations of the identity cards of his younger brother and a sister in Iraq to support his claim that these family members use the [Surname] name, if required by the Tribunal. In the meantime, the submissions observe that the applicant and his wife state that their ID cards show the use of this family name. As the Tribunal was able to reach its decision without the need for this evidence, it was not requested.
On the issue of Iraqi citizenship, the submissions note the evidence about Iraqi citizenship status of families of Bidoons expelled from Kuwait in the early 1990’s is not clear. In the present case, it is noted that the Department’s investigations have found his Iraqi identity card to be counterfeit. It is also noted that his father’s recent death certificate records no nationality for him. This supports his claim that he is not an Iraqi citizen. Even if the Tribunal is uncertain about whether the applicant is or is not an Iraqi citizen, it should accept that he genuinely believed at the time he departed Iraq in 2010 that he was not a citizen and not eligible for Iraqi citizenship and if the Tribunal is satisfied about other identifying features concerning the applicant, including his name, date and place of birth, family members and family background, it can be satisfied about his identity.
On 20 September 2021 the Tribunal wrote to the applicant to seek clarification about details on the applicant’s son’s birth certificate, specifically relating to the child’s family name, and his father’s place of birth and address, noting that the cover email proving this document indicated there were errors made in this document. On 27 September 2021 the Tribunal received a response, in the form of an email from the applicant’s wife explaining the circumstances in which the application for the birth certificate was made, and that the form was completed by her sister in law on her behalf who made the errors. At the Tribunal’s further request, a copy of the online application was provided, indicating that the identity documents submitted for the applicant for this application were his NSW Driver’s Licence, Medicare card and Centrelink card, none of which contained details of his place of birth.
Does the ground for cancellation exist?
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
s.116(1AA) – Not satisfied as to identity
A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.
This subparagraph was introduced in 2014.[3] There are no mandatory considerations specified that must be considered by a decision-maker when exercising their discretion under s 116(1AA) of the Act. The Explanatory Memorandum to the legislation inserting s.116(1AA) provides the following example of when this ground may arise: two or more documents or pieces of information about a person’s identity have been given by, on behalf of, or in relation to the visa holder and it is not possible to form a conclusion regarding which document or piece of information is genuine.[4]
[3] Inserted by No.129 of 2014.
[4] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill, p.24, at [16].
Departmental guidelines indicate that this ground will not apply if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed. This is because a visa cannot be cancelled under s116(1AA) if the delegate is satisfied as to a visa holder’s identity. The Guidelines also caution that In deciding whether they are satisfied as to a visa holder’s identity, delegates must consider the visa holder’s individual circumstances, and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.[5] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.
[5] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 29/3/2020).
Departmental policy defines the ‘three pillars of Identity’ for visa purposes as consisting of:
·documents - containing biographic information, such as name, date of birth;
·information - the life story of the applicant(s); and
·biometrics - evidence that links a person's biographic information to physical attributes, including facial images and fingerprints.[6]
[6] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Bogus Documents – Detection, Seizure and Retention – Identity – What is Identity
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the context of administrative decision-making.[7] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[8]
[7] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-3; MIMIA v QAAH (2006) 231 CLR 1 at [40] and cases there cited.
[8] See Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000), at [25], [32]-[34]. See also Mian v MILGEA (1992) 28 ALD 165 at 169 and Jasbeer Singh v MIEA (1994) 127 ALR 383 per Sackville J at [14]. In those two cases the Court was referring to the burden of proving relevant facts said to attract s.20 as in force before 1 September 1994, which in turn attracted the deportation power, but the principle would be equally applicable to visa cancellation.
In the present case, the delegate was not satisfied as to the applicant’s true identity. In reaching this conclusion the delegate referred to concerns that the applicant provided conflicting information about his identity in his Citizenship application as the Iraqi Civil Status Identification document submitted indicated he is an Iraqi citizen; appears to be similar to a document the Department deemed counterfeit in 2014 and does not match the information provided in the Kuwait birth certificate. The Kuwait birth certificate contains a different date of birth and does not include the [Surname] family name which is included in the Civil Status Identification document. The delegate was concerned that the applicant’s claim to be an Iraqi citizen in his citizenship application differs from his original claims to be a stateless Bidoon who never held citizenship of any country, and the inconsistencies and contradictory information causes doubts about whether he is [the applicant] born [Date 1, Year 1] in Kuwait to stateless parents, resident in Iraq since 1992 as a stateless Bidoon. The delegate was not satisfied the applicant provided the Department with accurate information of his identity and therefore was not satisfied as to his true identity.
The issue before the Tribunal on review is whether, to having regard to evidence and information before it, the Tribunal is satisfied as to the applicant’s identity. For reasons that follow, the Tribunal has reached a different conclusion to the delegate. It is satisfied on the evidence and material before it of the applicant’s identity, being that he is [the applicant], born in Kuwait in [Year 1]. The Tribunal accepts that the applicant is uncertain of his exact date of birth which is indicated as [Date 3, Year 1] on his Kuwait birth certificate and [Date 1, Year 1] on his Iraq ID card, but that he has always used the date on his Iraqi ID card and that is the date he has given consistently since his arrival in Australia and the date he has used since being here on Australian documentation he has obtained. It accepts his statement that he believes the date on the Kuwaiti document may however be the correct date of birth.
The basis and reasons for the Tribunal’s satisfaction as to the applicant’s claimed identity are as follows.
Iraqi National ID card
The Tribunal finds that the document referred to as a ‘Iraqi National ID card’ and a ‘ Civil Status Identification document’ before the Department in the NOICC are one and the same document, referred to by these different names in two translations before the Department.
The evidence indicates that the applicant first referred to his identity documents, being the Iraqi ID document [Number 2] and Kuwait Birth Certificate [Number 1] in his RSA application lodged on 10 October 2010[9]. He subsequently provided the originals of these documents to the Department upon request on 31 March 2014. The Documentation Evaluation Unit in an examination report dated 31 July 2014 found the Iraqi National ID document to be counterfeit and the Kuwaiti Birth Certificate as genuine. The applicant claimed to the Tribunal he was never informed of this outcome and neither of the identification documents were ever returned to him. Consistent with his claims, the Tribunal observes there is no record in Departmental file records before it of the correspondence dated 19 June 2014 the delegate referred to in its decision record. It also notes, as pointed out by the applicant’s representative, the discrepancy in the dates on the letter informing the applicant of the outcome (cited by the delegate as 19 June 2014) which appears to be before the date of the DEU Examination Report (31 July 2014).
[9] Q27 in Request for RSA and Statement of Claims, page 5 of 14, f 29 of BCC20183881209 Dept document ref CLD2021/20014063
On the evidence therefore, the Tribunal is satisfied that the applicant provided his original identity documents for examination to the Department on 31 March 2014; that on examination of these documents by the DEU, the Iraqi ID document [Number 2] was found to be counterfeit and the Kuwait Birth Certificate was found to be genuine. There is no evidence before the Tribunal that the original documents were ever returned to the applicant and the Tribunal accepts the applicant’s evidence that he never received the documents back and was unaware until this cancellation process that the Iraqi ID card was found to be non genuine.
The applicant told the Tribunal that the Iraqi ID document he submitted with his Citizenship application in May 2016 was a copy of the document he had previously given the Department, which he provided with a translation. The Tribunal sought and obtained from the Department the Form 1300t Application for Australian Citizenship and supporting documentation submitted by the applicant, which confirms that the document submitted was a copy of the same Iraqi ID document he relied on in his RSA application and the original of which he submitted to the Department in 2014. The translation submitted with Form 1300t for this document named it a ‘Civil Status Identification’. The applicant previously consistently referred to it as a ‘Iraqi National ID’.
Therefore on all of the available evidence it appears to the Tribunal there is no basis for the delegate’s assertion in the NOICC and decision record that the applicant submitted an ‘original copy’ of a document deemed by the Department to be counterfeit in 2014. The Tribunal accepts that the applicant only ever submitted a copy of his Iraqi ID document together with a translation and that he does not, and did not at that time, have the original in his possession.
Differences in details contained in Kuwait Birth Certificate and Iraqi ID card
The delegate, in the NOICC and decision record, referred to concerns about differences in personal information about him contained in these two documents, specifically different spellings of his father’s name and absence of inclusion of the family name [Surname] and a different date of birth in the Kuwaiti birth certificate.
The Tribunal has considered the applicant’s explanation in his response to the NOICC relating to variances in Arab naming structures and the further Kuwaiti documents relating to his father, demonstrating divergent use of the family name [Surname] in Kuwaiti documents in respect of his father. It has also considered the applicant’s explanation for the different dates of birth in the two documents and his explanation that, while he has consistently adopted the date on the Iraqi ID document, he believes the Kuwaiti birth certificate date may in fact be the correct one.
In respect of the different spellings of his father’s name, the Tribunal accepts that differences in the spellings of names can be attributable to different translations or transliteration of the same Arabic words.
Independent information about Arab naming structures considered by the Tribunal indicates that Arab names usually consist of a given (or personal) name, followed by the father’s first name (or personal name) and the grandfather’s first name.[10] Sources also indicate the use of a family name is becoming more widespread and a source from 2006 indicates a common Arab naming structure today is a first name, followed by the father’s first name and a family name.[11] The family name is inherited from the father.[12]
[10] ‘Naming Conventions Guide’, Australia: Department of Immigration and Citizenship - Identity Branch, p.14 November 2009, CIS18183; ‘A Guide to Names and Naming Practices’, UK Government Press, p.33, 1 March 2006, CIS28303; ‘Iraq: The meaning of Iraqi names; how names are inherited the meaning of "laqab"; transliteration of Arabic names into Latin’, Canada: Immigration and Refugee Board of Canada (IRB), 20 April 2001, CXAD336603425 available at: Refworld | Iraq: The meaning of Iraqi names; how names are inherited; the meaning of "laqab"; transliteration of Arabic names into Latin letters
[11] ‘A Guide to Names and Naming Practices’, UK Government Press, p.33, 1 March 2006, CIS28303
[12] ‘Iraq: The meaning of Iraqi names; how names are inherited the meaning of "laqab"; transliteration of Arabic names into Latin’, Canada: Immigration and Refugee Board of Canada (IRB), 20 April 2001, CXAD336603425
Throughout his dealings with the Department and processing of his applications since arrival in Australia, the applicant has been consistent about the information regarding his family composition and circumstances. He provided his name as [the applicant], and referred to the [Surname] family name when stating the names of his father and siblings from the first interview on arrival (Biodata interview[13]), in his subsequent RSA application[14], and in Parts B & C of his Protection visa Subclass 866 forms.[15] The Tribunal notes that no issues were raised by the delegate in the RSA process or reviewer in the IMR process regarding his credibility generally, or about his identity or his claims to be a stateless Kuwaiti born Bidoon whose family fled to Iraq in 1992. His recounting of his family history before the Tribunal in September 2021 was similarly consistent and credible.
[13] BCC20183881209 Dept document ref CLD2021/20015083
[14] BCC20183881209 Dept document ref CLD2021/20014063
[15] BCC20183881209
Therefore, on the basis of the consistent information and life story provided by the applicant throughout his dealings with the Department, explanations provided by the applicant, supported by independent information, about variances in naming structures and the additional documentary evidence relating to his father provided in response to the NOICC, the Tribunal is satisfied the applicant has provided a reasonable and credible explanation for the differences in personal information contained in the two identity documents submitted in support of his identity.
Issue of applicant’s Iraqi nationality
The delegate also expressed concerns about the applicant’s declaration in his citizenship application that he was an Iraqi citizen, contradicting his claims to be a stateless Bidoon. It was also observed that his brother’s death certificate, provided in his response to the NOICC, indicated his brother was an Iraqi citizen which would suggest that the applicant was also. On the other hand, the delegate acknowledged that the Department’s DEU had found the Iraqi ID card to be a counterfeit document and his Kuwaiti birth certificate to be genuine.
The Tribunal has considered the evidence before it relating to the applicant’s citizenship status. On the one hand, the applicant has consistently claimed that he was born in Kuwait to Bidoon parents who were not citizens of Kuwait and the family fled to Iraq in 1992 where they lived since then, as non citizens. He repeated this claim in his evidence to the Tribunal. However he has also claimed consistently that he held a Iraqi ID document, issued when the family arrived in Iraq and renewed multiple times since then. He was unaware until this cancellation process of the Department’s conclusion that the document was not genuine and he does not agree with this conclusion. When questioned by the Tribunal about how he obtained this document in Iraq, he said his father obtained it for him as this was the cultural practice given his age and circumstances and was unable to offer any other more detailed information about the process involved in obtaining it.
The Tribunal put to the applicant independent information before it indicates a significant number of Bidoon expelled from Kuwait (approximately 47,000) were granted citizenship by the Ba’ath regime in the early 1990’s through an assistance package called the makremiayah and that the fact that he holds an Iraqi ID card may suggest his family were amongst that group. The applicant reiterated his claim that while they had the ID card they were never granted any other benefits of citizenship, such as access to government rations or a passport. He stated he has never held a nationality certificate or an Iraqi passport in his name.
While the Tribunal has been unable to locate independent information that would support or is consistent with the applicant’s claim that despite holding an Iraqi ID card he was ineligible for citizenship, the Tribunal acknowledges sources which state that in order to be granted citizenship, Bidoons had to declare that Kuwait was not their place of birth and often needed the sponsorship of a local tribe[16] whereas the applicant’s ID card, found to be counterfeit by the DEU, stated his place of birth as Kuwait. (The Tribunal also notes the ID cards of his siblings, provided subsequently to the Tribunal, also appear to indicate Kuwait as place of birth, despite the younger brother being born in [Year] in Iraq.) Country information indicates the prevalence of fraudulent ID cards and documentation in Iraq,[17]which would be a plausible and feasible explanation. The Tribunal notes the death certificate for the applicant’s father recently issued, records no nationality for him, yet records a Civil Status Identity Card Number.
[16] DFAT Country Report on Iraq 9 October 2018, p22; UNHCR 2010, Response to research request by the Refugee Review Tribunal on 9 September 2010.
[17] Immigration and Refugee Board of Canada 2016, IRQ105418.E - Availability of fraudulent identification documents, 18 February Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16Taking all of the above into consideration, and given the issue before it is whether or not the Tribunal is satisfied as to the applicant’s identity, the Tribunal considers the evidence before it relating to the applicant’s Iraqi citizenship is not entirely clear. Ultimately, it considers that determination of the matter of his Iraqi identity is not critical to the issue of its satisfaction as to the applicant’s identity. For the purposes of this review, having regard to all of the material before it, it is not satisfied there is sufficient, credible evidence to support a finding that he is an Iraqi citizen.
On the weight of evidence in support of the applicant’s Kuwaiti origins, being his consistent and credible claims of the family’s history and circumstances in Iraq and documentary evidence including the Kuwait birth certificate, the Tribunal accepts that he is a Kuwaiti born, Bidoon whose family came to Iraq in 1992, but did not acquire Iraqi citizenship. Though his brother’s death certificate refers to him as an Iraqi citizen, the Tribunal observes it only refers to an ID card number and not a passport number. On the other hand, his father’s recent death certificate indicates no nationality for him but records his Civil Status Identification number. The DEU found his ID card found it to be counterfeit. On balance, the Tribunal is not satisfied there is sufficient, credible evidence before it to support a finding that he is an Iraqi citizen and accordingly it accepts his claim that he is not.
The main reason for the concerns held by the delegate that led to the initiation of this cancellation process appears to have arisen from the mistaken belief the applicant had submitted with his Citizenship application an original of a different Iraqi identification document which appeared to be very similar to the Iraqi National ID previously referred to in his RSA application and submitted to the Department in 2014 that was found to be counterfeit. However, the Tribunal has found, above, no second Iraqi ID document was presented. The applicant has only ever submitted to the Department two documents to support his identity, being the Iraqi ID document and his Kuwait birth certificate. These documents were presented to the Department prior to the grant of the protection visa. His evidence regarding his identity, family composition and background has been consistent and credible throughout his dealings with the Department to date and there were no issues raised regarding his credibility. The conclusion of the DEU that the Iraqi ID document is counterfeit is in fact consistent with his claim that he is not an Iraqi citizen because he is a Kuwait born Bidoon. It is supported by independent information that fraudulent ID cards are prevalent in Iraq. The Tribunal further notes that the applicant was found to be a refugee on review of his protection application on the basis of his fear of persecution for reasons of his membership of the particular social group, [Occupation] in Iraq, being a Sunni Muslim living in a Shia area and his Bidoon ethnicity. This finding was not dependent on whether he was or was not an Iraqi citizen, notwithstanding that the Iraqi ID card was before the decision maker at that time.
The Tribunal observes that the applicant’s son’s birth certificate provided in his recent submissions to the Tribunal, indicate his place of birth as Basra, Iraq contrary to his claims of being born in [Town] Kuwait. The applicant has explained the circumstances in which this error was made, being that the online application was submitted by his wife’s sister in law, who provided the incorrect information by mistake. A copy of the online application indicates that the identity documents submitted for the applicant were his Australian driver’s licence, Medicare card and Centrelink card, none of which include his place of birth. The Tribunal accepts on the basis of the explanation provided, together with the supporting evidence of the online application form, that these details on the birth certificate were provided in error and the applicant and his wife intend to correct this in due course.
There is no other evidence or document before it to suggest any other identity for the applicant than what he has claimed.
Therefore, taking into account the legitimate difficulty a person in the applicant’s circumstances (being a stateless, persecuted refugee) would have to provide documentary evidence of his identity, the Tribunal is satisfied that his identity is as he has consistently claimed, and continues to claim to date.
For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
Member
December, p.22 <
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
-
Remedies
0
3
0