El Ayeed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 4381

El Ayeed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4381 (16 December 2022)
Division:GENERAL DIVISION
File Number(s): 2019/4527; 2019/4610; 2019/7298; 2019/8358
Re:Tareq Hamad Menahy El Ayeed; Ali El Ayeed; Anwar Hamad Menahy El Ayeed; Abdul Rahman El Ayeed
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:16 December 2022
Place:Sydney

In relation to ALI EL AYEED (2019/4610) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Australian Citizenship Act 2007 (Cth) (the Act).
In relation to TAREQ HAMAD MENAHY EL AYEED (2019/4527) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Act.
In relation to ANWAR HAMAD MENAHY EL AYEED (2019/7298) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Act.
In relation to abdul Rahman el Ayeed (2019/8358) the matter is remitted to the Minister for reconsideration in accordance with a direction that:
(a)the Applicant satisfies the identity requirements of the Act; and
(b)there is no basis upon which to conclude that the Applicant is not a person of good character for the purposes of the Act.
......................................[sgd]..................................
Chris Puplick AM, Senior Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – claimed stateless Bidoons – refusal of citizenship approval on basis of identity – absence of biometric data – documentary evidence – birth certificates – identity cards – other documents – life story – identity of applicants satisfied – further character concern – applicant provided counterfeit ID – where applicant was not aware of counterfeit status – no character concern found – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24, 26
Cases
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Alshoka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2829
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
ENK17 v Minister for Immigration and Border Protection [2019] FCA 1135
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
John v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 77
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082
Shi v Migration Agents Registration Authority [2008] HCA 31
WAIJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2004) 80 ALD 568
1811868 (Refugee) [2019] AATA 6013
Secondary Materials
Abdullah Omar Yassen, ‘Report on Citizenship Law: Iraq’ (2021) 12 Global Governance Programme, GLOBALCIT Country Report
Australian Government, Country Advice – Iraq – Bidoons – Status – Treatment (Advice, 14 September 2010)
CPI 16 – Assessing Identity under the Citizenship Act
Caroline Davies, ‘Buckingham Palace breaks silence on Meghan and Harry claims to Oprah’, The Guardian (Web Article, 11 March 2021)
Department of Foreign Affairs and Trade, Country Information Report: Iraq (Report, 26 June 2017)
Department of Foreign Affairs and Trade, Country Information report: Iraq (Report, 17 October 2020)
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
Home Office (UK), ‘Country Information and Guidance: Iraq – Internal Relocation (and technical obstacles)’ GOV.UK (Country information and guidance, 24 December 2014)
Home Office (UK), ‘Country policy and information note: Kuwait – Bidoons’ GOV.UK (Policy and Information Note, 6 April 2021) < Country of Origin Information Centre, ‘Report: Iraq: Travel documents and other identity documents’, Refworld, (Report, 23 January 2014) < Rights Group International, ‘World Directory of Minorities and Indigenous Peoples - Kuwait : Bidoon’, Refworld (December 2017), < Identity Proofing Guidelines
Sebastian Kohn, ‘Stateless in Kuwait: Who are the Bidoon?’, Open Society Justice Initiative, (Web Article, 23 March 2011) < Department of State, ‘2018 Country Reports on Human Rights Practices: Iraq’, US Department of State < Saleh, ‘On Iraqi Nationality: Law, Citizenship and Exclusion’, (2013) 21(2) Arab Studies Journal 48
REASONS FOR DECISION
Chris Puplick AM, Senior Member
16 December 2022
The Application
Each of the four Applicants in this matter is a holder of a Protection (Class XA) (Subclass 866) visa granted variously between 2011 and 2012.
Each of the Applicants claims to be a brother or half-brother of each of the other applicants and each claim that he was born in Kuwait, is a Bidoon by ethnicity and stateless by nationality.
Each of them has made a claim for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).
Each of them had their application rejected by the Minister[1] (the Respondent), via his Delegate, during the course of 2019. In each case the basis of the delegate’s decision was that the delegate was not able to be positively satisfied of the identity of the applicant. In relation to one of the applicants a further basis of refusal goes to matters associated with a finding that he is not a person of good character.
[1] Originally the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now Minister for Immigration, Citizenship and Multicultural Affairs.
Each of the Applicants separately pursued an appeal in this Tribunal against the delegate’s decision and did so in accordance within the timelines generated by each of their various applications. By consent of each Applicant and the Respondent, the matters were heard together by the Tribunal following an order made on 8 May 2020.
The combined application came before the Tribunal over the period 6 to 9 September 2022. The Applicants were legally represented, and the proceedings were conducted with the assistance of several Arabic language interpreters.
At the conclusion of the hearing the parties were given an opportunity to make further submissions in writing.
As part of the Applicants’ further submissions received on 29 September 2022, the Tribunal was provided with a considerable amount of material which had not been put before it at the hearing, specifically documents concerned with the Applicants’ initial applications for protection visas.
The Minister then submitted a detailed response to the formal submissions of the Applicants, and this was received on 4 November 2022. In turn the Applicants made a final submission dated 15 November 2022.
Although heard together and ultimately dealt with in one set of written reasons, a separate decision must be made in respect of each application.
BIDOONS – HISTORY OF IRAQ – IRAQI DOCUMENTS
Before proceeding further, it is necessary to take a (regrettably lengthy) digression into matters which are essential in any understanding of the background against which a variety of assessments have to be made.
It is central to the case of each applicant that their status as members of the Bidoon community, born in Kuwait but thereafter resident in Iraq, is a defining characteristic, and that only by appreciating this can a decision-maker safely reach conclusions about such matters as their identity, their identifying documents and their life stories.
Equally, there must be an appreciation of the change of status affecting each of them which resulted from the political turmoils which engulfed the Kuwait/Iraq region in the period between 1990 and 2006.
Finally, it is necessary to appreciate that people living in Iraq would often, and necessarily, be in possession of a variety of “identity documents”, just as an Australian citizen might possess a passport, a drivers’ licence, a Medicare card and a credit card – where each of which serves a different purpose, each of which was issued based on different “primary” (or “feeder”) documents and each of which might be issued by different authorities. Despite these differences, each document might be accepted, in differing circumstances, as “proof” of the identity of the cardholder.
Bidoons
The Australian Government has provided certain information about the status of Bidoons in Iraq in the following terms (inter alia):[2]
“There is little verified information available on the status of the Bidoon/Bidun (Arabic for "without") in Iraq. According to US Department of State reports for an assessment of the treatment of Bidoon in Kuwait), most Bidoon originate from Kuwait. During the 1990-1991 occupation of Kuwait, a proportion of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. The number of Bidoon entering Iraq at this time is unclear, but is estimated to be no more than 100,000.
The status of Bidoon in Iraq appears to fall into two categories. 47,417 individuals (6,955 families) are said to have been granted Iraqi nationality by the previous regime during a one-time assistance package called "Makremiayah" (meaning a generous act). This was primarily at the urging of advocacy groups such as "Rights holders - Ashab el HAQ". To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (i.e., had to renounce association with Kuwait) and often needed sponsorship by a local tribe (especially around the city of Samawa (100 km from Nasariyah) where the Bdour and Ghizi tribes wielded influence).
There are reports that only about half of the Bidoon were granted citizenship under Makremiayah. The remainder are stateless in Iraq and number approximately 54,500 individuals or 5,430 families. These Bidoon were either unwilling to renounce their association to Kuwait, did not have sufficient affiliation to Iraqi tribes, were unaware of naturalisation procedures or entered Iraq from a third country after Makremiayah.
Since 2003, it has not been possible for Bidoon to claim citizenship in Iraq. The "Rights holders - Ashab el HAQ" association has been disbanded and there are reports that some of its members were detained. The Iraqi Ministry of Migration and Displacement has no record of registration of Bidoon since 2003.
The stateless Bidoon live in the desert in the southern provinces of Basra and Dhi-Qar (especially around Samawa). They do not hold Iraqi nationality certificates, Iraqi ID cards or Public Distribution System (PDS) cards (which often double as identity cards). These Bidoon have no legal right to remain in Iraq and keep a low profile. Without documentation, they cannot move freely within Iraq or outside of Iraq. They have no access to basic public services such as medical care or education. Births and deaths are not registered by Iraqi officials.”
[2] Australian Government, Country Advice – Iraq – Bidoons – Status – Treatment (Advice, 14 September 2010).
A further Department of Foreign Affairs and Trade (DFAT) document restates the position of Bidoons in Iraq in relation to citizenship matters as follows:
“More than 80 per cent are reported to live in the south, although some have moved to the north. Approximately 47,000 Bidoon were granted Iraqi nationality by the Ba’ath Party regime through an assistance package called ‘makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (that is, they had to renounce association with Kuwait) and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through ‘makremiayah’. Bidoon who were unable or unwilling go through ‘makremiayah’ remain stateless. In-country contacts report that approximately 54,000 Bidoon remain stateless. A stateless person has to prove that he or she was registered during the 1957 Census in order to gain citizenship. Local authorities reportedly maintain a certain degree of flexibility for Bidoons with regards to this requirement. Bidoons can access Iraqi nationality through their affiliation with some tribal groups, provided they do not declare ‘Kuwait’ as their place of birth. Bidoon may face difficulty in obtaining Iraqi nationality documentation due to a combination of not being registered or not being able to meet the supporting documentation requirements. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit. Births and deaths of stateless Bidoons are not normally registered by Iraqi officials.”[3]
[3] Department of Foreign Affairs and Trade, Country Information Report: Iraq (Report, 26 June 2017) at [3.58].
Interestingly, while the Bidoons are identified as specific “Groups of Interest” in the 2015 and 2017 DFAT Country Reports on Iraq, in the current (October 2020) updated version they are only included through brief references under the generic heading “Stateless Persons”.
“As of 2006 (the latest year for which data was available), an estimated 54,000 undocumented ‘Bidoon’ (stateless) individuals were living as nomads in the desert in or near the southern governorates of Basra, Thi Qar and Qadisiyyah. This community descended from individuals who never received Iraqi citizenship upon the state’s founding. International observers report that prolonged drought in southern Iraq has forced many Bidoon to migrate to city centres, where most have obtained identification documents and gained access to food rations and other social benefits.”[4]
[4] Department of Foreign Affairs and Trade, Country Information report: Iraq (Report, 17 October 2020) at [2.17].
A more comprehensive analysis of the position of Bidoons in Kuwait is provided by a report from the World Directory of Minorities and Indigenous Peoples:[5]
[5] Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples - Kuwait : Bidoon’, Refworld (December 2017), < are a stateless Arab minority in Kuwait who were not included as citizens at the time of the country’s independence or shortly thereafter.
The government currently categorizes Bidoon as ‘illegal residents,’ despite the fact that many have no real connections to any country other than Kuwait, and in the face of decades of social discourse depicting Bidoon as connected to Kuwaiti territory.  Due to their stateless status, Bidoon face difficulties in obtaining civil documents, finding employment, and accessing healthcare, education, and other social services provided to Kuwaiti citizens.
…
The situation of Bidoon in Kuwait is only one manifestation of a regional problem, with 500,000 people believed to be Bidoon across the Gulf region.
Most Bidoon come from nomadic tribes native to the Arabian Peninsula who were in Kuwait when the country gained independence in 1961 but were unable or unwilling to take the time needed to register as citizens. The process of determining who was eligible for citizenship, as set out by the 1959 nationality law, inherently favoured Kuwait’s urban residents and those who were connected to influential tribes or families… Consequently, approximately one third of the population of Kuwait at the time did not obtain citizenship and was classified as bidoon jinsiya.
…
A second, smaller subset of Bidoon were previously based in nearby Arab states (including Iraq, Saudi Arabia, Syria and Jordan) and were recruited into the Kuwaiti army and police forces in the 1960s and 1970s. The newly formed Kuwaiti state, faced with the challenge of building a national army but finding insufficient interest among the national population, relied heavily on these foreign recruits in the early stages… Until the 1990s, around 80 per cent of the armed forces were Bidoon. Most Bidoon falling under this category are believed to have left Kuwait after the Gulf War, so the remaining Bidoon population today is predominantly composed of the first category of Bidoon, who do not possess nationalities of other Arab states.
From this situation of relatively equal status, Bidoon began to face increased restrictions on their rights from the mid-1980s onwards. In the context of rising sectarian strife and growing internal turmoil stoked, in part, by economic upheaval and regional tensions caused by the Iranian revolution in 1979 and the 1980-1988 Iran-Iraq War, the Kuwaiti government began to view Bidoon as a security threat, particularly as it became known that some incoming refugees and individuals from Iraq wishing to avoid military service and persecution were getting rid of their identity papers and posing as Bidoon.
In 1986, the government changed the status of Bidoon to ‘illegal residents’ and began to strip them of their rights. Large numbers were fired from their jobs, while the community as a whole was excluded from free education, housing and healthcare. In the late 1980s, the government sought to apply the terms of the Alien Residence Law and a number of Bidoon were reportedly expelled. In 1988, an appeal court ruled that as no other state considered them nationals, they could not be considered ‘aliens’ in terms of the law. The government ignored the ruling and continued, reportedly, to deport members of the Bidoon community.
Another turn for the worse came with the Iraqi invasion of Kuwait in 1990 and subsequent Gulf War. As Bidoon made up the majority of the Kuwaiti army at the time, they became an easy scapegoat for their country’s capitulation to the rapidly advancing Iraqi army. Moreover, since some Bidoon were forced to fight on the Iraqi side, the entire community was stigmatized for collaboration. As soon as the Iraqi occupation ended, the Kuwaiti government intensified its efforts to punish and exclude Bidoon. Bidoon were dismissed en masse from the army, and some were tried in military courts for collaboration. Bidoon refugees who had fled the country during the war were prevented from returning. Others were held and mistreated in overcrowded detention centres. Moreover, approximately 10,000 Bidoon were deported. As a result of all these measures, the population of Bidoon in Kuwait was reduced from a pre-war population of approximately 250,000 to only around 100,000.
Those who remained in Kuwait found themselves treated as illegal residents in what was for most the only country they had ever known. The government ceased issuing Bidoon identification documents, and pressured them to reveal their ‘real’ nationalities in order to regularize their status and qualify for legal work permits. Many Bidoon opted to purchase fake foreign passports from offices that sprung up all over the country in the 1990s for this purpose, a process that appears to have taken place with the knowledge and even the encouragement of the Kuwaiti government. Many found that their possession of a foreign passport, even an illegitimate one, was later used to undermine their claims for Kuwaiti nationality.
The overall attitude of the Kuwaiti authorities to Bidoon has changed very little since the 1990s. The government has asserted that Bidoon enjoy human rights on an equal basis with nationals of Kuwait but it continues to refer to Bidoon as illegal residents, and paints them as opportunistic foreign nationals who have destroyed their original documents in order to stay in Kuwait and take advantage of the provisions of the welfare state.”

It is estimated that around 10% of the inhabitants of Kuwait are of Bidoon status.[6]
[6] Sebastian Kohn, ‘Stateless in Kuwait: Who are the Bidoon?’, Open Society Justice Initiative, (Web Article, 23 March 2011) <>
The most recent authoritative document dealing specifically with the legal and political status of Kuwaiti Bidoons is that issued by the United Kingdom Home Office in April 2021.[7] Relevantly, it reports:
“2.4.1 The Bidoon are a largely stateless Arab minority in Kuwait who were not included as citizens at the time of the country’s independence in 1961 or shortly thereafter. The current Bidoon population in Kuwait have originated from three different categories. The first are those who claim citizenship under Kuwait’s Nationality Law but whose ancestors failed to apply or lacked the required documentation at the time of Kuwait’s independence. The second group is made up of former citizens of other Arab states and their descendants who came to Kuwait in the 1960s and 1970s to work in Kuwait’s army and police forces. The third category of Bidoon is composed of individuals born to Kuwaiti mothers and Bidoon fathers.
2.4.2 All Kuwaiti Bidoon are classed as illegal residents by the Kuwaiti state. However, Bidoon who were registered with the Executive Committee (the state body in charge of Bidoon) and subsequently had their nationality claims accepted by the government as Kuwaitis, were given Kuwaiti citizenship. In 2016 the Kuwaiti Government stated that almost 16,000 Bidoons were naturalised in recent years. Sources estimate that there are currently between 88,000 and 106,000 Bidoon in Kuwait.
2.4.3 In 2018 the Central System had tens of thousands of citizenship requests by Bidoon under review. According to available evidence, 813 Bidoon were granted citizenship between 2018 and 2019, however the processes used by the Kuwaiti Authorities to determine who gets granted citizenship are unclear. Legislation from 2019 (Code 77) provides that a maximum of 4,000 non-Kuwaiti people are eligible for naturalisation each year.
2.4.4 The status of other family members is not enough to determine whether a person is a Kuwaiti Bidoon or not. Family members may have different citizenship status.”
[7] Home Office (UK), ‘Country policy and information note, Kuwait: Bidoons’ GOV.UK (Policy and Information Note, 6 April 2021) <>
Usefully, the same document sets out the relevant dates at which issues and rights of Kuwaiti Bidoons were affected, including:
“1959 – The nationality laws defines categories of Kuwaiti nationality and a range of criteria and limitations.
1985-1986 – The status of the Bidoon changed from legal residents without nationality to “illegal residents”. The Alien Residence Act was applied to bidoon, removing most rights enjoyed since independence (1961).
…
1990 – Iraq invasion of Kuwait. The number of Bidoon in Kuwait prior to the war was estimated to be around 250,000. However, many fled during the war and were denied re-entry into Kuwait when the war ended.
…
1993 – The Central Committee to Resolve the Status of Illegal Residents was established to regularise the status of the Bidoon. The Central Committee concluded its work on 26 March 1996.
1996 – The Executive Committee for Illegal Residents’ Affairs (ECIR) was established to process all those who claimed to be illegal residents (Bidoons). Files were opened, and information shared on their status with all state ministries and institutions18. Those registered with the ECIR by 1996 were given temporary resident rights.
2000 – Law passed permitting naturalisation of individuals registered in the 1965 census and their descendants, limited to 2,000 per year, which has never been met.
…
2010 – November: the Central System to Resolve Illegal Residents’ Status was established and is the current administrative body responsible for reviewing Bidoon claims to nationality. The Committee accepted that 34,000 Bidoon are meeting the eligibility requirements for Kuwaiti citizenship23. 68,000 Bidoon are said to be Iraqi citizens or have ‘other origins’, and have 3 years to correct their status or face legal action. A further 4,000 individuals are recorded as status unknown.
2011 – February - Bidoon community began protesting peacefully, demanding to be recognised as citizens of Kuwait. The security forces used force to disperse demonstrations and arrested protesters25. 2013 – March – The Kuwaiti Parliament passed a law to naturalise 4000 “foreigners” during 2013. As of 21 January 2014 the Kuwaiti government confirmed that no Bidoon had benefited from the new law.”
In November 2010, a Royal Decree[8] granted certain rights to “illegal residents registered” with the central authorities, among which were the rights for:
“(iv) The issuance of death certificates for illegal residents that includes the term “non-Kuwaiti” in the slot for citizenship.
(v) The issuance of marriage contracts for illegal residents that includes the term “non-Kuwaiti” in the slot for citizenship.
(vi) The issuance of divorce certificates for illegal residents that includes the term “non-Kuwaiti” in the slot for citizenship.
(vii) The issuance of driver’s licenses that includes the term “non-Kuwaiti” in the slot for citizenship.”
[8] Ibid at [5.1.4].
The specific difficulties of Bidoons obtaining Iraqi citizenship was outlined in a decision of this Tribunal, 1811868 (Refugee) [2019] AATA 6013.[9] There, the Tribunal highlighted a US State Department report which stated:
As of 2006, the latest year for which data was available, an estimated 54,500 “Bidoun” (stateless) individuals, living as nomads in the desert in or near the southern governorates of Basrah, Dhi Qar, and Qadisiyah, remained undocumented and stateless descendants of individuals who never received Iraqi citizenship upon the state’s founding. Prolonged drought in the south of the country forced many individuals from these communities to migrate to city centers, where most obtained identification documents and gained access to food rations and other social benefits… .

[9] Dated 23 July 2019, decision of Member Allison Murphy.
[10] US Department of State, ‘2018 Country Reports on Human Rights Practices: Iraq’, US Department of State < Emphasis added.
Stateless persons faced discrimination in employment and access to education. Many stateless persons were not able to register for identity cards, which prevented them from enrolling in public school, registering marriages, and gaining access to some government services. Stateless individuals also faced difficulty obtaining public-sector employment and lacked job security.[10]
The security situation in Iraq remains fluid and evolving. In its October 2018 Country Report on Iraq, DFAT stated:
“The numerous Shi’a armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some Shi’a groups have sponsored the formation of local factional Christian and Sunni militias to divide and weaken these communities. Local and international observers have accused some PMF groups of committing abuses against civilians (see Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha'abi)) and engaging in criminal activities. Violence between different Shi’a armed groups is also frequent, but usually low-level.”[11]
[11] DFAT Country Information Report: Iraq, 9 October 2018 at [2.36].
However, its August 2020 Report is somewhat more sanguine about intra-country violence and makes no specific reference to the Badr Corps (Brigade). It states, inter alia:
“2.54 The security situation in Iraq, while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure.
…
2.60 Sectarian violence between Sunni and Shi’a has reduced substantially since the mid to late-2000s (see Recent History), but still occurs occasionally. International observers attribute the reduction in sectarian violence to an increase in self-segregation by communities (see Demography), and to conscious efforts by political leaders to remove sectarian slogans from public discourse after the military defeat of Da’esh. It was reportedly common during the lead-up to the May 2018 election to hear politicians and commentators emphasising the need to rise above sectarianism and revenge to stabilise the country. Some commentators also suggest the reduction in sectarianism reflects the Shi’a majority’s increased confidence and sense of security in the wake of victory over Da’esh.”
Political developments
The politics of the region revolve around three nations: Iraq which has a division between Shi’a and Sunni Muslims (about 56-65% Shi’a); Kuwait which has an overwhelmingly Sunni Muslim majority and Iran which has an overwhelming Shi’a Muslim majority. In addition, since about 2017 the Kurdish Region of Iraq (centred on Irbil) has been recognised as a semi-autonomous part of that country with a distinct regional government and separate arrangements for matters such as passports and identity documents.
In 1958 the Hashemite monarchy of Iraq was overthrown in a military coup and the country was thereafter destabilised by further numerous military and political coups until in July 1979 Saddam Hussein, as leader of the Ba’ath Party took control of the country.
Just prior to that, in January/February 1979 the Phalavi Dynasty was overthrown in Iran and replaced by an Islamic theocracy led by Grand Ayatollah Khomeini.
In September 1980 Iraq declared war on Iran and there ensued a murderous war lasting some 8 years and causing death and devastation to both countries on a monumental scale. In this conflict the government of Kuwait gave its full support to Iraq.
In 1980 the Iraqi government promulgated Resolution 666 of the Revolutionary Council which stripped large numbers of Arab and Kurdish Shi’as of their Iraqi citizenship and led to their expulsion from the country.[12]
[12] Zainab Saleh, ‘On Iraqi Nationality: Law, Citizenship and Exclusion’, (2013) 21(2) Arab Studies Journal 48.
Despite Kuwait’s support for Iraq in the Iran/Iraq war, in August 1990 the Iraqi regime launched a surprise attack on Kuwait and occupied the country for a period of some 7 months until dislodged by an international coalition of forces in the First Gulf War. In the period of occupation Iraq annexed Kuwait as its 19^th province and extended some of its nationality and citizenship laws to that occupied country.
The defeat of the Saddam Hussein regime in the First Gulf War led to uprisings against the central government by the Kurdish population in the north and north-west of the country but this uprising was brutally crushed by Saddam Hussein’s forces, notoriously using chemical weapons against civilian populations.
After the liberation of Kuwait in 1990, the government of that country embarked on a systematic programme of expulsion from Kuwait of all those non-Kuwaiti citizens who were thought to have supported the Iraqi invasion and takeover. This included large numbers of the Bidoon community who were expelled between 1990 and 1993.
The Iraqi regime of Saddam Hussein was eventually overthrown by an international coalition of forces, whose activities were based upon certain resolutions of the United Nations Security Council, in the Second Gulf War which commenced in March 2003.
The Ba’ath regime of Saddam Hussein had been largely secular in its approach to the religious and ethnic communities in Iraq, including the Bidoon, but after his fall a number of religiously based political parties and armed militia contested for control of the government. In this contest the (limited) rights which the Bidoon had been accorded under the Saddam regime were largely withdrawn or watered down, especially under the governments led by Nouri Al Maliki (2006-2014).
These militia groups included the Badr Brigade (or Badr Corps) which was a Shi’a based organisation initially opposed to the Iraqi government in its war with Iran and later involved in opposing Sunni demands for greater representation in the Iraqi government.
In 2006 the United Nations human rights chief in Iraq, John Pace, said that hundreds of Iraqis were being tortured to death or executed by the Interior Ministry under SCIRI's control. According to a 2006 report by the Independent newspaper:
"Mr Pace said the Ministry of the Interior was 'acting as a rogue element within the government'. It was controlled by the main Shia party, the Supreme Council for Islamic Revolution in Iraq (Sciri); the Interior Minister, Baqir Jabr al-Zubeidi, is a former leader of SCIRI's Badr Brigade militia, which was one of the main groups accused of carrying out sectarian killings. Another was the Mahdi Army of the young cleric Muqtada al-Sadr, who is now part of the Shia coalition seeking to form a government after winning the mid-December election.
Many of the 110,000 policemen and police commandos under the ministry's control are suspected of being former members of the Badr Brigade. Not only counterinsurgency units such as the Wolf Brigade, the Scorpions, and the Tigers, but the commandos and even the highway patrol police were accused of acting as death squads during this period over a decade ago.
The paramilitary commandos, dressed in garish camouflage uniforms and driving around in pick-up trucks, were dreaded in Sunni neighbourhoods. People arrested by them during this period were frequently found dead several days later with their bodies bearing obvious marks of torture."
The gravamen of this history is to the effect that the Bidoon community suffered both as a result of the Kuwaiti government expelling them from the country on the basis of their pro-Saddam allegiance and the anti-Saddam elements in Iraq itself persecuting them for the same alleged allegiances.
Identity cards
Over the years, changes have taken place in the number and nature of various identity cards provided to, or required to be held, by people in Iraq. These are outlined in a report from the European University Institute:[13]
“In Iraq, four documents are issued to Iraqi nationals: a residence card (bitaqa sakan), citizenship certificate (or nationality certificate —shahadat al-jinsiya), civil status identity card (bitaqa shakhsiyeh or bitaqa hawwiya) and a Public Distribution System/PDS (food ration) card. Without these documents, an Iraqi individual cannot access public services, as these documents are required to access healthcare, employment, education and housing, and to obtain a passport. However, marginalised populations such as Faili Kurds, Bidoons, the Dom (Roma) and Palestinian refugees, have been deprived of these documents, or have faced difficulties in accessing them, which means they cannot access governmental services and exercise basic rights, such as the right to vote, access healthcare, employment, education and housing. A US Department of State Human Rights Report noted that, Stateless persons [in Iraq] faced discrimination in employment and access to education. Many stateless persons were not able to register for identity cards, which prevented them from enrolling in public school, registering marriages, and gaining access to some government services. Stateless individuals also faced difficulty obtaining public-sector employment and lacked job security. In the next section of the report, four marginalised population groups are discussed: Faili Kurds, Bidoons, the Dom (Roma), and Palestinian refugees. These groups are either stateless or on the verge of statelessness. Although the UNHCR has estimated that there are 47,253 stateless persons in Iraq, it has also noted that this figure is only an estimation and it is possible that the actual figures could be considerably higher, pending a more accurate study of statelessness in Iraq.”[14]
[13] Abdullah Omar Yassen, ‘Report on Citizenship Law: Iraq’ (2021) 12 Global Governance Programme, GLOBALCIT Country Report at [5]. Footnotes omitted.
[14] Ibid at [6].
More recently, the developments have been as follows:
“Law No. 3 of 2016 concerning the National Identity Card contains 47 Articles and was adopted by the Iraqi Parliament to replace the three documents, namely, the nationality certificate, civil status card, and residence card. The law is intended both to relieve the burden on citizens of having several documents, and to keep pace with developments in the government’s work, in line with the identity cards used in developed countries. Eventually, an integrated network of unified civil information will be created, and one fixed civil identification number will be assigned to every Iraqi individually, and collectively to every family.”
The Report outlines the problems for the Bidoon community:
“The Bidoon community (bidoon jinsiya نودب ةیسنج— meaning without nationality) are a stateless Arab minority who came to Iraq immediately after the 1991 Gulf War and the invasion of Kuwait. Although there are various reports as to the total number of Dom in Iraq ranging from 50,000 to 200,000, there are no accurate figures in the country. there are also lack of information as to the communities’ situation and the proportion that are naturalised as Iraqi citizens. This community has no recognised nationality or official papers in Iraq. Two generations of Bidoons have no access to nationality or other basic rights such as attending school and accessing public services like clean water, electricity, and adequate shelter. They also cannot register land in their own name, sign rental contracts or inherit property, and their birth and death certificates are not registered by the government. However, in August 2017, Iraqi NGO Mercy Hands, in collaboration with the UNHCR, initiated a legal procedure which resulted in nationality being secured and thus the ability to access to basic rights and services. This legal initiative has assisted an average of 500 Bidoon minority per year and returned citizenship hopes for them in Iraq.”[15]
[15] Ibid at [5.2].
In terms of the processes for the granting and renewal of identity cards, the Landinfo service[16] outlines in detail the various requirements and practices:
[16] Landinfo Country of Origin Information Centre, ‘Report: Iraq: Travel documents and other identity documents’, Refworld, (Report, 23 January 2014) < Landinfo provides information for the governmental authorities in Norway and publishes its findings on immigration matters for public consumption.
“7. NATIONAL CIVIL ID CARD
All Iraqi citizens must have a national civil ID card. The card contains the following data:
• Full name
• Date of birth
• Birthplace
• Name of both parents Report Iraq:
• Civil status
• Religious affiliation
To the right on the front side of the card is a registry number which specifies the number of the family book in which the person is registered. The serial number is printed on the top left. Using these numbers and the issuer's signature, one can get an indication of the authenticity of the card (Swedish Migration Board 2009).
In Arabic, the card is called Bitaka shakhsiyeh, but it is also referred to as Bitaqa hawwiya.
All Iraqi citizens are issued this card based on information in the family registry. New-borns receive their first ID card based on the birth certificate and the parents' ID card.
The card can be renewed many times in a lifetime and should be renewed when changing to a new civil status. New cards are given a new date of issuance and a new serial number. There are no duplicates of the ID card, but the old serial number is written under the new one by hand. Sometimes "renewal" is written over the new serial number (National ID Centre 2013). According to the Director-General of GDN, it is common for children to have an ID card from the age of one year.
The ID card is considered the most important personal document, since it is used for all contact with public authorities, health care, social welfare services, schools and the purchase and sale of homes and cars. In addition, the ID card must be submitted when applying for other official documents, such as passports.
7.1 ISSUING BODY
The overall authority for issuing ID cards is the Civil Status Affairs Directorate, which sorts under the General Nationality Directorate (GDN) in the Ministry of the Interior.
7.2 WHERE ARE ID CARDS ISSUED?
ID cards are issued at the local population registration offices (Civil Status Departments). These are spread throughout the country and are located in most cities and provincial capitals. ID cards can only be issued in the resident district where the family is registered. This means that internally displaced refugees must often obtain assistance to get new documents if they live in a province other than where they are registered.
7.3 APPLICATION PROCESS
Applicants must visit the local population registration office in the province where they reside and submit necessary documentation (see next section). A husband can apply for and obtain civil ID cards for his wife and children. The exception is when applying for lost ID cards. Then everyone must appear in person, except for children under the age of 12 (GDN, meeting in Baghdad April 2012).
7.4 DOCUMENTATION REQUIREMENTS
In order to obtain an ID card, the person must fill out an application form signed by the head of the household, guardian or lawyer and submit two passport photos. In Report Iraq: Travel documents and other identity documents , the person must be able to document his/her identity by submitting a birth certificate (at first issuance) and ID card from a close relative such as his/her father or grandfather. It costs 1,000 Iraqi dinars (about USD 8) to have an ID card issued (GDN, meeting in Baghdad April 2012). Stickers for paid fees must be pasted on the card for it to be valid (UNHCR 2008). Photos are not required for children under the age of 1-2 years Photos of women in hijab are accepted. The authorities in the Kurdistan region require four photos.
7.5 VERIFICATION OF ID INFORMATION
The population registration offices have the task of issuing ID cards to Iraqi citizens locally. The offices conduct checks against the family registry before the ID card is issued. The system is not electronic, but the local population registration offices send information to the central population registry in Baghdad . If the ID card is lost, the applicant's identity can be approved based on their father's or brother's ID card, which is then checked in the same way .
7.6 ID CARDS VIA PROXY
A person can obtain an ID card via proxy in Iraq. A husband and father can apply for ID cards for his wife and children. However, if someone loses their card, they must appear in person to get a new card (GDN, meeting in Baghdad April 2012). This does not apply to children under the age of 12 years. It is also possible to give another person power of attorney to apply for an ID card. The most common approach is to ask a relative for help. ID documentation of both the applicant and the person with power of attorney then has to be provided. One can also obtain an ID card via proxy with power of attorney in the Kurdistan region. All internally displaced persons (IDPs) living in the Kurdistan region can, for example, get help from a lawyer at the Protection Assistance Centre (PAC) to update their ID card if they are registered in Baghdad or other places which are far away from the Kurdistan region. PAC is run by non-state organisations on behalf of UNHCR. The authorities require that all Iraqis update their ID cards whenever there is a change in their civil status. According to the Iraqi volunteer organisation Public Aid Organization (PAO), which runs the Protection Assistance Centre in Erbil (e-mails January 2011), every Iraqi citizen can give another person power of attorney to obtain new national ID cards for them. This is confirmed by the Iraqi consul in Norway (conversation October 2013). There are PAC centres in all provinces.”
Citizenship

Citizenship is a fundamental bedrock of the Australian polity. “The conferral of citizenship is a privilege”[17] which both confers rights and engenders obligations. It is a thing of legal status and a thing of value.[18] It is not to be bestowed lightly.[19]
[17] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422 at [35].
[18] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
[19] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
For persons not born with Australian citizenship, it may be acquired in a number of ways as specified in the Australian Citizenship Act 2007 (Cth) (the Act).
One of those ways is citizenship by conferral.
Citizenship by conferral
The Act provides that a person may make an application for citizenship by conferral.[20] The Minister must make a decision on the application and either approve or refuse it.[21] An applicant must meet certain qualifications a specified in the Act[22] and, if they do, they must then undertake and pass the Citizenship Test[23] (unless they are exempted from so doing[24]). Once those steps are complete a qualified applicant must make the Pledge of Commitment[25] before their citizenship is finally granted.
[20] Act s 21(1).
[21] Act s 24(1).
[22] Act s 21(2)
[23] Act s 23A.
[24] Act ss 21(3)(d), 21(4)-(8).
[25] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law, none of which apply in the present case.[26]
[26] Act ss 24(4)-(6).
However, there is a foundational and fundamental matter which precedes all other considerations and requirements for the grant of citizenship.
Subsection 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Two important aspects of this requirements must be noted. The Minister (or their delegate) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish their identity.
The Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)[27] makes explicitly clear that:
[t]here 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.
IDENTITY
[27] The bill which became the Australian Citizenship Act 2007 (Cth).
Establishing identity
Decision-makers are assisted in the process of determining the identity of an applicant for citizenship by conferral by two documents. The first is the National Identity Proofing Guidelines (ID Guidelines) published by the Department of the Attorney-General in 2016 and secondly the Citizenship Procedural Instructions (CPIs)[28] published by the Department administering the Act.
[28] Relevantly, CPI 16 – Assessing Identity under the Citizenship Act (1 January 2022)
It is to be noted that these guidelines are just that – they are not law. While they must be given utmost consideration by any decision-maker[29] they are not to constrain the right of the decision-maker to make any decision lawfully open to them to make, based on the material before it at the time of its own decision-making.[30]
[29] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[30] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
What is “identity”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are
2. the condition of being oneself or itself, and not another: …
6. the state or fact of being the same one.
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
a. The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
b. Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
Although the Act gives no definition, guidance as to the meaning of the term can be gleaned from the ID Guidelines and the relevant CPI. It is useful to start with the ID Guidelines as the CPIs themselves reference these:
“[Decision-makers] are encouraged to consider resources such as the National Identity Proofing Guidelines (NIPG). The NIPG serves as a benchmark for identity related services and standards within the Department. While the NIPG is not specifically concerned with assessing identity for the purposes of the Act, it provides high-level principles to guide identity security initiatives and is valuable in understanding the whole of government approach to identity security.”
The ID Guidelines relevantly provide as follows:[31]
“1.1     Background
1.1.1    Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5    Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.”
[31] Footnotes omitted and emphasis in original.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the broader Citizenship Policy. Instances of this have arisen in relation to people who have been refugees from conflict zones; victims of natural disasters; unauthorised maritime arrivals (as far back as the days of the Vietnamese “boat people” after 1975); victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities, especially those identified as being part of the “Stolen Generations”. The ID Guidelines establish that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include (emphasis in original):
“(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.
(3) Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
(4) A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.”[32]
[32] ID Guidelines at [5.1.3(1)-(4)].
It is also important to note what the ID Guidelines provide in definitional terms. Paragraph 2.1.1 states:
“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.”
This definition is restated in the most recent version (1 January 2022) of the Department’s Citizenship Procedural Instructions, CPI 16 – Assessing Identity under the Citizenship Act.[33] CPI 16 establishes a trifecta of factors used to establish identity:[34]
“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.”
[33] CPI 16 – Assessing Identity under the Citizenship Act at 5.
[34] Ibid at 4.4.
Thereafter, relevant sections of CPI 16 provide, inter alia:
“1. Purpose
…
The identity provisions under the Act prohibit the approval of a citizenship application in cases where the [decision-maker] is not satisfied of the person's identity…
However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, officers are to give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.
…
4. What is identity?
…
A person's identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.
…
5. Three pillars of identity
…
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.
…
7. Name
An application for Australian citizenship must be made in the applicant's full legal name (that is, using the most recent name that the applicant has been known by) and supported by identity documents issued by a recognised authority. Where an applicant has changed their name, the application must be supported by acceptable documentation.
…
11. Assessing a person’s identity
…
In order to make an informed assessment of a person's identity, [decision-makers] must seek to establish a person's identity from birth using an evidence-based approach. 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 holistically.
Where a case presents as more complex, [decision-makers] may find the creation of an identity timeline will assist in linking the applicant's birth identity to the identity or identities provided at visa and citizenship application. When creating an identity timeline, [decision-makers] are to have regard to each of the 'three pillars' of identity in order to create a complete picture of the person's identity from birth to present.
When assessing a person's identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person's life story, [decision-makers] must consider:
·the significance and corresponding weight of the inconsistencies in the broader context of the person’s claimed identity; and
·what further research, or information, is necessary in order to be satisfied.
…
While delegates must make every effort to inform themselves of an applicant's identity, the onus is on the applicant to provide information or evidence to support their identity.
…
11.1. Assessing pillar two - documents
Documents are an important element of the process in establishing a person’s identity… While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).
When assessing pillar two, [decision-makers] should consider and assess whether the documents and information they contain is consistent and support a person’s claimed identity.
The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.
…
11.2. Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application, [decision-makers] should 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.
…
12. What does it mean to be satisfied of a person’s identity
… Reaching the point where a [decision-maker] is satisfied, or not satisfied, of a person's identity as required by the identity provisions is a process of exercising informed judgment. It must 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.
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.
[Decision-makers] must 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.
…
12.1. What is conflicting evidence?
When an applicant has provided inconsistent or conflicting information about an attribute of their identity, [decision-makers] must test and evaluate the evidence before accepting that it establishes the existence of a fact or demonstrates something is true. Testing evidence is achieved by considering and comparing the information holistically in the context of the three pillars.
In accordance with the requirements of natural justice, [decision-makers] must ask an applicant to explain any inconsistencies in the evidence or adverse information. Any response provided by the applicant must be acknowledged in the decision record. [Decision-makers] must consider whether an applicant’s explanation is plausible in the context of information pursuant to the three pillars. A decision must only be made once inconsistencies have been adequately examined in view of the applicant’s response.
Who are the Applicants?
According to their own claims, the following persons, all members of the El Ayeed family are the Applicants in this matter:

Name

Date of birth

Father

Mother

Reference

ALI

15.10.1980

Hamad Menahy El Ayeeed

Najat Abdullah Jarad

(ono Najat Karim Jabbar)

Kuwait Govt.

Ministry of Health: Birth Certificate Issued 29.10.1980.

Ali T-documents at 39.

TAREQ

01.02.1982

Hamad Menahy Ayeed

Najat Abdullah Jarad

Kuwait Govt.

Ministry of Health: Birth Certificate issued 14.02.1982.

Tareq Tender Bundle at 28.

ANWAR

10.11.1982

Hamad Menahy El Ayeed

Sherifah Kettam

Iraq Government: Directorate General of Nationality.

Personal ID card issued 20.10.2018

Anwar evidence, undated.

ABDUL RAHMAN

08.10.1988

Hadam Manhi Ayeed

Sharifah Kattam Mehisan Sultan

Kuwait Govt.

Ministry for Public Health: Birth Certificate issued 02.11.1988.

Abdul Rahman T-docs at 67.

The status of each of the Applicants has been confirmed as being refugees and they have been issued with Protection visas.
It appears that Tareq and Anwar travelled together from Iraq to Australia in 2010 arriving as Illegal Maritime Arrivals (IMAs) on Christmas Island. Ali and Abdul Rahman also travelled together and arrived as IMAs on Christmas Island in 2011. In each case it appears that the Applicants travelled on a false passport leaving from Iraq and flying to Dubai and thence to Kuala Lumpur. From there they travelled by boat to Indonesia where, after some time spent in that country, people smugglers arranged for them to make perilous sea voyages to Australia which terminated when their vessel was intercepted by the Royal Australian Navy.
Four Applicants – Three Pillars
Biometric
In relation to each applicant no claim is made as to the establishment of their identity by reference to any biometric evidence. There are no documents involving fingerprints; or contested photographs, nor is there any genetic/DNA evidence establishing the sibling relationship(s) between the Applicants.
However, it is to be noted that, at no time has the Respondent sought to challenge the claims by the Applicants that they are members of the same family, either siblings or half-siblings. Nevertheless, this first pillar of identity cannot be called into account on support of the Applicants in terms of establishing their identity.
As such, the Tribunal must base its findings on evidence presented in the form of documents or in relation to the claimed “life story” of each applicant.
Documentary
Documents themselves are not definitive. Almost any document is capable of being forged, legitimate documents may come into a person’s possession by improper means and the scope, nature and purpose of a document may vary over time. There are culturally divergent attitudes to documents ranging between those who live in societies where one must carry some form of identity card at all times and in order to access any service, through to those who live in societies where one can live one’s daily life without having to constantly show some proof of identity. It is, for example, a matter of occasional public debate in Australia that a person can present at a polling booth on election day and discharge one of the most important obligations and privileges of citizenship – voting to select one’s government – without actually demonstrating proof of identity. By contrast, recent history has shown that on occasions, the identification on a document of matters such as ethnicity or religious affiliation may be the basis upon which one’s life may be put in danger. The Tribunal needs to be aware of the fact that approaches taken to the obtaining and possession of identity documents are not universal and can vary across different cultures.
In this case there are three distinct sets of documents which need to be considered: birth certificates, identity cards (bitaqa hawwiya) and other documents. It does not appear that any of the Applicants possess or has ever possessed a nationality certificate (shahdat al-jinsiya).
Birth certificates

Each Applicant provided both a copy of a Kuwaiti birth certificate shortly after their arrival in Australia and each subsequently provided original birth certificates to the authorities. In each instance the Respondent sent the originals back to the Australian Embassy in Amman (Jordan) for examination.
In each case, the Amman post reported back:
“In regard to the client’s Kuwaiti birth document, please note that we have reviewed it and it appear [sic] to be genuine.”[35]
[35] Attachment to Respondent’s SFIC at 15-21.
The same documents were examined by the Citizenship, Complex Identity Unit, Department of Home Affairs in Australia where the conclusion was reached, in relation to each that:
“It is my opinion that the quality of the security limits the ability to determine whether this is a legitimately manufactured and issued document. The result is inconclusive.”[36]
[36] Ibid at 1-11.
The Applicants in their Post-Hearing Closing Submission submit (at [97]) that:
“In the absence of evidence to the contrary, officers of the Department’s post in Amman have greater experience in assessing the authenticity of Kuwaiti documents than officers in the Document Examination Unit in Sydney.”
The Respondent counters by drawing a distinction between the assessment made in Amman that it “found” certain other documents to be counterfeit, but only advised that the birth certificates “appear” to be genuine and concludes that had the Post “found” them to be genuine it would have stated so using that terminology.[37]
[37] Respondent’s Further Closing Submissions at [18].
It is regrettable that so much may turn upon the use of a simple word such as appear to be rather than found to be, but such is the nature of these assessments.
The Tribunal is inclined to give greater weight to the expression of the opinion from the Amman post and in the absence of any submission that the birth certificates are NOT genuine, it accepts them as such.
This is important because it establishes who the Applicants are – they are the children of named parents and they were born in a specific place on a specific date.
Identity cards
Identity cards do not establish who a holder is, rather they establish the status of the holder – what they are. That status may be that the holder resides at a certain address, is of a certain age, is a citizen of a particular country or has had a unique identifying number assigned to them for a variety of purposes.
The ID Guidelines contains a glossary, the relevant entries being:
“[Identity] Attribute: A characteristic that can be used (in combination with other characteristics) to uniquely identify a person in a specific context (such as name, date of birth or unique number).
Identity document: Identity document means any document or other thing that contains or incorporates identification information and that is capable of being used as evidence of identity.”
The ID cards for the brothers present a somewhat different picture from that established in relation to their birth certificates.
In relation to both Tareq and Ali the report from the Amman post states:
“Please note that the integrity unit has checked the original ID and found it genuine. Further checks have been made with the Iraqi authorities who confirm that the ID is genuine.”
In relation to both Anwar and Abdul Rahman the report states:
“Please note that the integrity unit has checked the original ID and found it counterfeit. Further checks have been made with the Iraqi authorities who confirm that the ID is counterfeit.”
A further two matters arise from these assessments. The first is that the “register number” on the cards of Ali, Anwar and Abdul Rahman is 811M which the Tribunal understands is probably a registration number associated with the family,[38] whereas that on Tareq’s card it is 1940M implying no connection to the family. Yet both Ali’s card (811M) and Tareq’s card (1940M) are equally found to be genuine by the Amman post.
[38] Transcript of hearing dated 7 September 2022 at 107-108.
Secondly, the assessment by the Citizenship, Complex Identity Unit in Sydney differs again. In this instance, the ID cards of Ali, Anwar and Abdul Rahman are reported as:
“I have examine the document and determined that one or more of the document’s manufacturing security characteristics or issuing security characteristics are simulated. Therefore it is my opinion that this document is counterfeit.”
In relation to Tareq the Unit states:
“It is my opinion that it is a legitimately manufactured Republic of Iraq Identity Card, however it is not possible to determine whether the damage noted at observation 2 is the result of fraud or other causes. The result is inconclusive.”
There then arises the question of how these various IDs were obtained.
It was Anwar’s evidence that he and Ali engaged the services of Yousef Farhan (apparently an officer of a bank in Safwan) to obtain ID cards for them as they had lost their previous cards.[39] Mr Farhan gave evidence from Iraq confirming that he and Anwar’s mother took certain documents, provided by Anwar and Ali, to the authorities in the Directorate of Civil Status in Safwan from where, after payment of a fee, he obtained two replacement identity cards which he then sent to the applicants in Australia. These two cards were not obtained at the same time, but within a few months of each other.[40]
[39] Ibid at 100-103.
[40] Mr Farhan’s evidence is in the Transcript of hearing dated 7 September 2022 at 150-159.
Despite the same people and processes allegedly being involved in these transactions, the card eventually obtained for Anwar was found to be counterfeit by the examiners in Amman while that obtained for Ali was found to be genuine.
Given the various claims made about discrimination against members of the Bidoon community, it may be wondered if it is possible for a Bidoon to be issued with an Iraqi identity card. In the first instance it should be noted that it is the nationality certificate rather than the civil identity card which establishes a holder’s status as a citizen.[41] Secondly, this exact matter was canvassed at great length before the Tribunal in Alshoka, as recently as August this year, where the Tribunal found that:
There is no evidence before the Tribunal that only Iraqi citizens are issued with ID cards.[42]
[41] Home Office (UK), ‘Country Information and Guidance: Iraq – Internal Relocation (and technical obstacles)’ GOV.UK (Country information and guidance, 24 December 2014) at 2.4.75.
[42] Alshoka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2829 at [82].
The Tribunal does not find it necessary to make a determination about the authenticity or otherwise of the identity cards in question. It does not actually matter whether or not they are genuine – even if they are counterfeit that does not go to the question of the actual identity of any of the Applicants. Holding a counterfeit card does not establish the proposition that the holder in question is not the person they claim to be (the who issue) merely that they do not hold the status established by the identity card (the what issue). That is not to say that if steps are taken by a person to obtain an identity card to which they are not entitled, or by knowingly false or corrupt means, the issue of their good character status is not enlivened.
Other documents
There have been numerous other documents in evidence before the Tribunal, including a death certificate for Khalid (Khaleed) El Ayeed (a brother); a birth certificate and other documents related to the Applicants’ father; school records for each of the Applicants; evidence of a high school certificate and university degree for Ali and a marriage contract for Tareq.
The Tribunal notes that the Respondent did not seek to challenge the authenticity of any of these documents, although details surrounding the marriage arrangements for Tareq were a matter of some dispute.
In summary, the Tribunal accepts that the Kuwaiti birth certificates are sufficient to establish that each of the Applicants is the person that they claim to be – they establish to the satisfaction of the Tribunal who each of the Applicants is.
Life Story
The Applicants have provided in their Post-Hearing Closing Submission a timeline of events which the Tribunal accepts is consistent with the evidence given at the hearings. With the source acknowledged it reads as follows:
“81. Between 1980 (Ali) and 1988 (Abdul Rahman) the four applicants were born in Kuwait.
82. Ali, Tareq and Anwar commenced their schooling in Kuwait.
83. In 1993 the applicants’ family, including the applicants, were deported from Kuwait to Iraq.
84. Between 1993 and the fall of Saddam Hussein in 2003, the applicants lived without incident in Iraq. Each applicant attended school in Iraq. In 2002 Ali, the oldest of the four applicants, commenced a university degree.
85. Following the fall of Saddam Hussein in 2003 and the commencement of the Al Malaki government in 2006, the applicants began to experience problems. The change in attitude by the Iraqi government towards Bidoons, and the problems the applicants’ family began to experience from 2006, is explained in most detail in the statutory declaration of Ali dated 21 February 2020 at paragraphs 15 to 22 (pages 3-5 of Ali’s Bundle).
86. In about mid 2008 the applicants’ family received the first of a number of threat letters. This, and the receipt of some further threat letters, caused the family to move house a few times within Basra governorate. The applicants believe the Badir militia group sent the letters.
87. In about September 2009 Tareq and Anwar were involved in an incident at a market in Zubair. They observed four men with guns arrive at the market in a black car. They men began shooting the guns. Tareq and Anwar feared for their lives.
88. Shortly afterwards, the applicants and other siblings moved to live on a farm in Safwan.
89. In February 2010 the applicants’ brother, Khalid, was shot on the street outside the family home and died. The applicants believe the Badir militia group was responsible for the shooting.
90. In March 2010 Ali and Abdul Rahman fled to Syria.
91. In April 2010 Tareq and Anwar flew out of Iraq on false passports. They eventually arrived in Australia.
92. In May 2011 Ali and Abdul Rahman were arrested in Syria and, shortly afterwards, deported back to Iraq.
93. In about July 2011 Ali and Abdul Rahman left Iraq, and eventually arrived in Australia.”
Throughout their evidence, the Tribunal found that the Applicants were broadly consistent in their recollections of events. Four witnesses were called and gave evidence:
·Mrs Najat Kareem, the mother of Tareq and Ali gave evidence by telephone from her daughter’s home in Safwan;
·Mr Yousef Farhan – a family friend and employee of a local bank gave telephone evidence from Basra;
·Mr Hasan Al-Jawareen – a family friend who had known the applicants and their family in Iraq gave telephone evidence from Ohio, USA, and
·Mr Yousif Swain – a family friend who had known some members of the family in Iraq and met the rest of them in Australia, gave evidence by telephone from Villawood, NSW.
Each of the four witnesses was subject to cross-examination by the Respondent and each, in broad terms, gave evidence consistent with that given by the Applicants themselves.
In attacking the credibility of the Applicant’s evidence, the Respondent drew attention to a number of matters displaying either a lack of knowledge or an inconsistency of recall about important events.
The first of these related to the details of the family’s deportation from Kuwait in 1993. At that time the Applicants would have varied in age from 13 years to 5 years of age and it is not surprising that they have a varying degree of remembrance of events in their childhood. Associated with this was the Respondent’s concern about how, as non-Iraqi citizens they came to be in possession of Iraqi civil identity cards. The Applicant’s response to this was in effect that they had no control over such matters and all arrangements were made by their father. This point is recognised in the Respondent’s original SFIC where is states (at [46]: “the applicant’s father has inexplicably obtained identity cards for the entirety of the family.”
Taking into account the finding related to the holding of ID cards by non-citizens in Alshoka, the Tribunal finds nothing implausible in this explanation.
Next, the Respondent raises questions which relate to the way in which a family friend (Abu Adel) arranged for and financed Ali’s travel to Australia.[43] In its submission the Respondent claims that Ali’s poor recollection of events should be regarded with suspicion on the basis that “it is inconceivable this would simply be forgotten some 11 years later.”[44] Even accounting for the inconsistencies, the Tribunal is not persuaded that they are of such gravity as to cast doubt upon the salient facts – namely that the travel was arranged and that someone other than Ali himself paid for it.
[43] Transcript of hearing dated 6 September 2022 at 28 to 31; Transcript of hearing dated 7 September 2022 at 124-126.
[44] Respondent’s Further Closing Submissions at [21(c)].
Perhaps of more concern is the matter of the Applicant’s father taking steps to obtain fake passports, a matter in which both Tareq and Anwar were involved. Here the issue is that Tareq’s evidence was that two such passports were obtained while Anwar says that there were six.
Film aficionados will be familiar with Akira Kurosawa’s classic film Rashomon (1950) in which four people who have witnessed the same event give widely different recollections of it, each believing their version true. There is in fact nothing unusual about such occurrences and in the instances raised by the Respondent, none reaches such a level as to call into serious question the credibility of the Applicant’s in terms of their recounting of events, many of which took place a long time ago and often in traumatic circumstances.
The Tribunal has perhaps slightly greater concern about the narratives given by Tareq and Anwar in relation to a trip back to Iraq (specifically to the northern Kurdish autonomous region) in 2012/13 related to Tareq’s wedding. However, those matters do not go to the wider issues of the credibility of the four Applicants up until that time.
People will always remember differently, indeed it might engender more suspicion and cause for concern were every detail to match at every stage when events of a distant past are being recounted.
As her late Majesty, Queen Elizabeth II, of blessed and happy memory, stated in relation to inconsistent stories within a family, albeit of quite recent occasion, “some recollections may vary.”[45] It happens in the best of circles.
[45] Caroline Davies, ‘Buckingham Palace breaks silence on Meghan and Harry claims to Oprah’, The Guardian (Web Article, 11 March 2021).
The Respondent has urged in relation to the Applicants that:
“there is significant detail lacking in their life stories that should prevent the Tribunal from reaching the requisite level of satisfaction.”[46]
[46] Respondent’s Further Closing Submissions at 21.
Accepting of course, that the onus lies with the Applicants to persuade the Tribunal as to the veracity of their claims, nevertheless, the Tribunal is persuaded that the life story/stories as presented by the Applicants are credible and that it should accept the gravamen of them as going to enhance their claims of identity in being who they claim to be.
The big picture
A mosaic is made up of many individual tiles, each one of which on their own conveys little information but when taken together and assembled coherently, a larger picture emerges. Not all the evidence points in one direction, which is hardly surprising. What is important however, is that all the evidence, for and against be taken into consideration[47] and weighed accordingly.[48] In ENK17 the Court said:
The jurisdiction to conduct a review… is not properly exercised simply by identifying one matter which tells against a particular conclusion and failing to give real consideration to the other matters which tell in favour of that conclusion.[49]
[47] WAIJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2004) 80 ALD 568 at [27].
[48] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [26].
[49] ENK17 v Minister for Immigration and Border Protection [2019] FCA 1135 at [91].
All such assessments are a matter of weighting, and the Tribunal is aware of the guidance given in CPI 16 to the effect that:
“a delegate does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.”[50]
[50] CPI 16 at 12.
In the matter of John this Tribunal was satisfied as to the applicant’s identity based upon assessment of his birth certificate and his life story while holding that matters of his legal status as either a citizen or Iraq or of Kuwait, or as a stateless Bidoon were not in themselves determinative of the question of identity.[51] The same was said in relation to variations in recollections of the asylum-seeking journey to Australia. This is a similar instance.
[51] John v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 77 at [98].
Conclusion
Taking together the Applicant’s birth certificates and their life stories the Tribunal finds that their identity as the persons they claim to be is established and that the doubts which might arise in relation to certain documentation are not of sufficient weight as to offset or negate that finding.
DECISIONS
In relation to ALI EL AYEED (2019/4610) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Act.
In relation to TAREQ HAMAD MENAHY EL AYEED (2019/4527) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Act.
In relation to ANWAR HAMAD MENAHY EL AYEED (2019/7298) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Act.
In relation to abdul Rahman el Ayeed (2019/8358) the matter is remitted to the Minister for reconsideration in accordance with a direction that the Applicant satisfies the identity requirements of the Act.
Abdul Rahman El Ayeed: character
This leaves for consideration the claim by the Respondent that Abdul Rahman El Ayeed is not a person of good character.[52] This assessment is based on the submission that Abdul Rahman knowingly provided false or misleading information to the Department, namely his Iraqi identity card. This Tribunal has made it abundantly clear that it regards the knowing or wilful submission of misleading or false information to the Government in citizenship applications as a matter of the utmost seriousness. [53]
[52] Australian Citizenship Act 2007 (Cth) s 21(2)(h).
[53] Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082.
The Respondent frames their submission as follows:
“As discussed at [33]-[34] above, Abdul has been involved in the provision of fraudulent material to the department, an agency of the Commonwealth. In light of the applicant’s explanation for how he came to obtain the RIIC, it is the Minister’s submission that his failure to alert the department at any point as to the inauthenticity of the RIIC weighs against his character. Only once the department had undertaken verification of the RIIC and put the applicant on notice that its provision may be considered adversely to his application did the applicant explain the surrounding circumstances. Nor has the applicant otherwise accepted responsibility or expressed remorse for his conduct.”[54]
[54] Respondent’s SFIC at 47.
In his statutory declaration of 6 November 2020, Abdul Rahman writes (at [30]):
“Fourth, on my visit to Iraq in 2013 between September 2013 and January 2014 I decided to renew my Iraqi ID card for two reasons. One reason was that my Iraqi ID card issued in 2010 was damaged. A second reason was that, although I had now had residency in Australia and was concerned for my safety in Iraq, my mother and some siblings still lived in Iraq. I wanted to plan for the possibility of visiting them again. Prior to 2013, I never renewed an Iraqi ID card myself or in person. In 2013 my family knew a person in Basra named Ahmad. Ahmad was an Iraqi citizen. Although Ahmad was a taxi driver, he was known to have connections with the authorities. I asked Ahmad to accompany me when I tried to renew my ID card. I, with Ahmad accompanying me, attended a government office in Safwan in a building called Darat Ahwal Nufos Safwan. Ahmad spoke with someone in a government office to help me renew my ID card. I paid money to a person in the government office to renew my ID card. I also paid money to Ahmad ($50,000 in Iraqi currency) for the taxi ride and for helping me.”

It appears that Adbul Rahman first produced this counterfeit ID card to the Department in 2018 in response to a departmental request, while assessing his citizenship application, for more primary documentation in support of that application. It does not appear that the card, obtained in 2013 was placed before the Department at any earlier stage for the purpose of establishing Abdul Rahman’s identity.[55]
[55] Transcript of hearing dated 9 September 2020 at 46.
To establish that a person is not of good character because they have provided a document assessed to be counterfeit requires more than the mere fact that such has happened. It requires some element of mens rea.
Indeed, the Respondent itself states: “the real question is whether Abdul had knowledge that his RIIC was fake when he submitted it to the Australian Government…”[56] The Respondent then goes on to suggest that the Applicant “can point to no independent evidence that the competent authority in Safwan would have issued counterfeit cards”.[57]
[56] Respondent’s Further Closing Submissions at 26.
[57] Idem.
The Tribunal is therefore prompted to ask, what evidence would the Respondent expect from the Applicant?
There is nothing before the Tribunal to suggest that Abdul Rahman knew that the ID card was counterfeit. As far as he was concerned, he had attended a government office, paid money and received a document in return. The Tribunal cannot see how the Respondent can establish that this Applicant deliberately sought to deceive the Department by providing a card he had every reason to believe was genuine.
Equally, there is no evidence as to how and when, or even if, the Applicant was made aware of the inauthenticity such that he incurred an obligation “to alert the department” as to its status.
There is no basis to find that the Applicant deliberately sought to deceive the authorities or that he acted in a way which he knew to be improper. There is nothing substantial upon which to base a finding that the Applicant is not of good character.
DECISION
In relation to abdul Rahman el Ayeed (2019/8358) the matter is remitted to the Minister for reconsideration with a direction that there is no basis upon which to conclude that the Applicant is not a person of good character.

I certify that the preceding 127 (one hundred and twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[sgd].......................................
Associate
Dated: 16 December 2022

Date(s) of hearing: 6, 7, 8 and 9 November 2022

Date final submissions received: 16 November 2022

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Ms F Bazzi, St George Migration and Lawyers

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers

Name	Date of birth	Father	Mother	Reference
ALI	15.10.1980	Hamad Menahy El Ayeeed	Najat Abdullah Jarad (ono Najat Karim Jabbar)	Kuwait Govt. Ministry of Health: Birth Certificate Issued 29.10.1980. Ali T-documents at 39.
TAREQ	01.02.1982	Hamad Menahy Ayeed	Najat Abdullah Jarad	Kuwait Govt. Ministry of Health: Birth Certificate issued 14.02.1982. Tareq Tender Bundle at 28.
ANWAR	10.11.1982	Hamad Menahy El Ayeed	Sherifah Kettam	Iraq Government: Directorate General of Nationality. Personal ID card issued 20.10.2018 Anwar evidence, undated.
ABDUL RAHMAN	08.10.1988	Hadam Manhi Ayeed	Sharifah Kattam Mehisan Sultan	Kuwait Govt. Ministry for Public Health: Birth Certificate issued 02.11.1988. Abdul Rahman T-docs at 67.

Date(s) of hearing:	6, 7, 8 and 9 November 2022
Date final submissions received:	16 November 2022
Counsel for the Applicant:	Mr B Zipser
Solicitors for the Applicant:	Ms F Bazzi, St George Migration and Lawyers
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers