ZJCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2238
•12 July 2021
ZJCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2238 (12 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/5516
Re:ZJCV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2019/5518
Re:GBVJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2019/5519
Re:MSMX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2019/5521
Re:SKFM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2019/5522
Re:YBXZ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2019/6824
Re:FTPP
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s): 2019/6850
Re:RCZR
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 July 2021
Place:Sydney
In relation to each of the following applicants and their respective applications:
(a)ZJCV (2019/5516);
(b)GBVJ (2019/5518);
(c)MSMX (2019/5519);
(d)SKFM (2019/5521);
(e)YBXZ (2019/5522);
(f)FTPP (2019/6824); and
(g)RCZR (2019/6850)
the relevant decisions under review are affirmed.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – where applicants are claiming to be stateless Palestinians – meaning of identity – application of Citizenship Procedural Instructions – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act s 33
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24 and 26
Law No. 6 of 1954 on Nationality (Kingdom of Jordan) (last amended 1987), 1 January 1954, available at: [accessed 8 July 2021]
CASES
Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7
Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Eidson and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1354
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988
Shi v Migration Agents Registration Authority [2008] HCA 31
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (10 April 2019)
Consul.info, Palestine Embassy in Baghdad, Iraq: and Migrationsverket, Palestinians in Iraq (7 March 2014)
National Identity Proofing Guidelines
Palestine Australia, Welcome to the Embassy of the State of Palestine: Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
The Arab Weekly, Iraq abolishes visa requirements for 37 countries: FOR DECISION
Chris Puplick AM, Senior Member
12 July 2021
BACKGROUND
This matter involves an application for citizenship by a family consisting of the father, his wife, and several sons: twins, a third son, a fourth son and a fifth son. The two younger sons were minors at the time of their application which was included in that lodged by their mother. Since then, the elder of these sons has achieved adulthood, the latter is still a minor.
The family arrived in Australia together (Christmas Island) on 7 March 2010.
On the application of the Minister (the Respondent) each applicant was granted a pseudonym by the Tribunal as all members of the family were initially granted Protection Visas in August 2010. They all currently hold Five Year Return Resident visas.[1]
[1] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [6].
For the ease of reading, the Tribunal will refer to the following persons rather than use their complex pseudonyms:
(a)the Father (FTPP), alternately FTPP1[2];
(b)the Mother (ZJCV);
(c)the Elder Twin (RCZR);
(d)the Younger Twin (SKFM);
(e)the Third son (MSMX);
(f)the Fourth son (GBVJ); and
(g)the Minor son (YBXZ).
[2] The Father uses both names in various documents.
There are also two daughters of the Father. In a document of April 2010 they are both listed as married and living in Iraq,[3] while a similar document of 2017 records one still living in Iraq and the other now resident in Australia.[4]
[3] Father’s Tribunal documents (T-documents) at 104 and 98.
[4] Ibid at 243.
The essence of the claim of all members of the family is that they are stateless Palestinians whereas the Respondent asserts that their identity is uncertain and there is a reasonable possibility that they are actually Iraqi nationals.
In addition to challenges to the identity of the various family members, the Respondent also asserts that the Father and each of the Twins are not persons of good character because either they supplied false and misleading documentation to the Department in support of their citizenship applications and/or they failed to disclose certain criminal convictions in other relevant documents.
Initially, the Respondent also claimed that the Mother was not a person of good character because she had lodged false documentation, but at the conclusion of the hearings, this allegation was formally withdrawn.[5]
[5] Respondent’s SFIC at [48] et seq.
TIMETABLE OF DECISIONS
The family arrived together in Australia on 7 March 2010 and, as noted, were found to be persons to whom Australia owed protection obligations, hence the grant of protection visas in August 2010.
The dates of the various applications for citizenship by conferral are:
·The Third son and Younger twin: 25 November 2014
·The Mother whose application also included the Fourth son and the Minor son: 13 January 2015
·The Elder twin: 15 April 2016
·The Father: 4 January 2017.
It is not necessary to record the details of when decisions to refuse the applications were made in each instance because it was eventually agreed that all the applications should be joined and dealt with together and that each of the various refusals should be considered in the one hearing.
This took place on 20 and 21 May 2021. All parties were present in person before the Tribunal which was assisted by the services of an Arabic language interpreter where required. All members of the family other than the Minor son gave evidence and the Tribunal had before it comprehensive submissions from the Respondent particularised for each applicant (including the Minor son) running to some 2,500 pages. Opening and closing statements on behalf of the family were made by the Mother.
As noted above, the threshold question for the Tribunal is whether or not members of the family are stateless Palestinians or whether this cannot be established and the prospect is a live one that they hold some other status, particularly that of being Iraqi nationals/citizens.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may make an application for citizenship by conferral.[6] The Minister must make a decision on the application and either approve or refuse it.[7] An applicant must meet certain qualifications a specified in the Act[8] and, if they do, they must then undertake and pass the Citizenship Test[9] (unless they are exempted from so doing[10]). Once those steps are complete, a qualified applicant must make the Pledge of Commitment[11] (unless they are exempted from so doing)[12] before their citizenship is finally granted.
[6] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[7] Act s 24(1).
[8] Act s 21(2).
[9] Act ss 21(2A) and 23A.
[10] Act ss 21(3)(d), 21(4)-(8).
[11] Act s 26.
[12] Act s 26(1).
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.[13] They are not relevant in these proceedings.
[13] Act ss 24(4)-24(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, in this instance, the Tribunal) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish their identity.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)[14] makes it implicit in the operation of the Act 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 [at 41].[15]
[14] The bill which became the Australian Citizenship Act 2007 (Cth).
[15] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth).
ESTABLISHING IDENTITY
As noted, citizenship is a privilege and must not be granted to people whose identity is cannot be established. As the Tribunal said in Gjura:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.[16]
[16] Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 at [32].
Decision-makers are assisted by two documents in the process of determining the identity of an applicant for citizenship by conferral. The first is the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (Citizenship Policy Statement/CPIs)[17] published by the Department administering the Act and secondly the National Identity Proofing Guidelines (ID Guidelines) published by the Department of the Attorney-General in 2016.
[17] Australian Citizenship Policy Statement; Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (10 April 2019) (CPI 16).
It is to be noted that these documents are just that – they are not law, and while they must be given utmost consideration by any decision-maker they are not to constrain the right of the decision-maker[18] to make any decision lawfully open to them to make, based on the material before it at the time of its own decision-making.[19]
[18] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[19] 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).
The relevant sections of the Citizenship Policy Statement[20] provide, inter alia:
The Minister may be required to refuse an application for Australian citizenship by conferral on grounds relating to:
Non-satisfaction of identity (as per subsection 24(3) of the Act)…
[20] Australian Citizenship Policy Statement.
Regard must also be had to the ID Guidelines which relevantly provide 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 Citizenship Policy Statement and CPIs. The ID Guidelines themselves recognise this (emphasis in original):
5.1 Exceptions processes to confirm a claimed identity
5.1.1 Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
5.1.2 Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents, for example because they were raised in institutional or foster care; people with limited participation in society; and young people or those over 18 who are yet to establish a ‘social footprint’ in the community.
To this list, the Tribunal would add people who have been refugees from conflict zones; 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 continue:
5.1.3 Alternative identity proofing processes that organisations MAY consider for these exceptions cases31 include (note different combinations of these processes may be appropriate depending on the individual circumstances).
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...[21]
[21] National Identity Proofing 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 (10 April 2019) of the Department’s Citizenship Procedural Instructions, Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16).[22]
[22] CPI 16 at [4.2].
CPI 16 identifies a trifecta of factors used to establish identity:[23]
[23] Ibid 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.
They then go on to make 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 [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of possibilities independent 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 REQUISITE DEGREE OF SATISFACTION
The Minister very properly states that the Tribunal must have a high degree of satisfaction as to the identity of an applicant to accept that the test in subsection 24(3) of the Act is met. The exhortations in the Explanatory Memorandum have been quoted supra and must guide decision-makers.
In Beyan the Tribunal identified the principle at issue here, namely the responsibility of the Tribunal in the face of uncertainty. It stated:
Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. As submitted by the Minister, a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.[24]
[24] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
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.[25]
[25] Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579 at [56].
I made the position clear in Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that where there are doubts as to the 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[26].
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.[27]
[26] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].
[27] Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267 at [100]-[103].
There is, in most instances, a balancing element in assessing uncertain claims of identity. In Boshra Al-Hussaini, I said:
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.[28]
[28] Ibid at [100]. Emphasis added.
The fact that decisions often cannot be absolute but must be made on balance is reflected in my comment in Adalat that:
Consideration of the material before the Tribunal leads it to a clear conclusion that the identity of the Applicant as Mahmoud Adalat is not established to any reasonable degree of satisfaction and that, as a result, the Respondent cannot be sufficiently satisfied of that identity to approve a grant of citizenship. The Respondent must therefore refuse the application.[29]
[29] Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360 at [64]. Emphasis added.
Similarly, in CDNB, the Tribunal observed:
I proceed on the basis that production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.[30]
[30] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9].
In Ahamod the Tribunal was engaged in a balancing exercise and found against the applicant stating:
The Tribunal finds that there are too many inconsistencies in the evidence going to the identity of the Applicant.[31]
[31] Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7 at [102].
Dixon J (as he then was) in Briginshaw stated in relation to establishing requite levels of proof:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.
……But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[32]
[32] Briginshawv Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.
However, the Tribunal itself has adopted a qualified approach to the use of the Briginshaw test as it made clear in CDNB:
In Sullivan v Civil Aviation Safety Authority, the Full Federal Court rejected the notion that the Tribunal is bound to apply the decision in Briginshaw when making findings of fact that are ‘grave or serious’, but “may inform itself – and in some circumstances should inform itself – by reference to evidence or other materials which properly support the seriousness of the findings being made and the seriousness of those findings upon a party”. While I accept the Respondent’s point that the grant of Australian citizenship is a serious issue, I do not purport to apply the ‘rule’ or ‘principle’ in Briginshaw having noted the analysis of the Full Federal Court in Sullivan. This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the CDNB and WLVM, in the context of a grant of Australian citizenship.[33]
[33] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [6]. Citation omitted.
Clearly, for the Tribunal to be “reasonably satisfied” in its conclusions about identity, and although it is not bound by the strict rules of evidence[34], it cannot be capricious in its assessments but must have some solid evidentiary basis for its findings.[35]
[34] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c). Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540 at [115].
[35] Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988 at [42].
A preliminary point: Palestinian registration and ID cards in Iraq
In each of the decisions made by the Minister’s delegate in regard to these applications, the following is recorded:[36]
Open source information indicates that in mid-2008, the Ministry of Interior (MoI), with technical support from UNHCR, commenced the registration of all Palestinians in Iraq. This was completed in 2009 and all registered Palestinians were issued with ID cards by the MoI. In addition to this, information before the Departments confirms that if a Palestinian is born in Iraq by Palestinian parents, the parents receive a birth certificate the same way as Iraqi parents…
[36] Mother’s T-documents at 15.
Both parents were asked at the Tribunal hearing by the Minister’s representative as to whether or not they had made any efforts to secure ID documents under these arrangements. Each indicated that they had not.
ASSESSING THE FAMILY’S IDENTITY
The Tribunal must first seek to establish where and when the Father of the family was born. This in turn will lead to consideration of his nationality and from that his citizenship (if any) at birth. The Tribunal recognises that nationality and citizenship are not the same. Nationality derives from the inherent details of one’s birth whereas citizenship is a legal construct and recognition, by some legal authority, of one’s membership of a particular polity at a particular time.
Article 15 of the Universal Declaration of Human Rights states that "Everyone has the right to a nationality," and "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
Preliminary Consideration: The Family Name
At the outset of its submission, the Respondent in its SFIC (at [38]) draws attention to the fact that the given family name (suppressed in this determination) does not appear in most of the relevant documents. It states:
With the exception of [the Mother], the applicants have provided significant inconsistent information with respect to their last names. Since their arrival in Australia, the applicants have provided their last name as [ABC] (variously spelt as [ABD]). However, in their citizenship application process, [the Twins and the Third son] have provided their respective Iraqi issued ID cards, the translations of which show that the ID card was issued to them in the last name of ‘FTPP1’. Similarly [the Father] provided an Iraqi ID card issued to him in the last name ‘Mahmoud Mohammad’. [37] The birth certificates issued to [the Forth and Minor sons] after translation, show their last name as ‘not stated’. None of the Iraqi ID cards or birth certificates provided by the applicants make reference to the last name [ABC].
[37] Mahmoud Mohammed is the name of the father of FTPP.
What this amounts to is that the Respondent, correctly, has pointed out that while all members of the family have used a certain Family Name (variously spelled) in all their Australian documentation that name is not used or mentioned in any of the documentation (valid or otherwise) issued in Iraq.
The explanation given by family members is that the name is a composite of the name of their father and the name of their grandfather.[38] There is documentary evidence of the name of the grandfather which does include the Family Name as used.[39] However, the Respondent argues that these explanations are unsatisfactory and contrary to the accepted Departmental Naming Convention Guide.[40]
[38] Father’s T-documents at 321-324; Mother’s T-documents at 218-219; Elder Twin’s T-documents at 213-214; Younger Twin’s T-documents at 190-191.
[39] Father’s T-documents at 27.
[40] Respondent’s SFIC at [40]; Father’s T-documents at 420-421.
In her oral submission to the Tribunal at the conclusion of the hearings, the Mother stated that the Family Name was something that had been assigned to them in various documentation created on Christmas Island by the Australian authorities and the family had adopted and used that name a thereafter as a consequence.
There is no way of verifying this last statement but, in the opinion of the Tribunal, the Respondent’s concerns, even if taken at face value, are not fatal to the applicants whose identity assessments can be made without reliance upon this matter.
The Father
In the case of the Father, there appears to be agreement in all the documentation that he was born on 10 July 1964[41] although there are conflicting statements before the Tribunal as to his place of birth.
[41] The Delegate in their decision on the Father’s application records the birth date as 1 July 1964 but this is an error and a misreading of the details to which the Delegate makes reference. Father’s T-documents at 12 and 23.
Baghdad, Iraq
In the Father’s immigration entry interview of 2 April 2010 the Father lists his place of birth as Baghdad, Iraq, son of a Palestinian father and an Iraqi mother.[42] This detail is repeated in his Form 80 (Personal particulars for character assessment) and other documents submitted in support of his refugee application on 23 April 2010.[43] The claim is also made in an extract from a Palestinian identity document (in translation) which accompanies an application for citizenship dated 30 December 2016[44] and a Statutory Declaration of 21 June 2019.[45]
[42] Father’s T-documents at 23.
[43] Ibid at 101 and 166.
[44] Ibid at 271.
[45] Ibid at 328.
Nablus, Jordan/Palestine
There is a further Form 80 which was received by the Department on 11 December 2017 in which the Father lists his place of birth as Nablus, Palestine.[46] However, prior to that date the Father was issued with two separate Titre de voyage documents, dated 26 March 2013 and 23 July 2015 both of which show his birthplace as Nablus.[47] There appears to be nothing before the Tribunal by way of any foundational document prior to granting these Titres from which this birth of place was derived.
[46] Ibid at 233.
[47] Ibid at 294 and 288.
The citizenship application by the Younger twin also lists is father’s place of birth as Nablus, Palestine,[48] as does the application by the Third son.[49] By contrast the Elder twin’s application gives his father’s birthplace as Baghdad, Iraq.[50]
[48] Younger twin’s T-documents at 88.
[49] Third son’s T-documents at 84.
[50] Elder twin’s T-documents at 104.
There is a further complication arising from the status of Nablus itself. Prior to 1948 Nablus was part of the British Mandate for Palestine (granted by the League of Nations in 1922 following British occupation in 1918), having prior to that been part of the Ottoman (Turkish) Empire. In 1948 during the first Arab-Israeli War, Nablus was occupied by the forces of the Hashemite Kingdom of Jordan and in 1950 it was formally annexed by Jordan. In the second Arab-Israeli War in 1967 Nablus was occupied by Israeli forces under whose control it remained until December 1995 when, as part of the Oslo Accords it was handed to the Palestine National Authority. In the interim in July 1988 Jordan ceded its claim over the West Bank (including Nablus) to the control of the Palestine Liberation Organisation (PLO).
The “state of Palestine” first emerged as a recognised entity with its Declaration of Independence in November 1988. This Declaration was “acknowledged” by the United Nations General Assembly on 15 December 1988 (Res 43/177) and on 29 November 2012 the General Assembly granted Palestine “non-member observer status”[51] (Res 67/19). Currently 138 of the 193 members of the United Nations formally recognise the “state of Palestine”. Australia does not recognise Palestine as a sovereign state.
[51] Australia abstained from the vote.
What this implies however is that when the Father’s father was born in Nablus in 1927 or 1928[52] he would have been subject to the arrangements of the British Mandate for Palestine. However, under the Jordanian Law No 6 on Nationality of 1954 (when he was still living) he would have been eligible for Jordanian citizenship.[53]
[52] Father’s Tribunal documents at 27, 54 and 106.
[53] Law 6 on Nationality provides, inter alia: “any person who, not being Jewish, possessed Palestinian nationality before 15 May 1948 and was a regular resident in [Jordan] between 20 December 1949 and 16 February 1954” is eligible for Jordanian citizenship.
When the Father was born in 1964 he would have been born in an annexed part of the Kingdom of Jordan and may, both through birth and possibly through the status of his father, have been a Jordanian citizen or eligible for such citizenship since in 1964 there was no internationally recognised “state of Palestine”.
Biometric: There is no biometric data before the Tribunal which is relevant to establishing the identity of the Father.
Documentary: The Tribunal has referred already to the contradictory documentary evidence as to the Father’s place of birth. In his oral evidence to the Tribunal the Father was insistent that he had been born in Baghdad. The Father has also made differing claims as to his citizenship in that in his protection visa application he claimed to be “stateless” whereas in his December Form 80 he gives his citizenship status as “Palestine”.[54]
[54] Father’s Tribunal documents at 167 and 234.
In terms of other documents, firstly, there is a driver’s licence in his name which gives his nationality as “Iraqi”.[55] The Father states that this is an error caused by another person actually applying for the licence on his behalf.[56]
[55] Ibid at 298.
[56] Ibid at 323.
Secondly there is the copy of an identity document issued in Iraq which lists the holder as FTPP Mohammed who was born on “10/7/1964” in Baghdad. However, this ID fails to state the name of the holder’s father and carries an issue date of “10/11/2002”.[57] This cannot be an original ID as such would have been issued at a much earlier date. The Father states, “With respect to my Palestinian ID, this was issued after the fall of the Saddam regime, as the original was lost after the fall of the regime.”[58] This cannot be true as the Saddam Hussein regime did not fall until April 2003.
[57] Ibid at 222.
[58] Ibid at 323.
Finally, there is a purported Palestinian ID card which was submitted to the Department (not in evidence before the Tribunal) which the department determined to be counterfeit.[59]
[59] Ibid at 16.
Life story: It is the Father’s contention that he was born in Baghdad, went to elementary school there and then worked helping his father selling fruit and vegetables or selling clothes.[60] He was actively involved in the sport of wrestling, participating in tournaments in France and eventually holding a position as a coach for the Iraqi National Olympic Committee.[61]
[60] Ibid at 25.
[61] Ibid at 267. Date of issue 2 November 2010.
There is an issue for the Tribunal with this latter point because the identity card issued by the Iraq National Olympic Committee in the Father’s name was issued on “2010/11/2”. However, at that date the family had already arrived in Australia and evidence suggests that he was present in Australia in November 2012.
The Father’s narrative is that he and his family experienced discrimination in Iraq because of their Palestinian nationality which led at some stage in 2009[62] to his shop being burned down, resulting in the loss of all his documents and relevant papers.[63] In oral evidence the Father told the Tribunal that the shop was worth $1 million but he had to sell what remained of it for only $60,000.
[62] The Mother’s statement gives this as October 2009. Ibid at 68.
[63] Ibid at 125-129. There are photographs of a burned-out premises, stated to be this shop.
At the same time, the family lived in fear because of sectarian fighting in Baghdad, especially as a result of the activities of the so-called Mahdi Army which was based in their part of the city (Bahadyat al-Balidiyat). The Mahdi Army is a Shi’a militia group and the family are Sunni Muslims and say that they were constantly threatened because of this difference.[64] There is independent verification of the sectarian displacement of Palestinians from the al-Balidiyat district in the report Palestinians in Iraq prepared by agencies of the Norwegian government.[65]
[64] Ibid at 29, 58 and 99.
[65]Landinfo and Migrationsverket, Palestinians in Iraq (7 March 2014): type="1">
In various incidents of sectarian fighting the Father was shot on two occasions, once (April 2009) in both the head and leg and according to his reports he was in a coma for 20 days, then in hospital for 2 months and had to learn to walk and talk again.[66] The Tribunal notes that when the representative of the Respondent asked family members about their recall of incidents of harm done to the family, none of the sons was forthcoming with any such details about the near-death experience of their father.
[66] Ibid at 41-42.
In 2009 the Younger twin, while playing soccer, was seriously shot and wounded, to the extent of requiring extensive hospitalisation.[67]
[67] Mother’s Tribunal documents at 75.
These events took place in the period 2004 to 2009 and precipitated the family fleeing to Syria in 2009.[68] From there they travelled to Indonesia and hence by boat (via the agency of people smugglers) to Australia (Christmas Island).
[68] Father’s Tribunal documents at 29 and 37.
There is a degree of confusion and inconsistency in dates given for various such incidents in the Father’s narrative although the Tribunal accepts that given the traumatic nature of these events there may be some problem for the Father in being precise about dates. His wife states that he suffers memory loss as a result of being shot in the head.[69]
[69] Ibid at 58.
However, his failure in oral testimony to be precise about the incident in which one of his sons was shot and all but killed, including when this occurred, how long his son was hospitalised, and other relevant details is less explicable. In one of the documents he even records that “one of the twins was shot in Jan 2010”.[70] He also describes his son as being “now disabled” which does not accord with the impression given by the son’s appearance at the Tribunal hearing or his own account of his current state of health.
[70] Ibid at 31.
What is equally confusing is that in April 2010 the Father signed a Statutory Declaration in which the following appears:
Q: What I fear might happen if I go back to my country.
A: I would be killed, they tried before and I know they will do it.[71]
[71] Ibid at 99.
The Mother, in her statement to the Department also claimed that the Mahdi Army had been responsible for the killing of her sister’s husband and her nephews.[72]
[72] Mother’s T-documents at 76.
Nevertheless, there is evidence that the Father returned to Iraq in February/March 2011, that is less than one year after expressing fears for his life should he do so.
The Father’s evidence in this matter is less than forthcoming. In his 2017 Form 80 when giving details of his international travel, he states that he visited “Syria – family visits” from “07/2011” to “10/2011” and then Iraq from “04/20212” to “07/2012”.[73] However, departmental records and his own Titre de voyage (U2004149) indicate that he visited Iraq at some time in March 2011 as that Titre shows an exit stamp from Iraq dated 28 March 2011.[74] It was the oral evidence of the Mother that she visited Iraq in December 2011; the Elder twin gave a date of 2011 as did the Younger twin.
[73] Father’s T-documents at 236.
[74] Ibid at 312-313.
In each instance the reason given for the visit was to assist their sister who had remained in Iraq who was having a difficult time with her pregnancy. This however is contradicted by a written statement by the Mother which says that the pregnancy in question occurred in 2017 and that in support of that statement a death certificate for an infant was provided.[75]
[75] Mother’s Tribunal documents at 218-219. There is an untranslated document at 223.
The Father states in a letter dated 17 June 2019, responding to an invitation to comment upon adverse information held about him, that his statement that he visited Syria and not Iraq was “an honest mistake.”[76]
[76] Father’s T-documents at 323.
It is also the case that the Father has three brothers and four sisters all of whom he told the Tribunal continue to reside safely in Baghdad.
Even if it is accepted that the Father travelled as he states and that he has made multiple visits to Iraq between 2011 and 2016, the fact that there is no evidence of hm ever having obtained a visa to visit Iraq, which is a clear requirement for non-citizens, is highly suggestive of the fact that he did not require a visa which could only be the case were he to be an Iraqi citizen. Open source information indicates that Palestinians residing outside Iraq must obtain a new entry permit but must first verify that they are registered in Iraq and that they were earlier residents in the country. Although holders of Australian travel documents can now obtain an Iraqi visa on arrival, that has only been the case since 2021,[77] although the Mother claimed in her oral evidence to have obtained an airport-issued visa on an earlier visit.
[77] The Arab Weekly, Iraq abolishes visa requirements for 37 countries: >
Finally, there is the matter of the Father obtaining an Iraqi passport. In one of his statements he records:
I had a passport issued 3 years ago from the passports office. This cost me about $300 (US). I paid for it in cash. I obtained it from a person who worked in the ppts office – they are easy to get with bribes & money. This ppt allowed me to travel to Syria.[78]
…
Ahmad – He works at the passport office in Iraq. He obtained out passports for us. He also issues genuine passports – if you don’t have documents you have to pay extra.[79]
[78] Father’s T-documents at 44. The document is an interview between a departmental officer who has written the entries and the Father who has signed the record. It was conducted on 2 April 2010.
[79] Ibid at 35. See also at 36.
Elsewhere the passport is described as “false”,[80] “Iraqi – green cover – 2013 expiry date on ppt.”[81] The Father’s statement also records, “The family travelled on Iraqi ppts. Ppts could have been genuine but illegally issued.”[82]
[80] Ibid at 25.
[81] Ibid at 37.
[82] Ibid at 38 and 79.
The Father’s statement is also to the effect that he obtained four passports, for himself, his wife and children and that he “threw [the passports] away on boat to Aust.”[83]
[83] Ibid.
The cost of these passports was apparently US$700 each. In addition, the family had to find US $36,000 to pay people smugglers and all of this was financed by the liquidated sale of the shop, two family cars and the Mother’s jewellery.[84]
[84] Ibid at 68-69 and 99.
Conclusion: Father’s identity
The Tribunal accepts that the family suffered at the hands of Shi’a militia because of their profession of the Sunni faith, but this is just as likely to have taken place if they were Iraqi Sunnis as Palestinian Sunnis. It also accepts that members of the family were shot in sectarian violence and that their shop was destroyed. It also notes that the Father is insistent that any references to a birth in Nablus should be taken as a reference to the birth of his father and not himself.
However, the Tribunal’s conclusion in relation to the Father’s identity is that there are too many inconsistencies and uncertainties for the Tribunal to be positively satisfied as to whether he is a stateless Palestinian born in either Nablus or Baghdad; a person born in Nablus who might be eligible for Jordanian citizenship; or a person born in Baghdad who is an Iraqi citizen. These uncertainties arise from the multiplicity of statements in various documents, unanswered questions about travel arrangements and the doubts which must arise about the Father’s alleged fear of return to Iraq given both his frequent return visits and the continuing presence in that country of a significant number of family members.
The Mother
It is the Mother’s claim that she was born in November 1969 in Baghdad and that her parents were Palestinians who fled Palestine in 1948. She and the Father were married in Baghdad in 1988. However, in her Form 80 document she fails to give a clear indication of her deceased parents’ nationality.[85]
[85] Mother’s T-documents at 132.
Apart from her immediate family as above, she indicates that she has two brothers and a sister who reside in Australia and one sister resident in Sweden.[86] In another document she records a total of six living brothers (five in Iraq, one in Australia) and four living sisters (two in Syria, one in the USA and one in Iraq).[87]
[86] Ibid at 133.
[87] Ibid at 30-33.
As with her husband she makes a declaration to the effect that she fears for her life should she return to Iraq[88] and repeats that several members of her immediate family have been killed by militia.[89] Nevertheless, she gives details of her visit to her daughter in Iraq from 8/12/2011 to 02/02/2012 and again in 2016.[90] The discrepancy about the date of her visit to assist her pregnant daughter has been noted above.
[88] Ibid at 73.
[89] Ibid at 76.
[90] Ibid at 123.
In relation to her travel arrangements, the Tribunal notes that for her visits in September 2016 and April 2017 the Mother provided evidence of having obtained an entry visa for Iraq,[91] however this was not the case for her visits in 2011.
[91] Ibid at 156-158.
A purported identity document which she has supplied gives her date of birth as “XX/11/1969” in Baghdad but her father’s name is not included, and her mother’s name appears to be illegible.[92]
[92] Ibid at 146.
A purported Palestinian ID card (not before the Tribunal) was submitted to the Department in April 2017 and subject to forensic examination, the result of which was “inconclusive”.[93]
[93] Ibid at 182-184.
Biometric data: There is no relevant biometric data that goes to issues of identity.
Documentary data: There is no documentary evidence of any probative value submitted prior to that which was issued in Australia (Titre de voyage, driver’s licence, Medicare card). The purported Palestinian ID card must be regarded as of little value given the formal examination of this resulting in an “inconclusive” result. An identity document in which the name of her mother cannot be ascertained, and her name of the father is not included cannot be relied upon.
Life story: The Tribunal cannot understand how the Mother can on the one hand claim to be fearful for her life of return to Iraq where her husband and son had been shot and other members of her family killed and on the other return within approximately a year. Even if this were to be at the side of her pregnant daughter (taking the 2011 rather than 2017 date as correct), this does not account for the 2012 and subsequent returns. The existence of visas for later trips but not for earlier ones is not explained.
Conclusion: Mother’s identity
For the same suite of reasons given in relation to the Father, the Tribunal cannot be positively satisfied of the identity of the Mother in terms of her nationality or citizenship.
The Twins
The twin boys were born in May 1995 in Baghdad. Each of them in evidence to the Tribunal recounted generally similar accounts of their lives and their memories of life in Iraq and given that they would only have been about 14 or 15 years of age when they left for Syria, nothing turns upon any minor discrepancies.
Biometric: There is no relevant biometric evidence before the Tribunal.
Documentary: Both twins supplied the Department with purported Palestinian ID cards. In relation to the Elder twin the Department’s document examiner states:
Item D2017-00243-001: Republic of Iraq Palestinian Identity Card numbered 168
…
The DEU holds no specimen or information of this type of document. It is my opinion that the quality of security limit the ability to determine whether this is a legitimately manufactured document. The result is inconclusive.[94]
[94] Elder twin’s Supplementary T-documents at 1.
In relation to the Younger twin, the report is as follows:
Item 2014-00402-001: Palestine Birth Document no. 168
It is my opinion that this is a counterfeit Palestine Birth Document.[95]
[95] Younger twin’s T-documents at 109.
Both twins returned to Iraq in 2011 and in relation to their travel made identical statements to the effect that “I entered Iraq without a prior entry visa, as my travel documents states that I was born in Baghdad.”[96]
[96] Elder twin’s T-documents at 214; Younger twin’s T-documents at 191.
Of course, mere birth in Baghdad does not resolve the question of Palestinian or Iraqi citizenship.
There is however, for each of the twins a much more serious matter to confront. In its SFIC the Respondent states (at [46]):
AUSTRAC records show that in 2016 and 2017 (Younger twin) made financial remittances using an Iraqi passport XXXXX 729 while (Elder twin) made financial remittances using an Iraqi passport XXXXX 730. (Younger and Elder twin) have not provided any explanation as to their AUSTRAC records.[97]
[97] Younger twin’s T-documents at 166-173; Elder twin’s Supplementary T-documents at 5-8.
In sworn evidence to the Tribunal each twin vigorously denied that they had ever held Iraqi passports.
In relation to the Elder twin, there were two such transactions on 14 July 2017 and 21 July 2017, each in the sum of $10,000. In relation to the Younger twin there were four transactions, 16 December 2016, 28 February 2017, 23 July 2017 and 11 August 2017 for amounts of $10,000, $10,000, $11,800 and $20,000 respectively.
The Tribunal finds nothing suspicious or untoward about the withdrawals themselves and evidence from the twins was that, at the time they were jointly involved in a construction business which operated largely on a cash basis. That said, the Younger twin actually contested details of some of the amounts which might have been withdrawn. However, nothing turns on this aspect of considerations.
It is curious that the two “Iraqi passport” numbers as recorded are immediately consecutive. This would imply that they were issued at the same time and place with the Elder twin having the -30 document and the Younger the -29 document.
The Tribunal cannot make a definitive finding one way or the other in this regard. There is no reason to believe that the Commonwealth Bank officers who recorded the transactions on at least six separate occasions did not record what was presented to them which is recorded as
ID type & Number: Other ID (Foreign Passport) XXXXX 729 (or XXXXX 730)
ID Issuer: Foreign Government – Iraq
On the other hand, there is the sworn testimony of each twin that they have never possessed an Iraqi passport and it was the impression of the Tribunal at the hearing that both gentlemen were truthful witnesses who were genuinely attempting to assist the Tribunal in its deliberations.
Life story: There are no life story details relevant to this consideration.
Conclusion: Elder Twin identity
It must follow from the Tribunal’s findings in relation to the Elder twins’ parents that his nationality or citizenship cannot be established by reference to that criteria. Similarly, the evidence of his possession of an Iraqi passport, although not resolved conclusively, leaves sufficient a sufficient element of doubt so that the Tribunal cannot be positively satisfied as to his identity.
Conclusion: Younger Twin identity
It must follow from the Tribunal’s findings in relation to the Younger twins’ parents that his nationality or citizenship cannot be established by reference to that criteria. Similarly, the evidence of his possession of an Iraqi passport, although not resolved conclusively, leaves sufficient a sufficient element of doubt so that the Tribunal cannot be positively satisfied as to his identity.
Third Son
The Third son was born in Baghdad in July 1997 and as the family left Iraq when he was about 11 years of age it is understandable that he was not able to recall very much about that part of his life. He says that he never went to school in either Iraq or Syria and that he had no idea why the family left Iraq. This is slightly curious in that, even at age 11 he must have been aware of one of his elder brothers and his father being shot.
Biometric: There is no relevant biometric evidence before the Tribunal.
Documentary: As noted above, in one of his documents he has listed his father’s place of birth as Nablus, and on an outgoing passenger card he has declared his own citizenship to be “Iraqi.”[98] Further, in his citizenship application form he has stated his “previous country of residence” as “Palestine.”[99]
[98] Third son’s T-documents at 168.
[99] Ibid at 83.
In response to these matters, the Third son writes:
The answer to Question 13 of Form 1290, it was a mistake it should read Iraq not Palestine, I cannot remember who helped me filling the forms, it was a mistake.
The answer for Question 25 of Form 1290 was another honest mistake, my father was born in Baghdad Iraq and not Nablus Palestine. However my grandfather was born in Nablus Palestine.
Question 44 of Form 80 was answered correctly as my father was born in Baghdad Iraq.
With respect to the outgoing passenger card where I wrote Iraqi, the word Unspecified is not understood to many people even myself, when I checked at the airline counter to fly, they were very confused about the nationality is Unspecified, the concept was what country you were born is Iraq you should write Iraq.[100]
[100] Ibid at 175.
The problem in this instance, as with so many like matters among all members of the family is their propensity to allow other people to complete documents on their behalf and then sign them without apparent checking and verification.
The Third son stated in his Form 80 that his “birth registration document” was “lost”[101]but he did submit an Iraqi ID card which, when subject to forensic examination, could not be verified and about which an “inconclusive” result was recorded.[102]
[101] Ibid at 127.
[102] Ibid at 155.
Life story: There are no life story details relevant to this consideration.
Conclusion: Third Son identity
It must follow from the Tribunal’s findings in relation to the Third son’s parents that his nationality or citizenship cannot be established by reference to that criteria. There is no reliable documentary evidence which supports a firm finding of the Third son’s identity.
Fourth Son
The Fourth son and the Minor son were included in the citizenship application of the Mother. At that time the Fourth son was also a minor but he is now an adult.
Biometric: There is no relevant biometric evidence before the Tribunal.
Documentary: A Birth/Baptism certificate was produced for the Fourth son which shows his month and year of birth as January 2002 and place of birth, Nuns Hospital. However, this certificate does not clearly state a country of birth, although this is assumed to be Iraq and it shows the father’s name as FTPP1 without any reference to the given family name.[103] Forensic examination of this document returned an “inconclusive” result, calling into question its authenticity.[104] When submitted to examination at the Australian Embassy in Amman (Jordan) the expert examiner there concluded that the certificate was “counterfeit”.[105]
[103] Fourth son’s T-documents at 169.
[104] Ibid at 173-175.
[105] Ibid at 193.
Life story: The Fourth son would have been only 5 or 6 years of age on departure from Iraq and reasonably told the Tribunal he has no memory of life there.
Conclusion: Fourth son identity
It must follow from the Tribunal’s findings in relation to the Fourth son’s parents that his nationality or citizenship cannot be established by reference to that criteria. There is no reliable documentary evidence which supports a firm finding of the Fourth son’s identity.
Minor son
As with the Fourth son, this child was included in his Mother’s application for citizenship. He is still a minor.
Biometric: There is no relevant biometric evidence before the Tribunal.
Documentary: As with the Fourth son there is a Birth/Baptism certificate in the Minor son’s name giving his year of birth as 2008 at the Haneen Hospital. As with that previous certificate there is no country of birth shown, again it is presumed to be Iraq and the father’s name is shown as FTPP1.[106] The forensic examination of the document carried out locally returns an “inconclusive” result, while that carried out in Amman determined the certificate to be counterfeit.[107]
[106] Minor son’s T-documents at 186.
[107] Ibid at 173-175 and 193 respectively.
Life story: The Minor son did not give evidence to the Tribunal and given that he would have been perhaps only one year old on departure from Iraq there is nothing of relevance that he could have added to the documentary evidence.
Conclusion: Minor son identity
It must follow from the Tribunal’s findings in relation to the Minor son’s parents that his nationality or citizenship cannot be established by reference to that criteria. There is no reliable documentary evidence which supports a firm finding of the Minor son’s identity.
CHARACTER ISSUES
The Respondent has raised serious concerns about the honesty of several of the applicants because of their failure to disclose certain criminal convictions either in their citizenship applications or on relevant travel documents.
The Father and each of the Twins have less than stellar driving records and convictions for offences of driving without a valid licence or else with a suspended licence.
The Father was a repeat offender and at one stage given a 9-month suspended sentence.[108] The Elder twin has several driving offences on his record[109] as does the Younger twin.[110]
[108] Father’s T-documents at 279-280.
[109] Elder twin’s T-documents at 211-212.
[110] Younger twin’s T-documents at 119-120.
Each of these applicants was cross-examined in relation to their driving offences and each agreed that they had failed to disclose them, as required in relevant documents provided to the Department or as part of their immigration department records related to their travel. There is also evidence that the Father conspired with another person to obtain his licence. He admitted that although he had such a licence he was unable to read road signs.
There are other discrepancies in several of the Form 80 documents in which the same members of the family fail to disclose full details of their travel outside Australia.[111]
[111] Respondent’s SFIC at [49.6].
There is no doubt that these failures to disclose fully information which should be before decision-makers in citizenship applications, are serious.[112] However, this Tribunal, having come to its conclusions on the threshold issue of identity, does not need to make a finding on those matters which, should these (re-)applications proceed at some stage, would be considered by another decision-maker when assessing the requirements under subsection 21(2) of the Act, especially the good character provisions of paragraph 21(2)(h).
[112] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686.
CONSEQUENCES OF FINDINGS THAT IDENTITY NOT ESTABLISHED
The applicants are all holders of resident return visas in Australia, and they have been able to travel abroad using Australian-issued travel documents. In Eidson, the Tribunal made the position clear in stating:
A refusal of this application by this Tribunal is not determinative of, nor does it serve as a bar to, any application for citizenship in the future. The Applicant is clearly entitled to re-apply for citizenship. Assuming she is permitted to remain in Australia on her permanent non-citizen visa, it is difficult to identify any real detriment to either her personal or business life.[113]
[113] Eidson and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1354 at [60]; also Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
The identities which members of the family have established in Australia, and which are reflected in their daily lives, their business dealings, their school and educational arrangements and their possession of a range of items such as bank accounts, driving licences and Medicare or credit cards remains unaffected.
The requirement for citizenship however, sits at a somewhat higher level than these other qualifications, reflecting as it does the crucial importance of citizenship within the Australian body politic.
FURTHER PROOF OF IDENTITY
The applicants did not take steps to establish they are stateless Palestinians and obtain proof of their Palestinian nationality which they could have done in 2009 (after the shop was burned and papers lost) or at any time during one of their return visits to Iraq after 2011.
The Palestinian Authority has a form of diplomatic representation in Australia through the General Delegation of Palestine to Australia, New Zealand and the Pacific which provides consular services through an office in Canberra.[114]
[114] Palestine Australia, Welcome to the Embassy of the State of Palestine: >
The family have been able to travel freely to Iraq on a number of occasions and in Baghdad there is a fully recognised Embassy of the State of Palestine.[115]
[115] Consul.info, Palestine Embassy in Baghdad, Iraq: >
It should be possible for the family members to obtain documentation in support of their claimed status as Palestinian nationals from either source if in fact they can substantiate their claim to be (stateless) Palestinians. Production of such documents would go a long way to vitiate the concerns of the Respondent and to possibly satisfy the level of positive satisfaction which a decision-maker must have before accepting that any of the applicant meet the requirement of subsection 24(3) of the Australian Citizenship Act.
Until that or similar steps are taken to “prove” their identity as (stateless) Palestinians their applications must be refused.
DECISION
In relation to each of the following Applicants and their respective applications:
(a)ZJCV (2019/5516);
(b)GBVJ (2019/5518);
(c)MSMX (2019/5519);
(d)SKFM (2019/5521);
(e)YBXZ (2019/5522);
(f)FTPP (2019/6824); and
(g)RCZR (2019/6850)
the relevant decisions under review are affirmed.
I certify that the preceding 151 (one hundred and fifty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...................................[sgd].....................................
Associate
Dated: 12 July 2021
Date(s) of hearing: 20 and 21 May 2021 Applicant: In person Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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Cases Citing This Decision0
Cases Cited16
Statutory Material Cited0
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222AFY18 v Minister for Home Affairs [2018] FCA 1566Shi v Migration Agents Registration Authority [2008] HCA 31