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

Abdi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4562 (7 December 2021)
Division:GENERAL DIVISION
File Number: 2021/0081
Re:Fuad Abdi

APPLICANT

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

DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:7 December 2021
Place:Perth

The Reviewable decision being the decision of a delegate of the Respondent made on 15 December 2020, which refused the Applicant’s application for Australian citizenship by conferral is affirmed.
......................[Sgd]..................................................
Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity and good character – identification documents obtained through unofficial channels – counterfeit birth certificate – identity not linked from birth – Tribunal not satisfied of identity – character not assessed – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 24(1), 24(3), 52(1)(b)
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – ch 13
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 15,16
Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 (Cth)
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
7 December 2021
INTRODUCTION

Mr Abdi seeks review of a decision made by a delegate (the Delegate) of the Department of Home Affairs (the Department) on 15 December 2020 (the Reviewable Decision) to refuse his application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act). The Delegate was not satisfied of Mr Abdi’s identity for the purposes of s 24(3) of the Act and was not satisfied that Mr Abdi was of good character as required by s 21(2)(h) of the Act (T17/160–175).
The application for review is made in accordance with s 52(1)(b) of the Act, which allows the Administrative Appeals Tribunal (the Tribunal) to review decisions made under s 24 of the Act.
In his application for review lodged on 8 January 2021, Mr Abdi claimed the Delegate’s decision was wrong because (T2/8):
–   The decision made by the department was solely based on false accusations and allegations and when I have provided written responses to all the allegations, the information was not considered. The evidence put forward was not considered.
–   I have fulfilled the requirements to become an Australian citizen
–   All supporting statutory documents were not considered fully
–   The law was not applied accordingly, and the officer made a decision based on false assumptions and referred to information by an incompetent authority.
–   The subsequent provision of more evidence offered in the written submission was not given due consideration and the time required to provide the evidence. Instead a decision was made before the evidence could be brought forward (New birth certificate from Somalia Government, certification of the death certificates). This is crucial, because the decision maker was alluding, all identity documents were forged, and the Somali government will not be able to verify the validity of those documents or issue verified document.
–   I believe a review into the decision will correct the errors made in the decision-making process.
The application was heard by the Tribunal on 13 October 2021. Mr Abdi was represented by Mr David Blades of Chisholm Law, and the Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. Mr Abdi gave evidence on affirmation and was cross-examined by Ms Jones-Bolla.
Six witnesses participated in the hearing by telephone conference, gave evidence on affirmation and were cross-examined by Ms Jones-Bolla. The Tribunal was assisted by an interpreter during the evidence of Dhofo Abdi Dahir who resides outside Australia.
BACKGROUND
Mr Abdi is a 23 year old Somalian who first arrived in Australia on 24 September 2011 as the holder of an offshore Orphan Relative (subclass 117) visa (the visa) which was granted on 17 August 2011 (T17/163).
On 24 September 2019, Mr Abdi applied for citizenship by conferral pursuant to s 21 of the Act (T5). He attached the following documents with his application:
(a)an identity declaration (T5/60–61);
(b)a Western Australia Driver’s Licence (T5/66);
(c)Medicare card (T5/65);
(d)document for travel to Australia (DFTTA) (T5/67); and
(e)a birth certificate dated 18 August 1998 (T5/62).
On 11 October 2019, the Department requested further information to verify that Mr Abdi could satisfy citizenship requirements, namely a “Form 1399 Declaration of Service”, a “Form 80 Personal particulars for assessment including character assessment”, and documents to confirm Mr Abdi’s identity (T6/68–72).
In response, on 12 November 2019, Mr Abdi provided a Form 80, a Form 1399, a statutory declaration, and his Australian identity documents (T7). Mr Abdi declared that all of his original documents had been held by his aunty, and due to her not understanding their importance she had dumped them after he moved to Australia and obtained his Australian driver’s licence and Medicare card (T7/76–77). Mr Abdi further stated that he was able to make a Freedom of Information (the FOI) request to the Department for a copy of his original documents submitted with his visa application including his birth certificate provided in support of the visa application (T5/62). In his Form 1399 Mr Abdi declared that his father died on 16 February 2006 and his mother died on 10 October 2006.
On 27 July 2020, the Department made a further request for identity documents. In particular, the Department requested (T8/107):
·School records from Somalia and Kenya. These include documents relating to the Islamic studies you stated that you completed in Somalia
·Evidence of your birth – other than your birth certificate you have provided to the Department – from the time of your birth such as hospital records, baptism certificate and register of entries from Somalia
·Immunisation/vaccination records and any other medical records from Somalia and Kenya
·Any current and expired passports any other forms of travel documentation
·Citizenship certificate from Somalia
·Any identity documents relating to your parents, such as birth certificates, national identity cards, citizenship certificates, passports and marriage certificate
·Any identity documents issued for you while living in Nairobi, Kenya. This can any documents held for you by your guardian in Kenya
·Any documentation issued by the UNHCR, including ration cards, refugee registration, travel permits and identity cards, and any other refugee welfare agencies, if you resided in a refugee camp
·Evidence of family ownership of property, land or a business from Somalia. The Department has been advised that your parents ran a butcher’s business in a shopping centre in Somalia
·Household registrations
·Evidence of participation in community groups including sports clubs
·Bank statements, mobile phone records
·Any other documents or photos from overseas that you consider will assist in verifying your identity…
Statutory declaration (only if unable to provide any further identity or supporting documents) If you are unable to present any of the above documents, please provide a written statement on a statutory declaration and provide a detailed explanation of what attempts you have made to obtain the documents and the reason(s) why you are not able to present them.
(Original emphasis.)
On 17 August 2020, Mr Abdi requested an extension of time to provide documents in response to this request (T9/110).
On 12 August 2020, the Visa Integrity Unit at the Australian High Commission in Nairobi (the VIU) advised that the birth certificate (T5/62) provided in support of Mr Abdi’s visa and citizenship applications was assessed as “COUNTERFEIT”. The advice noted the high prevalence of document fraud in Somalia and in its assessment identified the following (T10/113):
·The format of the birth certificate provided is not consistent with genuine birth certificates issued by Somali authorities
·The birth has been registered by the Mayor of Mogadishu, despite occurring in Kismayo which is located almost 500 kilometres from Mogadishu during a period when the whole country was at war
·There was no functioning government in Somalia in 1998 as such there was no government authority with the responsibility for the issuance of civil documentation such as birth certificates
·There is no open source information to show that this signatory, Mohamed Hussein ISACK, was ever the Mayor of Mogadishu
·Poor quality logo appearing at the top of the document
On 24 August 2020, the Department received a further report from the VIU relating to the authenticity of death certificates provided by Mr Abdi (T4/39, T4/40) in support of his application for the visa. The report provides (T11/114):
(a)In relation to the death certificate of Mr Abdi’s father, it was noted that Kismayo Hospital was unable to verify records issued prior to November 2013. Since the death certificate was issued in February 2006, the office was “UNABLE TO VERIFY” the genuineness of the death certificate.
(b)In relation to the death certificate of Mr Abdi’s mother, the VIU had received advice from the Director of Madina Hospital (the hospital that allegedly issued the certificate) stating that the document had not been issued from the hospital and was a forgery. Based on that information, the VIU verified the death certificate of Mr Abdi’s mother as “COUNTERFEIT”.
On 9 September 2020, Mr Abdi provided a new birth certificate to the Department in support of his application. This certificate is dated 18 August 2020 and issued by “The Consulate General of the Federal Republic of Somalia Melbourne – Australia” (T13/119).
On 26 October 2020, the Department invited Mr Abdi to comment on, or provide an explanation about, the following adverse information (T14/120–124):
(a)he had provided a counterfeit birth certificate to the Department;
(b)he had provided a counterfeit death certificate of his mother to the Department;
(c)AUSTRAC records indicated that he had been transferring money to a person with his mother’s name, who was declared as deceased, in Somalia and Kenya between 22 December 2017 and 4 July 2020, labelled as “Family Support”, and therefore it appears that he had been dishonest in his dealings with the Department; and
(d)he had provided false and misleading information to the Department in his statutory declaration dated 12 November 2019 when he declared that he had no direct contact with anyone living in Somalia. This allegation was made on the basis that he had sent money labelled as “Family Support” to his mother and to Abdirahman Mohamed and Yusef Mohamed and therefore was in contact with the people in Somalia.
On 28 November 2020, Mr Abdi provided an extensive response to the Department’s invitation for comment or explanation (T15/129–139), noting:
(a)The translation of his birth certificate was completed by an “incompetent person” and he was in the process of obtaining another translation of his birth certificate from a NAATI approved translator.
(b)The untranslated copy of the birth certificate mentions the Director General of Social Services as the signatory and not the Mayor of Mogadishu, and in the 1990s despite the civil war the residents could still obtain identity documents from Mogadishu.
(c)The birth certificate is not counterfeit and was provided by his aunt and not Mr Abdi (as he was a minor at the time of his visa application).
(d)Madina Hospital is not a competent authority to determine the validity of forged documents.
(e)He transferred money in the name of his mother to the caretaker who assisted him after the death of his parents to support other families from disadvantaged backgrounds.
(f)He maintained he did not have direct contact with anyone in Somalia but did not specify his indirect contacts with distant relatives.
(g)He noted that he had sent money to his friends Mohamed Yousef Hassan and Abdirahman Mohamed Ali who lived in Kenya and were his friends from a young age.
On 10 December 2020 the Delegate emailed the Australian High Commission in Nairobi regarding Mr Abdi’s response, and on the same day, the High Commission responded as follows (T16/158):
Based on Information held at post, births in Somalia are registered on the basis of a statement made at time of application with limited to no supporting documents required to support claims relating to identity and date of birth. These are usually done when required for specific purposes such as migration or passport issuance. Fraudulent birth certificates, in particular those claimed to be issued in from the 1980s to the mid-2000s are widely in circulation. These documents are usually claimed to be issued by the Mayor of Mogadishu's office.
I would place very little weight on the provided birth certificate in ascertaining client’s identity and would instead request the applicant to provide a Certificate of Identity and a current Birth Certificate issued by the Municipality of Mogadishu. There are rigorous checks and processes in place now in the issuance of the birth certificates and the new format includes security features such as an image of the applicant, fingerprint record and barcode.
I have also reviewed genuine Somali birth certificate samples held at post and note that “Duqa Magaalada” directly translates to “The Mayor" and not “director general of social services” as claimed by the applicant.
On 15 December 2020, the Delegate refused Mr Abdi’s application for Australian citizenship (T17, para 1 above refers).
On 8 January 2021, Mr Abdi lodged an application for review of the Delegate’s decision in this Tribunal (T2, para 3 above refers), and attached the following documents to his application:
(a)a Birth Certificate issued by the Municipality of Mogadishu dated 22 December 2020 (T2/13);
(b)a “Declaration of Death” dated 14 December 2020 issued by the Xamar Jajab District Court validating the testimony of Abdinasir Osman and Khalid Salad Yusuf that Mr Abdi’s father died on 16 February 2006 in Kismayo (T2/12); and
(c)a “Declaration of Death” dated 14 December 2020 issued by the Xamar Jajab District Court validating the testimony of Abdinasir Osman Gurhan and Khalid Salad Yusuf that Mr Abdi’s mother died on 10 October 2006 in Mogadishu (T2/11).
The Tribunal notes that the Court’s email address on both of the documents labelled as “Declaration of Death” is mentioned as [email protected] which is unusual as the Court is using the services of a generic email domain instead of using its own domain for the email address.
ISSUE
The Tribunal must decide whether Mr Abdi is of good character for the purposes of s 21(2)(h) of the Act, and whether the Tribunal is satisfied of Mr Abdi’s identity, pursuant to s 24(3) of the Act.
If either or both of these criteria are not met, then the Tribunal is required to affirm the Reviewable Decision.
LEGISLATIVE FRAMEWORK
The legislation applicable in this matter is contained in the Act. To ensure consistency in decision-making, the Tribunal has regard to the Australian Citizenship Policy (1 June 2016) (the Policy), the National Identity Proofing Guidelines (the Guidelines) and the Revised Citizenship Procedural Instructions (CPIs). The Tribunal as a decision maker will generally follow the relevant policy unless there are cogent reasons to depart from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
Section 21(1) of the Act provides that “[a] person may make an application to the Minister to become an Australian citizen”. Section 24(1) of the Act provides that “…the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Where a person is not eligible to become an Australian citizen under s 21(2), the Minister must not approve the person becoming an Australian citizen.
Section 21(2) of the Act provides:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i)at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Section 24(3) of the Act provides that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”. Further, the wording of s 24(3) indicates that there is no discretion available to the decision-maker to grant citizenship unless that decision-maker is satisfied of the applicant’s identity.
Identity
Identity is not defined in the Act and should be given its ordinary meaning. However, CPI 16 – “Assessing Identity under the Citizenship Act” provides that the concept of identity is as described in the Guidelines. Relevantly, “identity” is described in Chapter 2.1 of the Guidelines as follows:
2.1.1A 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.
2.1.2A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
Paragraph 2.2 of the Guidelines sets out five identity proofing objectives, established through evidence provided, as follows:
2.2.1The veracity of claims about a person’s identity is established through evidence provided to meet some or all of the following five identity proofing objectives (depending on confidence in the claimed identity required):
1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another and that the right service is delivered to the right individual…
2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created (i.e. the identity is that of a real person) through evidence of commencement of identity in Australia…
3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community (including online where appropriate)…
4.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder…
5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used…
(Original emphasis.)

The CPI 16 further, at [4.12], provides that “[i]t is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically”.
Applicants are required to make at least some efforts to obtain material and documents to assist the decision maker to establish their identity. CPI 16 at [4.12] states that “…the onus is on the applicant to provide information or evidence to support their identity”. Furthermore, evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of an applicant (Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [32]).
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 explained 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”.
Good Character
The second eligibility criterion to be considered by the Tribunal in this matter is set out in s 21(2)(h) of the Act, which provides that the Minister must be satisfied that a person is of good character at the time of the Minister’s decision on the application for citizenship. Therefore, the issue to be determined by the Tribunal in this review is whether Mr Abdi is of good character for the purposes of s 21(2)(h) of the Act.
The term “good character” is not defined in the Act; however, guidance is contained in the CPIs. CPI 15 “Assessing Good Character under the Citizenship Act” at [3.3] defines “good character” for administrative purposes and provides a framework for assessing an applicant under the provisions of the Act. The concept of “good character” refers to a person’s “enduring moral qualities” including “characteristics which have endured over a long period of time”.
EVIDENCE
The Tribunal had the following material before it:
·“T-Documents” (T1–T21, pp 1–269);
·the Applicant's Statement of Facts, Issues and Contentions dated 14 September 2021 (Exhibit A1);
·Statutory Declaration of Musa Salat dated 30 August 2021(Exhibit A2);
·Statutory Declaration of Halima Sirad Elabe dated 9 September 2021(Exhibit A3);
·Statutory Declaration of Faud Hassan Abdi dated 13 September 2021(Exhibit A4);
·article by Laura Hammond titled "Obliged to Give: Remittances and the Maintenance of Transnational Networks Between Somalis at Home and Abroad” (Exhibit A5);
·Somalian Cultural Guide - Centre for Advanced Studies in Child Welfare (Exhibit A6);
·affidavit of Dof Abdi Dahir sworn 19 May 2021(Exhibit A7);
·character reference by Abdalla Abdulrahman Abdi dated 22 May 2021(Exhibit A8);
·character reference by Abdikadir Abdi dated 24 May 2021(Exhibit A9);
·birth certificate of Fuad Hassan Abdi Farah issued on 22 December 2020 (Exhibit A10);
·death certificate of Sareya Sirat Elabe dated 14 December 2020 (Exhibit A11);
·death certificate of Hassan Abdi Farah dated 14 December 2020 (Exhibit A12);
·Letter to the Department of Home Affairs dated 28 November 2020 (Exhibit A13);
·employment contract (Exhibit A14);
·the Respondent's Statement of Facts, Issues and Contentions dated 27 July 2021(Exhibit R1);
·oral evidence of the Applicant’s witnesses: Musa Salat, Abdikadir Abdullah Abdi, Abdullah Abdulrahman Abdi, Dr Hassan Egal, Dhofo Abdi Dahir, and Halima Sirad Elabe; and
·oral evidence of the Applicant.
Mr Abdi’s oral evidence
Mr Abdi confirmed the contents of his Statutory Declaration dated 13 September 2021 (Exhibit A4), and told the Tribunal that:
(a)The affidavit sworn by him in Nairobi on 27 April 2011 (T15/146) was signed by Dhofo because he was only 13 years old and not authorised to sign an affidavit (Transcript/9–10).
(b)He sent copies of his birth certificate (issued on 18 August 1998, see para 12 above) and the death certificates of his parents to his friend Musa Salat who was visiting Somalia, so that Mr Salat could obtain genuine documents from the Somali authorities (Transcript/10).
(c)He obtained his second birth certificate (T13/119) from the Somali Consulate in Melbourne by providing his Australian driver’s licence and his Australian visa (Transcript/13).
(d)Sareya Sirat Elabe, Mr Abdi’s mother, was named as the beneficiary or recipient of money transferred to Kenya, rather than his aunt, Dhofo (Transcript/11).
(e)He transferred money to Kenya on a number of occasions and once to Somalia. The transfer to Somalia was to his uncle Abdi Sirad who normally resides in Kenya, but at the time of transfer was in Somalia for a few weeks for medical treatment (Transcript/12).
(f)The death certificate for his mother dated 14 December 2020 (T2/11) shows that she died in Mogadishu. This was because she was shot in Kismayo where the family butcher shop was located and was then taken by road some 500 kilometres to Mogadishu for treatment but passed away during treatment (Transcript/16).
Oral evidence of Musa Salat
Mr Salat confirmed his Statutory Declaration dated 30 August 2021 (Exhibit A2).
Mr Salat told the Tribunal that whilst he was visiting Somalia in 2020, at Mr Abdi’s request he took a birth certificate provided by Mr Abdi to the Mayor’s office in Mogadishu and obtained a new birth certificate. He said there was a small fee charged for the certificate (Transcript/19).
Oral evidence of Abdikadir Abdullah Abdi
Mr Abdi confirmed his written reference dated 24 May 2021 (Exhibit A9) and that he had known Mr Abdi (the Applicant) since 2012 and was not related to him (Transcript/20–21).
Oral evidence of Abdallah Abdulrahman Abdi
Mr Abdi confirmed his written reference dated 22 May 2021 (Exhibit A8) and that he had known Mr Abdi (the Applicant) since 2012 and was not related to him. He told the Tribunal that he did not know why Mr Abdi’s application for citizenship had been rejected (Transcript/23).
Oral evidence of (Dr) Hassan M Egal
Mr Egal is the Chairman of the Somali Community Association Inc WA and confirmed the contents of the two letters dated 26 November 2020 he had provided attesting to “good character” (T15/155) and “Prove of citizenship” (T15/156) with respect to Mr Abdi.
In cross examination by Ms Jones-Bolla regarding his understanding of the purpose of the present hearing of Mr Abdi’s matter in the Tribunal, Mr Egal said: “Well, I understand he has some trouble with the law, I think is first time, and I don’t know how that happened” (Transcript/25).
Although in the latter letter (T15/156) he stated that “we have known him since his arrival to Australia”, Mr Egal told the Tribunal that he had known Mr Abdi since 2018 approximately (Transcript/25). In response to a question by the Tribunal, Mr Egal replied: “I don’t remember the time he came but I might think it’s – if I’m not mixing some other person I might think it’s ’11 or something like that, but I’m not 100 percent sure” (Transcript/26).
In his letters and before the Tribunal, Mr Egal used the honorific “Dr”. In response to examination by the Tribunal, Mr Egal admitted that he was not a “Dr” and stated: “I’ve got MBA and I have a long time experience as a community leader. And I’m looking for – I’m starting now PhD” (Transcript/26).
Oral evidence of Dhofo Abdi Dahir
Ms Dhofo confirmed her Affidavit sworn in Kenya on 19 May 2021 (Exhibit A7), and told the Tribunal that:
(a)Although Sareya Sirat Elabe was the beneficiary for funds transferred by Mr Abdi, Ms Dhofo herself collected the money and “Sareya did not collect the money. She has passed away. May God rest her soul” (Transcript/30).
(b)The money was transferred through the hawala system using a company called Amal. The office was located in the area of Eastleigh, Nairobi, the same area in which she lived. She knew a person who worked there who knew Mr Abdi and so she did not show identification while collecting the money (Transcript/30–31):
Yes, the usual process, I would agree, is for me to show the ID. But in this case this person – individual – hasn’t asked me for the ID. I’ve explained the money and what the purpose it was sent for, and I’ve explained that it was for charity. The person who sent it wanted to give the money as a way of charity for his diseased [sic] mother.
(c)Mr Abdi attended the Najah school at the mosque in Nairobi and was taught the Koran. The school is no longer open, and Mr Abdi had never asked her to obtain any documentation or attendance record from the school (Transcript/32).
Oral evidence of Halima Sirad Elabe
Ms Elabe confirmed her statement dated 26 November 2020 (T15/153) and her Statutory Declaration dated 9 September 2021 (Exhibit A3).
In relation to the counterfeit birth certificate dated 18 August 1998 (T5/62) that she submitted in support of Mr Abdi’s visa application, Ms Elabe said that she was in Australia at the time and her knowledge was limited, and that she “did ask for somebody to get birth certificate from the appropriate office, but there wasn’t government at the time in that location, and this is what they gave us, or presented” (Transcript/36).
In response to cross-examination regarding her knowledge of the authenticity of the death certificate dated 11 October 2006 for Mr Abdi’s mother (T4/40) also submitted in support of Mr Abdi’s visa application, Ms Elabe stated “when the mother died there were people, obviously, who were there who told me about the death of the mother. And there were people also who got me this – or arranged for this – death certificate. How is this not genuine? Their mother died” (Transcript/37).
CONSIDERATION
Identity
At the outset of this de novo consideration, the Tribunal notes the statement by the Honourable R Nicholson, Deputy President in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117] as it is relevant to the consideration of the level of satisfaction required of a decision maker in being satisfied of an applicant’s identity in circumstances akin to those of Mr Abdi:
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. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
The Respondent contends that there is insufficient evidence for the Tribunal to be satisfied as to Mr Abdi’s identity, and that the little information provided contains inconsistencies such that his identity is unclear (Exhibit R1, para 47).
The Applicant in his Statement of Facts, Issues and Contentions dated 14 September 2021 stated that (Exhibit A1):
Contentions
22.The applicant has provided a number of documents confirming his identity that have been issued by Australian authorities. These are:
a. Medicare card (T5/65
b. Driver’s Licence (T5/66; T7/75)
c. Document for travel to Australia, containing a picture of the applicant when he migrated to Australia in 2011 (T5/67)
d. Security Consultant, Security Installer Licence (T7/75)
e. Working with Children Check (T7/75).
23.He has also obtained further certification regarding his birth from the Consulate General of the Federal Republic of Somalia in Australia (T13/119), and from the authorities in Mogadishu (birth certificate dated 22 December 2020 submitted to the Tribunal).
24. His identity (and that of his brother) was established by the Department in 2011 when it granted him an offshore Orphan Relative (subclass 117) visa. In the visa application process, when the applicant was a child of 13 years, the Department was satisfied that the applicant and his brother were orphans, and that their aunt Halima had been consistent with her story (and therefore there was no need for her to undertake a DNA test): T4/41-2.
25.The applicant’s identity and his life story has been verified by Halima (T15/153). He has supplied references from members of the Somali community in Western Australia (T5/60; T15/155-7). In particular, Dr Hassan Egal, President of the Somali Community Association Inc WA, has confirmed that the applicant is a Somali citizen and an active member of the Somali community (T15/156).
26. In relation to the birth certificate that was supplied for the purposes of the applicant’s visa application (T5/62), the Department did not rely on it in assessing that application. The Department had informed Halima on 18 March 2011 that it did not accept Somalia documents (T15/147). Instead, it appears that the Department relied on an affidavit sworn by Mr Osman Abdi Ali and Mr Mohamed Abdi Ismail, both Somali nationals residing in Kenya as Somali refugees, to confirm the applicant’s identity, and other matters relating to his visa application (T15/142-3).
27.At that time there was also confirmation of the applicant’s name and circumstances from Dr Choy Chun Leong of Princess Medical Centre, Balga (T15/144).
28.Further, in 2011 the applicant was required to undertake a medical examination in Kenya. The letter from the Australian High Commission in relation to that stated:
Please provide a statutory declaration in lieu of birth certificates for you and Furqan, this can be prepared with the assistance of a lawyer.
29.In the course of the Tribunal proceeding, the applicant has obtained:
•    Further Somali court documents issued in December 2020 confirming the deaths of his parents in 2006 (T2/11-12).
•    A fresh birth certificate dated 22 December 2020 (submitted to the Tribunal).
•    An affidavit of Dhofo confirming the applicant’s life story (submitted to the Tribunal).
30.It is submitted that there is ample evidence before the Tribunal demonstrative of the applicant’s identity, in consideration of both the documents he has provided and his life story.
31.He could not have supplied any further documents to the Department or Tribunal, such as evidence of family ownership of property, land or business in Somalia, due to his youth at the time and the passing of his parents. Further, his aunt Halima inadvertently disposed of remaining identification documents (T7/76).
Remittances
32.The respondent has submitted that the applicant’s mother is alive and is being supported by him, based on the evidence that the applicant has been transferring money to Somalia and Kenya for “family support” (See Respondent’s Statement of Facts, Issues and Contentions at [46].) That submission is incorrect.
33.The AUSTRAC records show that the applicant has been transferring money in the name of his mother (T18/176-217); and in the name of his uncle (T18/218).
34.The applicant’s uncle is the person mentioned as “Siraad Elabe Abdi” in the Department’s letter of 26 October 2020 (T14/123). He is named as “Siraad, Abdi” in the AUSTRAC report of 22 December 2017 (T18/218).
35.The details of these payments are given as “FAMILY SUPPORT”. The Applicant has also transferred money to friends on one occasion (T15/138).
36.The applicant has explained that he has been transferring money in the name of his mother to support other families from disadvantaged backgrounds, which is a Somali tradition. He has also given a religious reason for doing this – the Islamic belief that money spent on behalf of deceased parents continues charity and is a good deed (T15/136-7).
37. Information on cultural practices in Somali families demonstrates that they have a strong sense of kinship and provide financial support to relatives. See:
a. “Somali Cultural Guide” published by the Center for the Advanced Studies in Child Welfare (CASCW), a nonpartisan research and training center at the University of Minnesota’s School of Social Work.
b. “Obliged to Give: Remittances and the Maintenance of Transnational Networks Between Somalis at Home and Abroad”, article by Laura Hammond, SOAS, University of London, January 2008, published in Bildhaan, Vol. 10, pages 125-151.
38. In the article by Laura Hammond, she states:
…remittances are the glue that holds many families together. They are a means by which individuals living in exile, away from their extended families, actively fulfill their social obligations and play a meaningful role in their communities despite the physical distance that separates them. The web of obligations to which they are beholden not only provides a necessary lifeline to those living in Somalia, in refugee camps, and in cities throughout the Horn of Africa, but can also help bind together those living in the diaspora. (p 125-6)
….
…Somalia is said to be the world’s largest per-capita recipient of remittances. (p 131)
To facilitate the sending of cash to a country that lacks formal banking and postal systems, a money-transfer industry run entirely by and for Somalis has developed. (p 132)
…
Being able to participate in the economic life of one’s family, not only the nuclear family, but the clan and subclan as well, helps people feel that despite the distance that separates them from their relatives, they still play an instrumental role in the functioning of the family. (p 140)
The literature shows that throughout the world, the most common use of remittances is to support basic requirements at the household level. Money may be used to purchase food, pay housing costs and school fees, and cover basic health care expenses. Recipients commonly share the money they receive with other relatives and neighbours, either in cash or by helping to support them with food. (p 144)
39.The Somali Cultural Guide states:
Somali families have a strong sense of kinship. Before the civil war, Somali helped each other and got support from extended families. Grandparents, aunts, uncles provide financial support to their relatives….
Families have often been accustomed to living difficult lives as nomads and farmers by relying on both the physical environment and on the physical proximity of extended family members for necessary resources. This interdependence and sharing of resources was expected between generations within families, and between families and the greater Somali community
40.The applicant’s practice of transferring money for “family support” purposes is part of his cultural tradition and religious outlook. The transferring of money in memory of his mother to assist the disadvantaged has been confirmed by Dhofo – see her affidavit sworn on 19 May 2021 at paragraphs 7 to 10. At paragraph 9, she has confirmed that she has received the funds sent by the applicant in the name of his mother.
Mr Abdi has provided the following documents in support of his identity:
(a)Somali Birth Certificate dated 18 August 1998 (T5/62);
(b)Somali Birth Certificate (issued in Melbourne) dated 18 August 2020 (T13/119);
(c)Somali Birth Certificate dated 22 December 2020 (T2/13);
(d)Medicare card (T7/75);
(e)Western Australia Driver’s Licence (T7/75);
(f)Australian DFTTA (T5/67);
(g)Australian Working with Children Check card (T7/75); and
(h)Australian Security Consultant Security Installer card (Licensed by WA Police) (T7/75).
The only documents before the Tribunal attesting to Mr Abdi’s identity prior to his arrival in Australia are the three birth certificates (T5/62, T13/119, T2/13). The Respondent submits that the Tribunal “should take a cautious approach to any documents from Somalia that are relied upon by the applicant” (Exhibit R1, para 40), based on the DFAT Country Information Report Somalia (13 June 2017) which notes:
DFAT assesses that document fraud is highly prevalent in Somalia and there are no verifiable Somali identity documents. There is no systematic birth and death registration in Somalia: UNICEF reported that only 3 per cent of births between 2005 and 2012 were registered. Most Somalis do not have valid identity documentation due to a lack of government capacity to issue documents and access restrictions for rural communities who are isolated from government offices or cannot afford travel to main cities to register. Verifying documents is impossible as there are no reliable government-held registries to compare against. Fraudulent documentation can take the form of fake documents, or genuine documents that have been obtained on the basis of fraudulent information.

The first birth certificate (T5/62) has been shown to be counterfeit. The birth certificates issued in 2020 can be given little weight where they were issued 22 years after Mr Abdi’s claimed date of birth and were obtained on the basis of self-declared information and Australian identity documents, or in the case of the certificate obtained by Mr Salat, the counterfeit first birth certificate. Mr Abdi has not provided any evidence of a robust verification process required for him to obtain the certificates such that the Tribunal might afford the documents more weight.
Mr Abdi has provided a letter from (Dr) Hassan Egal, President of the Somali Community Association Inc WA which attests to Mr Abdi being “a Somali citizen” (T15/156). The Respondent contends that “this document should be given little weight in determining the applicant’s identity in the period prior to 2011, in circumstances where the author did not know the applicant in Somalia or prior to “a few years” before the letter was authored in 2020” (Exhibit R1, para 41). Having regard to Mr Egal’s uncertain oral evidence (see paras 39–42 above), the Tribunal agrees with the Respondent. Further, Mr Egal purporting to hold a qualification that he does not have casts a significant shadow on his evidence in relation to both identity and character.
Mr Abdi’s Australian identification documents are not “feeder documents” with an unbroken chain linked to a primary official identity document, unlike a driver’s licence issued to a person who has provided a genuine and legitimate birth certificate, or membership documents of an organisation issued on the basis of a person’s verified origins or qualifications, for example. The CPI 16, at [4.14], states “[t]he crucial element of a document, whether genuine or not, is the story the document tells”. In circumstances where there is no substantial “feeder” document to “historically” contextualise Mr Abdi’s identity in Australia, the Tribunal is unable to assign significant weight to Mr Abdi’s Australian identity documents.
In a letter dated 27 July 2020 the Department provided examples of documents Mr Abdi might provide to support his claimed identity (T8/107), including school records, immunisation records, UNHCR records, evidence of family ownership of property or business, identity cards and photos from overseas. Relevantly, the Tribunal notes the evidence of Ms Dhofo that Mr Abdi has not asked her to seek school records (see para 43(c) above). The Tribunal is cognisant of the circumstances in Somalia at the relevant time and Mr Abdi’s age when he resided in Somalia and Kenya, but there is no evidence that Mr Abdi has taken any steps to obtain such documents. Nor has he provided a statutory declaration setting out any steps he may have taken.
The Tribunal is therefore unable to link Mr Abdi’s identity from birth on the basis of documents before it.
The Respondent contends that “the evidence before the Tribunal as to the applicant’s life story is inconsistent (both internally and with country information) and inadequate such that the Tribunal cannot be satisfied of the applicant’s identity” (Exhibit R1, para 44). The Tribunal is of the view that some information presented before the Tribunal, and additionally the absence of any other reliable information relating to Mr Abdi’s life story raise doubts in establishing his identity to the standard of satisfaction required for the conferral of citizenship.
Mr Abdi states that he lived in Kenya and participated in Islamic studies at a mosque school prior to arriving in Australia, and Ms Dhofo supported this in her evidence (see para 43(c) above). However, there is no corroborating documentation to confirm this.
The evidence is that Mr Abdi transferred funds to beneficiaries in Somalia and Kenya through hawala transactions. Hawala is a traditional system of money transfer used in Arab countries and South Asia, whereby money is paid to an agent who then instructs an associate in the relevant country to pay the beneficiary. The evidence that Mr Abdi transferred money for family support and charitable purposes with his mother named as the beneficiary, and Ms Dhofo accepting the transfer without the provision of identification is of concern. The Respondent contends that (Exhibit R1, para 46):
…the most plausible explanation for the transfer is that the applicant’s mother is alive and is being supported by the applicant. This explanation is plausible because the letter from the Madina Hospital which evidenced the applicant’s mother’s death was found to be counterfeit.
Although the material before the Tribunal precludes the Tribunal fully accepting the Respondent’s contention, it is sufficient to raise a doubt about Mr Abdi’s life story.
Therefore, the Tribunal concludes that there is simply insufficient reliable evidence such that it can be satisfied of Mr Abdi’s identity. At this time, Mr Abdi’s case falls into those cases referred to in the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 as one in which “identity is unclear or cannot be satisfactorily ascertained” such that this Tribunal “cannot approve the person becoming an Australian citizen”. The Tribunal finds itself in a similar position as Senior Member Walsh in Beyan and Minister for Immigration and Border Protection [2015] AATA 256, where she stated at [38]:
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.
Good character
In Exhibit A1 at [41], Mr Blades stated that: “[t]he Tribunal should find that the applicant is of good character. He has no criminal history. He has character references to support his good standing in the Australian community”. During the hearing Mr Blades submitted that the Delegate’s decision of “not satisfied of character” was sufficient to trigger the Tribunal’s review of the question of character (Transcript/48).
The Respondent told the Tribunal that the Department had not completed a detailed character assessment, because the Delegate’s finding in respect of counterfeit documents informed the decision regarding character. The Respondent submitted that should the Tribunal be satisfied as to Mr Abdi’s identity; the Tribunal should remit the matter to the Department “for a fulsome consideration of the character requirement” (Transcript/48).
The Respondent further contends that “in circumstances where the Tribunal is not satisfied of the applicant’s identity, then it need not consider whether the applicant meets the character requirements contained within s 21(2)(h) of the Act” (Exhibit R1, para 48). On balance, the Tribunal agrees.
CONCLUSION
A certificate of citizenship, should it be granted, would become the foundation document of Mr Abdi’s identity, and is therefore a matter of considerable importance. The Tribunal’s considerations have regard to the high standard of satisfaction of identity required for Australian citizenship and the statutory prohibition on approval of a person becoming an Australian citizen when the decision maker is not satisfied of the applicant’s identity. On the material before it, the Tribunal finds that at this time there is an insufficient basis for satisfaction of Mr Abdi’s identity, and that this is one of those cases where identity is unclear or cannot be satisfactorily ascertained.
The spirit of the Act provides an enduring right for Mr Abdi to apply again for citizenship. In its decision the Tribunal draws no negative inferences regarding Mr Abdi’s character, or regarding his identity from any difficulties he might face in procuring reliable identity documentation in support of any future application. Relevantly, the Tribunal notes the comments by Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]: “[t]he refusal to grant citizenship is not a second form of punishment…The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again…”.
DECISION
For the above reasons, the Reviewable Decision being the decision of a Delegate of the Respondent made on 15 December 2020, which refused Mr Abdi’s application for Australian citizenship by conferral, is affirmed

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member

....................[Sgd]....................................................
Associate
Dated: 7 December 2021

Date of hearing: 13 October 2021

Counsel for the Applicant: David Blades

Solicitors for the Applicant: Chisholm Law

Counsel for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore

[2021] AATA 4562

7 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing

Date of hearing:	13 October 2021
Counsel for the Applicant:	David Blades
Solicitors for the Applicant:	Chisholm Law
Counsel for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore