1. The Applicant sought judicial review of the Tribunal's decision and the matter was remitted to the Tribunal for reconsideration.

1. The issues to be determined in this review are whether the Tribunal can be satisfied as to:

• the Applicant's identity pursuant to s. 24(3) of the Citizenship Act and
• the Applicant's good character pursuant to s. 21(2)(h) of the Act.

1. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of that Act provides that if a person makes an application under s. 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
2. Relevantly, s. 24(3) states:

The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

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

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

1. Section 52 permits a person to make an application to the Tribunal for review of the decision under s. 24 to refuse to approve the person becoming an Australian citizen.
2. There are two issues that arise for the Tribunal. The first relates to the Applicant's identity. The term 'identity' is not defined in the legislation. Part 4,4 of the Citizenship Procedural Instructions (CPI)16 refers to the 'three pillars of identity' as a methodology of assessing identity. The three pillars are:

1. A helpful summary of relevant consideration when dealing with identity assessments is set out in GJDB v Minister for Immigration, Citizenship and Multicultural Affairs[1] at [8]:

The word 'identity' is not defined in the Act and it does not have a single meaning, as its meaning can vary according to the statutory or other context in which it is used. In some contexts, 'identity' may have a broad meaning which incorporates a person's views of themselves and their cultural attributes. In other contexts, 'identity' may have a narrower meaning which focuses exclusively upon physical traits - such as those found in DNA or fingerprints - that are unique to each individual.

Dictionary definitions of 'identity' tend to incorporate a spectrum of meanings, including those referred to above. For example, one of the definitions of 'identity' in the Oxford English Dictionary is: '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'. All but the last two words in that definition may be seen to reflect the concept of permanent sameness, whereas the last two words may be seen to reflect a broader concept of outward expression of a person's character.

In my opinion, s 24(3) of the Act uses the word 'identity' in the sense that the person seeking citizenship is the human being that they claim to be. Identity involves a continuum: a person remains the same human being from the moment they are born until the moment they die. In between these times, many attributes associated with them - such as their name, physical appearance (such as their height, weight and the colour of their hair), personality, gender, nationality, languages spoken, manner of speaking and religion - and their life experiences and fortunes may change, but they will remain the same human being.__[2] Whilst each of these matters may assist in ascertaining a person's identity, it is of fundamental importance that, for the purposes of s 24(3), they are not confused with, or treated as equivalent to, a person's identity.

1. The Tribunal has also had regard to the reasoning in BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs.[2]
2. The second issue relates to the Applicant's character. The term 'character' is not defined in the Act. In Irving[3] Davies J stated:

The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an Applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character".

1. It is generally accepted that 'good character' refers to a person's enduring moral qualities.[4] In conducting this assessment, the Tribunal is required to reach a conclusion about the Applicant's enduring moral qualities by approaching its task "holistically."[5]
2. CPI 15 at paragraph 3.1 states:

Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen. > > This Instruction provides a framework for assessing an Applicant under the 'good > > character' provisions. Decision-makers must:

• Consider any character issues that arise on the facts of a case;
• Consider all relevant information;
• Guard against bias;
• Be mindful that the requirement to be of 'good character' does not mean that a person must be of 'perfect character;'
• Be mindful that a person who may not have been of good character can become a person of good character;
• Continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an Applicant is, or is not, of good character.

In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.

1. In Re Chen and Minister for Immigration and Citizenship,[6] the Tribunal articulated its approach to interpreting the language of the good character test, as it then appeared in s. 13(1)(f) of the Australian Citizenship Act 1948 (Cth) (at [18]):

The wording of the test is important. It does not require that the Minister form an adverse view of the Applicant's character. The Minister must be positively persuaded that the Applicant is of good character.

1. When making the application for the Australian citizenship, the Applicant stated his name, that he was born in Baghdad and he provided personal details of his family members. The Applicant stated that he had not been known by any other name and that he does not have, and has not had, any national identity documents. The Tribunal has been provided with a copy of the Citizenship application, as well as a copy of the application for the protection visa and a copy of the decision record in relation to the 2010 application for Humanitarian visa.

1. On 10 July 2019, the delegate decided not to approve the application for Australian citizenship by conferral. The delegate could not be satisfied as to the Applicant's identity and that the Applicant met the character test. The delegate's decision is summarised below.

1. The delegated noted that when applying for the protection visa, the Applicant:

• Claimed that a smuggler had confiscated his identity documents and the Applicant stated at an interview that he had no overseas identity documents.
• Completed Form 80 in which he provided details of his immediate family. The Applicant stated that he:
  1. had no contacts in Australia and had never been refused a visa to Australia or any other country;
  2. had not previously applied for a protection visa or refugee status; and
  3. had not been removed or deported from any country including Australia, had not left any country voluntarily to avoid being removed or deported.

1. When applying for Citizenship in June 2015, the Applicant stated that he:
   • had not been known by any other name; and
   • did not have, and has never had, any national ID documents or numbers.

1. The Applicant subsequently submitted a completed Form 80 in which he stated the following:
   • He did not have a different date of birth and was not known by any other name;
   • He had a national ID document or number issued to him in Iraq;
   • He had never been excluded, asked to leave, deported or removed from any country; and
   • Gave information about his immediate family.

1. The Applicant presented a number of documents including his parents' marriage certificate, his mother's death certificate and his father's ID card. It is noted that the Applicant was requested on several occasions to provide his original ID documents but he had not done so, suggesting it was too dangerous to obtain such documents.

1. The delegate states in the decision record that information before the Department suggested that:
   • the Applicant first made the application for a Refugee and Humanitarian Class XB visa in Indonesia in August 2010 in the name of DK, born on 16 July 1989, proposed by a person who was identified as his brother and who had presented his Australian citizenship certificate and driver license, an Iraqi ID card and nationality certificate.
   • In that application:
     1. the Applicant provided details of his immediate family;
     2. the claims put forward by DK were very similar to the claims put forward by the Applicant in his protection visa application; and
     3. the Applicant had submitted an Iraqi national ID card and Iraqi nationality certificate as evidence of his identity.
   • That application was refused in September 2010.
   • The Applicant arrived in Australia under a different identity on 31 October 2010.

1. The delegate wrote to the Applicant inviting him to comment on the above information. The delegate noted that the Applicant had not provided any comments or response. The delegate concluded that the Applicant had represented himself differently to the Department depending on the circumstances of the interaction in order to facilitate a migration outcome. The delegate noted that the Applicant presented two different sets of identity information and supporting documentation and at least one of the identities was false, but the delegate stated it was not possible to determine which one. The delegate noted that the Applicant failed to declare the earlier identity in his protection visa application and found the Applicant's claims about his inability to obtain his own identity documents (while providing those of his parents) to be implausible. The delegate found that the Applicant had not made a genuine attempt to obtain identity documents and, having remained in Australia using at least one false identity, has shown disregard for the immigration laws.

1. The delegate was not satisfied of the Applicant's identity, for the purpose of s 24(3) of the Citizenship Act 2007. The delegate also noted, by reference to Eidson v Minister for Immigration and Border Protection,[7] that the Applicant would be able to remain in Australia and would have an opportunity to make another application for citizenship, with a chance to produce further evidence relating to his identity.

1. In September 2020, the Applicant provided to the Tribunal a copy of his Iraqi personal ID card, other identity documents for himself, as well as identity documents of his siblings and father.

1. In his submission to the first Tribunal, the Applicant outlined his background and history. The Applicant referred to the naming conventions in Iraq, stating that his names, as well as those of his siblings, match those provided in his protection visa application. In relation to the application made by DAK, the Applicant stated, with respect to the similarities in claims, that these are not unique and would be shared by other applicants due to the situation in the country.

1. The Applicant referred to the relevant legislation. He stated that to conclude that he was previously known by the name of DAK would require a conclusion that all of his Iraqi documents relating to himself, his sisters and father, are fake documents and there is no basis for that conclusion. The Applicant stated that his Australian identity documents have all been consistent over the years. (The Applicant presented several documents relating to his Australian activities, identifying him by the present name.) With respect to character, the Applicant submitted that there was no adverse character assessment other than in relation to the issue of identity.

1. The Respondent referred to the first application made in the name of DAK, stating that the Applicant's involvement in that application, if accepted, casts doubt on his identity and his good character. The Respondent submits that there is evidence that the two applications were made by the same person, including:

• the life stories in the two applications were so similar that it is unlikely they were describing a different set of events;
• the photographs provided in the DAK application closely resembled the photographs provided by the Applicant in the latter application in the name of AS;
• the Applicant's relationship with AAK, the brother of the Applicant in the DAK application, is such that it is very unlikely the Applicant had no involvement in, or no knowledge of that application.

1. The Respondent notes that the Applicant had only recently provided a declaration denying his knowledge of that application and he only recently provided his identity documents. The Respondent submits that a finding that the Applicant was responsible for the DAK application must weigh heavily against a favourable assessment of his character or identity.

1. In the SFIC the Respondent set out the similarities between the two applications, including dates of birth and place of birth, certain similarities in the names of relatives and reasons for leaving Iraq, stating that any differences are 'superficial.' The Respondent submits that the photographs included in the two applications are of the same person. (The two presented photographs that appeared in the two applications are, in fact, identical). The Respondent notes that a Facial Comparison was conducted between a recent photograph said to be of DAS and a photo of DAK and it was determined that there were indications these represented the same person.

1. The Applicant submits that this evidence is unpersuasive because it was prepared not for court purposes and is simply a notation of similarities between the two photographs. The Respondent submits that it is up to the Tribunal to determine what weight to give to this document but the Respondent notes that the photograph that was attached to DAK's school report and to DAK's protection application are identical and, irrespective of the facial recognition report, it is open to the Tribunal to find the two applications involved the same person.

1. The Respondent notes that the Applicant denied any knowledge of a brother, AAK, who was the proposer in the first application, and claimed that he never had a brother by that name, however, the Respondent submits this is highly unlikely because:

• AAK was paying a phone bill for a phone registered to an address where DAS was living at the time and which the Applicant had identified as his place of residence in the Citizenship application. The Respondent notes that the telephone bills registered to that address were identified in the name of Mr AAK.

In oral evidence to the present Tribunal, the Applicant could not explain why AAK would pay the internet bill for the address where he had lived (and the Applicant's evidence is that he was living there on his own). The Applicant stated that he did not have internet and did not need anyone to pay his bills but the Tribunal considers his claim - that he was unaware the premises had the internet, which was being used - unlikely and untruthful. The evidence does show that AAK paid the internet bill at the address where the Applicant had resided and in the absence of any meaningful explanation as to why that would have been the case, the Tribunal is of the view that this fact undermines the Applicant's evidence that he does not know AAK.

• The Applicant identified his residential address at Orange and RMS records show that Mr AAK previously lived in the same address.

The Applicant told the present Tribunal that he was not living with AAK at the same address at the same time. The Applicant submits that it is unremarkable that they may have lived at the same boarding house over different periods of time. The Respondent acknowledges that this fact in itself may not be significant but claims that given all the factors suggesting the link between the Applicant and AAK, the Applicant's denial of any knowledge is implausible.

• In the application form 80, the Applicant had identified a contact person KC and gave her address in Belmore. RMS records show that AAK lived at that address in 2017-19.

The Applicant told the present Tribunal that KC was a friend of his girlfriend and that he gave KC's contact details as he thought she would be considered more trustworthy. The Applicant could not explain why AAK would use the same address for his own correspondence. The Applicant told the Tribunal that he made no attempt to contact KC, since becoming aware of the issues in this case, to ascertain why AAK used the same address.

1. The Respondent submitted that the Applicant and AAK are plainly known to one another and the Applicant's sworn statement that he does not know any person by that name would imply that the Applicant had lied in his statutory declaration, which would affect his credibility and is probative not just of him being not of good character but also indicates the Applicant was involved in the AAK application. The Respondent submits that the Applicant has not been honest in his dealings with the Australian government and has not accepted any responsibility for his conduct, so it cannot be said that he is reformed or rehabilitated.

1. On 31 March 2021 the Tribunal (as previously constituted) affirmed the decision under review. The Tribunal noted the similarities between the two applications and could not be satisfied the two applications indicated two different individuals. The Tribunal determined that it could not be satisfied as to the Applicant's identity.
2. The Applicant sought judicial review and the matter was remitted to the Tribunal for reconsideration in July 2023 by the Federal Court.[8] Her Honour Mortimer CJ stated at [32]:

Ultimately, the concept of "identity" is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application. The historic use in documents of different names that appear to all be attributed to an Applicant may clearly be relevant to this assessment. But use (or ascription, even without knowledge, to a person) of a different name may in a given factual circumstance say nothing about identity. Take for example the common situation of a person changing their name when they marry. There may not be documentary proof of this name change, for a variety of reasons, in any given circumstances. But the name change may not affect the proposition that the person has a single identity, rather than being two different human beings, or a human being with an entirely different background to the one they rely upon in their citizenship application.

SUMMARY OF ADDITIONAL EVIDENCE BEFORE THE PRESENT TRIBUNAL

1. The Respondent provided the Statement of Position on 13 May 2024. In it, the Respondent claims that it is open to the Tribunal to be satisfied as to the Applicant's identity. The Respondent also submits that being known by different names does not, without more, mean that the Tribunal cannot be satisfied of the Applicant's identity. However, in the SFIC filed in January 2025 the Respondent submits that the Tribunal cannot be satisfied of the identity of the Applicant. The Respondent submits that the evidence establishes the Applicant's involvement in the DAK application but there are differences in the biographical details in the two applications which make it impossible for the Tribunal to be satisfied as to the Applicant's identity (such as names of his parents and certain details about the siblings). The Respondent submits that in the circumstances of this matter, it is not possible to tell whether the Applicant's name is DAS or DAK.

1. The Respondent submits that the Applicant is not a credible witness and his evidence concerning his identity should be 'greatly reduced'. The Respondent notes that the Applicant failed to provide an explanation for the change of surname and his involvement in both applications casts doubt on a key aspect of identity, being his family composition. The Respondent notes that there are different dates of birth in the two applications relating to the Applicant, his parents and siblings.

1. The Respondent also submits that limited weight should be given to the Applicant's ID cards because the Applicant has not explained how his original card was lost, how he went about obtaining the ID cards and what documents he provided to obtain the ID cards. (These explanations and supporting documents have now been provided to the Tribunal.)

1. The Applicant provided to the Tribunal a number of identity documents that were not available to the delegate. The Department had undertaken verification of the identity documents and in February 2025 advice was provided that the ID card in the name of DELJAS, issued in January 2020, is counterfeit and was not issued by the official Civil Status Office in Iraq and there was no official record of this document. The advice also indicates that the ID card in the name if DEJAK, issued in July 2008, is a genuine document which is registered with the relevant authorities and is the latest ID card issued to that person.

1. In his submissions to the Tribunal the Applicant argues that the above verification outcome is of little or no probative value because the ID card does not match with the one presented by the Applicant. The Applicant refers to the possibility of human error and systemic issues in Iraq's civil registration system, stating it would be unsafe to draw adverse conclusions against him. The Applicant also claims that there was inappropriate communication with the Iraqi authorities and that he has been prejudiced by not being provided with the copy of the entire communication between Immigration and the Iraqi authority. The Applicant states that the claim that the ID card is counterfeit lacks supporting evidence and there has been no disclosure of the methodology used. The Applicant also refers to the 'fragmentation' of the civil documentation system claiming the documents may not missing or untraceable.

1. The Respondent argues that the different notation of the name used in the verification may be due to the different transliteration of the Arabic name while the difference in the single digit of the ID card could be due to a typographical error or a misreading of the photocopies document.

1. The Applicant in oral evidence denied that his Iraqi ID card is not a genuine document and that it was not produced earlier because it had been recently fabricated. The Applicant stated that when he left Iraq, he was too young and did not know the process of obtaining an ID card. He states that when the issue came up, he asked his father to provide the evidence of having obtained the new ID. The Applicant states that there are multiple documents that prove that he is who he claims to be.

1. The Tribunal acknowledges that there are some deficiencies with the verification of document, as identified by the Applicant, but the Tribunal does not accept that the verification is of no probative value. The Tribunal does not consider that the Departmental officers who initiated and were involved in the verification (and who perform such tasks routinely) lacked the skills and knowledge to engage in the process appropriately and to ensure appropriate channels were used to verify the documents. With respect to the discrepancy in the document number, given the similarities in the name (allowing for different transliteration) together with the similarities in the ID number (with what appears to be a single digit difference) the Tribunal accepts the Respondent's suggestion that the difference may be due to a typographical or human error and it is more likely than not that the advice refers to the correct ID card rather than an ID card that belongs to an entirely different person with the same name and almost identical ID card number.

1. As for the claimed deficiencies in the Iraqi system, the Tribunal acknowledges that these may exist but the Tribunal is also mindful that the Applicant himself relies on his Iraqi documents as evidence of his identity. If the deficiencies and fragmentation and lack of accuracy applies to undermine the reliability of the verification process, the same reasoning may apply with respect to the accuracy of the issued ID documents as proof of the Applicant's identity. That is, if the Tribunal is to give lesser or no weight to the verification process, as the Applicant claims, the Tribunal would also give lesser or no weight to the Applicant's various identity documents because, as the Applicant himself claims, the Iraqi records and systems dealing with official documentation are unreliable.

1. The Applicant also provided to the Tribunal an explanation of how the documents were obtained. The Applicant states that his ID card was taken by the people smuggler and he asked his father to obtain his new card. His father attended the police station, filled in a Loss Form which was then taken to the court and the judge issued an approval to obtain a new card. The Applicant states that his father completed the papers on his behalf and, to prove his identity, his identity could be verified through his father's ID card, which would have been checked. The Applicant provided a number of documents evidencing the process.

1. The Tribunal gives some weight to the verification outcome indicating the DAS identity documents are bogus documents.

1. In the course of the hearing, the Respondent identified the similarities between the DAS and DAK applications, including names and dates of birth of parents, siblings' names with some variations in relation to years (but not dates) of birth. The Respondent notes that while some names can be common, it is very unlikely that the two persons - DAS and DAK - would have the same family structure and submits that it would be implausible that such significant similarities would be coincidental. The Respondent notes the similarities in the life stories of DAK and DAS Applicants and claims it is implausible that, when all of these factors are taken together, the two applications are unrelated.

1. The Applicant submits that there are sufficient differences between the two applications and he states the claims are common. The Applicant submits that he does not know how the person proposing DAK was able to supply his photo in the Humanitarian visa application or how that person obtained details of the Applicant's family. The Applicant submits that the Respondent's case relies on the premise that the same person was involved in the two applications, having regard to personal details and the use of the photograph, but this fails to have regard to the contextual factors such as transliteration variances, unauthorised use of the photograph and identity information and the complexities of shared living arrangements. The Applicant submits that there are alternative explanations and, aside from the 'alleged similarities' the Respondent failed to provide substantive corroborative evidence. The Applicant notes that the photograph comparison was by a lay person rather than an expert and notes the possibility of the photographs being misused, so that it cannot be proved that the Applicant submitted both. The Applicant states that his denial of knowledge of AAK could have been for a variety of reasons and is not necessarily a reflection of guilt or deceit. The Applicant refers to lack of direct evidence in the Respondent's submissions and over-reliance on 'supposition' and failure to engage with alternative explanations.

1. The Tribunal acknowledges the Applicant's claims but these seem to be based on the premise that it is for the Respondent to provide probative evidence, or to establish, that the Applicant used two different identities. In the Tribunal's view, that is not the case. The legislation requires the decision maker to be satisfied of the identity of the Applicant. It is not for the decision maker to positively establish that the Applicant's identity is not what he claims it to be. It is not for the decision maker to positively establish what the identity of the Applicant is. It is for the Applicant to provide sufficient probative evidence that is capable of satisfying the decision maker as to what the Applicant's identity is. The Tribunal is of the view that the Applicant's submissions seek to improperly reverse that onus.

1. The Applicant submits that the use of two different names in the two applications, with the minor other variations, cannot indicate two different identities. The Applicant suggests that there are 'minor discrepancies' in dates and relationships which are commonplace in conflict zones and these do not undermine the fundamental question whether he is the same individual. However, the Applicant also identified significant differences in the two applications (for example, in relation to Applicants' siblings and some differences in relation to the attack in Iraq) which, he claims, show that both applications were not made by him.

1. The Applicant identified a number of documents which evidence his present identity and he claims he was not known by any other name. The Applicant refers to his Australian identity documents, statements from his family overseas and other materials and the Applicant claims there is no evidence that he was known as DAK. With respect to the verification of documents undertaken by the Department, the Applicant claims it is unreliable. The Applicant refers to the differences between the two applications, including in relation to family composition and dates of births, the circumstances of the incident in the car and the manner in which the Applicant departed Iraq.

1. In the course of the hearing there was some discussion about locating AAK. In his post-hearing submission of 16 July 2025 the Applicant states that no adverse inference should be drawn against him on the basis that he has not taken adequate steps to locate Mr DAK. The Applicant states that it is the Respondent who has made the positive allegation that he has lied and failed to disclose the brother and the Respondent is in 'as good a position' as he to locate AAK to establish that the Applicant had lied. However, as noted above, the Tribunal considers that it is the role of the Applicant to satisfy the Tribunal as to his identity, rather than for the Respondent to prove that the Applicant had lied about his identity. In the circumstances where that person's evidence could be crucial to the Applicant's claims, it may not have been unreasonable for the Applicant to take steps to locate that person. The Applicant also submits that attempts had been made to contact this person who is purported to be his brother and he provided a document from his previous representative. The Applicant claims these attempts have not been successful and there is no match for AAK on social media. The Respondent claims, however, that the steps taken by the applicant do not detract from the force of the inference available to the Tribunal that the Applicant made no real attempt to contact AAK via internet and the inference is that he did not do so because AAK's evidence may have been adverse to him.

1. At the conclusion of the hearing the Applicant raised some concerns about the quality of the interpretation provided during the hearing. The Applicant was given time to provide particulars of such concerns and with his submission of 16 July 2025 the Applicant provided a transcript of the proceedings and identified what he claims to be errors or inaccuracies with interpreting. The Respondent submits that the errors identified by the Applicant do not establish that he was denied opportunity to present his case as to critical matters, or that he was denied procedural fairness.

1. The Tribunal considers that many of the concerns raised by the Applicant do not establish any errors that address substantive issues and do not establish that these had affected either the Applicant's ability to give evidence, nor the listeners' ability to understand the Applicant's evidence. For example, the Applicant states that the interpreter used too many unnecessary words in Arabic, mis-stated on multiple occasions the name AK instead of DAK and used incorrect terminology when the Applicant was sworn in. In the Tribunal's view, none of these matters indicate any substantive shortcomings by the interpreter that affect the Applicant's evidence. The Applicant identified other errors that, also in the Tribunal's view, do not affect the listeners' ability to understand his evidence.

1. In the Tribunal's view, it may not be possible to have a perfect interpretation. What is required is that interpretation is to sufficiently accurate to convey the idea or concept being communicated.[9] It is also well established that minor interpreting errors may not affect the validity of the Tribunal hearing or decision.[10]

1. In Applicant P119/2002[11] at [17] and [22], Mansfield and Selway JJ, adopted the test that inadequate interpretation will be established where (a) the Applicant is effectively prevented from giving evidence; or (b) the errors were material to the conclusions of the Tribunal adverse to the Applicant. In the Tribunal's view, the errors identified by the Applicant do not establish that the standard of interpretation was so inadequate that the Applicant was prevented from giving evidence. Neither has it been shown that the interpreting errors are material to the conclusions that the Tribunal reaches in relation to the Applicant's evidence.

IS THE TRIBUNAL SATISFIED OF THE IDENTITY OF THE APPLICANT?

1. The Applicant submits that he is DAS and has not been known by any other name. He states he does not know who DAK is and does not have a brother called AAK. Alternatively, the Applicant submits that if the Tribunal were to find that he called himself by another name and made another visa application, he is still the same person who made the two applications and his identity is not at issue, as the Tribunal can be satisfied he is the person who he claims to be and the Tribunal can be satisfied of his identity.

1. The Respondent submits that there is sufficient similarity between the two applications to show that these were lodged by the same person and that the Applicant knows AAK. If the Tribunal were satisfied that it is the same person making the two applications, there is sufficient doubt about the Applicant's identity and this evidence also goes to the Applicant's character.

1. The Tribunal has considered the totality of the evidence in relation to the Applicant's identity. The Tribunal gives preference to the Respondent's submission concerning the similarities between the 2010 application made by DAK and the subsequent application made by DAS. The similarities between the applicants' names and dates of birth, family composition and the use of the same photograph all point to the two applications being made by the same person.

1. The Tribunal acknowledges the Applicant's concerns in relation to the reliability of the facial comparison report but in the Tribunal's view, the results of that report cannot be discounted and the Tribunal gives it some weight. Further, the Tribunal gives significant weight to the fact that the photograph on the DAK application is identical to the photograph provided by DAS on a school report. As these photographs are undeniably identical, in the Tribunal's view these establish a link between the two applications.

1. The Tribunal acknowledges the Applicant's claims that his identity may have been stolen or misused by others but, given all the other similarities in the two applications, the Tribunal considers it much less likely that the commonality between two applications were due to the Applicant's identity being misused or stolen and more likely that it was the Applicant who had made the two applications.

1. The Tribunal places significant weight on the involvement of AAK in the first application and his apparent ongoing involvement following the Applicant's entry to Australia. It is unclear how the presence of AAK in both applications could be explained by the Applicant's identity being stolen. As noted above, the Applicant could not offer a meaningful explanation for AAK paying an internet bill at his premises or the use of KC's address by both. The nomination of DAS by AAK in the 2010 application and the apparent connection between the Applicant and AAK after the Applicant's entry to Australia offers strong support, in the Tribunal's view, for a finding that the Applicant was involved in the 2010 application.

1. That is, the Tribunal agrees with the Respondent's submission that the combination of all these factors - the similarities in names, dates of birth, family composition and the use of the same photograph - cannot reasonably be considered as a mere coincidence. Essentially, even if it could be said that the Applicant's identity had been stolen to make the 2010 application, that does not explain that the Applicant in that application was sponsored by AAK who then seems to have had some involvement with the Applicant upon his arrival in Australia.

1. The Tribunal also places weight on the verification outcome indicating the Applicant's identity documents in the name of DAS did not appear to be genuine documents. The Tribunal is unpersuaded by the claims put forward by the Applicant about the unreliability of the verification process. The verification outcome is not in itself determinative but it lends some weight to the concerns regarding the Applicant's identity.

1. The Tribunal acknowledges that the Applicant provided other documents to confirm his identity, including various statements from third parties who state the Applicant is who he claims to be, and a number of Australian identity documents but the Australian records would have been issued on the basis of the Applicant's claims or his overseas identity documents rather than any independent assessment of his identity. As for statements from third parties, these do not seek to address the specific issues discussed here, in relation to the two visa applications and in relation to the evidence that was submitted, using a different identity, in support of the first application. The Tribunal gives these statements very limited weight.

1. The Tribunal has formed the view that, contrary to the Applicant's evidence, he was involved in the lodgement of the first application. Even allowing for the matters to which the Applicant refers, such as transliteration issues, commonality of certain names and experiences and misuse of photographs and identities, the combination of the factors set out above (the similarities in life stories, similarities in family composition and, significantly, the use of the same photograph), when viewed together, offer a strong indication that the Applicant was involved in the two applications. In the Tribunal's view, that explanation is much more likely than the one that is offered by the Applicant - that his photograph was used without his knowledge or that his identity was 'stolen' and the commonality of experiences and claims and any other explanation offered by the Applicant.

1. The Tribunal also places considerable weight on the fact that the person in the first Humanitarian visa application was proposed by AAK who seems to have connection to the Applicant after his arrival in Australia, noting the combination of factors such as the use of the same address in Orange, the same postal address relating to KC who the Applicant identified on his own application form as a contact, and the payment of the internet bill for the address where the Applicant resided on his own. The Tribunal is unpersuaded by the Applicant's claim that this is due to the commonality of migrant experiences or the commonality of names, coincidences or for other reasons suggested by the Applicant. The Tribunal considers these explanations implausible, given the extent of the apparent links between the Applicant and AAK. The Tribunal does not accept the Applicant's denial of any knowledge of AAK.

1. The Tribunal considers it highly likely that the Applicant did lodge the two applications. The Applicant submits that this does not detract from his identity because he was the person involved in the two applications. The Tribunal acknowledges Mortimer J's comments that the use of different names does not necessarily mean that the Applicant's identity cannot be determined. However, as the Minister correctly, in the Tribunal's view, contends, in the present case there are a number of factors in addition to the use of different names that are at variance. These include the Applicants' dates of birth stated in the two applications, certain information about family composition and certain information about the Applicant's background. These differences are sufficiently significant to raise for the Tribunal doubt as to the Applicant's identity.

1. Given the discrepancies in the two applications, the Tribunal cannot be satisfied as to the Applicant's genuine name, his date of birth or his family composition. The Tribunal cannot be satisfied as to the aspects of the Applicant's life story. The Tribunal cannot be satisfied that the Applicant's basic biographic information is correct. In the Tribunal's view, these discrepancies are capable of identifying the Applicant as a person with a different background than what has been claimed and these go further than the use of a different name in a visa application.

1. On the basis of the above, the Tribunal is not satisfied as to the Applicant's identity. The Tribunal is not satisfied the Applicant meets the requirements of s. 24(3)

1. Further, and in addition to the above finding, the Tribunal has considered whether the Applicant is of good character.

1. With respect to his character, the Applicant submits that there is no clear objective evidence to tie him to any deception and any allegation of his guilt remain unproven. The Applicant submits that he had engaged with the community and made a positive contribution. The Applicant provided to the Tribunal character references in support of his application and a statement of 6 February 2025 outlining his contribution to the community and he submits that the Minister's claims are based on uncorroborated claim of deceit.

1. The Applicant submits that, other than the identity issue, there is nothing before the Tribunal to indicate that he is not of good character. The Applicant notes that he has supplied character references. He has been living in Australia for 15 years and has no adverse record, has worked in the education system, is married to an Australian citizen and has a future in Australia. The Applicant submits that, even if the Tribunal were satisfied that he had used another name, in the absence of anything else, there is insufficient evidence to show that he the Applicant is of poor moral qualities.

1. There is before the Tribunal a statement from the Applicant's wife, AKMAK, who refers to their loving relationship and the financial and emotional support the Applicant had provided to her. Ms AKMAK refers to the Applicant being of good character based on their relationship and his support for the community. The Tribunal accepts Ms AKMAK's evidence concerning the relationship and the support the Applicant provided (while being mindful that the relationship and support do not necessarily define one's character and can continue irrespective of the Applicant's citizenship status). The Applicant's own statement also refers to his past circumstances and his settlement in Australia and the Applicant refers to his employment and contribution to the community. Again, the Tribunal is mindful that the Applicant's right to remain in Australia is not at issue and will not be affected by the Applicant's citizenship status. Irrespective of the outcome of this review, the Applicant will be able to continue with his employment and to make a contribution to the community and maintain his relationship with his partner and extended family and his other ties to Australia.
2. The Respondent agrees that the only issue going to character is the issue of identity. The Respondent provided its Statement of Position on 13 May 2024. In it, the Respondent claims that it is open to the Tribunal to be satisfied as to the Applicant's identity but the decision under review should be affirmed pursuant to s. 21(2)(h) on the basis the Applicant is not of good character.
3. The Respondent submits that there is overwhelming evidence that the Applicant was involved in the failed DAK application and subsequently applied for another visa in a different name in an attempt to engineer a different migration outcome. The Respondent states that upon discovery of this by the Department, he continued to deny involvement in such a scheme and as late as in November 2020 provided a statutory declaration denying his involvement in the DAK application. The Respondent submits that the Applicant has not been honest in his dealings with the Australian government.
4. In the SFIC dated 17 January 2025 the Respondent outlines the relevant facts and refers to the two applications (similarly to the submissions made to the first Tribunal). The Respondent submits that there is overwhelming evidence that the Applicant was involved in the DAK application and has lied about his familiarity with AAK. The Respondent refers to the Departmental Citizenship Instructions and a number of Tribunal decisions, which suggest that a person of good character would 'not practice deception or fraud in dealings with the Australian government'. The Respondent refers to the Applicant's 'persistent dishonesty' and the fact that he continues to deny his involvement in the first application, which is indicative of the fact that he is not of good character.
5. The Respondent submits that if the Tribunal were satisfied that the Applicant is the same person who made the two application, then the Tribunal may find that the Applicant has been untruthful in his dealing with Immigration, including his knowledge of the first application and also concerning his relationship with the brother. The Respondent notes that the Applicant had signed a statutory declaration which he knows to be untrue, gave evidence to the two Tribunals which is untrue and pursued an application before the Court which was based on untruthful evidence such matters bear on his character. As he is willing to appear before the Tribunal dealing with his character and be willing to tell untruthful information, the Tribunal should not be satisfied the Applicant is a person of good character.
6. The Tribunal has had regard to the reasoning in Lachmaiya and Department of Immigration and Ethnic Affairs:[12]

The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.

1. For the reasons set out above, the Tribunal has formed the view that the Applicant had made the two visa applications and that he was the Applicant in the 2010 application in the name of DAK and the subsequent application in the name of DAS. The Applicant repeatedly denied that he was involved in the two applications. The Tribunal has formed the view that the Applicant's evidence in that respect has been untruthful.
2. The Applicant also repeatedly denied any knowledge of AAK. Again, for the reasons set out above, the Tribunal has formed the view that the Applicant has not been truthful in his evidence. The Tribunal considers it utterly implausible that the payment of the internet bill at the Applicant's address, the use by AAS of KC's address when the Applicant also identified KC as his contact person and the use of the same addresses at Orange by the Applicant and AAK, as well as the involvement of AAK in the 2010 application were, altogether, mere coincidences or that this was otherwise explained by reasons suggested by the Applicant. The Tribunal does not accept the Applicant's evidence that he is not familiar with AAK and has formed the view that the Applicant has been untruthful in his claims.
3. The Tribunal accepts that the Applicant has been living in Australia for approximately 15 years, that he has a 'clean record', stable employment and that he had performed voluntary jobs and made other contribution to the community. The Tribunal accepts that he has a partner and extended family here. None of these factors detract from the fact that the Applicant has been consistently untruthful with Immigration and the Tribunal in relation to the claims he made in support of his citizenship application, and continues to be untruthful. The Tribunal is mindful of comments made by the then DP McDonald in Prasad[13] at [7]:

A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.

4. The Applicant submits that it is not unusual that failed asylum seekers would try again to obtain a visa and that non-disclosure does not speak so negatively to his character as to establish that he does not have the enduring moral qualities. However, the issue here is not the multiple visa applications, and not even the use of different identities in the two applications, but the ongoing untruths that have been provided in relation to the migration and citizenship application processes.
5. Lachmaiya emphasises the importance of telling the truth when dealing with immigration officials, particularly when truth is only known to the Applicant. In this case, the Applicant has told untruths consistently and over a period of about nine years since his citizenship application was made. The Tribunal does not consider that the Applicant's otherwise good record in other respects overcomes the above concerns about the provision of false information, on multiple occasions in support of the citizenship application, including the provision of a false statutory declaration and the giving of false evidence on oath to the two Tribunals. That is, in the circumstances of this case, the Tribunal has formed the view that (to use the language of Prasad) the adverse incident of persistent lack of candour throughout the citizenship application outweighs otherwise good qualities and a good record of the Applicant.
6. Having regard to these matters, the Tribunal is not positively satisfied that the Applicant is of good character. The Tribunal is not satisfied the Applicant meets the requirements of section 21(2)(h). This is in addition to the Tribunal's finding above that the Applicant does not meet the identity requirements. That is, even if the Tribunal were satisfied as to the Applicant's identity, the Tribunal would affirm the decision under review on the basis that the Applicant does not meet the character requirements in s. 21(2)(h).

[1] [2023] AATA 3245.

[2] [2024] FCA 387.

[3] Irving v Minister for Immigration Local Government and Ethnic Affairs at [424].

[4] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [55].

[5] CPI 15 - Assessing Good Character under the Citizenship Act - VM-5292, paragraph 1. T3, 80, 96, 97.

[6] [2007] AATA 1815.

[7] [2017] AATA 1354.

[8] BQG21 v MICMA [2023] FCA 865.

[9] SZGWN v MIAC [2008] FCA 238; (2008) 103 ALD 144 at [21], citing Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 at 433 and WACO v MIMIA (2003) FCR 511 at [66].

[10] SZHEW v MIAC [2009] FCA 783 at [76]. See also Park v MIAC [2009] FMCA 7 at [37], BZAAA v MIAC [2011] FMCA 131 at [13]-[15], upheld on appeal: BZAAA v MIAC [2011] FCA 447, and SZOYU v MIAC [2012] FMCA 316.

[11] P119/2002 v MIMIA [2003] FCAFC 230 at [17] and [22].

[12] [1994] AATA 27, [35].

[13] Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November 1994, Decision No. 9822)