2218597 (Migration)

[2024] AATA 740

2218597 (Migration) [2024] AATA 740 (13 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Dushan Nikolic

CASE NUMBER:  2218597

MEMBER:Denis Dragovic

DATE:13 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 13 January 2024 at 8:43am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – identity – documents, names and dates of birth and varying family compositions given in applications for tourist visa, protection visa and citizenship – previous consideration of cancellation on grounds of incorrect information – family and personal history – unlawful or semi-lawful life, education and work in two countries – naming conventions and reasons for changes of names and dates – arrived on stolen passport – two documents and some information acknowledged to be false, and some genuine mistakes – consistent and plausible biographical narration – Iraqi citizen, not stateless – nationality and other incorrect information not fatal to identity – identity not fixed but dependent on context –decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1AA)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 December 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [Ms A], and his eldest daughter, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   MIGRATION HISTORY

6. [In] April 2010 the visa holder arrived in Australia on a Tourist (subclass 676) visa and [Country 1] passport in the identity of [Alias 1], born [Date 1].

7. On 15 April 2010 the applicant applied for a protection visa in the name of [Alias 2] and on 15 June 2011 was granted a protection visa on the basis of being a stateless Bidoon.

8. On 7 October 2013 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) under s 109 of the Migration Act having been found to have provided incorrect information regarding his identity.

9. Specifically, the then grounds for cancellation were on the basis of having provided incorrect information pertaining to the following:

   a.Name/Aliases he has used or been known as

   b.Different dates of birth

   c.Having held Iraqi citizenship despite claiming to be stateless

   d.Held [Country 1] residency

   e.Information pertaining to his travel through [Country 2] and prior residence in [Country 1]

10. On 9 July 2014 the Minister’s delegate found that there were grounds for cancellation however based on having provided incorrect information as listed above. But in considering whether the visa should be cancelled the delegate found that the reasons to cancel did not outweigh the reasons not to cancel the visa and as such in this case the applicant’s visa was not cancelled despite having being found to have provided incorrect information.

11. On 16 November 2014 the applicant applied for an offshore Partner visa for his wife and [children]. These visas were granted on 6 May 2015.

12. On 10 July 2015 the applicant applied for Australian citizenship by conferral under the name of [Mr A]. The application was refused on 22 May 2020.

13. On 15 June 2020 the applicant was sent a second NOICC under s 116(1AA) of the Migration Act on the basis of the Minister’s delegate not being satisfied as to the visa holder’s identity. Arising from this process, the applicant’s visa was cancelled by the Delegate on 13 December 2022. This cancellation is the basis of the matter before this Tribunal.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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) which reads:

    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

15. Sections (2) and (3) refer to prescribed grounds of cancellation which do not apply to the applicant.

16. 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.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

18. In the Notice of Intention to Consider Cancellation (NOICC) dated 15 June 2020 the Minister’s delegate identified the grounds for cancellation. In summary they covered three areas, conflicting identity documents, different names and dates of birth and varying family compositions.

19. With regards to the applicant’s identity documents the NOICC summarized the documents that had been received through the various engagements the applicant had with the Australian government:

    You arrived in Australia under the identity of [Country 1] passport holder, [Alias 1], born [Date 1]. You lodged an application for a Protection visa under the identity of [Alias 2], born [Date 2] and an application for Australian citizenship in the identity of [Mr A], born [Date 2]. Throughout your dealings with the Department you have provided an Iraqi Citizenship certificate [number], Iraqi National Identity card [number], Iraqi passport [number] all issued in the name of [Alias 3], born [Date 3]. A [Country 1] driver licence [number], [Country 1] residency card and marriage certificate in the name of [Alias 3] born [Date 3]. An Iraqi National Identity card [number] in the name of [Alias 4] born [Date 4]. A Kuwait Birth Certificate in the identity of [Mr A - Given name] born [Date 2] and Kuwait educational documents issued in the identity of [Alias 5]. It must be noted, you have not submitted any credible identity documents to the Department in the name of [Mr A] or [Alias 4] with date of birth [Date 2], your claimed true identity.

20. The NOICC also identified inconsistencies among the names and date of birth that he provided in his statements:

    In association with your application for Australian citizenship you submitted a statutory declaration, dated 28 March 2019. In this statutory declaration you claim that your birth name was [Alias 5] born [Date 2], and that your birth certificate was lost in Iraq. You have submitted documents throughout your engagement with the Department to demonstrate your Kuwaiti lineage including, transcripts of marks for the years [Years] issued from the Ministry of Education in the State of Kuwait under the name [Alias 5]; a Border Exit Permit issued by the Ministry of Interior in the State of Kuwait on [Date] to allow you and your family departure from Kuwait; and your father’s request for change of name to the Director General of Citizenship in the Province of Basra in Iraq, on [Date], to amend his name from [Mr C – Alias] to [Mr C]. Departmental records indicate that you submitted a NAATI translated (12 June 2015) Kuwaiti birth certificate [number], issued on [Date] in the name of [Mr A - Given name] born [Date 2]. On this birth certificate your father was listed as “[Mr C]” and your mother “[Ms D]”.

    In your application for a Protection visa you claimed that you had lived in Kuwait from birth until your travel to Australia in 2010. In your application for Australian citizenship you declared that you lived in Kuwait until [Year] when your family relocated to Iraq. You claimed your father paid an Iraqi authority figure twice to obtain Iraqi citizenship for you in [Year] in the name of [Alias 4] born [Year] and in [Year] in the identity of [Alias 3] born [Year 3]. You claim the change of name and date of birth was to avoid military service. You claim you relocated to [Country 1] in [Year], and lived there until you travelled to Australia in 2010.

    In response to a Notice of Intention to Consider Cancellation dated 30 December 2013, you declared, that your birth name was [Alias 2]. You stated that you only used the name [Alias 3] to obtain an Iraqi national identity card in [Year] when you left Kuwait. You claimed that you are not an Iraqi national.

21. Lastly, the NOICC identified the applicant’s varying family composition as a basis for being unsatisfied as to the applicant’s identity.

    In your application for a Protection visa you declared your father had deceased, and you have two brothers who resided in Kuwait along with your mother. On 28 March 2019 you submitted a Form 80 in support of your application for Australian citizenship and declared that your mother had deceased and your father resided in [Country 1]. You declared that you have [number] siblings; [brothers] and [sisters]. You declared all your siblings resided in [Country 1], apart from one brother who was residing in Australia and another had deceased. You also declared one sister, [Ms E] was born in Kuwait in [Year], five years after you claim your family relocated to Iraq. [In] January 2020 you were interviewed by Australian Border Force officers upon arrival at Sydney International Airport. During this interview, you declared that you have [number] siblings; that [number] of these siblings live in [Country 3] and the rest live in [Country 1] with your parents. It appears you have provided inconsistent information regarding your correct family composition, including their nationality, name and dates of birth in your dealings with the Department. On 16 June 2010 you proposed your wife and [dependent children] for Global Special Humanitarian visas. In this application, you stated that you, your wife and children are all “Stateless Bidoons” born in Kuwait. You stated that your wife and children were never issued with any identity documents. On 16 November 2014, you were the sponsor for a combined Partner visa application for your wife and [dependent children]. In this application, you stated that your children were born in [Country 1] and are citizens of Iraq. You declared their middle names as “[Alias 3 – given name]” and provided their [Country 1] birth certificates, Iraqi identity cards and Iraqi passports, all reflecting “[Alias 3 – given name]” as the name of their father, “[Country 1]” as the country of birth and “Iraq” the country of Citizenship. Information available to the Department indicates that ‘[Mr A - given name]” born [Date 4] and ‘[Alias 3 – given name]’ born [Date 3] are registered with the Iraqi authorities as brothers. [Mr A - given name] is registered as single and [Alias 3 – given name] is registered as married to [Ms A] and has [children].

22. Based on what the Delegate identified as ‘inconsistent names and dates of birth presented across multiple documents submitted to the Department from Kuwait, Iraq and [Country 1]’, together with different family compositions and life stories that supported one claimed identity or another, the Delegate was not satisfied as to the applicant’s identity.

    Evidence before the Tribunal

23. Through written and oral submissions, the applicant claimed that his name at birth was [Alias 5]. The applicant provided a list of the names and dates of birth that he had used in the past:

    [Alias 4] (born [Date 4]) – used to first register in Iraq when I moved with my family in [Year]. My father stated my birth date later in the year (December rather than March [Year]) to delay the time until I would need to do military service at age 18.

    [Alias 3] (born [Date 3]) – my father paid Iraqi authorities in [Year] to obtain new identity documents under this name / birth date so that I would not be conscripted for military service at age 18. Because I was already registered as [Alias 4] (unmarried), the name [Alias 3] had to be registered as the ‘brother’ of [Alias 4], which is why my two names still appear this way in the Iraqi records.

    [Alias 2] (born [Date 2]) – used when I lodged my Australian Protection visa in 2010. ‘[Tribal name/Surname]’ is my tribal name used by many other people in my tribe in Kuwait.

    [Alias 3 with different date of birth] – used on my [Country 1] employment and health cards, and 2013 visitor visa. I do not know why my birth date is different in these documents as my Iraqi documents show the birth date of [Date 3]. My [Country 1] driver licence also showed the birth date of [Date 3] so I think maybe this was an administrative error in [Country 1]’s system.

    [Alias 6] (born [Date 2]) – I obtained a change of name certificate in this name [in] February 2016, as I was going through significant mental health struggles at the time and wanted to distance myself from my other names as I felt they were causing too many problems in my life. I have only used this name to obtain an Australian drivers licence and otherwise do not use this name.

24. Through the hearing and in written submissions the applicant explained the reason why he had adopted each of the different identities listed above.

25. The question that I must turn my mind to is whether I am satisfied of the applicant’s identity as per s 116(1AA). This begins by considering whether I am satisfied that the applicant is [Alias 5], as he claims, and that his explanation of his life journey including how and why he acquired alternate identities is accepted. Alternatively, if the evidence supports more than one of his identities which in turn would lead me to not be satisfied of his identity, then the grounds for cancellation would be made out.

26. To engage with the determinative issue the applicant was given the opportunity at the hearing to recall his life story. Embedded in the below written narrative given at the hearing in brackets are references to the documents that he provided to the Department and/or the Tribunal supporting each oral claim.

    The applicant’s life story

27. The applicant said that his family were originally camel herders living in Kuwait, but after the ‘petro-dollar boom’ the Kuwaiti state had an influx of money, part of which, they used to build a salaried military. Given the opportunity to have a regular income, his father attempted to join the military, initially under his true name, [Mr C], but he was rejected as the name was identifiable as being of an indigenous person. Instead, the father enlisted as [Mr C – Alias] and was accepted in around [Year] (a copy of a Kuwaiti military leave permit with that name was provided).

28. The applicant’s father married his mother in [Year] (a marriage certificate was available to the Department but this was claimed to be fake—discussed further below).

29. The applicant was born on [Date 2]. As his father was a member of the Kuwaiti military with the name [Mr C – Alias], the applicant was given the name at birth of [Alias 5 – shorter form] (a Kuwaiti birth certificate under this name was provided which the applicant claimed was falsely obtained).

30. The applicant said that he went to school in Kuwait and had a normal life until 1990. The applicant named the schools including [School 1] as the primary school and [School 2] as the intermediate school.

31. In 1990, Iraq under the leadership of Saddam Hussein invaded Kuwait. Iraq’s invasion led to a temporary occupation during which the Kuwaiti army was dissolved. As a result, his father was dismissed from his role in the military. When the Iraqi army left following international military support to oust them from Kuwait, the newly re-established Kuwaiti army accepted some of its former members but not others, including his father, because he was a Bidoon.

32. This was because, according to the applicant, there was a lot of pressure in Kuwait on the Bidoons as they were perceived to be aligned with Iraq. In addition, following the boom in state income from petroleum and the state policy to distribute the money according to the population, there was an incentive to not include everyone as a Kuwaiti citizen.

33. The applicant said that because of the change in circumstances towards the Bidoons he was stopped from going to Kuwaiti schools and had to instead enrol in [a private school] (a copy of a school certificate was provided).

34. He claimed that his father lost his work rights during this period and that he couldn’t even renew his driver’s license.

35. For three years the family were forced to work in the informal sector selling fruits and vegetables such as watermelons and tomatoes on the street without a permit. The applicant said that they were treated badly by the authorities. He claimed that twice or three times he was arrested and taken to a police station. He said that he wasn’t released until his father called a Kuwaiti citizen neighbour who gave assurances to the police and as a result he would be released. Other times, he said that he would run away from the police leaving the watermelons on the street.

36. In [Year], the applicant’s family left Kuwait legally and crossed into Iraq (an exit permit allowing their departure was provided). They established a life in Al Zubair, Basra governorate.

37. When the applicant’s family crossed to Iraq his father reverted his name back to his original name as he thought his false name would be found out by the Iraqi authorities (a document requesting the name change with handwritten approval of the change was provided. The applicant and interpreter both disputed the translator’s translation of the date of the document being [Year] and instead believe it to be [Year] which is relevant as the applicant claimed that his family only moved to Iraq in [Year]).  As a result of his father’s decision, other family members changed their names also. The applicant claimed that he then took on the name, [Alias 4].

38. As for his date of birth, he said that his father reduced his age by seven months to delay military service, then in [Year] his father paid money to someone else to change two of the three words in his name and change his age. As such in [Year] he was known as [Alias 3] with a date of birth [Date 3] (a copy of an Iraqi identity card with this name was provided). The reason for this change was because the father didn’t want his son to serve in the Iraqi military and by changing his date of birth he could avoid conscription. But to change the date of birth he had to change the name as well.

39. The applicant said that in Iraq his life was very difficult. The family thought that life would be better, but it was worse. He said that his father tried to work in [Work sector] and found it difficult as everyone required bribes. The applicant attended a school for one year and then left.

40. The applicant said that in in [Year] the Iraqi government negotiated an agreement with [Country 1] opening a way for them to move there temporarily. As life was difficult in Iraq, the family moved in [Year] to [Country 1] on official Iraqi passports. He initially had a one-month visitor visa and then lived unlawfully for 18 months before obtaining sponsorship from a Kuwaiti citizen that allowed him to live there legally. While in [Country 1] the applicant continued to be known as [Alias 3] (a copy of a police clearance report under this name was provided from the [Country 1] Department of Criminal Investigations).  

1. The applicant married [Ms A] in [Year] while living in [Country 1]. They had [children] in [Country 1] (the applicant provided [Country 1] birth certificates) but while the applicant’s visa was tied to a work permit, which he renewed every three years through his [Country 1] contact, his wife and family did not have that same opportunity. His wife’s visa was tied to her father’s and as long as she maintained the ‘never married’ status she would remain on his visa (the applicant provided a copy of his wife’s Iraqi identity document which states ‘never married’ even though it was issued in [Year]). But this meant that the applicant could not register his marriage, nor could he sponsor her on his visa as his visa was claimed to be of the ‘lowest work bracket’ which didn’t allow for family sponsorship. The applicant explained that these set of circumstances meant that they were at constant risk of being deported and that his children couldn’t go to school (the applicant provided copies of Iraqi passports for [his children], each list the place of birth as [Country 1] and the issuing authority as [Country 1]).

2. The applicant explained that his wife’s updated Iraqi identity card from 2013 showed that she was married. He claims that this document was not provided to the [Country 1] authorities.

3. As a result of this situation, he decided to try to leave [Country 1]. The applicant and his brother paid for two [Country 1] passports that had been stolen from [Country 1] citizens, claiming that he obtained them via his uncle and cousin who had used them to enter [Country 3]. The applicant and his brother travelled first to [Country 4] where an agent facilitated the onward journey to Australia on these passports. The applicant entered Australia with a [Country 1] passport in the name of [Alias 1].

4. Upon arrival to Australia the applicant was met at immigration where he asked for protection. During the process of giving his name to the official, he claimed at the hearing: ‘I used part of my true name [Alias 2 – given name] and my tribal name [Tribal name/Surname]. I think I told them to also put [Additional given name], but they didn’t.’

   Family composition

5. In the applicant’s pre-hearing written submission, he detailed his family composition. He wrote that he is the [birth order] of [Number] children, [some] live in [Country 3], one in Victoria and the remainder in [Country 1].

6. With regards to his own children, the applicant has [number] daughters and [number] sons. The applicant stated that he had undertaken a DNA test that showed that he was the father of the [children].

7. The applicant’s wife and the [children] born in Australia are Australian citizens.

   Findings of fact

   The applicant’s life in the Middle East

8. In pre-hearing submissions, the applicant acknowledged that he had provided two false documents, a Kuwaiti birth certificate in the name of ‘[Mr A - given name]’ with a birth date of [Date 2] and a false marriage certificate of his parents. He said both were created by the people smuggler in [Country 4]. While it is unfortunate that the applicant provided bogus documents to the Australian government it does not necessarily undermine the applicant’s claimed identity.

9. As the applicant stated often through the hearing, it is a dream of many people living in the Middle East to have [Country 1] citizenship (which I also extend to Kuwaiti), and that if he had it there would be no reason why he would have journeyed to Australia the way he did and continue to go through the visa challenges he is facing in Australia. This argument is a powerful argument. Had the applicant citizenship of either of the two wealthy Gulf countries it is difficult to understand why he would be pursuing the pathway that he is, especially considering that he has returned to [Country 1] twice since being in Australia such that any alternative explanations, for example, fleeing the law, is not plausible.

10. For this reason, I accept the applicant’s claim that the Kuwaiti documents, namely the birth certificate and marriage certificate of his parents, were forged and I place no weight on them when considering his identity.

11. At the hearing I tested the applicant’s knowledge of the Kuwaiti area that he claimed to have resided in. The applicant was able to describe in detail the area against information on Google Maps including neighbouring suburbs, points of interest and road networks. This lends some weight to accepting the applicant’s claims of having lived in Kuwait.

12. We also discussed the basis of some of the conflicting information. A document was available to the Tribunal from the [Country 1] authorities regarding their investigation into the missing passports including the one used by the applicant to enter Australia. In the report it states that the applicant’s father was interviewed and that, ‘he advised that his family are in [Country 1] except two sons [Mr F] and [Alias 3 – given name], whom to his knowledge, are in Australia applying for humanitarian asylums…[Mr C] confirms that sons are Iraqis and are not registered in Kuwait as Bedoon (stateless).’ (italics added by the member)

13. When this was put to the applicant, he said that his father must have feared the [Country 1] government. He assumed that his father said what he did because they believe that Kuwait and [Country 1] are very close, and they use the same data systems and that his father didn’t want to raise the issue of his family originally being stateless Bedoons as he was registered in [Country 1] as an Iraqi citizen. This reasoning is plausible.  

14. The applicant had claimed in his protection visa application that he had not received an education in Kuwait for which at the hearing he clarified was not correct. At the hearing he explained that he was misinformed by others during the application process about what to say and that his claims at the hearing were correct and in addition he has documents to support these claims. These documents included school reports. There was no reason to doubt the veracity of the school reports or his claimed school attendance.  

15. The applicant’s claims of hardship in Kuwait including being pursued by police while selling fruits and vegetables on the sides of the street, being arrested and detained were consistent throughout his claims and he reaffirmed them at the hearing but clarified that his original claims of having been detained at one point for two weeks was incorrect as it was only for a few hours.

16. In considering the entirety of the applicant’s biographical narration, I am satisfied that the applicant’s above narration is true. I am satisfied because there is internal cohesion to the narration, it is logical and plausible, it is historically consistent and he has provided documents to support his claims, albeit recognising that the applicant has shown a proficiency in obtaining false documents.

    The applicant’s family composition

17. With regards to the inconsistent or conflicting information regarding his family composition, I note that in the NOICC the delegate suggested that the applicant had written in his Protection visa application that his father was deceased. The applicant acknowledged that he had written this along with a claim that his youngest child had died and that he had fewer siblings than he had.

18. At the hearing he said that he was misinformed by others about what to say when he came to Australia. He added that he didn’t want anyone to delve into his family’s record. He said that he claimed his father and his child were deceased to emphasize his hardship and improve his chances of obtaining protection.

19. The delegate also identified that of the applicant’s listed siblings for one of them he had provided [Year] as her year of birth which would indicate that she was born in [Country 1] based on the timeline he had provided, whereas he had written her place of birth as Kuwait. The applicant explained in his written submission that the error was her date of birth and that it should have read [Year].

20. The delegate also identified as an issue of concern the applicant stating in an interview with Australian Border Force officials upon returning to Australia that he had [Number] siblings instead of the originally claimed [Number]. Apart from a possible slip of the tongue, I note that in some languages the concept of siblings includes the speaker. Either way, I place minimal weight on this inconsistency.

21. The applicant acknowledged that he had made a mistake in his Form 80 completed in 2019 which identified all of his siblings living in [Country 1]. He suggested that those who were living in [Country 3] had moved there only a few years before he had completed the form and so it was a genuine mistake.

22. The last basis upon which the delegate questioned the applicant’s identity arising from his claimed family composition was the following:

    On 16 June 2010 you proposed your wife and [dependent children] for Global Special Humanitarian visas. In this application, you stated that you, your wife and children are all “Stateless Bidoons” born in Kuwait. You stated that your wife and children were never issued with any identity documents. On 16 November 2014, you were the sponsor for a combined Partner visa application for your wife and [dependent children]. In this application, you stated that your children were born in [Country 1] and are citizens of Iraq.

23. Without having the Global Special Humanitarian visa and Partner visa applications before me, and the contents of the above paragraph not being disputed, I accept the Delegate’s summary of the information provided in each. As far as how it impacts the claimed identity, I refer to the applicant’s narrative of his life and in addition to his written statement about his wife’s background: ‘[Ms A] is also a Bidoon Sunni Muslim from Kuwait. She is my first cousin and we grew up together. Her family moved from Kuwait to Iraq about a year before my family, where they also obtained Iraqi citizenship.’[1]

    [1] Written statement dated 30 November 2023

24. Accepting that it is credible that his wife would have a similar journey as he had, the applicant’s statements about his family in the two visa applications is not inconsistent, contrary, nor undermining of his identity. That the applicant’s wife was born stateless in Kuwait does not preclude her from being able to obtain Iraqi documents in Iraq and then have their children born in [Country 1].

25. In considering the concerns arising from the conflicting information about the applicant’s family composition, noting the corrections made by the applicant, I find that there is no basis to place any weight against accepting the applicant’s claimed identity.

    Considerations

26. I first my mind to the issue of the applicant’s claim of being stateless and yet having resided in Iraq with Iraqi nationality. The applicant said that his father had applied for his Iraqi documents while he was young. He said that he knew that they were legitimately obtained because when he went to renew his national identity card in Iraq in [Year] the government registry had his details.

27. That the applicant has Iraqi nationality and therefore is not stateless is not fatal to considerations of the applicant’s identity in this specific matter. This is because identity is not just a reflection of the documents a person holds.

28. The Department’s definition of identity in PAM states:

    The identity of an applicant is established using three pillars: biometrics, documentation and biography. To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.

    While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant's identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[2]

    [2] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1

29. The applicant’s claim of being a stateless Bidoon remains a part of his identity by way of his biography, regardless of whether he subsequently obtained Iraqi nationality. That he had obtained nationality and therefore had not provided a complete exposition of his background is problematic as far as having omitted information, but the decision that needs to be made in this matter is whether I am satisfied regarding the applicant’s identity.

30. Regarding his various names and in particular, the name given to immigration officials upon arrival to Australia, it is relevant to consider naming conventions in the Arab world. The applicant explained in his pre-hearing submission:

    While it is true that my father was using the name [Mr C – combination of names] at the time I was born (which is why I adopted his first names as part of my name, as is typical in Arabic naming convention), his true Bidoon name is [Mr C – given name] and my tribal name is [Tribal name/Surname]. Therefore, it can also be understood that one of my names at birth was [Alias 2]

31. I note that country information was provided with regards to naming conventions and relevant to the applicant’s situation it states that a full name for someone of the Gulf area of the Middle East including Iraq would be in the form:

    First name / Father’s name / ((All paternal grandfathers’ names from youngest to oldest)) / ((1st sub-tribe name)) / ((2nd sub-tribe name)) / ((3rd sub-tribe name)) / ((Main tribe name)).[3]

    [3] Sam G Stolzoff – The Iraqi Tribal System

32. The applicant’s use of [Alias 2] is an abridged version of the naming convention described above in that [Name] is claimed to have been his father’s name ([Mr C]) and [Tribal name] is his tribe. I note that the same country information explains how Western naming conventions when applied in Iraq lead to inaccurate representations of the individual. The example given was:

    Poor example #2 First name / Father’s name / Grandfather’s name / ((Main tribe name))

    This is closer to what is needed; however, it is still a pathway to failure. Tribes in Iraq can be very large and consist of many sub-tribes. Up until now, sub-tribal data hasn’t been collected, and due to our ignorance of even the existence of sub-tribes, we have been unable to apply a workable naming convention that is complete, accurate, and informative. Without sub-tribe data, we don’t know where the Iraqi is from. We are not able to accurately assess who his relatives are and compare their names to the names of known individuals, or any other Iraqis, for that matter. This method is somewhat useful, but ultimately an unforgivable administrative failure.

33. The relevance of this country information ‘poor example’ is that Western databases don’t allow for the full expression of an Arab’s identity and as such that the applicant gave his name as being his first name, father’s first name and then his tribe’s name arises more from the limitations of Western systems to adapt to Middle Eastern naming conventions than it is evidence of an alternate identity.

34. In conclusion, the applicant confirmed that he had provided incorrect information about some of his past through the various stages of the numerous visa processes he has been through. Examples of the incorrect information include his family composition, how he travelled to Australia and how long he had spent in Kuwaiti detention. As noted above, that he provided incorrect information is not necessarily fatal to considerations under s 116(1AA).

35. While the applicant has been known by other names and has adopted other names, this does not mean that he is not who he is claiming to be. As noted in the National Identity Proofing Guidelines of the Department of Home Affairs:

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.[4]

    [4] >

    In this context, that he has used other names is a part of his identity. This is not dissimilar to a maiden name and a new name after marriage both concurrently being a part of someone’s identity. That the applicant’s use of different names at different stages of his life were plausibly explained adds weight to his claimed identity. I find that the applicant’s consistent biography uniquely identifies him as do the documents he held even though they were under different names. I place no weight on the absence of biometrics.  

36. As such, when considered overall, I am 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

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Denis Dragovic
    Deputy President