Abdi H A and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Abdi H A and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 85 (28 January 2022)
Division:GENERAL DIVISION
File Number: 2019/8257
Re:Haider Kadban Abdi H A
APPLICANT

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

DECISION
Tribunal:Member S Barton
Date:28 January 2022
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 21 November 2019 which refused a grant of Australian citizenship under s 24(3) of the Australian Citizenship Act 2007 (Cth), is affirmed.
..........[Sgd]..............................................................
Member S Barton
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether Tribunal is satisfied of Applicant’s identity and good character – insufficient evidence regarding identity of the Applicant – limited primary documentation – bogus documents – inconsistencies in Applicant’s date of birth and the Applicant’s family member’s dates of birth – Reviewable Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 24(1), 24(3), 52(1)(b)
CASES
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016) – para 2.1.1
Department of Foreign Affairs and Trade, Country Information Report, Iraq (17 August 2020)
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 – Assessing character under the Citizenship Act (2021) – paras 3.1, 3.3, 4, 6
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2019) – paras 4.4, 4.16
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – ch 13
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member S Barton
28 January 2022
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent dated 21 November 2019 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The delegate refused the application on the basis that the Applicant did not meet requirements under s 24(3) and s 21(2)(h) of the Citizenship Act at the time of the decision.
BACKGROUND
The Applicant arrived in Australia on 30 July 2011 and was granted an Onshore Protection (Subclass 866) visa on 2 October 2012.
On 21 December 2016, the Applicant applied for Australian citizenship by conferral.
On 21 November 2019, the Department of Home Affairs (the Department) refused the conferral of citizenship in accordance with s 24(3) and s 21(2)(h) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity and the Applicant was assessed as not meeting the character requirements. This is the Reviewable Decision before the Tribunal.
On 13 December 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.
JURISDICTION
The application for review was made in accordance with s 52(1)(b) of the Citizenship Act which allows the Tribunal to review decisions made under s 24 of the Citizenship Act. The Tribunal is satisfied that it has jurisdiction to hear this application.
ISSUE
The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act and whether the Applicant satisfies the character requirements for the purposes of s 21(2)(h) of the Citizenship Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing of this application took place on Monday 20 December 2021. The Applicant was represented by Mr F Faris of Rebus Legal, and the Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
The Applicant gave oral evidence through an interpreter, being an interpreter in the English and Arabic languages, and was cross-examined. The Respondent made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions with Annexures A-O, filed on 23 April 2021 (Exhibit A1);
(b)Witness Statement of the Applicant’s brother, dated 16 December 2021 (Exhibit A2);
(c)Respondent’s Statement of Facts, Issues and Contentions with Annexures A-C, dated 3 June 2021 (Exhibit R1); and
(d)Section 37 T-Documents, labelled T1-T22, consisting of pages 1-184 (Exhibit R2).
RELEVANT LEGAL PRINCIPLES
Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.
Identity
Section 24(3) of the Citizenship Act states that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”.
As indicated by the wording of s 24(3) of the Citizenship Act, there is no discretion available to either the Minister, or any other decision-maker, to grant citizenship unless that decision-maker is satisfied of the identity of the applicant. In the absence of that satisfaction, the application must be refused.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (which became the Citizenship Act) makes it clear that the lack of discretion is intended to be absolute:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
(Emphasis added.)
The issue of identity is also addressed by chapter 13 of the Australian Citizenship Policy

(1 June 2016) at page 148:
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
‘Chapter 13 – Identity’ of the Citizenship Policy provides that ‘the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016)’ (the Guidelines). The Guidelines were published with the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach.
Paragraph 2.1.1 of the Guidelines provides:
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.
On 1 January 2019, the Department published the Revised Citizenship Procedural Instructions (CPIs). ‘CPI 16 – Assessing Identity under the Citizenship Act’ (CPI16) at [4.4] identifies three pillars of identity: biometric, documents and life story. It also states:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
CPI16 provides some guidance as to the meaning of being “satisfied of a person’s identity” at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.

Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
As established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal will ordinarily apply a relevant ministerial policy, unless there are cogent reasons not to do so. In Drake, Brennan J explained the importance of applying policy to guide decision making at 640:
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Identity cannot be taken lightly, each case must be considered on its individual merits, with due regard to the relevant factors and impediments to obtaining documents related to identity in each individual case.
In determining whether the Tribunal is satisfied of the Applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not or are not, to use Deputy President Nicholson’s words in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (Dhayakpa) at [117], “established or undisturbed”. In such places, the issuing of official documentation may be hampered by conflict, civil strife, or weak bureaucratic and administrative structures.
As such, the Tribunal recognises that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.
In considering the issues that arise in this application, the Tribunal is guided by the approach taken by Member Kennedy in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 (CDNB) at [9], who states:
[p]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants.
A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker may refuse a grant of citizenship where they are not satisfied of the applicant’s identity.
Character
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Citizenship Act, as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Good character is not defined in the Citizenship Act. As with the matter of identity discussed above, the Tribunal is guided by the relevant CPIs, namely ‘CPI 15 – Assessing Good Character under the Citizenship Act’ (CPI15).
Paragraph 3.1 of CPI15 states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
Relevantly, paragraph 3.3 of CPI15 states:
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) FCA 663; 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·     characteristics which have endured over a long period of time;
·     distinguishing right from wrong; and
·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
Paragraph 4 of CPI15 provides a list of characteristics that may be expected from someone of good character, it states:
As a general proposition, a person who is of good character would:
·     respect and abide by the law in Australia and other countries;
·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …
ointentionally providing false personal information …
…
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

Also of relevance in this matter is paragraph 6, which states:
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
EVIDENCE
In his application for the conferral of Australian citizenship lodged on 21 December 2016, the Applicant provided copies of Australian identity documents, namely a Western Australian Proof of Age card, an Australian Government Health Care card, Medicare card and his Western Australian driver’s licence (T5/36-38).
Limited weight can be placed on the documents the Applicant has been issued since his arrival in Australia. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into his identity. As Deputy President Boyle noted in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [48], such documents are of little value in the exercise of ascertaining an individual’s identity as they, “are simply evidence of who the Applicant says [he or she] is, not of who [he or she] is.”
The Applicant provided a statutory declaration, dated 19 December 2016, stating that (T5/29):
I am formerly known as “Haider Kadban Abdi” before I came to Australia.
I arrived in Australia in 2012, the DIBP added “H A” to my surname “Abdi” on my first visa evidence card. Since then I adopted “Abdi H A” as my new surname and my name was changed to “Haider Kadban H A.”
I am the person name “Haider Kadban Abdi” in the Iraqi Personal Identification Card, its number is [number redacted] and in the Certificate of the Iraqi Citizenship, its number is [number redacted].
I am the one and same Person in all Australian legal Documents and in all Iraqi Identification documents.
(Errors in original.)
The Applicant also provided a translated copy of a Certificate of Iraqi Citizenship (T5/42), a translated copy of an Iraqi Personal Identification card (T5/43) and a membership card from the Failyeen Kurd Society of Baghdad (T5/44).
On 13 September 2017, the Department wrote to the Applicant requesting further documents, issued by a country other than Australia that would support his identity. This included any identity card issued before he arrived in Australia, other evidence of his birth, citizenship certificate, schooling and employment records and other supporting documents (T6/48-50).
The Applicant responded by providing a completed Form 80 and a card issued by the Faily Kurd Society with the name ‘Haidr K A’, issued on 10 January 2011 (T7/51-69).
On 6 February 2018, the Department again wrote to the Applicant requesting documents relating to his schooling, tertiary studies and an explanation for the number of variations to the name he had used. The Department also requested he complete and return a Form 1399 (T8).
On 27 February 2018, the Department received the completed Form 1399 (T9/75) and a statutory declaration from the Applicant stating (T9/85):
I am the applicant for Australian citizenship application…
I am “Haider Kadban Abdi” in the Iraqi Personal Identification Card. Its number is [number redacted] and in the Certificate of the Iraqi Citizenship, its number is [number redacted].
Faili is a name used to describe the ethnicity and religion of particular individuals. I did not understand the difference between family name and the name Faili which I am often called to describe my Kurdish and religious background. I now understand that my full name is Haider Kadban Abdi.
In a previous Application, the birth dates of my siblings were stated inaccurately. At the time of completing my interview and previous application I did not know the exact day and month of their births (only the year) as it is not common to keep track of the birth day and month. Only recently when I was able to contact my siblings again have I become aware of the true day and month of their births to which I will now edit on my current Declaration of Service application (1399) to reflect their exact date of birth.
I am the one and same person in all Australian legal documents and in all Iraqi identification documents.
The Applicant also provided translated copies of education records in the name of Haider Kadban Abdi (T9/86-89).
In June 2019, the Applicant provided a copy of his original Iraqi National Identity card, accompanied with a card number, which the Department referred to a Forensic Document Examiner for assessment (T12/92).
On 2 July 2019, the Department wrote to the Applicant’s migration agent and requested original copies of the Applicant’s Iraq Citizenship Certificate and driver’s licence (T13), which were provided the following day. These were also assessed by a Forensic Document Examiner.
The forensic document examination found that the Iraqi National Identity card was counterfeit (R1, Annexure A/1-3), the driver’s licence was found to be counterfeit and the opinion regarding the Iraqi Citizenship was ‘inconclusive’ (R1, Annexure B/6-8).
On 13 September 2019, the Department wrote to the Applicant and advised him that the three documents had undergone a forensic examination by the Document Examination Unit, which found that the Iraqi National Identity card and driver’s licence were found to be counterfeit and the opinion regarding the Citizenship Certificate was inconclusive (T14).
Additionally, the Department advised the Applicant that each document was deemed to be forfeited to the Commonwealth and that he had 90 days to institute proceedings against the Commonwealth to recover the documents or seek a declaration that they are not forfeited (T14).
On 20 September 2019, the Department wrote to the Applicant to invite him to comment on adverse information, relating to the findings regarding the bogus documents (T15). On 29 October 2019, the Applicant responded with a statutory declaration in which he provided the following explanation (T18/105):
I obtained my Iraqi citizenship certificate No [number redacted], while I was in year 12 high school. The reason to obtain this document was, as military service is compulsory in Iraq, every male turns 18 years of age must obtain this document to be able to continue study, otherwise he has to conduct military service. In high school, the school authorities sent us to related office to obtain this document to enable us to continue our studies. I want to drag your attention to my finger print on the document as a sign of genuineness of the document.
I obtained my driver’s licence no. [number redacted] by sitting for the required test and passing the test in the year 2003 after turning 18 years of age. The office I did my driving test was near Al-Shaab International Stadium in Baghdad.
In regard to my Iraq Identity Card number [number redacted], I have to explain, I obtain my Iraq Identity card no [number redacted] while I was in Iraq. However, on my way to Australia the people smuggler took me to here, took this document and never gave it back to me. After settling in Australia, I gave attorney to my brother to go to related office and obtain a duplicated of my ID card. The office issued him a new ID for me under number [number redacted]. As my brother went through all required procedures to obtain this document, I believe this is a genuine document.
To assure your office that I never had any intention to provide you with bogus document, I am happy to present myself to Embassy of Iraq in Canberra and request them to check my documents and proof they are genuine documents. However, as it is a very lengthy procedure, I will go through this procedure if required by your office.
(Errors in original.)
On 21 November 2019, a delegate of the Minister refused the application for Australian citizenship as they could not be satisfied of the Applicant’s identity as required by section 24(3) of the Citizenship Act and they were not satisfied the Applicant met the good character requirement for the purposes of s 21(2)(h) of the Citizenship Act (T19).
The Applicant maintains that his Iraqi Citizenship Certificate is genuine and that his brother obtained his Iraqi National Identity card by attending the Ministry of the Interior and paying a fee to obtain the card and that his other documents are genuine (A1/4-6). Moreover, the Applicant submits that he has demonstrated attempts to obtain documents from the relevant Iraqi authorities that would establish his identity and that he was prevented from doing so by the Department seizing his documents (A1/6).
In a statutory declaration, dated 21 April 2021, the Applicant states (A1, Annexure O):
After my citizenship was refused, I have tried to get the Iraqi embassy and Consulate to verify my identification documentation. However, I did not have the original, as the Department seized them on 13 September 2019.
Via my lawyer, I have attempted to obtain the confiscated documents, and I was informed that a Freedom of Information request is needed to have access to such records.
I wanted to obtain the original alleged counterfeit Iraqi Identification documents, to verify its ethnicity with the Iraqi Consulate/Embassy. However, the Department refused to return my Iraqi documents….
My brother has attempted to obtain my Iraqi National ID card and Driver license. However, he was informed that I needed to come to Iraq in person, as All applicants must give fingerprints of all ten fingers, have their iris scanned, and take a colour photo.
(Errors in original.)
CONSIDERATION
Identity
As outlined above, when assessing someone’s identity there are three pillars: biometric, documents and life story. In this matter, the Applicant’s three primary Iraqi documents, the Citizenship Certificate, the National Identity card, and the driver’s licence take precedence over other documents, such as the Applicant’s education records. However, two of those documents, the National Identity card and the driver’s licence, have been assessed as counterfeit, while the opinion on his Citizenship Certificate is inconclusive.
With respect to the National Identity card, the Applicant told the Tribunal (transcript/11):
So, I was able to obtain those documents through my brother. He assisted me in getting this copy before applying for the citizenship test. So, he (indistinct) legal process. He went to the department in Iraq and he explained to them that I lost - his brother lost the documents by - the smuggler took the documents and he needs a copy. But he was told that it's hard to get the copy without his presence, so then my brother saw an agent - they're called agents. He said he can assist with the process, in getting those documents, but for a sum of money. So, my brother hired him. And after two days, he gave him the documents? But he followed, my brother followed the legal process. It wasn't from the black market or something like that. It was from official agent.
The Applicant’s brother also provided a statement stating (A2, Annexure L):
In 2016, my brother asked me to obtain any Iraqi Identification documents, I only managed to obtain the Iraqi National ID card number [number redacted].
To obtain the above Iraqi national ID card, I went to the Ministry of Interior, I told the processing officer that my brother in Australia and I wanted to obtain an ID on his behalf, I was advised that he need to come himself to obtain such a document.
As I was leaving the Ministry, I was followed by expeditor/Agent who assured me that he will obtain the Iraqi identification document without the need of my brother being present in Iraq, I decided to use his service.
The Iraqi National ID was provided to me in couple of days… As far as I was concerned, this Iraqi ID is genuine and was obtained from the Ministry….
I was informed in December 2019 that my brother Australian citizenship was refused, my brother was asking me for more help to obtain proof of his Iraqi documents.
Again, I went to the Ministry of Interior, to renew his Iraqi National ID card. However, I was informed that the law has been changed, he is required to attend in person, as its electronic card which scan of his retina and full fingerprint.
I only manage to apply for his Iraqi certificate of citizenship.
As I was leaving the ministry, I was followed by expeditor/agent, to conclude my brother application. However, I refused to speak to him as I did not want to have any issue with my brother Identification documentations.
(Errors in original.)
When asked about the process behind his brother acquiring the purported National Identity card in 2016, the Applicant said (transcript/54):
You are talking about Iraq. In Iraq things are done this way. So this is how it goes there. There's no system. My brother went to an official agency and the agent was there. Now, if you don't pay money, they won't press your application. This is how it's done. I'm not sure if my brother was fooled by them or what's happened but it all was done within the government agency - inside a government agency and this is how it was done.
The Applicant also stated that he paid approximately 200,000 dinars (approximately $190 AUD) for the National Identity card (transcript/55), which is more than the 5,000 dinars (approximately $5 AUD) the Iraqi Government charges for the issuing of the card as noted in the DFAT Country Information Report for Iraq (R1, Annexure C/76).
The Applicant’s National Identity card has been assessed to be counterfeit and, on the balance of probabilities, the Applicant and his brother knew, that the process by which the document was sourced was unusual and irregular. The absence of genuine identity documents issued by Iraqi authorities is a significant barrier to establishing the Applicant’s identity.
The Applicant contends that he made efforts to confirm the veracity of his documents by contacting the Iraqi Consulate in Sydney. He states that he went in person to the Consulate and that he was advised that he needed to provide them with the original documents, which he was unable to do, because they had been seized by the Commonwealth (transcript/ 67). A translation of correspondence from the Consulate states (A1, Annexure D):
Regarding your request, the consulate is unable to confirm any copy document except after making sure of it by sending a request to the concerned department in Baghdad to verify the authenticity of the document issuance.
The Applicant disputes the meaning of this email and states he was advised differently by the Consulate. However, the Tribunal can only rely the evidence before it.
In terms of primary documents, the Applicant has provided documents that are either counterfeit or inconclusive. His efforts to verify the documents through the Consulate, on the evidence before the Tribunal, have been limited. He used a process to obtain one of the documents, his National Identity card, which he ought to have known was suspicious. In these circumstances, it is very difficult for the Tribunal to be positively satisfied as to his identity.
In terms of the Applicant’s life story, during the hearing, the Respondent drew the Tribunal’s attention to the variations in the Applicant’s name, an issue also raised by the Department in its various correspondence to the Applicant (T8/71; T19/115). For example, the Applicant provided his name as ‘Haider Faili’ on his arrival in Australia (T8/71) and ‘Hadier Kadban Abdi H A’ on his citizenship application (T5/31). A translation of his birth certificate lists his name simply as ‘Haider’ (A1, Annexure M), the Faily Kurd Society lists his name as ‘Haider K A’ (T7/69).
The Applicant states that (transcript/23):
In Iraq we don't go by the family or the - a tribe name, we go by the grandfather name. Especially in our case, in our situation in Iraq, it has to be done this way.
While the use of different names at various points may be confusing, it is not a significant barrier to establishing the Applicant’s identity. Western naming conventions are far from universal and the Applicant’s account of the various uses of his names, as a Faili Kurd, are entirely plausible for Iraqi and Kurdish society.
The Respondent also drew attention to differences in how the Applicant’s date of birth was recorded in various documents. His Certificate of Iraqi Citizenship and his membership card for the Failyeen Kurd Society list only his birth year (T5/42; T5/44). However, in his application for Australian citizenship, the day, month and year are listed (T5/31). The listing of a year instead of the date and the year, in of itself, is not a significant impediment to establishing his identity.
The Respondent has also drawn the Tribunal’s attention to inconsistencies in the dates of birth he has provided for his family. The Applicant’s Form 80 lists the dates of birth of his mother and father (T7/63). However, the Applicant’s birth certificate states the ages of his parents when the Applicant was born (A1, Annexure M), which are inconsistent with the dates of birth provided in his Form 80.
In his Form 80, the Applicant listed the dates of birth of his siblings (T7/64). These dates are inconsistent with the dates provided in his Form 1399 (T9/76). The Applicant stated in a statutory declaration on 27 February 2018 that the dates he provided in the Form 80 were inaccurate and at the time of completing the application he did not know the exact dates (T9/85)
When asked again about his sibling’s dates of birth in the two documents, the Applicant responded (transcript/42):
And I said before, the information in the first document I wasn't sure about. With the second document, I'm more confident - 70 to 80 per cent.
The Tribunal accepts that 1 January or 1 July is often provided when a date of birth is not known, the Tribunal also recognises that birthdays, as they are recognised in Western societies such as Australia, do not have the same importance in some Middle Eastern cultures. Nevertheless, the confusion surrounding the dates of birth of his parents and siblings does inject a degree of uncertainty in aspects of his life story.
The Applicant has also provided inconsistent information regarding his employment in Australia between his Form 80 and Form 1399, with significant inconsistencies in the dates he has provided for three of his positions (T7/55; T9/78). While it may be that the Applicant is simply uncertain with these dates, it injects another degree of uncertainty into his life story.
CONCLUSION
It is clear that the Applicant’s identity cannot be ascertained satisfactorily. There are no primary documents to establish his identity and there are inconsistencies in the information he has provided regarding his family and work.
Given the Tribunal is not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act, there is no requirement to consider whether the Applicant satisfies the character requirements for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 21 November 2019 which refused a grant of Australian citizenship under s 24(3) of the Citizenship Act, is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

.................[Sgd].......................................................
Associate
Dated: 28 January 2022

Date of hearing: 20 December 2021

Representative for the Applicant: Mr F Faris, Rebus Legal

Representative for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers

[2022] AATA 85

28 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing

Date of hearing:	20 December 2021
Representative for the Applicant:	Mr F Faris, Rebus Legal
Representative for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers