Alshemeri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 415

Alshemeri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 415 (5 March 2021)
Division:GENERAL DIVISION
File Number:2019/6455
Re:Juma Alshemeri
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:5 March 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
20 September 2019 to refuse a grant of Australian citizenship under s 24(3) of the Citizenship Act is affirmed.
.....[SGD]..............................................................
Member S Barton
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – satisfaction of identity – insufficient evidence regarding identity of the Applicant – limited primary documentation – Applicant arrived in Australia in 2012 as an irregular maritime arrival –reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Australian Citizenship Act 2007 (Cth) – ss 24, 24(3) 52(1)(b)
CASES
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw v Briginshaw (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 77
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Mohsin and the Minister for Home Affairs (Citizenship) [2019] AATA 1999
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
SECONDARY MATERIALS
Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016) – Chapter 13
Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) – para 2.1.1
Australian Government – Refugee Review Tribunal, Background Paper Bidoons in Iraq (February 2013)
Department of Home Affairs, ‘Citizenship Procedural Instructions’ (2020) – CPI 16 – Assessing Identity under the Citizenship Act – paras [4.4], [4.16]
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member S Barton
5 March 2021
THE APPLICATION

This is an application for the review of a decision by a delegate of the Respondent
made on 20 September 2019 (the Reviewable Decision). This decision refused Mr Juma Shaie Hemaidi Awadh Alshemeri’s (the Applicant) application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused because the Respondent was not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
FACTS
The Applicant states that he was born in Kuwait on 7 October 1963.
The Applicant arrived in Australia as an irregular maritime arrival on 11 May 2012. He was granted a Protection (subclass 866) visa on 31 July 2013.
On 24 November 2016, the Applicant applied for Australian citizenship by conferral.
On 20 September 2019, the Department of Home Affairs (the Department) refused the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity.
On 8 October 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of this decision.
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Citizenship Act.
THE ISSUE
The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Friday 4 December 2020. The Applicant was represented by

Ms Hanan Haddad, a registered migration agent. The Respondent was represented by Mr Ashley Burgess. All parties appeared via telephone.
The Applicant gave oral evidence and made submissions, the Respondent made oral submissions. The Applicant was assisted by an interpreter in the English and Arabic languages.
The Applicant called his wife, Wsylh Habar Sachit (currently residing in Iraq) and his friend Mr Ali Shaia as witnesses. Both gave evidence over the telephone and were assisted by the same interpreter as the Applicant, being an interpreter in the English and Arabic languages.
The Tribunal allowed the parties to provide written closing submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)a covering letter from the Applicant’s migration agent, Ms Haddad, signed and dated 1 June 2020, with attached statement of the Applicant dated 29 May 2020 and emails to the Kuwaiti Embassy in Canberra) (Exhibit A1).
(b)a statement of the Applicant, signed and dated 17 January 2020 (with attached statement from the Applicant’s wife dated 23 January 2020 and the Applicant’s birth certificate dated 11 January 2020) (Exhibit A2).
(c)section 37 documents, comprising T1–T18 (Exhibit R1).
(d)Respondent’s Statement of Facts, Issues and Contentions, dated 13 July 2020 (Exhibit R2).
The following closing submissions were provided to the Tribunal after the hearing:
(a)closing submission from the Applicant’s representative dated 11 December 2020 (Exhibit A3); and
(b)Respondent’s closing submission, dated 17 December 2020 (Exhibit R3).
RELEVANT LEGAL PRINCIPLES
Section 24 of the Citizenship Act prohibits the conferral of Australian citizenship in certain circumstances. Section 24(3) of the Citizenship Act states:
24Minister’s decision
…
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
(Emphasis added.)
The issue of identity is also addressed by Chapter 13 of the Australian Citizenship Policy (the Policy) at 158:
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.
The Policy refers to the Attorney-General’s Department’s ‘National Identity Proofing Guidelines’ (the Guidelines), published for the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach. The concept of identity is described in the Guidelines.
The Guidelines at 7 [2.1.1] state that:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
The CPI 16 – Assessing Identity under the Citizenship Act of the Department of Home Affairs’ ‘Revised Citizenship Procedural Instructions’, (the Citizenship Instructions) (at [4.4]) identifies three pillars of identity: biometric, documents and life story. It also states:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
The Citizenship Instructions provide some guidance as to the meaning of being “satisfied of a person’s identity” at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.

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

Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
As established by Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal will ordinarily apply a relevant ministerial policy, unless there are cogent reasons not to do so. In Drake, Brennan J explained the importance of applying policy to guide decision making at 640:
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
The Tribunal has had regard to three relatively recent decisions, Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999, Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 and John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 77, that have some broad similarities to the current matter before the Tribunal, particularly with respect to the country of origin and the veracity of documentation.
The issue of identity has also been considered in: Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 (Gjura); CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 (CDNB); Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan); and Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa).
The above decisions all recognise that the issue of identity is of considerable importance, given the very significant benefits conferred by Australian citizenship. As Member Grigg stated in Gjura at [32]:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.
Identity cannot be taken lightly and, as in the above decisions, each case must be considered on its individual merits, with due regard to the relevant factors and impediments to obtaining documents related to identity in each individual case.
In the matter of Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30] (Ahamod), the Tribunal considered the standard of proof contemplated in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). In doing so, the Tribunal considered the significance attached to a grant of citizenship and the consequences that flow from it. The Tribunal further noted that a higher level of satisfaction of an applicant’s identity is required in such cases:
A certificate of Australian Citizenship is a legal document of considerable significance. Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.
The Tribunal in Ahamod also noted the decision in the matter of Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579, where Senior Member Morris (with reference to Briginshaw) considered the meaning of the statutory term “satisfied” in relation to Australian citizenship applications, at [56]:
Essentially … the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges. …
Accordingly, the Tribunal must be persuaded to a degree of reasonable satisfaction as to the Applicant’s identity, having regard to their particular circumstances, and given the significance of the consequences that flow from the grant of citizenship.
In determining whether the Tribunal is satisfied of the Applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not or are not, to use Deputy President Nicholson’s words in Dhayakpa at [117], “established or undisturbed”. In such places, the issuing of official documentation may be hampered by conflict, civil strife, under-developed bureaucratic and administrative structures or, for some groups, by the specific design of Government policy.
As such, the Tribunal recognises that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.
In considering the issues that arise in this application, the Tribunal is guided by the approach taken by Member Kennedy in CDNB at [9], who states:
[P]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants. …
In Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (Confidential) at [34], the Tribunal found that where the Minister had not been provided with any documentation to enable him to form an opinion regarding the identity of an applicant, the application is properly rejected. The Tribunal also found that evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of a person (at [35]).
In Dhayakpa (at [117]) the Tribunal noted that the decision in Confidential was not authority for the proposition that a document is a requirement for the Minister to be satisfied as to identity, but rather that it:
stands for the proposition that 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 to be rejected. …
A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker refuse a grant of citizenship where they are not satisfied of the applicant’s identity.
EVIDENCE
In his application for the conferral of Australian citizenship, lodged on 24 November 2016, the Applicant provided the following documents to address proof of identity requirements (Exhibit R2, pp 53–62):
(a)a statutory declaration from the Applicant, dated 6 November 2016, stating that he is Juma Shaie Hemaidi Awadh Alshemeri, born 7 October 1963 in Alshaera, Kuwait and is unable to obtain his original birth certificate because he is stateless;
(b)a certified copy of the Applicant’s Titre de Voyage, certified on 22 November 2016;
(c)a certified copy of the Applicant’s Pensioner Concession Card, certified 22 November 2016;
(d)a certified copy of the Applicant’s Western Australian driver’s licence, certified 22 November 2016;
(e)a certified copy of the Applicant’s Western Australian photo card, certified 23 November 2016;
(f)a certified copy of the Applicant’s Medicare card, certified 22 November 2016;
(g)a certificate of motor vehicle insurance issued to Mr JS Alshemeri on 2 December 2015; and
(h)a letter addressed to the Applicant from Commonwealth Bank confirming account details, dated 31 October 2016.
On 2 August 2017, the Department requested the Applicant provide the documents he presented when he first arrived in Australia, along with National Accreditation Authority for Translators and Interpreters (NAATI) translations (Exhibit R1, pp 64–65). These included:
(a)the Applicant’s birth certificate;
(b)the Applicant’s marriage certificate; and
(c)the Applicant’s driver’s licence from Kuwait.
The Department also requested the following documents:
(a)all current and expired passports;
(b)school records, including from Alshuavia (Al Mushterka) School for Boys which the Applicant claimed to have attended in 1970–1972;
(c)service records from his time in the Kuwaiti military, including identity and discharge papers;
(d)employment records, play slips or other documents relating to his period as a self-employed mechanic in Iraq from 1993-2012;
(e)birth certificates for children born overseas; and
(f)any additional documents that show his claimed identity before arriving in Australia.
The Department also requested fully completed Form 80 (personal particulars for assessment including character assessment) and Form 1399 (declaration of service).
On 14 February 2018, the Department wrote to the Applicant inviting him to comment on adverse information (Exhibit R1, pp 100–102). The Department advised the Applicant that there were inconsistencies in the information he provided.

The Applicant provided a copy of his Kuwaiti driver’s licence to support this application, which stated his name as Juma Shaie Hermaidi, and listed an expiry date of 14 February 2001. The Department advised the same licence was provided in 2012 to support the application for a protection visa, which states the name as Joumaa Elshameri and the expiry date of 4 February 1992.
The Department noted that the Applicant had provided copies of his birth and marriage certificate in 2012 as part of his application for a protection visa, stating the originals were in Iraq. However, on 6 November 2016 the Applicant advised in a statutory declaration that he could not get his original birth certificate because he is stateless. The Department requested he explain this discrepancy.
The Department also noted that the Applicant had failed to provide any evidence for his employment in Iraq as a mechanic, and failed to provide evidence in support of him having been employed at the Kuwait International Airport. Additionally, the Department noted that in his Form 1399, the Applicant did not declare any military service.
The Applicant responded to the invitation to comment on the adverse findings on
12 March 2018 (Exhibit R1, pp 106–123). In his response, the Applicant provided a statutory declaration, dated 8 March 2018, seeking to address the inconsistencies identified by the Department (Exhibit R1, pp 117–118).
With respect to his driver’s licence, the Applicant advised that:
I have original driving licence issue in Kuwait, driving licence number [omitted]. It had an expiry date of 04/02/1992. After the expiry, I renewed my Licence and all the details were left exactly the same except the new expiry date of 04/02/2001. My name on both the licences is spelled in the same way in Arabic language.
(Without alteration.)
The Applicant also claimed that his original birth and marriage certificates were destroyed in a house fire in Iraq in 2014. To support this claim he included a translation of a report into the incident by the Iraqi authorities (Exhibit R1, p 108). The Applicant reiterated that he is stateless and was unable to have his documents reissued by the Kuwaiti government, meaning he could not provide an original birth or marriage certificate.
The Applicant stated that in Iraq where he worked as a self-employed mechanic from 1993 to 2012, he was not required to register his work. This means he has no supporting evidence of his employment during this period.
The Applicant advised that he had worked as a Military Policeman at the Kuwait International Airport, which he had also declared in 2012. The Applicant declared that he enlisted the support of his relative, Abed-Alhadi Shaia in completing his citizenship application, as well as filing the Form 1399. The Applicant claimed that his relative misunderstood the nature of the Applicant’s duties at the airport. The Applicant included a statutory declaration from Mr Shia, stating that (Exhibit R1, p 115):
While filing the Form 1339, “Part B Service history” I asked Juma if he has worked in Military back in Kuwait. He answered that he has worked at Kuwaiti Airport as an officer. I have been in Australia form last 15 years and I know that there is no “Military” at our airports, we only have security official. Without asking further, I assumed that he must have worked as security officer at the Airport and security officers work does not come under Military services.
(Without alteration.)
On 19 July 2019, the Department wrote to the Applicant again inviting him to comment on further adverse information (Exhibit R1, pp 124–126). The Department noted that the Applicant had provided a statutory declaration on 6 November 2016 advising that he could not obtain his original birth certificate or marriage certificates because he is stateless (Exhibit R1, p 125). His statutory declaration on 8 March 2018 said that his original birth certificate and marriage certificates were destroyed in a house fire in 2014 (Exhibit R1, p 125).
The Department advised that the copies of his birth certificate and marriage certificate, which were provided in his application for a Protection visa, were referred to the Department’s Dubai office, which was unable to verify if the documents were genuine (Exhibit R1, p 125).
In response, the Applicant provided a statutory declaration to the Department, dated 21 August 2019. He stated that (Exhibit R1, p 135):
In response to this I wish to say that the birth certificate as well as the marriage certificate were copies only. Additionally, the birth certificate issued in Kuwait and can only be verified in Kuwait. The marriage certificate is a piece of letter written by an Islamic sheikh (leader) who only states in the letter that the my wife and I are married under sharia law. The marriage certificate is not a legal document or issued by a legal institute it is rather a written Islamic (Sharia) contract between myself and my wife).
(Without alteration.)
Additional material
The Tribunal has been provided copies of emails sent by the Applicant’s agent to the Kuwaiti Embassy requesting assistance in acquiring his identity documents, with no recorded result (Exhibit A1)In a further statutory declaration dated 29 May 2020, the Applicant said that he spoke to someone at the Embassy and was advised that it was not possible to obtain his identity cards from Australia as that service was not provided, ‘especially’ not for Bidoons (Exhibit A1).
In his submissions to the Tribunal, the Applicant has also provided a further statement from his wife regarding the house fire in Iraq. In it she states the following (Exhibit A2):
My house where I lived, which was a rental property, got on fire in 2004 [2014] because of an electric circuit. Due to the intensity of the fire, I could not manage to put it out and lost all what I had in the house. Among what I lost in the fire, were all my official documents and those which belonged to my husband. … My husband’s documents which were burnt in the fire were an original Kuwaiti birth certificate, an original Kuwaiti military card, an original driver’s licence, personal photos and many other documents. … I reported … my documents only and not the documents of my husband. I was scared to report it because he is a [Bidoon] and his documents were Kuwaiti.
The Applicant also provided a translated copy of his birth (Exhibit A2).
Bidoons
The Applicant has consistently contended that he is a stateless Bidoon. In considering this matter it is necessary to provide a brief overview of Bidoons in Kuwait and Iraq.
The word Bidoon, which can be spelt a number of ways (including Bidun) means ‘without’ in Arabic, from the phrase ‘bidoon jinsiyya,’ being ‘without nationality’.[1] Although some Bedouin are Bidoon, the two terms have a different meaning, the former with its origins in the Arabic word for nomad; however some Bidoon may be Bedouin.[2] The Tribunal notes that the Applicant has, in some of the material before the Tribunal, referred to himself as ‘bedoin’ (Exhibit R2, p 135).
[1] Australian Government, Refugee Review Tribunal, ‘Background Paper Bidoons in Iraq’ (February 2013) 2.
[2] Ibid.
Under Kuwaiti law, Bidoons are not Kuwaiti citizens. Some Bidoon originate from Kuwait, but their families did not register for citizenship before the implementation of the 1959 Nationality Law (this group includes the Bedouin). Others are descended from Iraqis, Syrians and Jordanians who came to work in Kuwait in the 1960s and 70s.[3]
[3] ‘Kuwaiti Bidun and the Burden of Statelessness’, Human Rights Watch (Web Page, 13 June 2011) <>
Until the 1980s, Bidoons enjoyed the same economic and social benefits as Kuwaiti citizens.[4] However, regional instability in the 1980s saw a hardening of attitudes towards the Bidoon. According to a 2011 Human Rights Watch report:
From 1986 onwards the government began restricting Bidun access to passports, granting them only to individuals with official permission to travel abroad for medical treatment, education, or religious purposes, or to Bidun serving in the army and police. Later that year the authorities started to require that all government employees produce proof of Kuwaiti or foreign citizenship or lose their jobs. In 1987 the Interior Ministry ceased issuing or renewing drivers’ licenses to Bidun except to those in police or military service. At the same time authorities ceased allowing Bidun to register car ownership in their names.[5]
[4] Australian Government, Refugee Review Tribunal, ‘Background Paper Bidoons in Iraq’ (February 2013) 7.
[5] ‘Kuwaiti Bidun and the Burden of Statelessness’, Human Rights Watch (Web Page, 13 June 2011) <>
The situation worsened with the 1991 Gulf War. Bidoons were well represented in the ranks of the Kuwaiti armed forces and the police, which meant, in the wake of the Iraqi invasion, they wore some of the blame for the failure to prevent it. Moreover, tens of thousands of Bidoon fled to remote areas in Iraq during the war, further fueling suspicions towards the group. As was detailed in a background paper prepared for the Refugee Review Tribunal in 2013:
Bidoons who had left Kuwait as a result of the war were not allowed to return and remained stateless in Iraq and other countries. Shiblak notes that, ‘since 1991 the Bidoon have been denied most of their basic rights and have been subjected to acts of discrimination and persecution by authorities.’ Shiblak adds that Bidoons have been denied rightful claims to Kuwaiti citizenship, education (provided to other Kuwaitis free of charge) in government schools, employment opportunities and state health services. The Kuwaiti government also reportedly dismissed Bidoons from government jobs, restricted them to impoverished areas and barred children from Kuwaiti schools. Moreover, in 1995, Bidoons were excluded from Kuwait’s population census for the first time.[6]
[6] Australian Government, Refugee Review Tribunal, ‘Background Paper Bidoons in Iraq’ (February 2013) 6.
After the Gulf War, the Iraqi Government made an offer of citizenship to those Bidoon who fled or were deported to Iraq, subject to several conditions. Perhaps half of the Bidoon in Iraq took up this offer.[7]
[7] Ibid, pp 9-10.
The Kuwaiti Government contends that the majority of Bidoon are actually foreign nationals and are, therefore, illegal residents.[8]
[8] ‘Kuwaiti Bidun and the Burden of Statelessness’, Human Rights Watch (Web Page, 13 June 2011) <>
As detailed above, the Citizenship Instructions identify three pillars of identity: biometric, documents and life story. Of note in this matter, is the relationship between the Applicant’s life story and the relevant documents before the Tribunal.
The Applicant’s life story is consistent with the experience of thousands of Bidoons after the Gulf War. In his Irregular Maritime Arrival Entry Interview, the Applicant referenced his military service and the Iraqi invasion (Exhibit R1, pp 20–21):
… we got the news that Iraq had invaded Kuwait. It was early in the morning on 2 August 1990. Then I joined my unit at the International Airport until 3.00pm on Thursday. Then I realised that an Iraqi tank was already there before my arrival at the airport. We got an order from our supervisors in the afternoon leave your arms inside the camp there and just you leave, run away, leave.
…
The majority of us Bedoons, are stateless we are joining the military service, policing service and the majority of the army and police are from Bedoons. … After 1990 everything was turned upside down, changed.
During the hearing the Applicant stated (transcript, pp 10–11, 17):
… when the Iraqi Army came to invade Kuwait they used to capture the military personnel and take them as prisoners and - but - and that’s - that prompt me to destroy the Kuwaiti military documentation that I had to prevent this from happening and when - that’s something - that- this goes - this goes back to 2 August 1990 while I’m still there in Kuwait.
...
After the liberation of Kuwait based on the fact that I did not go back to my unit.
...
… I did not go back to my unit because my brother and I were meant to go back but we were both wanted so I was fearful. I was fearful for returning back to my unit because my brother was detained and he was – he joined the revolution or the army – the republic army and he was wanted. He was wanted from the Kuwaiti military force. When he was captured and detained I was able to flee through the desert.
The Applicant’s account is consistent with the known history of that period. However, there are inconsistencies with the evidence he has given regarding identity documents.
Military identification
The subject of the Applicant’s military identification, or lack thereof, requires further consideration, particularly because they relate to the consistency of the Applicant’s account of his life story before Australia and other official documents.
In his statutory declaration dated 17 January 2020, the Applicant said that his original identity documents, including his Kuwaiti birth certificate, licences and military identification were destroyed in a fire in his wife’s home in Iraq in 2014 (Exhibit A2). In a statement made by his wife (included in Exhibit A2), she declared:
My husband’s documents which were burnt in the fire were an original Kuwaiti birth certificate, an original Kuwaiti military card, an original driver’s licence, personal photos and many other documents.
During the hearing, the Applicant’s wife advised (transcript, p 23):
They were the birth certificate and the military identification. Beside many other things that - photo, photographs and many other things. And when the fire occurred, I was not able to control the fire and everything went with the fire. And they were - the original Kuwaiti documents were there. The Iraqi, I was able to obtain extract from them but not the Kuwaiti ones. He gave them to me and he said they are in your care and you need to look after these documents until I go to Australia and then, you can forward them to me. But I was - unfortunately, I was not able to stop the fire from destroying these documents.
In the NAATI translation of the fire report, provided by the Applicant notes that material damages included ‘Different Electrical Equipment burnt; Official Documents’ (Exhibit R1, p 108).
The Applicant advised that, during the Iraqi invasion of Kuwait, he elected to destroy his military identification. He stated (transcript, p 11):
Look I only destroyed the - the military documents because I was in fear of them - of the Iraqi force, they will take me…
However, he said that he kept copies, claiming that (transcript, p 15):
… I wouldn’t be able to hide the original, so the original would have been more risk than the copy. The copies I can just fold them and make them look like the scrap of papers and then hide them somewhere but not the original.
Given the passage of time, there may be some allowance for confusion about whether a document was a copy or an original. However, given the paucity of documents relating to the Applicant’s life before his arrival in Australia, the submissions regarding the Applicant’s military identification are significant.
In the statements made by both the Applicant and his wife, the original version of the Applicant’s military identification was lost along with other documents in a fire. In his evidence to the Tribunal, the Applicant said he destroyed the military identification during the Iraqi occupation for the prudent reason of seeking to avoid detention by the invaders, keeping only copies, which according to his account, could be easily hidden. If this was the case, why did the Applicant previously maintain that he held the original documents?
When questioned by the Respondent as to why he declared the identification to be original in his statutory declaration, the Applicant replied (transcript, p 12):
Look, I don’t know the English language and I don’t know how to write everything but I, I stated that they were copies.
This is not implausible: the Applicant signed the Form 1399 which mischaracterised the nature of his duties at the Kuwait International Airport as that of a security guard, when he had previously spoken to Australian authorities of his military service. However, this should be balanced by the fact that his wife declared them to be the original version in the evidence he submitted to the Tribunal. This was repeated in the statutory declarations made by Ali Shaia, and Majida Al-Fadhill also submitted by the Applicant to the Department (Exhibit R1, pp 133–134).
Then there is the matter of the house fire itself. The Tribunal understands that house fires do occur, and they can destroy property, including important documents. The fire in question was both limited and specific in the damage it caused: electrical equipment and official documents. This is not to suggest that it could not or did not happen but, taken with the inconsistencies in the evidence regarding the military identification, it does generate a degree of doubt.
The Tribunal notes that the Applicant made no reference to the fire in his 6 November 2016 statutory declaration, only raising the matter of the fire and the destruction of the documents after receiving the letter regarding adverse information from the Department in February 2018.
In their closing submission, the Respondent states (Exhibit R3, p3 at [9]:
The Minister contends that the applicant’s evidence regarding the military identification is unconvincing and inconsistent and should not be accepted. The inconsistencies in the applicant’s story regarding the military identification raise further doubts about the applicant’s identity prior to arriving in Australia and brings into question the truthfulness of the applicant’s assertions that other documents were destroyed by fire or do not exist.
The Tribunal accepts that it raises further doubts and might reasonably cast doubt on the account of other documents that were claimed to have been destroyed in the fire.
The Respondent also contended that given the Applicant’s lengthy service with the Kuwaiti military, it would be reasonable for him to make inquiries to confirm his identity, yet there is no evidence that he has done so (Exhibit R2, pp7–8). Given the passage of time and the fraught nature of the relationship between the Bidoons and the Kuwaiti authorities in the aftermath of the Gulf War, any request might prove a forlorn task. Nevertheless, the Respondent is correct that there is no evidence before the Tribunal that he has done so.
Copies of birth and marriage certificate
Given that these documents are unable to be verified, the Tribunal is unable to put any weight on these documents (Exhibit R1, p 125). It should be noted that, with respect to the marriage certificate, the Applicant himself said (Exhibit R1, p 135):
… The marriage certificate is a piece of letter written by an Islamic sheikh (leader) who only states in the letter that the [sic] my wife and I are married under sharia law.
(Without alteration.)
The Applicant also provided two copies of his Kuwaiti driver’s licence. Putting to one side a potential mistranslation in his name, it seems odd that two licences would be issued with the same date of issue, and with expiry dates in 1992 and 2001. There is no credible explanation before the Tribunal as to why that is the case, or how they were obtained.
The Tribunal recognises that there are challenges for Bidoon in accessing the identity documents issued by the Kuwaiti authorities, which has been attested to by external observers.[9] The Tribunal points again to the approach taken by Member Kennedy in CDNB at [9], who states:
… production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants …
[9] ‘Kuwaiti Bidun and the Burden of Statelessness’, Human Rights Watch (Web Page, 13 June 2011) < type="1">
The Tribunal has been provided copies of emails sent by the Applicant’s agent to the Kuwaiti Embassy requesting assistance in acquiring his identity documents, with no recorded result (Exhibit A1). There is a broad acceptance of why such documentation may not be able to be produced by someone in the Applicant’s position, although there is no evidence of effort beyond those emails and some phone calls reportedly made by the Applicant to the Embassy. Moreover, there is considerable degree of doubt surrounding the documents he has provided, as well as his explanations regarding the documents that he does not have. It also seems implausible that his 22 years in Iraq should leave such little trace in terms of documentation and evidence regarding employment.
Statutory declarations
The Applicant has provided statutory declarations from Ali Shaia, who also gave evidence in the hearing, and Majida Al-Fadhill (Exhibit R1, pp 133–134). Both claim to have known the Applicant from before his arrival in Australia, yet there is little detail from either that would assist in satisfying the Tribunal of the Applicant’s identity. Short in length, the statutory declarations made reference to the difficulty the Applicant experienced in obtaining paperwork and the fire in his wife’s home.
Australia documents
Limited weight can be placed on the Applicant’s Titre de Voyage, Pensioner Concession Card, driver’s licence, Photo Card, Medicare Card and motor vehicle insurance certificate. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into his identity. As the Respondent notes (Exhibit R2, p6):
[t]he applicant’s Australian identification are not “feeder documents” with an unbroken chain linking to a primary official identity document, unlike a driver’s licence issued to a person who has provided a birth certificate…
CONCLUSION
It is possible that the Applicant is the victim of series of unfortunate events— the Iraqi invasion that caused him to flee Kuwait to Iraq, the indifference of Kuwaiti authorities towards the Bidoon people, a house fire in his wife’s home— that have all combined to deprive him of his identity documents and his ability to access official records.
However, there are too many inconsistencies and there is a paucity of evidence which serve to create real doubt surrounding the Applicant’s identity. Based on the evidence before it, the Tribunal cannot be reasonably satisfied of the Applicant’s identity.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 20 September 2019 to refuse a grant of Australian citizenship under s 24(3) of the Citizenship Act, is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Members S Barton

..[SGD].....................................................................
Associate
Dated: 5 March 2021

Date of hearing:

4 December 2020

Representative for the Applicant:

Counsel for the Respondent:

Ms Hanan Haddad, A.H.G Migration

Mr Ashley Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers