John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 77
•1 February 2021
John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 77 (1 February 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7737
Re:David John
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:1 February 2021
Place:Sydney
The decision under review is set aside and remitted to the Minister for reconsideration in accordance with the direction that the Tribunal is satisfied of the Applicant’s identity and the prohibition in section 24(3) of the Australian Citizenship Act 2007 (Cth) does not apply.
........................[sgd]........................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether prohibition under subsection 24(3) applies – satisfaction as to the identity of the applicant – Bidoon – claim of statelessness – whether applicant citizen of Iraq or Kuwait – meaning of identity – pillars of identity – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24, 26
Republic of Iraq, Iraqi Official Gazette Issue 4019, 7 March 2006, arts 6, 7
CASES
1811868 (Refugee) [2019] AATA 6013
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4654
Re Canavan; Ludlam; Waters; Roberts [No 2]; Joyce; Nash; Xenophon [2017] HCA 45
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016) Department of Home Affairs < align="left">Australian Government – Refugee Review Tribunal, Country Advice – Iraq: Iraq – IRQ37183 – Bidoons – Status – Treatment (14 September 2010)
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iraq’ (26 June 2017)
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iraq’ (17 August 2020)
Joint Standing Committee on Electoral Matters, Excluded: The Impact of section 44 on Australian democracy (Canberra, May 2018)
Kohn, Sebastian, Stateless in Kuwait: Who are the Bidoon? (23 March 2011) Open Society Justice Initiative < align="left">Macquarie Dictionary (online ed)
Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples - Kuwait: Bidoon’ (December 2017)
Oxford English Dictionary (online ed)
Revised Citizenship Procedural Instructions (1 January 2019) CPI 16
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
1 February 2021
Mr David John[1] (Applicant) is seeking a review of a decision by a delegate of the Minister (Respondent) to refuse his application for citizenship by conferral.
[1] The Applicant’s birth name was Saleh Al Shemmary and was legally changed to David John in 2018: Section 37 documents (T documents) at 277.
That decision (the reviewable decision) was made on 11 November 2019, with the original application for conferral of citizenship having been lodged on 1 December 2015.
The basis for the Respondent’s decision was that the delegate was not satisfied as to the identity of the Applicant as required under section 24(3) of the Australian Citizenship Act 2007 (Cth) (Act).
CITIZENSHIP
Citizenship is a fundamental bedrock of the Australian polity. The conferral of citizenship is a “privilege”[2] which both grants rights and engenders obligations. It is a thing of legal status and a thing of value.[3] It is not to be bestowed lightly.[4]
[2] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086, [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422, [35].
[3] Beyan and Minister for Immigration and Border Protection [2015] AATA 256, [38].
[4] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
For persons not entitled to automatic acquisition of Australian citizenship, it may be acquired in a number of other ways as specified in the Act.
One of those ways is citizenship by conferral.
Citizenship by conferral
The Act provides that an applicant may make an application for citizenship by conferral.[5] The Minister must make a decision on the application and either approve or refuse it.[6] An applicant must meet certain qualifications as specified in the Act,[7] which include undertaking and passing the Citizenship Test[8] (unless the applicant is exempted from so doing[9]). Once those steps are complete a qualified applicant must make the Pledge of Commitment[10] before their citizenship is finally granted.
[5] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[6] Ibid s 24(1).
[7] Ibid s 21(2).
[8] Ibid ss 21(2A) and 23A.
[9] ibid s 21(3)(d), (4)-(8).
[10] Ibid s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, an applicant’s presence in Australia and breaches of the law.[11]
[11] Ibid s 24(4)-(6).
However, there is a foundational and fundamental matter which precedes all other considerations and requirements for the grant of citizenship.
Section 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Two important aspects of this requirement must be noted. The Minister (or his delegate) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish his/ her identity.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)[12] notes 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”.[13]
[12] The legislation which became the Australian Citizenship Act 2007 (Cth).
[13] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) 16.
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 Revised Citizenship Procedural Instructions (CPIs)[14] published by the Department administering the Act and secondly the National Identity Proofing Guidelines (NIPG) published by the Attorney-General’s Department in 2016.
[14] Revised Citizenship Procedural Instructions (1 January 2019) CPI 16 – Assessing Identity under the Citizenship Act (CPI 16).
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-makers,[15] they are not to constrain the right of decision-makers to make any decision lawfully open to them to make, based on the material before them at the time of their own decision-making.[16]
[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.
[16] AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31, [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, ‘identity’ is defined as:
·The condition of being oneself or itself, and not another.
·The state or fact of being the same one.
The Oxford English Dictionary relevantly defines ‘identity’ as follows:
·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.
·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 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).
Guidance as to the meaning of the term can also be found in the CPIs.
The relevant paragraphs of CPI 16 – Assessing identity under the Citizenship Act (CPI 16) provide, inter alia:
2.1 National Identity Proofing Guidelines
This Instruction aligns with the Attorney General’s Department National Identity Proofing Guidelines 2014 (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.
…
4.5 Name and identity
Name to be used
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 acceptable identity documents. Where an applicant has changed their name, the application must be supported by acceptable documentation.
The allowable identity documents relating to the applicant’s name for the purposes of a citizenship application would include officially issued documentation such as:
·birth and adoption certificates;
·official change of name documentation;
·marriage, divorce or other relationship status certificates or entry records;
·official passports.
…
4.6 Changes to identity information
If the applicant has changed their name, date of birth, or gender, they will need to provide official evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.
In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage. However, a change to personal/biographical data is a serious matter if the change leads to a different identity.
A change of identity (changes to component(s) of the person’s identity such as their name, date of birth or gender) diminishes the usefulness of the results of the security and criminal checks.
…
4.7 Assessing changes to attributes of a person’s identity
When assessing changes to a person’s name or other identity information, decision-makers should consider:
·the reason that the person provided the original personal information relating to their identity when they applied for citizenship;
·the reason for changing the personal information;
·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes;
·the documentation provided to support the change of personal information.
Regard should also be had to the NIPG which relevantly provides as follows:
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.
There are often instances in which a person cannot produce identity documents or documents which meet the requirements of the CPIs. Instances of this have arisen in relation to people who have been refugees from conflict zones, victims of natural disasters, unauthorised maritime arrivals (back to the days of the Vietnamese “boat people”), 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 NIPG establishes that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken. Such processes may include:
1Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2Verification 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.
3Verification 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).
4A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[17]
[17] Attorney-General’s Department, National Identity Proofing Guidelines (2016) Department of Home Affairs < at [5.1.3]. Emphasis in original.
It is also important to note what the NIPG provides 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 at paragraph 4.2 of CPI 16.
CPI 16 provides a trifecta of factors used to establish identity:[18]
[18] CPI 16 at 4.4.
Three pillars of identity Individual characteristics Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies. Documents Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
It then makes explicit that:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
CPI 16 states clearly at paragraph 4.16 that (citations omitted):
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgment. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
THE APPLICANT’S IDENTITY: FACTS AND CLAIMS
It is not contested that the Applicant arrived in Australia, at Christmas Island, on 10 September 2010 as an irregular maritime arrival.[19]
[19] Supplementary section 37 documents (Supplementary T documents) at 393.
It is also accepted that the Applicant was married in January 2007 to Hanan Naser Hlail Al-Dires[20] and that they have two children – a son (born in March 2009 in Basrah, Iraq)[21] and a daughter (born in January 2011 and also in Basrah).[22]
[20] T documents at 177.
[21] Ibid 355.
[22] Ibid 351.
Neither the Applicant’s wife nor his children have ever been in Australia.
What is contested is the Applicant’s place and date of birth, and hence his status as a Kuwaiti national, or an Iraqi national, or as a stateless person.
The Applicant claims that he was born on 4 September 1985 in Kuwait,[23] but that he is a stateless person falling into a social class of persons known as Bidoon. The term is short for bidoon jinsiya which itself means “without nationality” in Arabic.
[23] Ibid 196.
Bidoons
The Australian Government has provided certain information about the status of Bidoons in Iraq in the following terms (inter alia):
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 (see 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.[24]
[24] Australian Government – Refugee Review Tribunal, Country Advice – Iraq: Iraq – IRQ37183 – Bidoons – Status – Treatment (14 September 2010) at 2-3.
A 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 [to] 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.[25]
[25] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iraq’ (26 June 2017) at [3.57]-[3.58].
Interestingly, while Bidoons are identified specifically as one of the “Groups of Interest” in the 2017 DFAT Country Information Report on Iraq, in the current (August 2020) updated version they are only addressed through brief references under the generic heading “Stateless Persons” as follows:
UNHCR reported in April 2020 that there were 47,515 stateless persons in Iraq. Stateless persons may be people affected by the conflict with Da’esh (such as the children of Da’esh fathers and Iraqi mothers) or they may be historically undocumented minorities such as the Bidoon, Faili Kurds and Dom …
…
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.[26]
[26] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iraq’ (17 August 2020) at [2.15] and [2.17].
The specific difficulties of Bidoons obtaining Iraqi citizenship were outlined in a decision of this Tribunal, 1811868 (Refugee) [2019] AATA 6013.[27]
[27] Decision of Member Alison Murphy dated 23 July 2019.
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:
Bidoon … 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.
History
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.
Current Challenges
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.[28]
[28] Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples - Kuwait: Bidoon’ (December 2017).
It is estimated that around 10% of the inhabitants of Kuwait are of Bidoon status.[29]
[29] Sebastian Kohn, Stateless in Kuwait: Who are the Bidoon? (23 March 2011) Open Society Justice Initiative < application processes
The Applicant has been involved in lengthy processes with his various applications:
·The Applicant arrived in Australia on 10 September 2010 as an irregular maritime arrival.
·In November 2010 he made an application for assessment as a refugee and during the process he claimed to be a stateless person, born in Kuwait but holding an Iraqi identity card.[30] His refugee application was initially refused but granted on review.[31] He was granted a Protection (Subclass 866) visa in October 2011.[32]
·On 1 December 2015 the Applicant lodged his application for citizenship by conferral, again claiming that he was born in Kuwait but is a stateless person.[33] On 10 May 2017 the Applicant was requested to provide further documentation in support of his application.[34]
·The Applicant was granted a Resident Return (subclass 155) visa in June 2017.
·In pursuit of the citizenship application, the Applicant was asked on 10 September 2019 to provide a response to an initial adverse finding by the Department.[35] The Applicant provided a response, through his agent, on 10 October 2019.[36]
·On 11 November 2019 the Applicant’s citizenship application by conferral was refused on the basis that the Minister’s delegate was not satisfied as to the Applicant’s identity.
THE APPLICANT AND THE 3 PILLARS OF IDENTITY
[30] T documents at 386; Supplementary T documents at 414-418 and 432.
[31] Supplementary T documents at 455-463; Further supplementary section 37 documents at 468.
[32] T documents at 386.
[33] Ibid 155 and 157.
[34] T documents at 193-195.
[35] Ibid 337-345.
[36] Ibid 346-383.
Biometrics
There is no biometric data available which would establish the identity of the Applicant. Consideration must therefore be given to the other two pillars in assessing the Applicant’s identity.
Documents
There are a variety of documents before the Tribunal which make a variety of statements about the Applicant.
Primary documents
The Applicant submitted a copy of his Kuwaiti birth certificate issued in Kuwait which shows him as having been born in Kuwait on 4 September 1985.[37] His birth name is shown as Saleh, his father’s name is stated as Mahdi Salih Hassan Al Shemmary, his religion as Muslim and his nationality as “Not Kuwaiti”.
[37] Ibid 353-354:The Tribunal accepts that the translation of his birth date is incorrect (showing 18 September 1985) and that this has been subsequently corrected by the Applicant’s statement of facts, issues and contentions dated 16 July 2020 (Applicant’s SFIC) at 1-2 and Annexure A.
There is a translated document which shows that Saleh Al Shemmary was born on 4 September 1985 in Kuwait and was issued with a personal identity card in that name by the Republic of Iraq’s Ministry of Interior.[38]
[38] T documents at 359.
There is a letter from the Consulate General of the Republic of Iraq in Sydney which advises that Saleh Mahdi Saleh Al-Dires, the holder of an Iraqi Civil Identity Card and born on 15 December 1986 in Dhi Qar, Iraq is an Iraqi citizen. It is also advised in the letter that such identity card “is equivalent to the Iraqi birth certificate”.[39] The provenance of this is explained in the Applicant’s statement of facts, issues and contentions dated 16 July 2020 at paragraphs 13 and 14 as follows (emphasis in original):
In relation to the Country information, here, I will refer to DFAT 2010 report about Iraq which was quoted in an AAT case number 1317610 [2014] RRTA 472 (28 May 2014) which says:
43. Reports state that sometime following the Gulf War, the Iraqi government offered a one-off grant of Iraqi citizenship to Bidouns who had fled or been deported to Iraq. According to a 2010 DFAT advice, approximately 47,417 Bidouns were granted Iraqi nationality under the one-time assistance package called the Makremiayah, meaning a ‘generous act. To qualify Bidouns 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.’ The number of Bidouns remaining stateless in Iraq after the war was estimated to be around 54,500 individuals or 5,430 families. In 2010 UNHCR advised that the former Iraqi government granted Bidouns nationality certificates and passports under the Makremiayah. The UNHCR stated that those Bidouns who became citizens under the above arrangement ‘possess the Iraqi ID and nationality certificates’, whereas those who do not hold Iraqi citizenship ‘do not hold Iraqi ID cards, nationality certificates or PDS cards’.14Similarly, (sic) DFAT noted in 2010 that stateless Bidouns ‘do not hold Iraqi nationality certificates, Iraqi ID cards or Public Distribution System (PDS) cards (which often double as identity cards1).
In fact, the above quoted paragraph explains why the place of birth was replaced for bidoons in Iraq from Kuwait to Iraq, it also explains why people who are “bidoons’ used a local tribal names in Iraq rather than using their original tribal name, this report fits to explain why the applicant’s place of birth was recorded as “Iraq” and why his family name was recorded as “ al-Dires instead of “al Shemmary”, because the law in Iraq doesn’t allow for people who fled Kuwait after the 1991 Invasion to use a Kuwait birth dates or Kuwaiti tribal names, also, the place of birth should be recorded as an Iraqi place of birth although the applicant was born in a different country.
[39] Letter from Consul Hasnaa Qassam of the Consulate General of the Republic of Iraq in Sydney dated 20 February 2020 (Consul letter).
This explanation is elaborated in a further submission as follows:
This clarification to avoid the confusion may occur in reading the spelling of names so that Al-Dires or Al Shimmary can be as to that I sent previously the family name as Al Shimmary but when you requested copies of IOD cards I have no difference in the former ID cards so that I enforced to apply to get Iraqi Citizenship certificate (Lost Substitute) but they wrote he family name as Al-Dires. For your consideration.[40]
[40] T documents at 182 and 323.
The Applicant’s wife’s national identity card, issued in Iraq, states her place of birth as Dhi Qar, Iraq and her name as Hanan Al-Dires.[41]
[41] Ibid 361.
Secondary documents
The Applicant seeks further to rely on certain other documents which refer to his father’s life and activities while living in Kuwait. These include his father’s birth certificate, driver licence and record of his military service, together with certain medical records regarding members of his family, including his parents. It appears that these documents were before the Department in its previous assessment of the Applicant’s refugee status but not all of them were in evidence before this Tribunal.[42]
[42] Applicant’s SFIC at [5]; Applicant’s post-hearing submission dated 27 November 2020 at [1]; Supplementary T documents at 455-456.
In addition, there is a copy of his brother’s death certificate which is before the Tribunal but is in Arabic and not accompanied by a translation.[43]
[43] T documents at 283.
There are also further documents both in Arabic and translated into English which are Iraqi identity documents relating to the Applicant’s wife and children.[44]
[44] Ibid 303-322.
The Iraqi Citizenship Certificates for each child indicate that the name of their father is Saleh Mahdi and that he was born in Basrah (Iraq).[45]
[45] Ibid 311 and 316.
Status of certain documents
In the examination of documents submitted by the Applicant in December 2015, the Minister’s delegate referred two of them to the Department’s forensic Document Examination Unit.
In relation to an Iraqi Identity Card the examiner found that it was counterfeit. In relation to the Applicant’s Kuwaiti Birth Certificate the examiner found that there had been some alterations to handwritten details on the document but that “the quality of the security limits the ability to determine whether this is a legitimately manufactured and issued document. The result is inconclusive”.[46]
[46] T documents at 293.
The Delegate, in his statement of reasons, somewhat alters the emphasis of the finding in relation to the Birth Certificate, writing that “this document appears to be legitimately manufactured but fraudulently altered”.[47] This puts a more sinister gloss upon the assessment of the validity of the document than is justified by the Examiner’s findings. This more sinister interpretation is repeated in the Respondent’s statement of facts, issues and contentions dated 28 August 2020.[48]
[47] Ibid 245.
[48] Respondent’s statement of facts, issues and contentions dated 28 August 2020 (Respondent’s SFIC) at [21(b)].
Nevertheless, in relation to the Iraqi Identity Card, the Applicant has offered the explanation that the card was obtained for him by his father, who paid someone “in the registry to get this ID, it was common in Iraq to pay for bribes to get these ID’s, however that doesn’t mean that this ID was fraudulent because my father paid bribe to get it … it was a genuine document to the best of our knowledge”.[49]
Life story
[49] T documents at 365.
Birth date details
The Minister presses a further point on the Birth Certificate that the Applicant has offered three different dates for his birth: 9 April 1985, 4 September 1985 and 15 December 1986.[50] The Minister goes on to state that this “inconsistency is significant and has not been reasonably explained by the applicant”.[51]
[50] Supplementary T documents at 395; T documents at 196 and 286; T documents at 364 and 373, respectively.
[51] Respondent’s SFIC at [80].
This is not entirely accurate. In relation to the December 1986 date the Applicant states clearly that this date was changed in Iraqi documentation, by his wife, because the Iraqi authorities “would not accept the Kuwaiti birth dates, they also would not record my place of birth as ‘Kuwait’”.[52] In this process, the Applicant’s wife not only gave the Applicant a new birth date but also changed the surname of their children to Al-Dires in order to give them a tribal affiliation, Al-Dires being her tribal name.
[52] T documents at 364.
The references to the December 1986 date in Iraqi documentation resulted from the actions of the Applicant’s wife as described.[53]
[53] Ibid 373; Consul letter.
The 9 April 1985 date appears only once in the voluminous documentation – in a record of the Applicant’s entry interview conducted on 22 September 2010, apparently on Christmas Island shortly after the Applicant’s unauthorised arrival. It was conducted with the aid of an Arabic interpreter. The documentation is filled in by hand by the interviewer and the Applicant has provided some mark to indicate that he understood what was being said. However, there is no indication that the Applicant, in any way, was responsible for the final form of the documentation which itself contains numerous deletions and emendations. The date of birth as recorded is “9/4/1985”.[54]
[54] T documents at 395.
The 4 September 1985 date appears in a variety of documents. In the Applicant’s Form 80 (Personal particulars for assessment including character assessment) it appears electronically printed as “04-Sep-1985” and the Applicant has signed this form.[55] In his translated Iraqi Identity Card it appears, again electronically, as “04/09/1985”.[56] It then appears in the Applicant’s statement of claim for a Protection visa. The Applicant’s date of birth which was electronically printed on the statement as “04-Sept-1985” has been crossed-out and in place there is a handwritten notation amending the date to “04/09/1985”.[57] It next appears in a Form 956 (Advice by migration agent/ exempt person of providing immigration assistance) where the Applicant’s date of birth is electronically given as “09-Apr-1985” and this has been crossed-out and in place thereof there is a handwritten notation amending the date to “04/09/1985”.[58] It is obvious from the handwriting that the two handwritten alterations are in the same hand.
[55] T documents at 196 and 212.
[56] Ibid 286.
[57] Supplementary T documents at 415.
[58] Ibid 436.
The other relevant appearance of the birth date of 4 September 1985 is in the Applicant’s official change of name certificate issued by the NSW Registry of Births, Deaths and Marriages in 2018.[59] The Tribunal takes this as a document of some integrity and weight.
[59] T documents at 277.
The translated copy of the original birth certificate from Kuwait gives the Applicant’s date of birth as “18/09/1985”. However, the Applicant has explained that this is a translation error, the original Arabic showing the date of birth as 4 September 1985.[60] The translated certificate shows the date of issue as “1809/1985” and this has then been, according to the Applicant, mistakenly replicated in the date of birth line as “18/09/1985”.[61]
[60] Ibid 354 and Applicant’s SFIC at [2].
[61] T documents at 353; Annexure A to Applicant’s SFIC.
The appearances of the December 1986 date are clearly explained and the error in the 9 April 1985 date is manifestly a transcription error of 4/9/1985 into 9/4/1985.
The Tribunal accepts that the Applicant was born in Kuwait on 4 September 1985.
The Minister’s contention that the confusion over birth dates should be held against the interests of the Applicant is unsustainable.
Citizenship status
The Minister next attacks the Applicant’s knowledge and understanding of his citizenship status.
The Applicant has provided a statement to the effect that:
I was granted an Iraqi citizenship on 23.7.2015, however, me and my wife were unaware of the fact that I was granted the Iraqi citizenship at that time, that was due to the fact that I appointed an agent through a power of attorney in order to pursue this matter, this agent told my wife that he will contact her once the Iraqi civil ID is issued, however, my wife did not hear from this agent until 2018 when he told her my ID was available as of 23.7.2015, however, he did not tell her about in time as he was outside Iraq.
For the reasons mentioned above, I was unaware that an original Iraqi national ID was issue to me at the time I applied for my Australian citizenship. I will prove the original Iraqi Civil ID card to the department for inspection, my ID number 00260985 was issued on 23.7.2015. My new name that was recorded in the new Iraqi ID is Saleh Mahdi Saleh AL-DIRES.[62]
[62] T documents at 365.
Given the discussion which the Tribunal has set out above in relation to the complexities of Bidoon/ Iraqi citizenship matters, the Tribunal does not find this to be an entirely implausible explanation of how the Applicant came to have Iraqi citizenship granted through the activities of an agent and based upon the citizenship status of his wife.
The Applicant’s wife was born in Iraq.[63] Article 7 of the Iraqi Nationality Law of 7 March 2006 provides that:
The Minister may approve naturalization of a non-Iraqi married to an Iraqi woman subject to conditions set forth in Article 6 hereof, provided the period of residence stipulated in Paragraph c of Item I of Article 6 hereof shall be no less than five years and on condition of continued wedlock.[64]
[63] Ibid 361.
[64] Ibid 367-372.
Article 6(I)(c) provides for the naturalisation of non-Iraqis, including those who may not be married to an Iraqi citizen. Where persons are not otherwise eligible because of such a marriage, the residential requirement is ten years. The Tribunal takes Article 7 as qualifying the ten-year requirement of article 6(I)(c).
The Applicant had been resident in Iraq since 1993[65] and had lived there for over ten years until his departure in 2010. He has remained married to his Iraqi wife since their marriage in 2007.
[65] T documents at 363.
There is, however, a further difficulty in reconciling all the requirements of the Iraqi Nationality Law as Article 6(b) requires that a non-Iraqi applying for citizenship “has (sic) residing within Iraq at the time of applying for naturalization”. To meet this requirement the Applicant would have had to make his application prior to 2010, although the grant was eventually made in 2015. The Applicant refers to this matter as a cause of the delay in his statutory declaration of September 2019.[66] The Tribunal recognises that it is not unusual, even in Australia, for long delays to occur in the granting of citizenship/ naturalisation applications.
[66] Ibid 365.
Recent matters before the High Court of Australia will no doubt have impressed upon the Minister that people, including Members of the Commonwealth Parliament, may have discovered, much to their amazement (and even disadvantage) that they may have acquired citizenship of foreign countries without their knowledge,[67] or through the action of a relative.[68] If it can happen to a member of the Commonwealth Parliament, there is no reason it cannot happen to a less than sophisticated, otherwise perhaps stateless, Bidoon.
[67] See discussion in Joint Standing Committee on Electoral Matters, Excluded: The Impact of section 44 on Australian democracy (Canberra, May 2018), ch 2.
[68] “On 18 July 2017, Senator Canavan’s mother told him that he may have been registered as an Italian citizen as a result of steps she had taken to become an Italian citizen”: Re Canavan; Ludlam; Waters; Roberts [No 2]; Joyce; Nash; Xenophon [2017] HCA 45, [78].
Throughout these proceedings the Applicant has maintained that he was born in Kuwait in 1985 and deported to Iraq in 1993 because of his Bidoon status. States do not deport their own citizens - they deport people who are non-citizens or who have otherwise had their citizenship stripped from them rendering them stateless.
The Tribunal accepts that, as the World Directory of Minorities and Indigenous Peoples report (quoted above) attests, Bidoons are stateless persons in Kuwait. There is no evidence to suggest otherwise. Hence there is no evidence to compel a finding that the Applicant was, at any time, a Kuwaiti citizen.
The Minister contends that “it appears plausible that the applicant has been an Iraqi citizen since birth”.[69] This contention is based upon the Applicant having obtained a new or “replacement” Iraqi identity card in 2009.
[69] Respondent’s SFIC at [86].
To accept this proposition the Tribunal would have to overcome a number of hurdles, such as:
(a)the Applicant’s birth in Kuwait and identification as a Bidoon;
(b)the evidence of his father’s Kuwaiti military service;
(c)the Applicant’s statement to the effect that the “replacement” card was issued on the same day as the original when the original card sustained water damage, and that the replacement card indicates a reissue due to “damage”;[70]
(d)the Minister’s own contention that the identity card is, in any event, counterfeit.
[70] T documents at 363.
The card in question is described by the Applicant as a “civil ID card just to facilitate my affairs in Iraq”[71] and this suggests that it may have been a form of identification but having lesser status or authority than an identity card which might have been granted to a citizen, just as photo-ID cards in Australia are not all of equal authority or significant provenance.
[71] Ibid 363.
The Applicant declared himself “stateless” in representations to the Department in September and November 2010, and December 2015.[72] The Minister draws attention to a notation that the Applicant was resident in Iraq from 1993 to 2010 as a “citizen”,[73] a description which occurs only once, on the Applicant’s Form 80 dated 3 July 2017 where it appears as “Part T – Additional Information”.
[72] Supplementary T documents at 395 and 416, and T documents at 154, respectively.
[73] Respondent’s SFIC at [19(d)].
The Tribunal has significant doubts as to the status of this information or the fact that such a claim was ever made or advanced by the Applicant himself.
It is true that the Applicant did not draw to the attention of the Department that he had been applying (through his wife and/ or agent) for Iraqi citizenship until his statement of September 2019.[74]
[74] T documents at 364.
It may be argued that he was not obliged to do so. There is apparently no question on any of the forms completed by the Applicant which require disclosure of such information.
The fact of citizenship does not, in itself, establish identity.
Citizenship may be acquired, conferred, renounced, reinstated, forfeited, or cancelled depending upon the provision(s) of national citizenship laws. Whatever an individual’s status as a citizen, that has no bearing on his or her identity. Identity is a feature of personality. Citizenship is a matter of law. In other words, the question of the Applicant’s citizenship status is in no way determinative of the question of his identity other than to the extent that there may or may not be documentation which shows that he was recognised as a particular individual by some citizenship or identification issuing authority.
Childhood and education
The Tribunal shares a degree of the Minister’s scepticism regarding the Applicant’s alleged level of literacy and numeracy. Although he has given different dates for his primary schooling they are not so varied as to be inexplicable as mere lack of detailed recollection.[75] The Minister contends that as a “stateless Bidoon” the Applicant would not have been able to attend school at all.[76] If, in the alternative, he did achieve some five or six years of elementary education, his claims to be functionally illiterate in Arabic, to the extent of not being able to tell numbers apart, becomes problematic.[77] It might, however, account for his not really understanding the details and levels of information in departmental forms to which he has appended his “signature”.
[75] T documents at 201 notes the Applicant’s education history to be from September 1994 to June 2000 and Supplementary T documents at 397 states it as 1995 and 2001.
[76] Respondent’s SFIC at [82].
[77] T documents at 364.
The Applicant maintains that even stateless Bidoons were accorded some access to primary education in Iraq.[78]
[78] T documents at 366.
There is no secure basis upon which the Tribunal can conclude this matter one way or another. Although, the Minister’s claim that the Applicant should have been able to provide some form of documentary evidence of his “school work or certificates of achievement or reports for this period”[79] strikes the Tribunal, in all the circumstances, as being beyond fanciful to the point of being farcical.
[79] Respondent’s SFIC at [83].
The extent of the Applicant’s capacity in terms of literacy, numeracy, cognitive awareness, self-awareness and capacity to manage his own affairs are discussed in the letter dated 7 September 2017 by Dr Abu-Arab, a clinical psychologist. Apart from noting a diagnosis of major depression and chronic PTSD he references the Applicant’s problems with alcohol abuse and his generally low level of functional capacity.[80]
[80] T documents at 264-265.
Departure from Iraq
The next element of the Minister’s attack on the Applicant’s credibility relates to his narrative of his departure from Iraq which involves claims that he obtained and used a false passport, that he found sufficient money (US$7500) to pay people smugglers by selling gold and jewellery belonging to his wife and mother, or by selling sheep belonging to the family and living off donations received as a cleaner in a mosque.[81]
[81] Supplementary T documents at 397, 407-409 and 432-433.
The Tribunal agrees that there is much uncertainty about elements of the Applicant’s narrative, although the Minister offers no alternative explanation as to how the Applicant left Iraq (which he clearly did) and then arrived in Australia (which he clearly did).
He clearly managed to get from Iraq to Indonesia which required a passport – either genuine or forged. There is no probative evidence on this point. He arrived as an illegal maritime arrival which means, logically, that he must have been able to pay people smugglers. There is no probative evidence as to the amount in question (other than the figures reported in the Christmas Island interview record) or how he obtained that money.
In many ways this is a familiar narrative – departure on real or false papers, arrival and travel through Indonesia, payments to people smugglers by use of money raised from the family, a dangerous boat journey to Australia and a lack of documentation. All these elements (the false passport, selling family jewellery, even the $7500 payment to people smugglers) were discussed by this Tribunal in its decision in LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs where I stated:
Although the Respondent pressed the Applicant hard on this matter, it does not appear to the Tribunal that the cost paid to the people smuggler is relevant to the question of the Applicant’s identity. Admittedly, it may go to matters of credibility or honesty, or matters of memory, but those are different questions.[82]
[82] [2020] AATA 4654 at [55].
Absence of documentation
Finally, the Minister attacks the Applicant’s claim on the basis that he (the Applicant) has taken no steps to obtain documentary proof of his identity. The Minister asserts that the Applicant should have sought to “secure evidence of identity that may reasonably be expected to exist, or [provide] a cogent and acceptable explanation for his inability to produce these documents”.[83]
[83] Respondent’s SFIC at [74].
The Tribunal notes a number of problems with the Minister’s submission. The first and most obvious is the inability to obtain documentation from Iraq given the Applicant’s flight from that country. Secondly, there are questions as to the ability of a stateless Bidoon (if indeed the Applicant is such) to obtain documentation from the Kuwaiti authorities. Thirdly, the Applicant has in fact supplied a considerable amount of documentation, only one piece of which has been rejected as possibly counterfeit and another is of dubious value. The Applicant has made numerous offers to the Minister for his officers to inspect other documentation held by the Applicant, including original documents.[84]
[84] Applicant’s SFIC at [17].
THE LEVEL OF SATISFACTION REQUIRED
The Minister very properly states that the Tribunal must have a high degree of satisfaction as to the identity of an applicant in order to accept that the requirement in section 24(3) of the Act is met. The exhortations in the Supplementary Explanatory Memorandum to the original bill have been quoted supra and should guide decision-makers.
In Sinnathamby and Minister for Immigration and Border Protection, the Tribunal said clearly that:
Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.[85]
[85] [2018] AATA 2579 at [56].
I made the position clear in Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that where there are doubts as to an applicant's identity, the applicant's citizenship application should not be approved. I stated:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.
The Tribunal accepts the point made in Dhayakpa that:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity.
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.[86]
[86] [2020] AATA 1267 at [100]-[103].
However, the matter in Al-Hussaini is distinguishable from this current matter because, in the former case there was real doubt as to whether the applicant was the person she claimed to be or was in fact entirely another (but closely related) person. She failed the test of “contrast” in that regard. There is no suggestion in this instance that the Applicant is some other person than the one he claims to be.
DISCUSSION
If identity is to be based on the three pillars of biometrics (not relevant in this instance), documents and life story, the Tribunal is persuaded as follows:
(a)The documentation available is sufficient to establish that the Applicant, now known as David John, was born as Saleh Al Shemmary in Kuwait on 4 September 1985.
(b)The Applicant is married to Hanan Naser Hlail Al-Dires and they have two children.
(c)The details of the Applicant’s life story are sufficient to establish that he is a member of the Bidoon community, and that he and his family were expelled from Kuwait to Iraq on the basis of their membership of that community.
(d)Matters of the Applicant’s legal status as a citizen of either Kuwait or Iraq, or as a stateless person, considered alone, are not determinative in the establishment of his identity.
(e)Details of how the Applicant came to arrive in Australia, considered alone, are not determinative of the establishment of his identity.
CONCLUSION
The identity of the Applicant is established to the satisfaction of the Tribunal. He is the person now known as David John and was born on 4 September 1985 in Kuwait.
DECISION
The decision under review is set aside and remitted to the Minister for reconsideration in accordance with the direction that the Tribunal is satisfied of the Applicant’s identity and that the prohibition in section 24(3) of the Act does not apply.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 1 February 2021
Date(s) of hearing: 18 November 2020 Date final submissions received: 3 December 2020 Solicitors for the Applicant: Mr A Alkafaji, Alkafaji Migration Solicitors for the Respondent: Ms K Crawford, Clayton Utz
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