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

[2022] AATA 990

CCVZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 990 (20 April 2022)

Division:GENERAL DIVISION

File Number(s):      2021/1507

Re:CCVZ  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:20 April 2022

Place:Sydney

I find that the correct or preferable decision is to affirm the reviewable decision, dated 12 March 2021, which refused the Applicant’s application for conferral of Australian citizenship.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – by conferral – application refused – identity requirement not satisfied – good character not satisfied – where the Applicant claims to be a stateless Bidoon from Kuwait – where the Applicant has Iraqi identity documents – whether documents are fraudulent – Tribunal unable to be satisfied of identity – character not assessed – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21, s 24

Migration Act 1958 (Cth) s 109

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Revised Citizenship Procedural Instruction (CPI) 16 - Assessing Identity

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

20 April 2022

BACKGROUND

1. The Applicant has applied for review of a decision refusing his application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (‘the Act’). The delegate found that the Applicant did not satisfy the requirement of s21(2)(h) and s24(3) of the Act; namely, the delegate was not satisfied of the Applicant's identity nor of his good character.

2. The Applicant was born in January 1981. The Applicant claims to have been born in Kuwait, although exactly where in Kuwait he states he was born has changed from time to time. A version of the Applicant’s Iraqi identity card and passport records that the Applicant was born in Iraq.

3. Between 1991 and 2012, the Applicant and his family spent time in Iraq. The Applicant claims to have attended school in Iraq between 1992 and 1999, and university between 2000 and 2004.

4. In April 2012, the Applicant arrived on Christmas Island as an irregular maritime arrival. On 14 April 2012, the Applicant was interviewed by Departmental officers. On 11 May 2012, the Applicant was again interviewed by Departmental officers.

5. In  August 2012, the Applicant applied for a protection visa. He provided information about his citizenship and family, and relied on a statutory declaration of the same date. The protection visa was granted.

6. The Applicant’s visa was cancelled in late 2017 due to the ‘provision of incorrect answers’ to the Department regarding his citizenship – namely, that he had claimed to be stateless when he was a citizen of Iraq. The Applicant applied for a review of that decision, and in May 2019 the Tribunal overturned the visa cancellation by applying other relevant discretionary factors.

7. In August 2013, on an outgoing passenger card, the Applicant declared that the country he would spend the most amount of time abroad was Iraq. On 27 March 2015, on an incoming passenger card, the Applicant indicated he spent the most time abroad in Iraq. On 26 February 2016, on an incoming passenger card, he indicated he spent the most time abroad in Iraq.

8. On 27 September 2016, the Department issued a notification of intention to consider cancellation of the Applicant’s visa under s 109 of the Migration Act 1958 (Cth) (‘the Migration Act’). On 19 October 2016, the Applicant’s solicitor provided the Department with various identity documents and submissions.

9. On 20 December 2017, the Applicant’s protection visa was cancelled under s 109 for ‘provision of incorrect answers’. On 29 May 2019, the Tribunal set aside that decision. The earlier Tribunal was satisfied the Applicant gave or provided incorrect answers in stating that his current citizenship was NA (indicating he was stateless). The earlier Tribunal found that he was a citizen of Iraq. However, the Tribunal concluded the visa should not be cancelled applying other discretionary factors.

10. In June 2019, the Applicant applied for Australian citizenship by conferral. That application is the subject of this proceeding.

11. On 2 February 2020, on an incoming passenger card, the Applicant indicated he spent the time abroad in Iran.

12. In March 2020, the Department made a request for further information. The Applicant lodged Form 80 and further identity documents. In September 2020, the Department invited the Applicant to comment on adverse information. In October 2020, the Applicant’s solicitor provided a response and further documentary evidence.

13. On 12 March 2021, the Respondent refused the Applicant’s application for citizenship, on the basis that the delegate was not satisfied of the Applicant’s identity nor of his good character, under s 24(3) and s 21(2)(h) respectively.

    ISSUE

14. The issue before the Tribunal is whether the Tribunal is satisfied that the Applicant meets the identity requirements under s 24(3) of the Act, and if so, whether the Applicant meets the good character requirement pursuant to s21(2)(h) of the Act.

    THE LAW

15. The decision-maker, and the Tribunal on review, is required to assess the Applicant's application for citizenship against the 'general eligibility' criteria at subsection 21(2) of the Act.

16. Subsection 21(2) provides:

    A person is eligible to become an Australian citizen if the Minister is satisfied

    that the person:

    (a)is aged 18 or over at the time the person made the

    application; and

    (b)is a permanent resident:

    (i)     at the time the person made the application; and

    (ii)    at the time of the Minister’s decision on the application; and

    (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)understands the nature of an application under subsection (1); and

    (e)possesses a basic knowledge of the English language; and

    (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

    (h)is of good character at the time of the Minister’s decision on the application.

17. Section 24(1A) of the Act provides that a person must not be approved to become an Australian citizen “unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)”.

18. Section 24 provides for certain circumstances in which the conferral of Australian citizenship is prohibited. Section 24(3) 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.

19. The Tribunal accepts that, if it is not satisfied of the Applicant’s identity, it does not need to assess the Applicant’s character under s 21(2)(h) as s 24(3) prohibits the granting of Australian citizenship.

    THE RELEVANT POLICY

20. The relevant policy to be considered in this matter is relevantly provided below. The Tribunal also takes into account the Australian Citizenship [Policy Statement], which provides general guidance on citizenship applications to decision-makers.

    Revised Citizenship Procedural Instruction (CPI) 16 – Assessing Identity

21. Guidance on the identity requirements of s 24(3) is found in the Revised Citizenship Procedural Instruction (CPI) 16 - Assessing Identity. The Tribunal accepts that it should apply the policy unless there are cogent reasons not to do so.[1]

    [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

22. CPI-16 states:

    Three pillars of identity

    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.

    Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

    Documents – reliable and secure identity documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Life Story – an account of the events that happened to a person during their lifetime.

    Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.

    The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.

    EVIDENCE

    The Applicant

23. It should be noted that, although the Applicant appears to have had the benefit of legal representation in previous dealings with the Department and appearances before the Tribunal, he did not have such representation at the hearing in this application, although the material before the Tribunal had been prepared by his former legal representatives.

24. The Applicant gave evidence that he was born In January 1981 in Kuwait. The Tribunal has been provided with a table prepared by the Applicant’s previous legal representative which appears to clarify the inconsistencies in the information he has provided regarding his birthplace. These are largely explained, the Applicant submits, by variations in the spelling of the name of the place he was born, or miscommunications or mistranslations regarding the places the Applicant had lived and the place where the Applicant was born.

25. He showed the Tribunal a copy of his birth certificate. The Applicant said that whilst living in Iraq he was a stateless Bidoon.

26. The Applicant said that after the 1991 invasion of Kuwait by Saddam Hussein. he was displaced and went to Iraq. He was about 9 or 10 years old. He said his father paid money to someone in Iraq, and in return received an Iraqi identity document. As a result, he was able to attend school in Iraq and subsequently attended university where he qualified as an accountant.

27. The Applicant said that it was very difficult for him to get a job in Iraq because he did not have citizenship, only an identity document. He said that he eventually got a job with an American company which was prepared to employ him on the basis of his identity document and his qualifications as an accountant. He worked for the company for a period of more than six months and said that this was his only job in Iraq.

28. The Applicant arrived on Christmas Island in 2012 at the age of 20. He was granted a protection visa in 2013. The Applicant had made the journey to Australia by boat from Indonesia.

29. When questioned about whether he brought any identity documents with him from Iraq,  the Applicant said that they had all been lost at sea. He said that all of his luggage, his passport and his ID card had all gone overboard in rough weather. He said he subsequently obtained copies of the identity documents from his brother in Iraq, which were sent to him via the Internet.

30. The Applicant said that he had an Iraqi passport because he had paid money to an official in order to receive it.

31. The Applicant was questioned about his travel to Iraq in 2013 which he said was to visit his mother who had been injured in a bomb explosion. He said that whilst in Iraq he “amended” his original identity document to meet new government requirements which were necessary because of the rise of ISIS. Whilst in Iraq he had used his amended identity card and brought that card back to Australia. When asked if that card was fraudulent, the Applicant said that it was a copy of an original card which he said was a forgery.

32. The Applicant was questioned about two letters he had received from the Iraqi Consulate General in Sydney, which he did not disclose to the Department but which were found by Australian Federal Police (AFP) officers when he returned to Australia from his visit to Iraq in 2015. He said he needed the letters in order to be able to buy a ticket to travel to Iraq. The Applicant confirmed that the AFP officers had also found copies of identity documents, including an Iraqi National Identity Card. The Applicant said that he had travelled back to Iraq three times in 2014, 2015 and 2016 to see his family. He also wanted to obtain a copy of his mother’s birth certificate. His mother had died in 2018. He had gone back to Iraq although he had some concerns for his safety, but he had been safe in that country.

33. The Applicant was also questioned about a number of Iraqi documents including a Kuwaiti ID card and Medicare card.

34. When questioned about the three statutory declarations from friends that were filed in support of his application, the Applicant confirmed that he had told them why they needed to comment specifically on his identity and character.

    DISCUSSION

35. Australian citizenship is not a matter to be conferred lightly. The legislation is quite specific in preventing the Minister from approving citizenship for any person where the identity of that person is unclear or cannot be satisfactorily established. In this case, in order to establish identity, the Tribunal must examine both documents the Applicant relies on and also what he told the Tribunal about his life story.

    Documents

36. Leaving aside any documents which purport to be related to Kuwait, the Applicant has four documents which were important in the hearing. The first is an Iraqi identification card which the Applicant said was a forgery. However, this is contrary to the country information which states that such a card is one of four documents issued to all Iraqi citizens and that all Iraqi citizens would possess such a card. There are also suggestions that such a card would not have been made available to a stateless Bidoon. Further, officers of the Australian Embassy in Amman, Jordan made inquiries of officers of the Iraqi government in Jordan, who indicated that the identity card was genuine and authentic.

37. The second document was an Iraqi passport. The country information indicates that such documents are authenticated and verified by the Iraqi government and further when inquiries were made by the officers of the Australian Embassy in Amman Iraqi government officials indicated that the passport appeared to be genuine. This is at odds with the Applicant’s claim that the passport was a forgery.

38. The third and fourth documents in the Applicant’s possession were letters from the Consulate General of the Republic of Iraq advising that the Applicant is an Iraqi national. For the Applicant to have such a document, the Iraq country information indicates that his identity and nationality would have been verified. The Applicant said that the letters were intended to enable him to purchase an airline ticket. They were found on his person by AFP officers at the airport when he re-entered Australia. Whatever their purpose, the letters were confirmed by the Iraqi consulate as being genuine.

39. The Applicant said they had been issued to him on the basis that he had provided the embassy a copy of the Iraqi National Identity Card he held. In submissions to the Department regarding a Notice of Intention to Cancel his protection visa, the Applicant stated that the letters had been issued to him as a matter of course and that the embassy would not check if the person was really a citizen of Iraq if they presented a National Identity Card.

40. There is further confirmation as to the genuineness of the documents, particularly the passport and the identity card from the fact that, following inquiries from the officers of the Australian Embassy in Amman, the Applicant’s parents and sister were confirmed to be Iraqi citizens. Iraqi citizenship is passed down from parents to children as per Article 4 of Law No. (46) of 1963 – Iraqi Nationality.

41. There was no verification at the Tribunal hearing of the Applicant’s claimed Kuwaiti birth certificate nor that he was a stateless Bidoon. However, his passport records his place of birth in Iraq. Although it may not be relevant, I note that there are processes which took place in Iraq prior to 2003 which allowed stateless Bidoons to acquire Iraqi citizenship.

42. Reviewing the evidence, it may be that the Applicant or the Applicant’s father did pay for his Iraqi citizenship document and for his passport and that what he told the Tribunal in this regard is true. It may be that the Applicant believes that because he or his father acquired the documents in some illegitimate way, that the documents themselves are illegitimate which may be why he believes them to be ‘forgeries’. However, the weight of the evidence is in favour of those documents being genuine and not fraudulent as the Applicant claimed. In any event, it is not possible to rely on the passport and identity card, although the weight of evidence would indicate that they are genuine, particularly when coupled with the letters from the Consulate General of the Republic of Iraq.

43. To the extent that they can be relied upon, the documents would all indicate that the Applicant is an Iraqi citizen although, in my opinion, there is sufficient doubt regarding the veracity of the documents for the Tribunal to be able to rely on those documents in order to establish the Applicant’s identity in either regard.

44. When the Applicant’s life story is considered, there are also serious doubts. There is conflicting evidence about where the Applicant was born, and at hearing the Applicant’s evidence was characterised by a lack of details about where he attended school and university and almost no details at all about the company he says that he worked for in Iraq, other than that it was an American company.

45. I accept that the Applicant, or one of the Applicant’s previous legal representatives, appears to have provided to the original decision-maker with  more information about his education and the company he allegedly worked for. However, this raises further inconsistencies within the Applicant’s life-story, as he said that he was able to go to school and university in Iraq because of his identity card. There is also evidence that members of his family, were able to access the health system in Iraq including the Applicant’s mother being admitted to hospital and receiving eye surgery. Country information would indicate that it is only possible to access these services if the patient is an Iraqi citizen.

46. In summary, the Applicant has not provided the Tribunal with any detailed history of his life prior to coming to Australia. There is no reason why all of the details of his life would not have been known to him. Leaving aside the doubt as to his birthplace, there is little evidence to support his life-story, or any documents authenticating his scholastic achievements or the university he attended  or his work history. In short, there are insufficient details of the Applicant’s life story to be satisfied as to his identity as a stateless Bidoon.

47. To the extent that the documents produced can be relied on, they would indicate that the Applicant is an Iraqi citizen.

48. Overall, particularly in light of the Applicant’s evidence that his identity documents were forged, it is impossible to be satisfied of the Applicant’s identity either on the basis of the documents he has presented or on the basis of his life story.

49. Having found that I cannot be satisfied as to his identity, it is not necessary for the Tribunal to make a finding as to his good character as s 24(3) prohibits the granting of Australian citizenship. If, however, I had formed the view that he was deliberately concealing the fact that he is an Iraqi citizen, then the Applicant would clearly fail the character test having attempted to deliberately mislead both the Department and the Tribunal.

    DECISION

1. I find that the correct or preferable decision is to affirm the reviewable decision, dated 12 March 2021, which refused the Applicant’s application for conferral of Australian citizenship.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 20 April 2022

Date(s) of hearing:	16 March 2022
Applicant:	Self-represented
Solicitors for the Joined Party:	Ms F. Taah, Australian Government Solicitor