Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 1716

Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1716 (11 June 2020)

Division:GENERAL DIVISION

File Number:          2019/5439

Re:Jalil Al Khalaf

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:11 June 2020

Place:Sydney

The decision under review is affirmed.

.......[sgd].................................................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether the Tribunal is satisfied of the applicant’s identity – whether the applicant is a stateless Bidoon or Iraqi citizen – three pillars of identity – biometrics – documents – life story – inconsistent information – decision under review affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act

Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq (9 October 2018)

Citizenship Policy (1 June 2016)

Department of Foreign Affairs and Trade, Country Advice Iraq (14 September 2010)

REASONS FOR DECISION

Dr L Bygrave, Member

11 June 2020

1. The applicant, Mr Jalil Al Khalaf, arrived in Australia on 20 October 2011 as an ‘Irregular Maritime Arrival’ and was granted a Protection (Subclass 866) visa on 3 September 2012.

2. On 14 June 2016, Mr Al Khalaf lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. This application was refused by a delegate of the Minister for Home Affairs (the Minister)[1] on 23 August 2019 on the basis that the prohibition in subsection 24(3) of the Act applied to Mr Al Khalaf.

   [1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 31 August 2019, Mr Al Khalaf applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review.

5. The application was heard by the Tribunal on 6 May 2020. Mr Al Khalaf attended the hearing and gave oral evidence by teleconference with the assistance of an interpreter of the Arabic language. Following the hearing, further written submissions were made by Mr Al Khalaf’s representative on 13 May 2020 and the Minister’s representative on 20 May 2020.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Relevant to this application, subsection 24(3) of the Act stipulates that the Minister ‘must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person’.

   Citizenship Policy

8. The Citizenship Policy offers policy guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, this document is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

   [2] [1979] AATA 179; (1979) 2 ALD 634.

9. Chapter 13 of the Citizenship Policy sets out the following policy guidance I should consider when assessing a person’s identity:

   Overview of the identity provisions

   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.

   …

   Changes to name or other identity information

   If the applicant has changed their name, date of birth, sex or gender they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.

   …

   In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage.

   However, a change to personal/biographical data is a serious matter if the change leads to a different identity.

   A change of identity (changes to component(s) of the person’s identity) diminishes the usefulness of the results of the security and criminal checks. When a person applied for citizenship, the personal/biographical and personal identifiers they provided were accepted as evidence of their identity, unless there was evidence to the contrary. The necessary security and criminal checks will have taken place under the identity the person provided to the department at that time.

   …

   In reaching a finding of fact about the person’s identity, decision makers are expected to consider issues such as:

   ·the reason that the person provided the original personal information relating to their identity when they applied for citizenship

   ·the reason for changing their personal information

   ·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes

   ·the documentation that was provided to support the change of personal information. [emphasis added]

   Australian Citizenship Procedural Instructions (CPIs)

10. Further policy guidance is set out in the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy. CPI 16 – Assessing Identity under the Citizenship Act (CPI 16) was issued on 10 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures that apply when undertaking an assessment of a person’s identity’ for the purposes of the Citizenship Act.[3]

    [3] CPI 16 – Assessing Identity under the Citizenship Act, section 1.

11. CPI 16 refers to ‘three pillars of identity’ – biometrics, documents and life story – to consider when assessing a person’s identity. These ‘pillars’ or ‘elements’ are made up of individual characteristics as set out below:

    Three pillars of identity       Individual characteristics

    BiometricsPersonal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

    DocumentsOnly reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

    Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.[4]

    [4] CPI 16 – Assessing Identity under the Citizenship Act, table 3.

12. CPI 16 states that:

    Officers [of the Department of Immigration, Citizenship, Migration Services and Multicultural Affairs] 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. [5] [emphasis added]

    [5] CPI 16 – Assessing Identity under the Citizenship Act, section 4.4.

13. CPI 16 stipulates that an evidence-based approach should be used to assess a person’s identity from birth, noting:

    It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.

    …

    The three pillars are the methodology for establishing a person’s identity…

    When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person’s life story, officers [of the Department] should consider:

    ·the significance and corresponding weight of the inconsistencies in the broader context of the persons claimed identity; and

    ·what further research, or information, is necessary in order to be satisfied.[6]

    [6] CPI 16 – Assessing Identity under the Citizenship Act, section 4.12.

    EVIDENCE

14. At the outset, I note that all the documentary evidence before the Tribunal provides clear and consistent information about Mr Al Khalaf’s name and his date of birth. However, both the documentary and oral evidence provided by Mr Al Khalaf sets out different information about his place of birth and the status (or not) of any citizenship he may hold.

15. The chronology of documentation and identity details provided by Mr Al Khalaf is below.

16. In Mr Al Khalaf’s application for Australian citizenship lodged on 14 June 2016, he made the following declaration about his identity:

    16 Do you hold or have you ever held citizenship of any other country?

    …

    Yes [box ticked] …

    Country of citizenship   IRAQ

    Citizenship is:    Current [box ticked]

    Date acquired   [the applicant’s date of birth][7]

    …

    30 Parent

    Sex   Male [box ticked]

    …

    Parent/adoptive parent’s date of birth   01-Jul-1910

    Place of birth

    Town/city   KUWAIT

    … Country   KUWAIT[8]

    [7] Exhibit T-T3, page 18.

    [8] Exhibit T-T3, page 20.

17. Mr Al Khalaf also provided identity documents with his application for Australian citizenship that included (amongst other documents):

    ·his titre de voyage issued by the Australian government on 14 March 2013 stating his nationality is ‘STATELESS’ and his place of birth is ‘KUWAIT CITY’; and

    ·his Iraqi identity card (in Arabic).[9]

    [9] Exhibit T-T3, page 31.

18. On 22 February 2017, Mr Al Khalaf lodged a Form 1022 Notification of changes in circumstances in which he stated he was ‘STATELESS’.[10] In this form, Mr Al Khalaf also provided details about his divorce from his first wife (who resides in Basra, Iraq) in 2014, his marriage to his current wife in 2016 (in Australia), and details about his children (namely, that his son and daughter died in June 2013, and he has three children still alive).

    [10] Exhibit T-T4, page 32.

19. The Department of Home Affairs (the Department) wrote to Mr Al Khalaf on 16 October 2018 to request further information. Mr Al Khalaf subsequently lodged an English translation of his Civil Status Identification (a translation of his Iraqi identity card lodged with his application for Australian citizenship), which stated:

    Republic of Iraq

    Ministry of Interior…

    Directorate General of Citizenship

    …

    Date of birth [the applicant’s date of birth]

    Place of birth: Abu Al-Khaseeb / Basra …[11]

    [11] Exhibit T-T6, page 41.

20. Following a request from the Department for further information, Mr Al Khalaf completed a Form 80 Personal particulars for assessment including character assessment that he signed on 2 December 2018. In this form, Mr Al Khalaf declared he is ‘one of the stateless of Kuwait’ and ‘an statlees (Bidon) of Kuwait’ [replicated as in original].[12] He also provided statements about:

    ·his international travel / movements including the process of fleeing to Australia in September and October 2011, his travel to Iraq from 22 July 2013 to 14 September 2013 after his son and daughter died, and his travel to Iran in 2018 for a holiday;[13]

    ·being ‘falsely accused of crimes [and a] warrant of arrest has been issued in my name relating to charges of kidnapping…’;[14] and

    ·his five children, including his three surviving children (one son and two daughters).

    [12] Exhibit T-T11, pages 62 and 70.

    [13] Exhibit T-T11, page 64.

    [14] Exhibit T-T11, page 69.

21. On 11 December 2018, Mr Al Khalaf filed with the Department a document written in both English and Arabic that he obtained from the Iraq Republic Ministry of Interior General Directorate of Nationality. This document stated, amongst other information, Mr Al Khalaf’s nationality was ‘Iraqi’ and his place of birth was ‘Al Basrah’.[15]

    [15] Exhibit T-T14, page 85.

22. The Department wrote to Mr Al Khalaf on 25 February 2019 inviting him to comment on adverse information in relation to his application for Australian citizenship, including whether he is stateless or a citizen of Iraq, and whether he is subject to an outstanding warrant for his arrest in Iraq.

23. Mr Al Khalaf subsequently appointed a migration agent who provided a written response to the Department dated 2 May 2019. This response submitted that Mr Al Khalaf is stateless and has never been granted citizenship of Iraq, which is supported by Mr Al Khalaf’s exemption from military service ‘due to the fact that he was not an Iraqi national’.[16] This response also stated the warrant for Mr Al Khalaf’s arrest was withdrawn on 12 May 2013, and attached a certified translation of an acquittal of the charges against Mr Al Khalaf and the withdrawal of his arrest warrant.

    [16] Exhibit T-T20, page 109.

24. On 26 November 2019, the migration agent representing Mr Al Khalaf filed with the Tribunal a letter from the Consulate General of the Republic of Iraq dated 9 October 2019 that advised Mr Al Khalaf’s place of birth was Basra-Iraq and that ‘the related registering authorities (till 2012) was registering all Iraqis born abroad as born in accordance with their father’s place of birth’.[17]

    [17] Exhibit ST-ST1, page 3.

25. Mr Al Khalaf provided oral evidence to the Tribunal at his hearing. He said he was born in Kuwait in 1967 and described his status as a ‘stateless Bidoon’. Mr Al Khalaf confirmed he attended school in Kuwait until he was 17 years old, and is able to read and write in Arabic.

26. Mr Al Khalaf said he was deported to Basra in Iraq during the Iraqi occupation of Kuwait in 1991. When he arrived in Basra, he was issued with a ‘civil card’ from the Iraqi authorities. Mr Al Khalaf explained this civil card was his photo identification in Iraq and recorded his place of birth as Basra because Basra was the first city in Iraq he arrived at from Kuwait.

27. Mr Al Khalaf told the Tribunal that he fled from Iraq in 2011 because ‘parties’ were following him; he left his first wife and five children in Iraq, and two of his children were killed in 2013. His remaining children now reside in Iran or Iraq. He divorced his first wife in 2014 and remarried in 2016. Mr Al Khalaf confirmed that the warrant for his arrest was withdrawn and he was able to travel to Iraq in 2013.

28. Mr Al Khalaf told the Tribunal that all the documents he provided to the Department and the Tribunal were genuine and correct, although he agreed the documents contained different information about his birth place and nationality/citizenship status. He said the inconsistent information in his citizenship application form was due to a mistake made by the interpreter who assisted him to complete his application for Australian citizenship. Mr Al Khalaf said he cannot read or write in English and so he has relied on either an interpreter or his current wife to communicate with the Department about his application for Australian citizenship.

    CONSIDERATION

29. The issue for determination is solely whether I can be satisfied of Mr Al Khalaf’s identity as required by subsection 24(3) of the Citizenship Act. I must consider this issue having regard to the Citizenship Act, Citizenship Policy and CPI 16.

30. As I noted in paragraph 14 above, there is no dispute about either Mr Al Khalaf’s name or his date of birth. Rather, the issue for the Tribunal is whether, for the purposes of Mr Al Khalaf’s identity, the evidence shows he is a stateless Bidoon born in Kuwait or an Iraqi citizen born in Basra, Iraq. More particularly, as set out in chapter 13 of the Citizenship Policy, the question is whether I can be satisfied of Mr Al Khalaf’s identity or whether this change in his personal and biographical data leads to a different identity.

31. The migration agent representing Mr Al Khalaf at the Tribunal hearing provided written submissions that Mr Al Khalaf was ‘genuinely and physically born in Kuwait as a Bidoon (stateless)’, he was ‘granted an Iraqi ID after he was expelled from Kuwait’ and in this identity card, the ‘Iraqi authorities’ stated his birth place was Basra.[18] In written submissions made on 13 May 2020 (after the Tribunal hearing), Mr Al Khalaf’s representative wrote:

    The applicant submitted to the Tribunal that his father was born on 01 July 1910 in Kuwait when Kuwait was part of Basra governorate and before it became an independent state. Therefore, the Consulate General of Republic of Iraq’s (dated 09.10.19) letter stated that place of birth to whom born abroad is as born in accordance with their father’s place of birth. Therefore, the applicant’s place of birth was stated Basra.[19]

    [18] Applicant’s Statement of Facts, Issues and Contentions, 19 March 2020, paragraphs 6 to 9.

    [19] Applicant’s Supporting Information About Status of Kuwait, 13 May 2020, paragraph 6.

32. In the alternative, the Minister’s representative made written submissions contending that the conflicting evidence provided by Mr Al Khalaf about the status (or not) of his citizenship and his place of birth meant that it was not possible for the Tribunal to be satisfied of Mr Al Khalaf’s identity for the purposes of his application for Australian citizenship.[20]

    [20] Respondent’s Statement of Facts, Issues and Contentions, 16 April 2020.

    What is Mr Al Khalaf’s citizenship status and his place of birth?

33. There is no question that the documents produced by Mr Al Khalaf to support his identity contain inconsistent information about his citizenship status and his place of birth.

34. In particular, Mr Al Khalaf’s application for Australian citizenship states he acquired Iraqi citizenship when he was born, Mr Al Khalaf’s Civil Status Identification document provided by the Directorate General of Citizenship (Republic of Iraq) and the letter from the Iraq Republic Ministry of Interior General Directorate of Nationality dated 2 December 2018, state his nationality is Iraqi and his place of birth was Basra. Clearly, these documents are not consistent with Mr Al Khalaf’s oral evidence (and his declarations in his completed Forms 1022 and 80) that he is a stateless Bidoon born in Kuwait.

35. The inconsistencies in Mr Al Khalaf’s documents are highlighted by advice on the status of Bidoons in Iraq by the Australian Department of Foreign Affairs and Trade (DFAT), which includes:

    During the 1990-1991 occupation of Kuwait, a proportion of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. The number of Bidoon entering Iraq at this time is unclear, but is estimated to be no more than 100,000…

    The status of Bidoon in Iraq appears to fall into two categories. [The first] are said to have been granted Iraqi nationality by the previous regime during a one-time assistance package called “Makremiayah” (meaning a generous act)… To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth…

    [The second category] are stateless in Iraq… These Bidoon were either unwilling to renounce their association to Kuwait, did not have sufficient affiliation to Iraqi tribes, were unaware of naturalisation procedures or entered Iraq from a third country after Makremiayah.

    …

    The stateless Bidoon live in the desert in the southern provinces of Basra and Dhi-Qar… They do not hold Iraqi nationality certificates, Iraqi ID cards or Public Distribution System (PDS) cards (which often double as identity cards). These Bidoon have no legal right to remain in Iraq and keep a low profile. Without documentation, they cannot move freely within Iraq or outside of Iraq. They have no access to basic public services such as medical care or education. Births and deaths are not registered by Iraqi officials.[21] [emphasis added]

    [21] Department of Foreign Affairs and Trade, Country Advice Iraq, 14 September 2010.

1. A further DFAT report states:

   The Bidoon are a group of mostly stateless people who live in Iraq and Kuwait…

   Many Bidoon were from nomadic tribes who were in Kuwait at the time of its independence in 1961, but who may have originated in what is now Iraq or Kuwait… More than 80 per cent of Bidoon in Iraq reportedly live in the south near the border with Kuwait…

   Kuwait recruited large numbers of Bidoon into its armed forces at independence, but did not grant them citizenship. Many Bidoon fled Kuwait when Iraq invaded in 1990, as the Kuwaiti army began to see them as a security threat due to their connection with Iraq. The Kuwaiti government did not grant them re-entry after the war and many remain in Iraq…[22]

   [22] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018.

2. In summary, the DFAT reports show that Mr Al Khalaf’s evidence that he is a stateless Bidoon is not consistent with him holding an Iraqi identity card (Civil Status Identification) or the document from the Iraq Republic Ministry of Interior General Directorate of Nationality dated 2 December 2018 that Mr Al Khalaf’s nationality was Iraqi.

3. I accept that, on the face of the evidence and deciding Mr Al Khalaf’s identity for the purpose of his application for Australian citizenship, these differences in relation to whether Mr Al Khalaf is an Iraqi citizen or stateless and whether he was born in Kuwait or Basra may seem pedantic and immaterial. This is especially in circumstances, such as those described by Mr Al Khalaf about his arrival in Basra in 1991, in which identity documents are provided to a person by government authorities and a person has limited control over the information written in those documents.

4. However, three pillars of identity are set out in CPI 16 – biometrics, documents and life story. CPI 16 also sets out that decision-makers should consider each pillar to comprehensively test and evaluate a person’s claims about their identity. I also infer this to mean that in circumstances where there is inconsistent information about a person’s biometrics in their identity documents, a person’s life story – their narrative of their life events – would be expected to provide a clear and consistent explanation about these differences.

5. I find that Mr Al Khalaf’s narrative of his life events at the Tribunal hearing did not assist to explain the inconsistencies in his identity documents. Despite being given multiple opportunities, Mr Al Khalaf only provided superficial information about his life at his hearing; he gave almost no information about his experiences leaving Kuwait and arriving in Iraq in 1991 and very limited evidence about his time in Iraq between 1991 and 2011. This lack of narrative about Mr Al Khalaf’s life events and especially his inability to explain why he held Iraqi citizenship and identified as a stateless Bidoon, raises substantial questions about the credibility of his evidence and consequently, his identity.

6. For completeness, I note that I have read and had regard to the submissions provided by Mr Al Khalaf’s representative and the Minister’s representative after the Tribunal hearing.  There was nothing in these submissions that alter my findings in paragraph 40 above.

   CONCLUSION

7. Weighing all the evidence, I am not satisfied of Mr Al Khalaf’s identity in accordance with the requirements of the Act, Citizenship Policy and CPI 16. For these reasons, I find the prohibition in subsection 24(3) of the Act applies to Mr Al Khalaf.

   DECISION

8. The decision under review is affirmed.

   
   
   

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........[sgd]..............................................................

Associate

Dated: 11 June 2020

Date of hearing:	6 May 2020
Date final submissions received:	20 May 2020
Representatives for the Applicant:	Australia Migration Center Pty Ltd
Solicitors for the Respondent:	Sparke Helmore Lawyers