Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 3360
•31 August 2020
Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3360 (31 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7939
Re:Mahmoud Adalat
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:31 August 2020
Place:Sydney
The decision under review is affirmed.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – eligibility – where application for Australian citizenship by conferral is refused – failure to meet “identity” requirement – failure to meet “good character” requirement – where Applicant claims to be someone else – conflicting and inconsistent material in relation to the Applicant’s identity and family – whether Applicant is stateless – Applicant does not qualify as stateless under the Act as he was not born in Australia – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21, 24, 45B
CASES
Al-Hussaini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Darwishi and Minister for Immigration and Border Protection (Citizenship)[2018] AATA 888
Egan and Minister for Home Affairs (Citizenship) [2020] AATA 2632
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Patterson, Re: ex parte Taylor [2001] HCA 51
SECONDARY MATERIALS
Attorney-General’s Department: National Proofing Guidelines 2014
Australian Citizenship Policy
Citizenship Procedural Instructions : CPI 16 – Assessing Identity under the Citizenship Act
REASONS FOR DECISION
Chris Puplick AM, Senior Member
31 August 2020
This is an application for the Tribunal to review a decision by a delegate of the Minister (the Respondent) to refuse an application for citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act).
The grounds for the refusal of the application were two-fold. In the first instance, the Respondent was not satisfied as to the identity of the Applicant (section 24(3)) and secondly, in any event, the Applicant failed to pass the character (section 21(2)(h)) test as required under the Act. Failure on either ground is fatal to an application.
The citizenship application in question was lodged on 27 November 2015 and refused by the delegate on 27 November 2019. The application to this Tribunal for a review of that decision was lodged on 29 November 2019 and the matter was heard in the Tribunal on 11 August 2020. The hearing was conducted using the Microsoft Teams platform due to the restrictions imposed by the Covid19 pandemic. The Applicant appeared by video and was represented by Mr Oumaru Kamara (a solicitor and registered migration agent) and had the assistance of an Arabic interpreter. The Respondent was represented by Mr Bromley Hornsby of Minter Ellison. Although hearings conducted other than in-person are always less than optimal, the Tribunal is satisfied that procedural fairness was provided to all parties.
The fundamental issue before the Tribunal
This application turns, in the first instance on the simple to state, but hard to answer, question: who exactly is the Applicant?
The gentleman appearing before the Tribunal in this application claims that he is Mahmoud Adalat. However, he says that, for a variety of reasons, he has no primary or probative documentary evidence to establish this fact.
The Respondent claims that he is Mahmoud Halah. It claims to have incontrovertible probative evidence of that claim.
The Tribunal’s approach
It is not the responsibility of the Tribunal to establish the identity of the Applicant.
Section 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. (emphasis added)
Thus, the onus lies upon an applicant to prove their identity and, in the absence of a satisfactory degree of proof, the Respondent cannot be satisfied as to that identity and hence must not approve the grant of citizenship.
The competing claims
The Tribunal sets out the competing claims of the two parties in tabula[1] form:
[1] T = Section 37 Tribunal Documents, ST = Supplementary Tribunal Documents’ FST = Further Supplementary Tribunal Documents, SFIC = Statement of Facts, Issues and Contentions.
Contention Applicant’s claim Documentary reference Respondent’s claim Documentary reference Name Mahmoud Adalat ST 1 Mahmoud Fathi Halah T 49 Date of birth 15 March 1980 ST 1 15 March 1978 FST 199 Place of birth Irbid/Erbed, Jordan or
Ramtha/Alramth, JordanErbed T 133
Ramtha ST 1
Alramth ST 13
Kuwait T 28 / T 78 Nationality Jordanian or Stateless Jordan T 153
Stateless T 256Jordanian T 28 / T 78 First entry to Australia 20 April 2008[2] or
26 August 200820/4/08 – ST 21
26/08/08 – ST 33 March 2008 FST 199 Document held on arrival False Iraqi passport in name of Mahmoud Alr Rwi ST 14 Student visa class TU, subclass 570 Respondent’s SFIC at 28 Father Jaber Adalat
(born 1940 or 1936) in SyriaT 109-111
1940 – T 109
1936 – ST 24Fathi Mohammad Hasan Halah
(b 1936)T 49 / T 258 Mother Fayza Adalat
(born 1952) in SyriaT 109 Faizeh Mohammd Hussain Al Shami
(b 1950)T 49 / T 258 Siblings Adnan Adalat
(b 1973, Syria)
Amjad Adalat
(b 1974, Syria)
Bachar Adalat
(b 1975, Syria)
Rana Adalat
(b 1978, Jordan)
Rania Adalat
(b 1982, Jordan)
Abir Adalat
(b 1984, Jordan)T 109 - 111 Adnan Halah
(b 1973, Kuwait)
Amjad Halah
(b 1974, Irbid)
Bashar Halah
(b1975, Kuwait)
Rana Halah
(b 1977, Kuwait)
Rania Halah
(b 1980, Kuwait)
Abeer Halah
(b 1983, Kuwait)T 49 / T 258 [2] The Applicant’s Statement of Facts, Issues and Contentions (29 April 2020) at [8] incorrectly states a date of 20 May 2008.
The competing narratives
The Applicant’s claims
The Applicant states that his father, a journalist, was born in Syria but that he fled to Jordan to avoid political persecution and genuine threats to his life.[3] As a result of his father’s illegal residence in Jordan, the Applicant was not a Jordanian citizen and hence unable to obtain a valid passport. He somehow managed to acquire an Iraqi passport (in the name of Mahmoud Al Rawi) with which he travelled to Australia, arriving on 20 April 2008. His reason for fleeing Jordan was that “people want to kill me”.[4] On arrival in Australia, he was met at the airport by a person, described as “a man whom I had never met before”[5] who took his false passport from him. On 20 May 2008, the Applicant presented himself to the Police Station at Granville (NSW), to report loss of his passport and there gave his name as Mahmoud Javer Atlat[6].
[3] Applicant’s Statutory Declaration (9 November 2016) Section 37 Tribunal Documents (T Docs) at [156].
[4] Section 37 Tribunal Documents (T Docs) at [99].
[5] Applicant’s Statutory Declaration (9 November 2016) Section 37 Tribunal Documents (T Docs) at [157].
[6] T Docs at [97].
He was then interviewed by an officer of the (then) Department of Immigration and Citizenship (the compliance interview) where the following is recorded:
“Why did he take your passport – He took my passport cause it was false and I paid him $5000 to help me settle in A/A on arrival. When I gave my Iraq passport to him he disappeared and I was left alone at Sydney airport. I then met a guy at the Sydney airport car wash. His name was Sammy and he spoke Arabic – I told him what happen – He took me in and gave me a home for the past 1 month. When I got my false passport in Jordan they told me that a man named Mohammad Addalat will be waiting at Sydney airport to help you.”
Did you have any bags on arrival? – yes I did but Mohammad Addalat took my bags upon arrival. I have only carry bag with me. There are no international travel tags on it.
Why did you approach police – Because my friend Sammy told me to report my passport is fake and someone has taken my bags.”[7]
[7] T Docs at [99].
At the time, Sammy’s address was given as a street address in Granville.
Following this interview, the Applicant was granted a Bridging E (class WE) (subclass 050) visa and subsequently other visas such that he has not, at any stage, been an unlawful non-resident.[8]
[8] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [6]. T Docs at [166].
The Tribunal will return to details of this statement later; however, it notes that on another document completed by the Applicant, he makes a different claim, namely that his fake passport was “handed to Australia authority.”[9]
[9] Supplementary T Docs at [15].
On 9 August 2010, the Applicant was living in a unit at Villawood. Around 5.45pm on that day, local police receive a call about an explosion and fire at the location. On arrival, they found that an explosion had taken place resulting in a fire which the Fire Brigade had managed to extinguish quite quickly. However, the explosion had resulted in the Applicant being blown out of the unit onto the grassed area in front of it which caused the Applicant to sustain superficial burns to his face and hands. He left the scene to run to his girlfriend’s house where she helped him remove his clothes and get under shower until the arrival of an ambulance. He was transferred to hospital and remained there for treatment and observation.
In a telephone interview with the police, the Applicant said that he was in bed at the time of the fire and that “unknown persons have entered through the unlocked front door, poured petrol over [him] before setting him alight causing the explosion.”
The police Incident Report contains the following record:[10]
“Fire Brigade in attendance reported that the fire was unusually easy to put out suggesting that there were not many furnishings burning inside the premises and the major cause of the fire was an accelerant fire.
…Along the floor of the living area burn marks were observed consistent with fuel being poured over the floor. It also appears based upon burn marks that petrol was poured over the bed and dining table. While this appears to support the report of the victim, the intensity of the fire suggests that if the victim was in bed at the time of the incident he would be deceased, or at minimal suffering extreme burns.
… it is the opinion of the fire investigators and crime scene that the version provided by the victim is unlikely.
…At this stage police believe that it is possible that the victim was standing near the front door when the fire was ignited, possibly by himself.”
[10] Further Supplementary T Docs at [11]-[12].
This account varies from the Applicant’s Statutory Declaration where he states:
“A few weeks later, I cannot remember the exact date, a fire happened in my home. I was asleep at the time when I woke up to flames. I was on Valium and so my reflexes were quite slow. To be honest I thought I was having a nightmare.”[11]
[11] Applicant’s Statutory Declaration (9 November 2016) Section 37 Tribunal Documents (T Docs) at [157].
Following this incident, the Applicant appears to have received an insurance payout from Suncorp Metway approximately a week later in the sum of $5,000.[12]
[12] Further Supplementary T Docs at [39] and [179].
The result of police investigations was that the Applicant was charged with dishonestly for gain damage property by fire/explosive T1. He was convicted in the Bankstown Local Court on 20 April 2011 and sentenced to a 15 months term of imprisonment with a non-parole period of 8 months.[13] During the hearing at the Tribunal, the Applicant stated that he could not remember whether he pleaded guilty or not guilty to the offence although he agreed there was a trial. The documentary evidence is that he pleaded not guilty,[14] and he also stated this in his Statutory Declaration.[15] The Applicant’s evidence to the Tribunal was to the effect that he was badly advised by some unspecified person in relation to the plea and proceedings and that he was wrongly convicted. He maintains his innocence to this date.
[13] Ibid at [4].
[14] Ibid at [17].
[15] Applicant’s Statutory Declaration (9 November 2016) Section 37 Tribunal Documents (T Docs) at [158].
It should be noted that this conviction is the basis of the Respondent’s claim that the Applicant is not a person of good character for the purposes of section 21(2)(h) of the Act.
The Applicant was interviewed by the Police on 18 August 2010[16] in relation to his bail prior to the court appearance. During that interview the following exchange took place:
[16] Further Supplementary T Docs at [42]-[44].
Q231 How many keys were there to the unit?
A (Int): There were two keys and when that guy, when that guy stayed at my place until the time he found accommodation for himself he took a copy, and his name is Sammy.
A Sammy Filistini.
A (Int): Filistini.
A Yeah.
A (Int): …Sammy Filistini. You have his name.
Q232 O.K. Is that, when you say Sammy, is that Ahmed Abdul Fahdi?
A Yeah.
Q233 Hadi.
A Yes.
Q234 That same person?
A Yeah, same person.
Q235 O.K. So do you know him as Ahmed Abdul Hadi or as Sammy?
A (Int): I know him by both names, but his old name was Sammy Filistini and the old name was Sammy Filistini and his new is Ahmed Abdul Hadi.
Q236 O.K. And you knew him from back home?
I knew him through Mohammed Abdul Rahman.
Q237 Right, O.K. Yeah, I know who you're talking about. So when did you first meet Ahmed or Sammy?
A (Int-): I met him, I don't remember the date and the time exactly, but it was in Jordan, yeah. His friend, Mohammed said to me that he was
coming from Jordan, that he -didn't have a place to live and he asked me to give him, if he can stay with me for a few days until he found some accommodation. And you have the name of Mohammed
now.Q238 Yes, I do. I've been told that Ahmed met you first at the airport when you arrived in Australia.
A (Int): Yes. When I came from Australia, that's what he said, from Australia, I was not really conscious I was still shocked, under shock.
Q239 O.K. And I've been told that Ahmed owned a car wash business at the airport.
A (Int): Correct. He used to have a car wash business near the airport.
Q240 And when you first arrived did you work with him for a little bit at that car wash?
A (Int): Yes, I did for a while and then I stopped.
Q241 Sure. And is it right that when you worked at the car wash you also lived with Ahmed in, you lived with Ahmed around Campsie?
A (Int): No, he's a liar, if he said so, he's a liar. I haven't been speaking with him, I've been dealing with him so that when he came to my house I kicked him out.
Q 242 O.K. When you met him, you agree you met him at the airport and
you worked in his car wash. Did you ever live in Sweet Street at Lidcombe?
MR KARAKIRA
I may have made a mistake. Did you say Campsie, before?
PLAIN CLOTHES SENIOR CONSTABLE DABIN
Q243 Yeah, I said Campsie, but I did, I
MR KARAKIRA
So I didn't make a mistake?
CLOTHES SENIOR CONSTABLE DABIN
Q244 No, you didn't.
A No.
A (Int):No.
Q245 You never lived there?
A (Int): I don't recall, don't remember. As I said before I can't remember everything.
Q246 I understand that, I'm just trying to clarify a few things. I've been told that you lived with Ahmed at a different address than the address in Gundaroo Street. Is that correct?
A (Int): No, I don't recall, no.
Q247 O.K. Is it possible that you lived with him somewhere else?
A (Int): I don't remember, no, but I can't live with anyone else, I can't live with anyone else.
Again, matters arising from this conversation will be returned to in due course.
It is now necessary to consider two other elements of the Applicant’s narrative.
The Tribunal has already noted that the Applicant expressed to the Police in his 2008 interview that he held fears for his physical safety and that there were people who were trying to kill him. When asked directly by the Tribunal to be specific on this point as to who such people might be, the Applicant identified two sources. In the first instance, he stated that “the people in Syria” who had threatened his father and family and caused their flight had also continued to menace them in Jordan and that this menace also stretched as far as Australia.
Secondly, he referred to his relationship (details unspecified) with a woman in Jordan who was a member of some particular Christian sect or community and that this relationship was condemned by that community, members of which threatened his life. Again, these threats followed him to Australia and manifest themselves through his ex-girlfriend (Feeda Ghemrawee). Although he previously had a good relationship with her – it was to her home he ran after the incident in which he got burned and it was she who lodged the insurance claim on his behalf.[17] However in direct testimony to the Tribunal, the Applicant now claims that she has turned on him, threatened to have him sent back to jail and is in active contact with the people who want to kill him.
[17] Ibid at [179].
Although the Applicant has spoken to the Police on a number of occasions, he has never raised concerns about his safety. Indeed, the contrary is the case. On 27 April 2010, the Applicant went voluntarily to Bankstown Police Station to make a report about being the subject of abusive and threatening remarks by a person living in the same Housing Commission complex as himself. The Police Incident Report states: “ADALAT has stated that he has no fears for his safety but has no understanding of what he can or can not say or do in these sought (sic) of situations ….. Police hold no fears for his safety and believes that the threat was made under the influence”[18] (of drugs).
[18] Ibid at [13].
The final part of this narrative relates to the documents supplied in support of the Applicant’s application for citizenship by conferral. Although the decision under review relates to an application made on 27 November 2015, this was in fact the fourth such application by the Applicant. There is thus an absolute welter of documentation attached to the four applications, all of which relate to personal information supplied by the Applicant, particularly in what are referred to as Form 80 Personal Particulars statements.
These will also be returned to in due course.
Finally, the Tribunal has before it a number of reports from treating medical practitioners[19] and psychiatrists attesting to the problematic state of the Applicant’s mental health. In particular, there are reports from the Transcultural Mental Health Centre which relate to the Applicant’s reported history of torture in Jordan at the hands of the police authorities. These relate to the Applicant’s claims about his father’s political role and the subsequent mistreatment of himself and members of his family. They reveal an appalling history of torture and abuse allegedly suffered by the Applicant, upon which a well-founded fear of harm should he be returned to Jordan could certainly be based.[20] He also says in these interviews that he has lost contact with his siblings, although he maintained some contact with his mother.
[19] T Docs at [171]. [179].
[20] T Docs at [168]-[170].
The Respondent’s claims
The Respondent produced for the Tribunal a copy of an application for a student visa in the name of Mahmoud Fathi Halah which was lodged with the Australian Embassy in Amman, Jordan. The application is dated 4 December 2007.[21] Attached to the application is a coloured passport-size photograph of a man the Respondent claims to be the Applicant. The Respondent claims that the Applicant was a Jordanian citizen,[22] born on 15 March 1978. He had offers to study at Griffith University,[23] and was granted a Student Visa (Class TU subclass 570).
[21] T Docs at [47].
[22] Respondent’s SFIC at [28].
[23] T Docs at [53]-[56].
In addition, there is a Student Supplementary Information Sheet (bearing the same photograph) which lists members of the Applicant’s family. The details of the family composition are set out in the Table above.
A further attachment related to this application is a copy of the Family Book issued by the Ministry of the Interior in Jordan which lists the Applicant’s siblings as: Adnan, Amjad, Bashar, Rana, Rania and Abeer, all of whom (other than Amjad) were born in Kuwait. Amjad is listed as being born in Irbid.[24] Finally there is a certificate from the General Intelligence Agency of Jordan which certifies Mahmoud Fathi Mohammad Halah as a citizen of Jordan born in Kuwait and to which is attached a photograph matching that attached to other documents submitted to the Embassy.[25]
[24] T Docs at [72]-[73]. The validity of this document has been checked by the Australian Embassy in Jordan with the Jordanian authorities and authenticated. Supplementary T Docs at [130]-[131].
[25] T Docs at [78] and [82].
There is documentary evidence that Mahmoud Halah arrived in Australia on 3 March 2008.[26]
[26] Further Supplementary T Docs at [199].
The Respondent then produced a series of transaction reports from Australian Transaction Reports and Analysis Centre (AUSTRAC) which is a statutory agency of the Commonwealth Government tasked with the responsibility to monitor and record overseas financial transactions, including the transfer of monies from Australia to recipients overseas.
The first of these[27] records a transfer of money from Mahmoud Fathi Halah to Rana Fathi Halah on 16 May 2008. The address given for Mr Halah is the same street address in Granville which, it will be recalled, is where the Applicant stated that he resided with Sammy for some weeks after his arrival in Australia.
[27] Supplementary T Docs at [30].
Thereafter, there are 45 money transfers between 15 December 2008 and 23 July 2014 sent in the name of Mahmoud Adalat. Of these, three go to otherwise identified persons[28]; two to Adnan Halah and the remainder to Rana Fathi Halah.[29] The destination of the recipient institution for both Adnan and Rana Halah is in Jordan and the address for both is shown as Irbid, Jordan. Transfers are made through a variety of money exchange institutions, predominantly the Al-Fayhaa Money Transfer at either Centro shopping centre Bankstown or Haldon Street, Lakemba. In total, Adnan Halah received $5,861.00 and Rana Halah received $ 62,621.
[28] Nada Ghamrawi, Atef Ghoneim and Robie Nakad
[29] Her name appears variously as Rana Halah, Rana Fathi Halah, Rana Fathi Lahlah, Rana Fanshe Halah, Rana Fathi Halei and Rana Fathi Mohammed Halah.
In evidence to the Tribunal, the Applicant stated that Adnan and Rana Halah were “friends” of his who had been helpful to him while he was in Jordan. He denied they were related to him. He gave no reason why such sums of money were transferred.
The Respondent then produced a series of photographs which are alleged to be of Mahmoud Adalat. These include a gym membership card[30]and other photographs dating from 2008 and 2012.
[30] T Docs at [195]-[196].
The photographs purporting to be of Mahmoud Adalat and those of Mahmoud Fathi Halah were then subjected to facial image comparison by an expert examiner of the (then) Department of Immigration and Border Protection.
Two photographs were taken from the documentation supplied by Mahmoud Halah on his own application forms for a student visa and an associated medical examination form, both lodged with the Embassy in Amman.[31] Two photographs were extracted from the Department’s internal database (known as ICSE) and were photographs of Mahmoud Adalat (matched with this departmental Client ID[32]) obtained by the Department on 26 November 2012 and 19 June 2008.
[31] T Docs at [28] and [49] respectively.
[32] T docs at [288].
The Examiner’s report dated 31 July 2017 confirms that all the photographs subject to examination are of the same person.[33] The Tribunal accepts this as a finding of fact.
[33] Further Supplementary T docs at [200]-[204].
When shown the photograph of Mahmoud Halah attached to the student visa application and the photograph of Mahmoud Adalat on the gym membership card, the Applicant denied that they were identical but said that they “looked very much alike”.
Consideration of Claims
In order to accept the Respondent’s contentions that the Applicant is in fact Mahmoud Halah, the Tribunal needs to accept the following:
(a)that a student visa was granted to Mahmoud Halah by the Australian authorities in Jordan and that Mahmoud Halah travelled to Australia, arriving on 3 March 2008;
(b)that Mahmoud Halah has siblings as listed on his original visa application form;
(c)that the photographs attached to Mahmoud Halah’s documentation supplied to the Australian authorities in Jordan were accepted by the authorities as genuine, as were the details of his family;
(d)that the photographs of Mahmoud Halah are identical with those purporting to be photographs of Mahmoud Adalat; and
(e)there is no record of the entry of Mahmoud Adalat, or Mahmoud Al Rawi (the name in the false passport) at Sydney airport on 20 April 2008.[34]
[34] T Docs at [102].
There is uncontested documentary evidence to establish each of these propositions and, it must then follow that, in the absence of any evidence to the contrary, there is a strong prima facie case that the person purporting to be Mahmoud Adalat is in fact, Mahmoud Halah.
In order to accept the Applicant’s contentions, the Tribunal needs to accept the following:
(a)that the Applicant arrived in Australia on a false Iraqi passport with some form of visa and was cleared by immigration and customs authorities to enter the country;
(b)that at the airport he was met, in a pre-arranged fashion, by Mohammad Addalat, to whom he gave (or had already given) $5,000[35] and that this person disappeared with his passport (bearing in mind that he also claims that the passport was handed to Australian authorities) and luggage and has been thereafter uncontactable;
(c)that although his (false) passport was in the name of Mahmoud Al Rawi and he later told the police his name was Mahmoud Javer Atlat, the fact that the person at the airport had the family name Addalat was apparently a mere coincidence;
(d)that finding himself without his passport or luggage at the airport, he somehow came to be at the airport carwash where he met Sammy who thereafter just took him into his home and offered him assistance to report his stolen passport, and that this Sammy is not the same Sammy who ran an airport carwash and whom he told the police later that he had met first in Jordan; and
(e)that over a period of time he sent sums of money to Adnan and Rana Halah, who just happen to live in Irbid and share the same names as two of his siblings, but are in fact not his siblings, merely “friends” who helped him when he was in Jordan.
[35] The Applicant told the Compliance interview that he paid $5000 for the passport and $5000 for the
assistance of “some who was going to meet me at the airport”, Docs at [100].
It is also necessary to consider the documentary evidence produced by the Applicant in support of his claimed identity.
The first of these is an identification card from the Jordanian Ministry of Interior, Civil Status and Passport Department[36] and the other is a letter regarding his employment at the Jaradat Supermarket for fruits and vegetables.[37]
[36] T Docs at [199].
[37] Ibid at [193]. Supplementary T Docs at [17].
The identification card was examined by the Department of Home Affairs and found to be a counterfeit, bogus document and it was seized under the provisions of section 45B(2) of the Act.[38] Jordanian authorities certify that it is counterfeit.[39]
[38] T Docs at [242]-[243].
[39] Supplementary T Docs at [128].
Contact was made by the Australian authorities in Jordan with the person who had allegedly signed the employment letter from the supermarket, and he confirms that the person who worked for him in the time specified therein was Mahmoud Fathi Halah.[40]
[40] Ibid at [122].
There are numerous inconsistencies in the various documents supplied by the Applicant in support of his various citizenship applications. As already noted there have been four such applications:
(a)26 October 2012: refused on 4 March 2013 on character grounds,
(b)3 December 2013: refused on 20 February 2014 on character grounds,
(c)9 December 2014: refused on 27 February 2015 on character grounds, and
(d)27 November 2015: refused on 27 November 2019 on character and identity grounds.[41]
[41] Respondent’s SFIC at [11]-[15], [31]-[32].
Among the inconsistencies in this documentation are details of the Applicant’s place of birth, which he generally claims to have been in Erbed but otherwise lists as Ramtha (Alramth),[42] and his nationality given as both Jordanian[43] and stateless.[44] There are differing dates given for his father’s birth.[45]
[42] Supplementary T Docs at [1], [13].
[43] T Docs at [153].
[44] Supplementary T Docs at [14], [26].
[45] T Docs at [109], Supplementary T Docs at [24].
Discussion
It is hard to avoid the conclusion that the narrative presented by the Applicant is simply not sufficient to establish to any reasonable degree of satisfaction that he is indeed Mahmoud Adalat and not Mahmoud Halah.
However, as the Tribunal has made clear, it is not its responsibility to make a determinative finding as to the Applicant’s identity. It is sufficient to find that the Respondent had valid and rational grounds upon which to determine that it was not satisfied as to the Applicant’s identity.
Where the identity of an applicant is “far from clear”, it is unsafe to grant Australian citizenship to an applicant.[46]
[46] Beyan v Minister for Immigration and Border Protection [2015] AATA 256 at [38].
In Al-Hussaini, I explained at length that while there may be legitimate situations in which an applicant is unable to provide clear documentary proof of their identity, it remains an important principle that citizenship should not be granted unless there are compelling grounds to accept that an applicant’s claim to identity is valid.[47] In particular, the provision of false, misleading or deliberately incomplete documentation to Australian authorities must be regarded as an attack upon the integrity of the migration and citizenship regimes of the nation and must always be the basis for the rejection of citizenship applications.[48]
[47]Al-Hussaini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267.
[48]Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082; Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686.
Both the Tribunal[49] and the Guidelines issued by the government[50] which establish how identity may be determined, recognise that identity is not simply a matter of documentation. It can be established in a variety of non-documentary ways, but the onus lies always upon an applicant to do so.
[49] Darwishi and Minister for Immigration and Border Protection (Citizenship)[2018] AATA 888.
[50] Attorney-General’s Department: National Proofing Guidelines 2014.
Key elements in any establishment of identity are biometrics, documents and life-stories.[51]
[51] Citizenship Procedural Instructions : CPI 16 – Assessing Identity under the Citizenship Act.
Above all what is required is to be able to “allow a person to be uniquely distinguished from others”.[52]
[52] Attorney-General’s Department: National Proofing Guidelines 2014 at 2.1.
As has been outline above, there are biometric reasons to call into question the purported identity of the Applicant as Mahmoud Adalat. There are no documents which clearly establish the Applicant’s identity and some of those upon which reliance was placed have been determined to be false. The life-story of the Applicant contains elements which are hard to reconcile, and which do not, independently of anything else, allow for a confident determination of his identity.
In Egan,[53] Deputy President Pascoe outlined the authorities of the High Court in establishing what might constitute “satisfaction” as far as the Minister is concerned in terms of making decisions such as those related to identity. He drew attention to the decision of then Chief Justice Gleeson in Patterson to the effect that:
Obviously, the precondition that the Minister be satisfied that the refusal or cancellation is "in the national interest" cannot be met simply because the Minister subjectively had such satisfaction. If, objectively, there is no reasonably arguable foundation for it, the precondition will not exist.[54]
[53] Egan and Minister for Home Affairs (Citizenship)[2020] AATA 2632 at [137]-[140].
[54] Patterson, Re: ex parte Taylor [2001] HCA 51 at [333].
Similarly, Kiefel CJ and Gummow J in SZMDS noted that:
“[t]he inadequacy of the material before the decision maker may support an inference that the decision maker has applied the wrong test...”[55]
[55] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [34].
Consideration of the material before the Tribunal leads it to a clear conclusion that the identity of the Applicant as Mahmoud Adalat is not established to any reasonable degree of satisfaction and that, as a result, the Respondent cannot be sufficiently satisfied of that identity to approve a grant of citizenship. The Respondent must therefore refuse the application.
In the event that the Tribunal is in error on this point, it should also consider the second ground upon which the refusal decision was based, namely that the Applicant (accepted for this purpose, as Mahmoud Adalat) was not a person of good character.
A further requisite for the grant of citizenship by conferral, apart from the establishment of identity is that an applicant must satisfy all the criteria which are set out in section 21(2) of the Act. Subsection 21(2)(h) provides that a person:
“is of good character at the time of the Minister’s decision on the application.”
Another basis for the Respondent’s decision in this instance, (and in the previous applications), relates to the Applicant’s criminal conviction related to the fire incident outlined above.
The question of “good character” must be decided in relation to each case/application individually and with an appreciation of the circumstances and nature of any offending behaviour.
The term 'good character' is not defined in the Act although the Tribunal has primarily relied upon the definition given in Irving as follows:[56]
“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…”
[56] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431-432:
“Moral” qualities in this respect do not refer to matters of a religious connotation but rather to characteristics such as being:
“truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example...providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.”[57]
[57] Australian Citizenship Policy at page 147. The Australian Citizenship Policy (effective 1 June 2016) is issued to guide decision-makers their interpretation of the requirements of the Act. It is not binding upon decision-makers but is taken only as a guide.
The Tribunal finds no reason to cavil with the Respondent’s finding that the Applicant fails the “good character” test based upon considerations of his offending behaviour which he continues to deny and his supply of false documents to the authorities.
The Applicant has also made a claim that citizenship should be granted on the basis that he is a stateless person and that his claim should be assessed as such. In his application, now under review, this claim of statelessness was not advanced, it emerged only with the submission of the Applicant’s SFIC on 29 April 2020.[58]
[58] Applicant’s SFIC at [34]-[35].
The claim is misconceived. In the first place, it was not advanced before the original decision-maker and hence has not been subject to a determination at that level. In any event, the Applicant cannot qualify under the relevant section of the Act, section 21(8) which provides:
Statelessness
(8) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) the person was born in Australia; and
(b) the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(c) the person has:
(i) never been a national of any country; and
(ii) never been a citizen of any country; and
(d) the person:
(i) is not entitled to acquire the nationality of a foreign country; and
(ii) is not entitled to acquire the citizenship of a foreign country.
The Applicant does not qualify simply because, wherever he was born, it was not in Australia.
Conclusion
The concept of citizenship is the fundamental underpinning of democracy. It admits, either by birth or by subsequent award or conferral the right of participation in and the responsibility of contribution to the Australian polity. It is a precious thing and, as such, the maintenance of the integrity of the processes of its awarding to those not automatically qualified for it is one of the highest responsibilities of government. Australia’s democratically elected Parliament has, over many decades since the establishment of a separate and unique Australian citizenship[59], taken care to define the rules and requirements for the granting of citizenship.
[59] Australian Citizenship Act 1948 (Cth).
Adherence to those rules and requirements is vital if citizenship is to continue to be regarded valuable.
In this instance, the Applicant has failed to satisfy two of the most important legislated qualifications for citizenship: he has not established his true identity (to the satisfaction of the Minister) and it has been found, objectively, that he has not established that he is a person of good character.
Under the Act, he cannot be granted citizenship on the basis of his current application.
This decision does not deprive him of the right to remain in Australia where he continues to hold a valid visa permitting his permanent residence, nor does it deprive him of the opportunity to make a further application for citizenship once he has taken such steps as may be necessary to address the criteria which have counted against him on this occasion.[60]
[60] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..........................................
Associate
Dated: 31 August 2020
Date(s) of hearing: 11 August 2020 Solicitors for the Applicant: Mr O Kamara Solicitors for the Respondent: Mr B Hornsby
6
10
0