Alshoka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 2829
•26 August 2022
Alshoka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2829 (26 August 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1530
Re:Yousef Alshoka
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:26 August 2022
Place:Sydney
For the below reasons the Reviewable Decision is set aside, and the matter remitted for reconsideration with a direction that the Tribunal is satisfied of the identity of the Applicant, for the purposes of s 24(3) of the Act; and is satisfied that the Applicant is of good character at the time of the Tribunal’s decision, for the purposes of s 21(2)(h) of the Act.
...............................[SGD].........................................
Senior Member Dr Linda Kirk
Catchwords
CITIZENSHIP – whether Tribunal is satisfied of the identity of the Applicant – whether Applicant is of “good character” – Whether Applicant has provided misleading information to the Department – decision under review set aside and remitted.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Al-Hussaini’) [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20
Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79
RRML and Minister for Home Affairs [2020] AATA 1654
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
Secondary Materials
Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Department of Home Affairs, Citizenship Policy and Instructions, Australian Citizenship [Policy Statement] (27 November 2020)
Department of Home Affairs, Citizenship Policy and Instructions, CPI 16 – Assessing Identity under the Citizenship Act (27 November 2020)
REASONS FOR DECISION
Senior Member Dr Linda Kirk
26 August 2022
APPLICATION FOR REVIEW
Yousef Alshoka (‘the Applicant’) arrived in Australia on Christmas Island on 30 October 2010 without a visa. On 8 November 2010 the Applicant was interviewed by Department of Immigration officers.[1] He provided information about his name, citizenship, identity documents, family, fears for his safety in Iraq, and travel from Iraq to Christmas Island. On 7 January 2011 the Applicant made a statutory declaration.[2] He provided information about his name, citizenship, identity documents, time he spent in Iraq and Jordan, and fears for his safety in Iraq.
[1] Exhibit R3, ST33, 186
[2] Exhibit R2, T19, 112
On 2 May 2011 the Applicant applied for a protection visa.[3] He provided information about his citizenship and family,[4] and relied on his statutory declaration dated 7 January 2011. On 5 May 2011 the Applicant was granted the protection visa.[5]
[3] Exhibit R3, ST34, 214
[4] Exhibit R3, ST34, 239
[5] Exhibit R1. T3, 39-40
On 17 October 2011 the Applicant was granted a visa to enter and remain in Iraq.[6] On 27 October 2011 the Applicant arrived in Erbil, Iraq.[7] On 25 December 2011 the Applicant departed Erbil.[8]
[6] Exhibit R2, T22 125.
[7] Ibid.
[8] Ibid, 126.
On 20 May 2015 the Applicant applied for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (‘the Act’).[9] In this application, the Applicant provided information about his name, citizenship, identity documents, and family.
[9] Exhibit R2, T3 25.
On 26 June 2015 the Applicant changed his name to Yousef Alshoka.[10]
[10] Exhibit R2, T5 67.
On 1 May 2018 the Applicant provided further personal details in a Form 80.[11] These details included his name, citizenship, identity documents, international travel, and family.
[11] Ibid, 47.
On 26 February 2020 the Department sent a letter to the Applicant inviting him to comment on adverse information. The Applicant responded in a letter to the Department dated 24 June 2020.[12] On 14 September 2020 the Department sent a further letter to the Applicant inviting him to comment on adverse information. He provided his response in a letter dated 18 December 2020.[13]
[12] Exhibit R2, T14, 84-87; T19, 104-106, 116-117.
[13] Exhibit R2, T24, 141-147; T30, 167-172.
On 19 February 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) made a decision that they were prohibited from approving the Applicant’s application for conferral of Australian citizenship because they were not satisfied of the Applicant’s identity, and they were not satisfied that the Applicant was of good character. [14]
[14] Exhibit R2, T8.
On 16 March 2021, the Applicant lodged an application for review of the Reviewable Decision with the Tribunal.[15]
[15] Exhibit R2 T1, 1-6.
The matter was heard by the Tribunal on 15 and 16 March 2022. The Applicant appeared by video-conference and was represented by counsel. The following witnesses attended the hearing by video-conference and gave oral evidence and were cross-examined:
·the Applicant
·the Applicant’s brother, Mr HAJ
·the Applicant’s brother, Mr SAJ
The material before the Tribunal consists of:
- Applicant’s Tender Bundle (pages 1-6) filed 8 September 2021 – Exhibit A1
- Applicant’s Further Tender Bundle (pages 1-16) filed 13 October 2021 – Exhibit A2
- Supplementary Statement of the Applicant (unsigned) dated 15 December 2021 – Exhibit A3
- Email from Applicant’s representative sent on 19 January 2022 attaching receipt (attachment in Arabic, untranslated) – Exhibit A4
- Further Supplementary Statement of the Applicant (unsigned) dated 14 March 2022 – Exhibit A5
- Email from Applicant’s Lawyer sent 14 March 2022 attaching ‘ID documents – Part 1’ and ‘ID documents – Part 2’ – Exhibit A6
- Letter from Respondent’s representative to Applicant dated 14 July 2021 enclosing Department record regarding verification of Applicant’s Iraqi National Identity Cart – Exhibit R1
- T-Documents (T1-T31, pages 1-179) filed 3 May 2021 – Exhibit R2
- Supplementary T-Documents (ST32-ST40, pages 180-209) filed 25 June 2021 – Exhibit R3
- Respondent’s Tender Bundle (pages 1-2) filed 14 March 2022 – Exhibit R4
- Further Supplementary T-Documents (FST41-FST44, pages 210-409) filed 19 January 2022 – Exhibit R5
The Tribunal has reviewed the evidence before it and refers to all relevant materials below.
LegislatiVE and policy framework
The Preamble to the Act states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(2)(h) of the Act provides 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.’
Section 24(1) of the Act provides:
24Minister's decision
(1)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.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(Original emphasis.)
Under s 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, that being the requirement of s 21(2)(h) of the Act (see [16] above).
Section 24(3) of the Act, relevantly, provides that:
(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 2007 explained in relation to s 24(3):
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.
In deciding whether to grant Australian citizenship under the Act, decision-makers can be guided by government policy.[16] Relevant polices are set out in the Australian Citizenship Policy Statement (‘the Policy Statement’),[17] Australian Citizenship Procedural Instruction 16 (CPI 16 – Assessing Identity under the Citizenship Act) (‘CPI 16’)[18] and the National Identity Proofing Guidelines (‘the Guidelines’).[19]
[16] Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20 at [41].
[17] Department of Home Affairs, Citizenship Policy and Instructions, Australian Citizenship [Policy Statement] (27 November 2020) (the Policy Statement).
[18] Department of Home Affairs, Citizenship Policy and Instructions, CPI 16 – Assessing Identity under the Citizenship Act (27 November 2020)
[19] Attorney-General’s Department, National Identity Proofing Guidelines (2016)
The Full Court of the Federal Court of Australia has held that the discretion to approve or refuse Australian citizenship is unfettered, and ‘not inimical to the adoption of executive policy ... to guide the exercise of discretion.’[20] The Full Court reasoned that the Act envisaged the application of executive policy to promote consistency and rationality in decision-making.[21] Each case before the Tribunal is considered afresh, and government policy is ordinarily considered unless there is a cogent reason not to do so.[22] There is no reason why the policy should not be applied in this review application.
[20] Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79, [64].
[21] Ibid [65], [70].
[22] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Policy Statement relevantly provides the following guidance at Chapter 13:[23]
The identity provisions prohibit the approval of a citizenship application 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 if they are not satisfied of the person’s identity.
[23] As to the status of the Policy, see RRML and Minister for Home Affairs [2020] AATA 1654 [105].
The Policy Statement refers to the concept of identity as described in the Guidelines. Paragraphs 2.1.1–2.1.2 of the Guidelines relevantly provide as follows:
2.1.1A 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.
2.1.2 A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual-such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some, or all, of the five identity proofing objectives. Those objectives are set out in paragraph 2.2.1 as follows:
1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another...
2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created ... through evidence of commencement of identity in Australia...
3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community...
4.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder...
5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used...
(Original emphasis.)
The Guidelines also refer to the level of assurance that a decision-maker should have as to a person’s identity being, in part, dictated by the purpose for which the identity is to be established. Paragraph 2.2.3 relevantly provides:
These Guidelines recognise that it will not always be necessary or appropriate to confirm a person’s identity with a high degree of confidence, particularly for transactions or services that are low value or involve low levels of risk…
Relevant to this matter, paragraph 5.1 of the Guidelines also addresses the case where a person does not possess or is unable to obtain documents establishing identity. Paragraphs 5.1.2–5.1.3 relevantly provides:
5.1.2Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents…
5.1.3Alternative identity proofing processes that organisations MAY consider for these exceptions cases include (note different combinations of these processes may be appropriate depending on the individual circumstances).
1.Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2.Verification of the person’s claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
…
4.A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
(Original emphasis; footnotes omitted.)
‘Identity’ is not defined in the Act; however, it is addressed in the Australian Citizenship Procedural Instructions.[24] CPI 16 provides:
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.
[24]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth); the relevant CPI was reissued on 01 January 2022.
The three pillars of identity
Paragraph 5 of CPI 16 describes three pillars of identity comprising biometrics, documents, and life story, as the foundation on which assessments of identity are to be made. It states that:
Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence-base to establish identity.
CPI 16 provides further guidance at [4.4]:
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
Table 3 – The three pillars of identity
Three pillars of identity
Individual characteristics
Biometrics
Personal 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.
Documents
Only 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.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.
In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on departmental records are matched and confirmed.
Paragraph 11.2 of CPI 16, which deals with the third pillar of identity, life story, provides:
When assessing a person's life story in the context of a citizenship application, delegates must seek to create a complete identity 'picture' of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person's identity, while at the same time considering their life story, is to consider their identity timeline.
The objective is to link the applicant's identity at birth to the identity provided in their application for Australian citizenship. This can be done by considering key chronological events in the person's life, and using pillar one (biometrics) and pillar two (documents), to piece together and corroborate information.
In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, delegates must locate the information provided during these interactions, plot it on the person's identity timeline, and compare it with information provided at the time of applying for Australian citizenship.
…
The characteristics of a person's life story can also extend to other events that have occurred in their life. Information and/or documentation pursuant to these life events can be valuable when delegates are trying to piece together a person's identity timeline. For example, where a person fled their country of origin and resided in a country of refuge, delegates could seek to determine whether the person was registered with the UNHCR. If they were, it may be possible to verify with the UNHCR the identity the person used at that point in time.
Paragraph 11.3 of CPI 16, dealing with the assessment of a person’s life story, provides:
There may be cases where one pillar may be given more weight than the others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person's identity.
…
Family relationships can be very useful when establishing an individual's identity. Relationships form an important characteristic of a person's life story.
It is important for delegates to compare the family composition provided by the applicant at various interactions with the Department.
In order to corroborate information, delegates are expected to examine the family composition provided to the Department by the citizenship applicant's claimed family members, as well as the particulars of the information. There are generally common elements between family members who travelled to Australia together, or were from the same village. A claim that can be corroborated by independent evidence is more likely to be reliable.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are:
1)whether the Tribunal is satisfied of the identity of the Applicant, for the purpose of s 24(3) of the Act; and
2)whether the Tribunal is satisfied that the Applicant is of good character at the time of the Tribunal’s decision, for the purpose of s 21(2)(h) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Background and grant of protection visa
The Applicant was born in Kuwait in September 1987.[25] In 1992 the Applicant and his family were expelled from Kuwait because as Bidoons they had no citizenship in Kuwait and were stateless.[26] When the family moved to Kuwait, they changed their surname from Al Anazy to Al Joorani as the former name identified them as Sunni and also as persons who had been expelled from Kuwait.[27] They travelled to Al Nasriya in Iraq and remained there until 1999. They had no rights of citizenship in Iraq even though they were issued with ID cards.[28]
[25] Exhibit R2, T19 109.
[26] Ibid,112.
[27] Exhibit R2 T19, 112.
[28] Ibid.
In Iraq, the Applicant’s father was under pressure from members of Hezb-al-Baath to join their party and for his brothers to join the national army. The family fled Iraq for Jordan where they lived between 1999 and 2005, following which they returned to Iraq.[29]
[29] Ibid.
In March 2009 an incident occurred in which the Applicant’s uncle was killed and the Applicant was kidnapped.[30] Following these events, the Applicant believed that it was not safe for him to remain in Iraq, and he wanted to leave. He was unable to obtain a genuine passport because he was not eligible for an Iraqi passport as he was not an Iraqi citizen. In about September 2010 the Applicant was in contact with a man who said he could obtain a passport, plane ticket and visa for the Applicant to leave Iraq and enter Indonesia.[31] The Applicant provided the man with his fingerprints and two photos, and two or three weeks later he met the man, paid him USD2,800 and he gave the Applicant the documents.[32]
[30] Ibid, 113.
[31] Exhibit A1, 2.
[32] Ibid,
On or about 11 October 2010 the Applicant departed Iraq. On 31 October 2010 the Applicant arrived in Australian waters.[33]
[33] Exhibit R2, T2 8.
On 31 October 2010 the Applicant participated in a biodata interview.[34] The interview record includes a list of family members provided by the Applicant to the interviewer.[35] On 8 November 2010 the Applicant participated in an entry interview.[36] This interview record also includes a list of family members provided by the Applicant to the interviewer.[37] The Applicant provided his family name as Al Joorani in the form he completed,[38] and told the officer who conducted the interview that his family name is Al Joorani.[39]
[34] Exhibit R3, ST32 180-185.
[35] Ibid, 183-184.
[36] Exhibit R3, ST33 186-213.
[37] Ibid, 191.
[38] Exhibit R3, ST33, 187, at question 1.
[39] Transcript of proceedings, 22.
The Applicant told the interviewing officer that he does not know whether the passport he used to travel from Iraq to Indonesia was genuine or a forgery. He thought it may be genuine as he paid an unknown person money for it to be obtained for him.[40] At the hearing, the Applicant confirmed that he paid money to someone to obtain a passport for him. He confirmed that he gave them his fingerprints on blank paper and two photos, and they obtained the passport which he used to travel from Iraq to Indonesia.[41]
[40] Exhibit R3, ST33, 201
[41] Transcript of proceedings, 23.
On 7 January 2011, the Applicant lodged a Refugee Status Assessment (RSA) request. On 10 January 2011 the Applicant attended an RSA interview, and on 3 February 2011 a case officer found that he was owed protection in Australia.[42] On 2 May 2011 the Applicant signed protection visa application documents.[43] On 5 May 2011 he was granted a protection visa.[44]
[42] Exhibit R2, T2, 8.
[43] Exhibit R3, ST34, 214-238.
[44] Exhibit R2, T2, 8.
Travel to Kurdistan
In an undated statement, the Applicant wrote that in October 2011 he wanted to visit his mother who was unwell and whom he had not seen since leaving Iraq in October 2010.[45] He feared returning to his hometown of Al Nasiriya in the south of Iraq, however he felt safe travelling to Erbil in the Kurdistan region in the north of Iraq.[46] It was agreed that he would fly to Erbil and his mother would travel there to meet him. On 27 October 2011 the Applicant entered Kurdistan, an autonomous region in the north of Iraq. The Applicant’s titre de voyage contains an entry stamp which reads ‘Republic of Iraq Kurdistan region’.[47] His mother and brother met him in Erbil and they stayed in a hotel and then moved to a unit. He stayed there for two months. The Applicant told the Tribunal that he travelled to Erbil as it is a ‘separate country’ to Iraq and ‘it was safe there’.[48]
[45] Exhibit A1, 1 at [3].
[46] Ibid.
[47] Exhibit R2, T22, 125.
[48] Transcript of proceedings, 29, 40-41.
The Applicant’s evidence is that it is very difficult to travel within Iraq and identity documents are regularly checked at checkpoints. If a person cannot produce an ID card at a checkpoint, they are gaoled. It is impossible to relocate temporarily or permanently within Iraq without approval from the authorities.[49]
[49] Transcript of proceedings, 25.
On 25 December 2011, the Applicant departed Kurdistan and returned to Australia. The titre de voyage contains an exit stamp from “Republic of Iraq Kurdistan region”.[50]
Identity documents
[50] Exhibit R2, T22, 126.
2007 ID card
On 2 July 2007, Iraqi identification (‘ID’) card number 00552961 was issued for the Applicant.[51] In the English translation, the Applicant’s family name is written as ‘Al Jawareen’. At the hearing, the Applicant was asked whether this card was issued to him by the Iraqi government to which he replied he was ‘not sure’. He agreed that he did not take this card with him when he left Iraq in 2010.[52] He was asked about the family name ‘Al Jawareen’ in the ID card. He stated that the person who renewed the card made a ‘mistake’ with his family name which is Al Joorani.[53] He explained:
I swear that [is] my family name, because … the plural of Al-Joorani is Al-Jawareen. If you want to refer to a group of people who are from Al-Joorani family you would refer to them as Al-Jawareen, but if you want to refer to only one person from Al-Joorani, a family name, you refer to him as – or to them as Al-Joorani. But a plural, group of people, Al-Jawareen. You can refer to that. I have no problem saying that … you know, plural of the Al-Jorani family name is Al-Jawareen. I'm not disputing that.[54]
[51] Exhibit R2, T19, 117; translation at T19, 116.
[52] Transcript of proceedings, 17.
[53] Transcript of proceedings, 19; Exhibit R2, T31, 169 at [9].
[54] Transcript of proceedings, 39-40
2011 ID card
On 14 December 2011, Iraqi ID card number 492874 was issued for the Applicant.[55] The Applicant’s evidence is that this ID card was obtained for him by his brother, SAJ, when he visited Iraq from October to December 2011. He asked SAJ to find someone who could help him to be issued with the ID, and his brother paid a person 100,000 or 150,000 Iraqi dinars to get the ID issued.[56] A translation of the ID card records the family name in English as ‘Al Joorani’,[57] and the Applicant says the family name is pronounced ‘Al Jorani’.
[55] A copy of the document in Arabic and an English translation appear at Exhibit R2, T22, 128-130.
[56] Transcript of proceedings, 30; Exhibit A1, 1-2, at [6]-[7].
[57] Exhibit R2, T22, 128.
Between December 2019 and February 2020 there was an exchange of emails between the Department and the Amman Integrity Unit. The Amman Integrity Unit wrote in an email dated 16 February 2020:[58]
Iraqi ID card [number 492874 issued on 14 December 2011] has been verified and it appears to be genuine ... You mentioned his name as ... Al Joorani, and his DOB as XXX 1987. However, according to the genuine Iraqi identity card presented and the Iraqi records his full name is ... Al Jowareen DOB XXX 1987. ... the applicant and his family members ... all of them are Iraqi citizens and registered with the Iraqi authorities.
[58] Exhibit R2, T13, 83.
Citizenship status
In the biodata interview conducted with the Applicant following his arrival in Australia on 31 October 2010, he stated that he is an Iraqi citizen. He again stated that he is an Iraqi citizen in the entry interview conducted on 8 November 2010.
In his protection visa application, the Applicant claimed that he is stateless. In answer to the question: ‘If you are stateless, how, when and why did you lose your citizenship?’ he answered ‘Bidoon, at birth, expelled to Iraq in 1992’. In his statutory declaration attached to the protection visa application, he stated: ;We were expelled because we had no citizenship and were stateless in Kuwait.’ and ‘We had no rights of citizenship in Iraq even though they gave us ID cards…’.
In his Australian citizenship application lodged on 29 May 2015, in answer to the question ‘Do you currently have citizenship from any country?’ the Applicant stated ‘yes’ and declared that he obtained this citizenship by descent in 2007.
In a Statutory Declaration provided to the Department dated 18 December 2020 the Applicant wrote:[59]
I am a stateless Bidoon. To my knowledge I have never held an Iraqi citizenship certificate. When I arrived on Christmas Island in October 2010, l was and continue to be a stateless Bidoon. I acknowledge the citizenship application lodged on 29 May 2015, stated that I was a citizen. That is a mistake and it is incorrect because l am not a citizen of Iraq. A friend helped me complete the citizenship form and the form 80. I did not know that ‘Iraqi citizenship’ was stated on the forms.
[59] Exhibit R2, T31, 171 at [17].
During cross-examination, the Applicant was asked whether he gave his 2007 ID card to the person who assisted him to complete the form. He said he did not remember. The Applicant was asked whether he and his family are Iraqi citizens to which he replied, ‘No, we are Bidoon.’[60]
[60] Transcript of proceedings, 40.
In his undated statement, the Applicant wrote:
As far as I am aware, I am not and have never been an Iraqi citizen. I have lived my whole life believing that I am a Bidoon from Kuwait. My understanding and belief was that Bidoons from Kuwait are not entitled to become citizens of Iraq.[61]
[61] Exhibit A1, 3 at [16].
In March 2021 the Applicant contacted the Iraqi Embassy in Canberra to seek evidence that he is not an Iraqi citizen. The Applicant provided the Tribunal a letter dated 11 March 2021 from the Embassy of the Republic of Iraq which states:
We would like to confirm that Mr Mashaal Hussein Ashur Al Joorani holder Australian travel document number [XXXX] is not Iraqi citizen and does not have Iraqi identity.
Applicant’s sister
The Applicant’s sister made an application for a visa to Australia in 2016. She provided her family name as Al Jawareen.[62] She provided an Iraqi ID card (2006) and an Iraqi passport with her application, both of which list her family name as Al Jawareen.[63]
[62] Exhibit R5, FST43, 320.
[63] Ibid, 355, 351, 352-353.
The Applicant was questioned about his sister’s citizenship status during cross-examination. He stated that she married his maternal cousin who is an Iraqi citizen in March 2009,[64] but his understanding is that she, like all their family, is a stateless Bidoon.[65]
[64] Ibid, 359 – marriage certificate.
[65] Transcript of proceedings, 37, 38.
Evidence of the Applicant’s brothers
The Applicant’s brothers provided written statements dated 13 October 2021 and gave oral evidence by telephone at the hearing. They both confirmed that they are farmers, and they reside at the same property.[66] Both brothers confirmed that they previously held Iraqi ID cards that stated their family name, Al Joorani, but they have since both lost their cards and have not attempted to replace them.[67] They are not Iraqi citizens nor citizens of any country.[68]
[66] Transcript of proceedings, 53, 59.
[67] Transcript of proceedings, 56, 60; Exhibit A2, 2, at [7]; Exhibit A2, 8, at [6]
[68] Transcript of proceedings, 57; Exhibit A2, 2, at [6]; Exhibit A2, 7, at [5]
In relation to their family name, HAJ stated in his written statement:[69]
As Bidoons, we belong to tribes which have many families and extended families. My parents, siblings and I belong to the tribe named Al Jawareen. This is the plural name for the tribe. An individual is called Al Joorani which is my family name.
[69] Exhibit A2, 1, at [5]
HAJ’s evidence is that when he travelled with his mother to Erbil in 2011,[70] and they passed through checkpoints and were asked to produce their ID cards, they had to plead with guards to let them through.[71]
[70] Exhibit A2, 2, at [9]
[71] Transcript of proceedings, 57, 58.
SAJ stated the following in relation to his family name in his written statement:[72]
Our family is also known by Al Jawareen. This is the name for the whole family. It is the name for our ‘Yasherah’ which means our tribe.
[72] Exhibit A2, 7, at [4].
SAJ confirmed that he obtained an identity card for the Applicant in 2011 when he was in Erbil after he paid money to a man who arranged the ID card and provided it to him.[73]
[73] Transcript of Proceedings, 61-62.
Both the Applicant’s brothers stated that their sister was not an Iraqi citizen in 2006, but her husband may have obtained documents for her following their marriage to help her to travel.[74]
[74] Transcript of Proceedings, 58, 63.
CONSIDERATION AND REASONS
As to the level of satisfaction required for a decision-maker to be satisfied as to an applicant’s identity for the purposes of s42(3) of the Act, the Tribunal is guided by the relevant policy and authorities, particularly those considered by Deputy President Boyle in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[75]
[75] [2020] AATA 1729
In Beyan and Minister for Immigration and Border Protection, Senior Member Walsh observed:[76]
… a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
[76] [2015] AATA 246 at [38]; see also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Al-Hussaini’) [2020] AATA 1267 at [30]-[31].
Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection[77] (‘Dhayakpa’), commenting on Confidential and Minister for Immigration and Citizenship (‘Confidential’)[78] observed:[79]
Neither 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. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity.
I accept the submission for the applicant that the case merely 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. The question here is whether the identity can be established to the satisfaction of the Tribunal.
I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
[77] [2015] AATA 310.
[78] [2013] AATA 144
[79] At [117]-[118]
The approach taken in Dhayakpa has been followed by the Tribunal in a number of decisions.[80]
[80] See YMPL and Minister for Immigration and Border Protection [2017] AATA 1458; Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97.
Identity
Based on the evidence before it and for the reasons that follow, the Tribunal is satisfied as to the identity of the Applicant, and therefore it is not prohibited under s 24(3) of the Act of approving the Applicant’s citizenship application.
Family name
The Respondent contends that the Tribunal ought not be satisfied that the Applicant’s name was (until he changed it) ‘Mashaal Ashur Hussein Al Joorani’. He relies on documents lodged with the Tribunal that indicate that the Applicant is known to the Iraqi authorities as ‘Mashaal Ashur Hussein Al Jawareen’ or ‘Al Jowareen’ as follows:[81]
·A translation of his Iraqi ID card 00552961, provided to the Department by the Applicant’s solicitor, gives his family name as “Al Jawareen”;[82]
·A translation of Iraqi ID card 00492874, performed by a Departmental officer, indicates that the card records the Applicant’s family name as ‘Al Jawareet’ or ‘Al Jawareen’ or similar;[83]
·A translation of Iraqi ID card 00492874, performed by an officer in the Australian Embassy in Amman, indicates that the card records the Applicant’s family name as ‘Al Jowareen’.[84] Inquiries by the Australian Embassy in Amman indicate that the identity card is genuine, and the Applicant is known as ‘Mashaal Ashur Hussein Al Jowareen’ in Iraqi government records.[85]
[81] Respondent’s SFIC, 3, at [24].
[82] Exhibit R2, T19, 116.
[83] Exhibit R2, T23, 137-139.
[84] Exhibit R2, T13, 83.
[85] Ibid.
The Respondent acknowledges that the documents must be weighed against a translation of Iraqi ID card number 00492874, provided by a NAATI-accredited translator, which indicates that the card records the Applicant’s family name as ‘Al Joorani’.[86]
[86] Exhibit R2, T22, 128.
The evidence before the Tribunal is that until he changed his name to Yousef Alshoka, the Applicant consistently used the name ‘Mashaal Ashur Hussein Al Joorani’ in his interactions with the Department.[87] The Tribunal accepts the Applicant’s evidence that he has at all times in Australia genuinely believed that his family name is AlJoorani.
[87] Exhibit R2, T3 25; T19 115; Exhibit R3, ST34, 214, 224.
Based on the evidence before it, including the country information referred to below, the Tribunal is satisfied that the fact that the name Al Jawareen is written as the family name for the Applicant on ID cards purportedly issued by the Iraqi authorities in 2007 and 2011 is not determinative of his family name. The Applicant’s evidence[88] is that the name Al Jawareen is the recognised plural form of the name Al Joorani, which is the form of the name used by individual members of the Al Jawareen family group or tribe. The Applicant's brothers, HAJ and SAJ gave evidence that they also use the family name of Al Joorani. They also provided an explanation of the relationship between the family name Al-Joorani and the name Al Jawareen, the latter being the name of the tribe to which individual members who are known by the former name belong.[89]
[88] Transcript of Proceedings, 39-40.
[89] Transcript of Proceedings, 68.
The Applicant provided to the Tribunal a document accessible from the website which appears to be a website of the US Army. The document is a news article titled ‘Tribal leaders visit Greywolf commander at COB Adder’ dated 3 October 2011. The article states in part:
The visiting sheiks were Sheikh Hizam Al-Jorani, the tribal leader for the Al-Joareen tribe. and his two brothers Sheikh Fahad Al-Jorani and Sheikh Ai Al-Jorani. Accompanying them was Sheikh Ghazi Al-Husseinawi the tribal leader of the Al-Husseinat tribe.
The second document provided by the Applicant is accessible from the website and it appears to contain a photograph taken at the same event as for the document in [71] above, along with details of the photograph. The caption for the photograph states:
From left to right Sheikh Fahad Al-Jorani. Sefwan town council president. haji Mundahil AlJorani. Sheikh Hi7.am Al-Jorani tribal leader for the Al-Joareen tribe. 3rd Advise and Assist Brigade. 1st Cavalry Division. Brigade Commander Col. Douglas C. Crissman. Sheikh Ghazi AI Husseinawi tribal leader of the Al Husseinat tribe and Sheikh Ali Al-Jorani. gathered at Contingency Operating Base Adder. Iraq on Sept. 2. 2011 to discuss the presence of U.S. forces in Iraq.
These documents indicate that there exists in Iraq a tribe called ‘Al Joareen’, and the family name used by members of the tribe is ‘Al Jorani’. The documents also indicate a difference between the name of a different tribe (‘AI Husseinat’) and the family name used by members of that tribe (‘Al Husseinawi’).
Based on this country information, the Tribunal finds that the Applicant's evidence in relation to his name being Al Joorani is not inconsistent with the evidence of Iraqi ID documents issued to him and his sister in the name Al Jawareen. The Applicant and his sister were issued with Iraqi ID cards that recorded a name of Al Jawareen even though the Applicant and other family members use the name Al Joorani. The Applicant’s sister appears to have continued to use the name Al Jawareen in applying for additional documents. The Applicant provided to the Department a copy of his 2007 ID card, which recorded in Arabic script the name of Al Jawareen. This indicates that he was not trying to hide his family name or hide the name Al Jawareen from the Department. The Tribunal accepts the Applicant’s evidence that during an early interview with the Department he raised the issue of the ‘mistake’ in his name in the 2007 Iraqi ID card and that his family name is Al Joorani.[90]
[90] Transcript of Proceedings, 70.
The Tribunal is satisfied that the Applicant gave the Department honest information about his family name when he arrived in Australia, and that he has consistently maintained that Al Joorani is his family name in his dealings with the Department. The most that can be said in relation to the discrepancy in the Applicant’s family name is that he should have, at an earlier point in time, explained to the Australian authorities that the family name Al-Joorani is used to refer to individual members of the AlJawareen tribe.[91]
[91] Transcript of Proceedings, 70.
Citizenship
The Respondent contends that the Tribunal ought not be satisfied that the Applicant is a stateless Bidoon. He relies on documents before the Tribunal which suggest that the Applicant and his family are Iraqi citizens.[92] The Applicant contends that he is a stateless Bidoon and is not, nor is he eligible to be, an Iraqi citizen.
[92] Respondent’s SFIC, 4, at [29].
The evidence before the Tribunal is that the Applicant has held two Iraqi ID cards issued in his name in 2007 and 2011. According to country information, these cards are one of four documents issued to Iraqi citizens,[93] and all Iraqi citizens should possess one of these cards.[94] Some country information indicates that Iraqi ID cards are not provided to stateless Bidoon.[95] Country information also reports that false ID cards were commonplace and ‘diplomatic sources in Amman ... indicate that up to half the ID cards in use may be false’.[96]
[93] Exhibit R5, FST44, 407, at [5.28].
[94] Exhibit R5, FST42, 315.
[95] Exhibit R5, FST41, 312.
[96] Landinfo, Country of Origin Information Centre, Iraq: Travel documents and other identity documents (Report, 2014) 20.
The evidence before the Tribunal in relation to the Applicant’s citizenship is inconclusive as to whether he is an Iraqi citizen or a stateless Bidoon. In his early interactions with the Department following his arrival on Christmas Island in October 2010, the Applicant advised the Department that he and his family members are Iraqi citizens,[97] and he travelled from Iraq to Indonesia on an Iraqi passport that may have been genuine. Evidence of oral enquiries with officers of the Iraqi government performed by officers of the Australian Embassy in Amman, suggest that the Applicant and his family are Iraqi citizens.[98] The Applicant’s sister Mashael Ashour Hussein Al Jawareen stated in her visa application that the Applicant’s parents, and several of the Applicant’s siblings, are Iraqi citizens.[99]
[97] Exhibit R2, T3, 29-30; T5 48-49; Exhibit R3, ST32, 180-181; ST33 187; and see also the typed citizenship status in ST34, 239.
[98] Exhibit R2, T13, 83.
[99] Exhibit R3, ST36, 255; Exhibit R5, FST43, 320, 328, 333.
The Applicant’s Iraqi identity cards record his place of birth as Souk Al Shiyoukh, Iraq, when he was in fact born in Kuwait.[100] The use of a place of birth in Iraq is consistent with the ‘makremiayah’ process which took place in Iraq before 2003.[101] That process allowed stateless Bidoons to obtain Iraqi citizenship, but only if they declared that Kuwait was not their place of birth. Accordingly, references to Iraq as the Applicant’s place of birth in his Iraqi identity cards are consistent with the Applicant and his family having undertaken the makremiayah process and becoming Iraqi citizens.[102]
[100] Exhibit R2, T19 116; T22 128; T30 169-170 at [12].
[101] Exhibit R5, FST44 396, at [3.58]; FST41, 312.
[102] Respondent’s SFIC at [33].
Weighed against this is the evidence that the Applicant informed the Department that he and his family are stateless Bidoons,[103] and that he received assistance in completing certain documents that he provided to the Department and he was not aware of some of the information given in them, including a declaration that he obtained Iraqi citizenship in 2007.[104] Also before the Tribunal is the letter from the Iraqi Embassy in Canberra dated March 2021 that the Applicant ‘is not Iraqi citizen and does not have Iraqi identity.’ The Applicant’s brothers’ evidence that they are not Iraqi citizens or entitled to Iraqi citizenship supports the Applicant’s claim that he is not an Iraqi citizen.
[103] Exhibit R2, T3 26; T19 112 at [1]; T30, 170 at [13]; Exhibit R3, ST34, 225, 240; Exhibit A1, ATB 3 [16].
[104] for example: Exhibit R2, T 171 [15], [17].
Based on the conflicting evidence before it, the Tribunal is satisfied on the balance of probabilities that the Applicant is not an Iraqi citizen. The fact that the Applicant stated he was an Iraqi citizen in early interviews with the Department should be viewed in the context of him having recently arrived in Australia following a long voyage and providing information to the authorities without the benefit of legal representation. After obtaining legal assistance about his citizenship, he clarified that he is a stateless Bidoon who holds an Iraqi ID card but is not an Iraqi citizen.[105] The information provided by the Applicant in his citizenship application in relation to him acquiring Iraqi citizenship by descent was taken from the 2007 Iraqi ID card and written on the form by a friend who was assisting the Applicant and he did not check it for errors.[106] The Applicant’s brothers’ evidence that they are not Iraqi citizens or entitled to Iraqi citizenship supports the Applicant’s claim that he is not an Iraqi citizen.
[105] Transcript of Proceedings, 78.
[106] Transcript of Proceedings, 79.
There is no evidence before the Tribunal that only Iraqi citizens are issued with ID cards. The nationality certificate recognises or confers Iraqi citizenship. The fact that the Applicant’s sister needed to obtain a nationality certificate in 2006 is consistent with the evidence of the Applicant and his brothers that, at least in 2005, they were not Iraqi citizens. The fact that the Applicant’s sister applied for and obtained a nationality certificate raises a question as to whether the Applicant and his two brothers also could have applied in 2006 or later for a similar document and, if so, obtained it. However, their evidence is that they did not apply for such a document and therefore they were not Iraqi citizens, or as far as they were aware, they were not entitled to Iraqi citizenship.[107]
[107] Transcript of Proceedings, 73.
As was observed in Dhayakpa, an Applicant’s identity can be established in a number of ways. As outlined above, CPI 16 describes the ‘three pillars’ principle in establishing identity. The third of those pillars is the applicant’s life story. The Applicant’s life story, as told through his statements and his evidence at the hearing, is consistent and, together with the documents that the Applicant has provided, are sufficient for the Tribunal to be satisfied of his identity for the purposes of s 24(3) of the Act.
Character
The Respondent contends that, independently of his identity, the Applicant has provided misleading or incomplete information to the Department and that the Tribunal ought not be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.[108] The Respondent submits that there are three aspects to the misleading and incomplete information provided to the Department by the Applicant. First, the Applicant failed to declare that he had travelled to Iraq between October and December 2011.[109] He later suggested he did not travel to Iraq, although acknowledged travelling to ‘Erbil in Kurdistan’.[110] Second, the Applicant’s travel to Erbil, Iraq in October 2011 is inconsistent with his statements about his safety fears in November 2010[111] and January 2011.[112] Third, the Applicant failed to indicate that one of his tribal names is ‘Al Jawareen’ when given the opportunity to do so, instead suggesting that the relevant Iraqi ID card contained a mistake.[113] Nor did the Applicant provide that tribal name on forms previously lodged with the Department.[114]
[108] Respondent’s SFIC at [34].
[109] Exhibit R2, T5, 50.
[110] Exhibit R2, T30, 172 at [18].
[111] Exhibit R3, ST33, 203.
[112] Exhibit R2, T19, 114 at [19]-[24].
[113] Exhibit R2, T31, 169 at [9].
[114] Exhibit R2, T3 25; T5 48; Exhibit R3, ST32, 180; ST33 187, 224.
Based on the evidence before it, the Tribunal finds that the Applicant did not deliberately provide misleading or inaccurate information to the Department. The Applicant’s evidence is that his failure to declare that he travelled to Iraq in October 2011 to visit his family, instead stating that he travelled to Erbil in Kurdistan, was an oversight on the part of the person who assisted him to complete the documents. It is also consistent with the Applicant’s stated belief that Kurdistan is an autonomous region of Iraq with a different government and a place where he could be safe. It follows that the Applicant’s travel to Erbil was not inconsistent with his genuinely held fears for his safety in Iraq as declared to the Department in November 2010 and January 2011. Finally, for the reasons outlined above, the Tribunal finds that the Applicant honestly provided his family name of Al Joorani to the Department, although he did not fully explain that the name Al Jawareen is the tribal or plural name for individuals with the family name of Al Joorani.
The Tribunal finds that the failures by the Applicant to provide full and complete information to the Department in relation to the above matters do not indicate that he is not a person of good character. The Tribunal is therefore able on the evidence before it to ‘reach an affirmative belief that [the Applicant] is a person of good character.’[115]
[115] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [55].
DECISION
For the above reasons the Reviewable Decision is set aside and the matter remitted for reconsideration with a direction that the Tribunal is satisfied of the identity of the Applicant, for the purposes of s 24(3) of the Act; and is satisfied that the Applicant is of good character at the time of the Tribunal’s decision, for the purposes of s 21(2)(h) of the Act.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.................................[SGD].......................................
Associate
Dated: 26 August 2022
Date(s) of hearing: 15 & 16 March 2022 Date final submissions received: 14 April 2022 Counsel for the Applicant: Mr B Zipser Solicitors for the Applicant: St George Migration & Lawyers Counsel for the Respondent: Mr M Varley Solicitors for the Respondent: Australian Government Solicitor
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