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

[2022] AATA 2628

Al Thufairi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2628 (14 June 2022)

Division:GENERAL DIVISION

File Number(s):      2020/8262

Re:Ahmad Al Thufairi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 June 2022

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – application for citizenship refused – whether applicant’s identity satisfied under s24 of the Australian Citizenship Act 2007 (Cth) – whether applicant is of good character under s21(2)(h) of the Australian Citizenship Act 2007 (Cth) – decision under review affirmed. 

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

CDNB and Minister for Immigration and Border Protection [2018] AATA 757

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Citizenship Policy Instructions 15 – Assessing Good Character under the Citizenship Act

Citizenship Policy Instructions 16 – Assessing Identity under the Citizenship Act

Department of Foreign Affairs and Trade, Country Information Report – Iraq (dated 17 August 2020)

REASONS FOR DECISION

Senior Member A Poljak

14 June 2022

1. Ahmad Al Thufairi, the applicant, arrived in Australia on 31 October 2010 as an unauthorised maritime arrival. The applicant was granted a protection visa on 5 May 2011.

2. On 7 May 2015, the applicant applied for Australian citizenship by conferral (Citizenship application).

3. On 4 December 2020, a delegate of the Minister refused the applicant’s application for Australian citizenship by conferral. The application was refused on the basis that the delegate was not satisfied of the applicant’s identity under s 24(3) of the Australian Citizenship Act 2007 (Act) and because the applicant was found to be not of good character for the purposes of s 21(2)(h) of the Act. This is the decision under review in these proceedings.

4. The issues for determination are

   (i) whether the applicant satisfies the identity requirements under s 24(3) of the Act; and

   (ii) whether the applicant is of good character for the purposes of s 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

6. Subsection 24(1) of that Act provides that 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. 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.

7. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 relevantly explained that:

   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.

8. The Act also relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application.”

   IDENTITY OF THE APPLICANT

9. Citizenship Procedural Instruction 16 ‘Assessing Identity under the Citizenship Act’ (CPI 16) offers guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 16, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

10. The CPI 16 relevantly provides:

    (a)The Department relies on a combination of the 3 pillars of identity: biometrics, documents, and life story. A single pillar should not be relied upon to establish a person’s identity as ‘considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity’ and to ‘comprehensively test and evaluate a person’s claims with regard to identity’.

    (b)Relevantly, “only reliable identity documents,’ can satisfy the document pillar.

    (c)An application for Australian citizenship must be made in the applicant’s full name and supported by acceptable identity documents. Allowable identity documents include officially issued documentation such as a birth certificate, marriage certificate, or official passport.

    (d)A non-genuine feeder document can result in the issuance of (fraudulently obtained) genuine secondary documents.

    (e)In the case of a person providing genuine identity documents that have been fraudulently obtained (for example, documents that have been bought), the applicant’s knowledge of the issuance process of the documents may be limited, and therefore inaccurate. Where a person is unable to explain the process to obtain their document, it may be a relevant consideration going to the legitimacy of the document and may form the basis for giving less weight to the document in the assessment.

11. Relevant to this case, it is accepted that the production of documentation supporting the claimed identity is not essential to satisfying a decision-maker of identity in every case. However, as found in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 at [9]:

    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 me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.

12. However, where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought be rejected: see Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].

13. The applicant is a claimed Stateless Bidoon born in Al Jahra, Kuwait. The applicant states that his family are also stateless Bidoons, and that he and his family were accused of supporting Saddam Hussein and deported to Iraq by Kuwaiti authorities in 1994. He states that he received no education in Kuwait nor Iraq, and that from the time of his deportation, he lived in Iraq until he left for Australia in 2010 when he was approximately 21 years old.

14. The applicant stated that he worked as a hairdresser in Iraq, was forced to close his shop by a local Badr group, and when he reopened his shop, they retaliated by killing his sister and assaulting his mother. The applicant stated he travelled to Australia on an Iraqi passport obtained by a smuggler.

15. As a stateless person, the applicant’s country of reference is Iraq, Iraq can be described as troubled and unstable country. Assessing identity under the Act where an applicant has come from troubled and unstable circumstances can be difficult and much will depend on issues of credit. Where an applicant has given evidence on identity matters which the Tribunal finds unconvincing, then a negative finding would usually follow; see CDNB and Minister for Immigration and Border Protection [2018] AATA 757.

16. In this case, the applicant has provided extremely limited documentary evidence in support of his identity, and that evidence is internally inconsistent and conflicting with the life story told by the applicant and country information. For the following reasons, the applicant’s identity remains far from clear.

17. In the Citizenship application, the applicant used the name ‘Ahmad Althufairi’. He declared that he had not been known by any other names, including name at birth, alias, alternative spellings, or full spellings of his name. This was also confirmed by the applicant in a Form 80 dated 20 March 2019. However, the applicant is known as ‘Ahmad Ibn Hameed’ on Facebook and in correspondence to the Iraqi Embassy dated 7 May 2021, the applicant identified himself as ‘Ahmed Hameed Matshar’. There is also an inconsistency in the recording of the applicant’s father’s name in a Form 80 dated 8 January 2011, the applicant stated his father’s name was ‘Hameed Motashar Moftin Al Thufairi’, whereas in the Form 80 dated 20 March 2019, the applicant stated his father’s name is ‘Hameed Al Thufairi’.

18. The applicant states that the name “Ahmad” has a variation which is “Ahmed” according to the Arabic naming convention, and “Al Thufairi” is a tribal name. He states that his original Kuwaiti birth certificate provide with his Citizenship application, shows his name as “Ahmed”, his father’s name as “Hameed Matshar Muften”, and his mother’s name as “Salwa Jaser Muften”. The applicant submits the documents proving his name, and the names of his father, mother, grandfather, and grandmother are not limited to his Kuwaiti birth certificate but are confirmed by other Kuwaiti documents he has provided for his father, mother, and siblings. As to his name on Facebook, ‘Ahmad Ibn Hameed’, and the name he identified himself as with the Iraqi Embassy, ‘Ahmed Hameed Matshar’, the applicant submits that “Ibn” means the “son of” and is not part of his name. For example, applicant’s name is “Ahmad”, his father’s name is “Hameed”, so “Ahmad Ibn Hameed” means, Ahmad the son of Hameed.

19. The applicant accepts that he used a different name in Kuwait.

20. Having regard to the available documentary evidence, a significant volume of the identity documentation from Kuwait and Iraq, do not contain the family name ‘Al Thufairi’. Despite the variations in the applicant’s name and family name, the applicant failed to declare in his Citizenship application that he had been known by other names.

21. The applicant has previously declared that his family were given Iraqi National Identity Cards (ID cards), but they do not have Iraqi citizenship. The applicant has not provided his original ID Card. This document is an extremely important document in establishing the applicant’s identity. When the applicant applied for a protection visa, he provided a very poor copy of his ID Card. The copy of the ID card provided by the applicant matches, in substantial form, a model 32A Iraqi National ID card, equivalent to a national civil ID card provided to Iraqi nationals.

22. Due to the poor quality of the copy of the ID card, translation of the document has been difficult. But it appears that the applicant’s ID card lists the names ‘Ahmad Hamid Matshar Al Dhafiri’.  Despite being asked to provide a clear copy of his ID Card, he has not done so.

23. In the applicant’s Request for a Refugee Status Assessment (RSA) and Statement of Claims dated 8 January 2011, the applicant said that he had an ‘Iraqi ID card’ which he ‘will bring to the RSA interview’. In the supporting statutory declaration dated 8 January 2011, the applicant again stated he ‘was issued an Iraqi identity card’.

24. Contrary to these previous representations made by the applicant, he did not provide details of his ID Card in his Citizenship application. When the applicant was asked ‘Do you currently have, or have you ever had any national identity documents or numbers?’, he responded ‘yes’, but only gave evidence of a Kuwaiti Birth Certificate. In a statement dated 19 October 2020, the applicant claimed:

    I do not have an Iraqi Personal ID card as I am not Iraqi. I have never held an Iraqi personal ID card so I cannot provide you with that document.

25. The Department sought an identity assessment and attempted to use the copy of the applicant’s ID card to make inquiries about the applicant’s identity. The outcome of the assessment was that the applicant’s ID card could not be matched against any records in Iraq and the details contained in the ID card were considered incorrect. 

26. The applicant contends that he personally never applied for an ID card in Iraq and that his father obtained the ID card for him to facilitate his affairs in the south of Iraq. He explains that government corruption in issuing ID cards was very prevalent in Iraq prior to 2012. His card was issued in 2001 and was an old ID card which is no longer in his possession. The applicant explains that when he was asked to provide the originals, he provided his original Kuwaiti birth certificate because that was the only original document that was issued to the applicant in Kuwait. In Iraq he was stateless all the time and as a non-citizen of that country, he was not issued with legal documents in Iraq.

27. At hearing, the applicant explained how his father had tried to certify his families roots as an Iraqi tribe but was refused. As such, they could not apply for Iraqi citizenship. He explained that in 2001, his father paid someone he knew in the Department of Civil Status Registry in Iraq for ID cards.  The applicant said the ID cards were not original or official documents as they were not Iraqi citizens. The ID cards were obtained because they needed them when travelling through provinces, to see a doctor or receive treatment. He accepted in cross examination that despite knowing that the ID card wasn’t authentic, he provided it to authorities in Australia without mentioning that it was obtained through illegitimate means.

28. In an unauthorised arrival interview conducted on 13 November 2010, the applicant said he believed that he would be killed if he returned to Iraq. He explained that the Shia people didn’t want him to work in a ladies’ hair salon ‘as it was for ladies and I am a man’. He explained that in 2009 he was kidnapped by the Badr group for two days during which time they hit him and broke his hand, forcing him close his shop. When he eventually reopened his shop, the Badr group killed his sister and hit his mother with the butt of a gun. 

29. In his statutory declaration dated 8 January 2011, the applicant said he believed that if he returned to Iraq, he would be persecuted by the authorities for the reasons of being stateless and a Sunni Muslim and that he would be persecuted by the Badr party.

30. Despite these claims that he would face persecution and death if he returned to Iraq, in incoming passenger cards dated 31 January 2013, the applicant advised that he had returned to Iraq during a 2-month overseas trip in 2012-2013. This was shortly after the granting of his protection visa. The applicant did not disclose this travel to Iraq in his Citizenship application, he only stated that he had travelled to Iran from 21 October 2018 to 25 December 2018 to meet his fiancée.

31. The applicant contends that he mistakenly overlooked his travel to Iraq in his Citizenship application because the trip occurred in 2012 and he forgot to mention it due to the lapse of time. He submits that he only travelled to Iraq in 2012 for very compelling reasons, namely that his mother developed a brain tumour.

32. At hearing, the applicant explained that he was in danger when he returned to Iraq, so he didn’t go to his home province but stayed in a province between Iraq and Kuwait, which he said was much safer. He said his mother visited him there. The applicant said his mother was very sick and he believed her to be terminally ill. In cross examination, he explained that she was receiving “simple treatment’ from a specialist in her home province and that despite having physical problems, she travelled 200-300kms to see him. The applicant said he did not disclose his travel to Iraq because he could not recall the exact dates of travel.

33. The applicant has no documentation or evidence about his travel to Iraq in 2012. He said at hearing that travel documents he used to enter Iraq were either lost or stolen in about 2017.

34. I have some doubts about the truthfulness of the applicant’s evidence, particularly about where he stayed in Iraq and that he didn’t visit his home province. This is due to the unlikely evidence of the applicant that his very sick mother, who had physical problems and was receiving treatment for a brain tumour, travelled long distances to visit him when he was in Iraq in 2012. The applicant’s evidence in this regard was also not previously disclosed in his statement dated 20 November 2020, in which he said:

    “I travelled to Iraq due to extenuating circumstances, my mother was severely sick, she had a brain tumour and was undergoing extensive medical treatment. I remained confined during the period I was in Iraq.”

35. The fact that the applicant returned to Iraq in 2012 is entirely inconsistent with his claims made as late as 2011, that he would be harmed or killed if he returned and is inconsistent with his life story that he is a stateless Bidoon who fled Iraq.

36. In support of his RSA, the applicant provided a series of medical records relating to his mother and brother, some in English and untranslated Arabic. This material is inconsistent with the applicant’s claims that he and his family are stateless Bidoons as DFAT country information provides that:

    DFAT assesses that stateless Bidoon are subject to moderate levels of official discrimination, as the government will not renew ID cards issued before 2003, so they are denied access to formal employment. DFAT has no evidence of targeted violence against Bidoon communities. DFAT assesses that all stateless people are subject to moderate levels of official discrimination due to their inability to obtain the identity documents required to gain access to health care and education services. [Emphasis added]

37. The applicant contends that while discrimination does exist in relation to the public (Government) hospitals, the medical reports provided were issued by private clinics. He submits that the discrimination practiced by the government is not the case in relation to the medical treatment by the private sector.

38. At hearing, the applicant stated that he had no problem obtaining free health care in Iraq. But only in terms of a diagnosis, not in terms of treatment. He said he could obtain a moderate level of consulting and medical checks, without money. The applicant explained that his mother saw a private specialist and had an MRI. He said you “have to pay for what you want”. Regarding identification, the applicant said his mother had the same ID card he had but she only needed to provide her name verbally to have the MRI because she paid to have the test. He said he didn’t know who referred his mother for an MRI and the documents were just sent to him by his father. As to the cost, the applicant claimed people his family knew helped them.

39. The evidence of the applicant that despite not being Iraqi citizens, his family was able to receive medical treatment, significantly an MRI from a private specialist, is inconsistent with country information. The applicant was unable to satisfactorily explain how a doctor could refer his mother for an MRI, how they were able to pay private medical fees and how they had no trouble getting access to health care in Iraq. This again raises doubts about the applicant’s identity and life story.

40. The applicant has claimed that in Iraq he had no education, formal or informal. In an interview conducted on 8 January 2011, the applicant indicated that he could only speak Arabic and in his statutory declaration dated 20 November 2020, the applicant confirmed that when he was living in Iraq or Kuwait, he did not study at all and could not read and write. He said he could only speak Arabic.

1. Since coming to Australia, the applicant has undertaken numerous tertiary studies. He started studying English at Navitas and TAFE NSW and completed a Certificate I in English Language Skills in 2012. He completed a Certificate III in laboratory skills and a Certificate IV in laboratory techniques in 2015 and then completed and received a Diploma of Laboratory Technology (Pathology testing) from TAFE NSW on 31 July 2016. He has worked as a pathology lab technician with Medlab Pathology and Douglass Hanly Moir. The applicant is currently studying a Bachelor of Medical Science at the University of Western Sydney.

2. While I applaud the applicant’s dedication to his education and career in Australia, I find it implausible that the applicant could commence learning English in 2012 for the first time and be studying laboratory skills and medical science at a tertiary level by 2014 or 2015, given that he had no formal education, was relatively illiterate, had no previous study of science or maths, and did not speak any English prior to coming to Australia.  This does raise significant doubts about the truthfulness of the applicant’s life story and identity.

3. There are several inconsistencies in the applicant’s evidence regarding his sister. These inconsistencies also raise concerns about the truthfulness of the applicant’s life story and identity. The inconsistences are summarised as follows:

4. In a Form 80 dated 8 January 2011, the applicant provided information about his family, including his father, mother, 2 brothers and sister. He said, in respect of his sister’s country of current residence, that she had been killed.

5. The applicant provided a death certificate for his sister as part of his RSA. However, on 9 September 2020, the Department of Foreign Affairs and Trade stated that it had contacted the Iraqi Ministry of Health and it had confirmed that it had no record for the applicant’s sister’s death certificate based on the certificate number, date of issue and the issuing authorities. It was believed that the death certificate was counterfeit.

6. DFAT Country information indicates that ‘[t]he government does not usually register births and deaths of stateless Bidoons’.

7. The applicant has provided a letter from the Embassy of the Republic of Iraq in Canberra dated 7 May 2021, which purportedly confirms that the Iraqi death certificate ‘has been issued by the Iraqi Authorities in Iraq on 2 April 2010’. At hearing, the applicant advised that he provided the Embassy a copy of his Kuwait birth certificate, his sister’s death certificate and travel documents as proof of his sister’s death. He said he asked them to certify the death certificate as “he was Bidoon and death not registered in Ministry of Bagdad” and explained that she did not have a ‘normal death’ but was killed. 

8. The death certificate provided by the applicant is unclear and illegible. One translation provided by the applicant claims that the applicant’s sister died in childbirth. Three separate translations of the death certificate obtained by the Department identity the certificate number as ‘231246’. The Embassy letter refers to a certificate with the number ‘331346’. This does not match the document provided by the applicant.

9. I place little weight on the letter from the Embassy of the Republic of Iraq in Canberra as it contains an obvious error, it is entirely unclear on what basis it verified the document and, is inconsistent with the evidence that a review of the Iraqi records showed that no such record existed.

10. On 31 October 2014, the applicant received US$17,820 from a person described as ‘Hanan Matshr’, with the description ‘Share Sale of Property’. At hearing, the applicant said he received the money from his friend to buy a house. He said it was a loan and he was to pay it back. In cross examination, the applicant said he had not purchased a property with the money and still had it. He was returning it to his friend ‘bit by bit’.  

11. The Minister submits that ‘Hanan Matshr’ is a relevant translation of the applicant’s sister’s given name ‘Hannan’ and their father’s name ‘Motashar’. The Department has requested that ‘Hannan Hamoud Motashar’ take a DNA test to prove she is not the applicant’s sister, but the applicant has not been able to arrange for this. At hearing, he explained that it was a hard test to get in Iraq as it was against Islam and ‘not right’.

12. The applicant has provided evidence claiming that ‘Hanan Matshr’ is the wife of his friend whose surname is ‘Al-Tobee’. His wife’s name is recorded as ‘Hannan Hamoud Motashar’ and her date of birth is 17 November 1976. The applicant has provided a genuine ID card for a ‘Hannan Hamoud Motashar’ whose date of birth is listed as 1 July 1980.

13. In a letter from the applicant’s friend, Hamid Al-Tobee, translated on 11 November 2020, he said Hanan Matshr was not related to the applicant and strangely said that the applicant does not know her at all. This is despite Hamid Al-Tobee being close friends with the applicant for many years and Hanan Matshr sending the applicant a large sum of money.

14. The respondent appeared to concede at hearing that it was unlikely that Hanan Matshr was the applicant’s sister because documents showed they had a different mother. The respondent however maintains that she may be of some relation to the applicant because they have the same grandfather.

15. In a Form 80 dated 20 March 2019, the applicant told the Department that he had 3 siblings. The form said ‘if not living, write ‘DECEASED’ in ‘Country of current residence’ column, however, the applicant indicated that his 2 brothers and sister (Hannan Althufairi) were all currently residing in Iraq.

16. Finally, the applicant has provided a letter from the Embassy of the Republic of Iraq in Canberra dated 19 April 2021, which states that he is not an Iraqi citizen and ‘does not have Iraqi identity’. Again, I place limited weight on this document as it refers solely to the applicant by the name ‘Ahmad Al Thufairi’ and his Australian Titre de Voyage and it is unclear precisely what the Embassy was asked to do, what enquiries they undertook or, what information they were provided by the applicant.

17. For these reasons, I cannot be satisfied of the applicant’s identity.

    GOOD CHARACTER

18. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15). As to the definition of good character, the CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 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 to 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…

19. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated 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. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

20. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: not practice deception or fraud in dealings with the Australian government such as intentionally providing false personal information or other material deception during visa and citizenship applications.

21. The provision of fraudulent material to the Department is conduct specifically contemplated under CPI 15 as conduct that is not indicative of good character. In the present case, the applicant has provided inauthentic documentary evidence, namely his ID card, as evidence of his claimed identity to Australian authorities. He provided the ID card knowing that the document was not authentic and without advising them that it was acquired illegitimately.

22. The applicant also failed to disclose the full range of names with which he was known by; failed to disclose his travel to Iraq in 2012; and failed to disclose his driving offences in his citizenship application.

23. In considering all the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 14 June 2022

Date(s) of hearing:	19, 20 January 2022
Representative for the Applicant:	Mr A Alkafaji
Solicitors for the Respondent:	Australian Government Solicitor