Ajang and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 3226

Ajang and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3226 (6 October 2022)

Division:GENERAL DIVISION

File Number:          2020/1373

Re:Rebecca Ajang

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr M Evans-Bonner

Date:6 October 2022

Place:Perth

The Reviewable Decision is affirmed.

........................[Sgd]................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – eligibility – decision to refuse citizenship – whether Tribunal satisfied of Applicant’s identity – where Applicant provided fraudulent United Nations High Commissioner for Refugees letter to the Department – Applicant has not attempted to contact any Kenyan authorities or the UNHCR to seek identity documents – Reviewable Decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24, 24(3)

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

CASES

Beyan and Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145
Shafari and Minister for Home Affairs [2019] AATA 808
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

YMPL and Minister for Immigration and Border Protection [2017] AATA 1458

SECONDARY MATERIALS

Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2019) paras 4, 5, 11

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

6 October 2022

Overview

1. Mrs Ajang has applied to this Tribunal seeking review of a decision by a delegate of the Minister made on 6 December 2019 (Reviewable Decision) (T2/5-13).

2. The Reviewable Decision refused Mrs Ajang’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of her identity as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).

3. Consequently, the issue before me is whether I am satisfied as to Mrs Ajang’s identity. For the reasons set out below, I am not. I have therefore decided to affirm the Reviewable Decision.

4. Although this decision is likely to be disappointing to Mrs Ajang, she can make another application for citizenship after she has made further attempts to obtain identity documents.

   Background

5. Mrs Ajang is a national of Sudan. She first arrived in Australia in January 2006 as the holder of a humanitarian visa, and later made an application for Australian citizenship on 28 July 2017 (T2/5).

6. On 3 October 2018, the Department of Home Affairs (Department) wrote to Mrs Ajang requesting further identity documents (T8/98-99). Mrs Ajang provided a copy of her family’s “Document for travel to Australia” and her Western Australia Driver’s Licence (T9/104-106). 

7. On 26 August 2019, Mrs Ajang emailed the Department because she had not heard back from them (T10).

8. On 24 October 2019, the Department wrote to Mrs Ajang requesting documents about her identity from a country other than Australia. The letter also asked Mrs Ajang to complete a Form 80 Personal particulars for assessment (Form 80), a Form 1399 Declaration of Service and a UNHCR (United Nations High Commissioner for Refugees) Consent to Disclose Information form (UNHCR Consent) (T13/116).

9. On 3 December 2019, Mrs Ajang made another application for Australian citizenship and provided duplicates of the identity documents previously provided including her “Document for travel to Australia”, Western Australia Driver’s Licence and an electricity account in her name, as well as a completed Form 80 and UNHCR Consent (T14/122-163).  

10. However, on 6 December 2019, the delegate made the Reviewable Decision because, as I explained in the “overview” above, the delegate was not satisfied of Mrs Ajang’s identity.  

11. On 21 May 2020, the Tribunal made an order extending the time for Mrs Ajang to make an application for the Tribunal to review the Reviewable Decision.

12. On 2 November 2020, Mrs Ajang’s son S, who was assisting her in these proceedings, provided the Respondent’s legal representative, Mr Gerrard, with copies of (E2/2-4):

    (a)a letter from AR from the Twic East Community Association in Western Australia stating that he witnessed Mrs Ajang’s traditional marriage at the Kakuma Refugee Camp in Kenya;

    (b)child immunisation records for one of Mrs Ajang’s sons, D; and

    (c)a letter dated 3 September 2020 purporting to be from the UNHCR confirming that Mrs Ajang was at the Kakuma Refugee Camp in Kenya (Purported UNHCR Letter).

13. On 17 November 2020, Mr Gerrard emailed Mrs Ajang’s son, S, to ask if she could produce a copy of a ration card from the Kakuma Refugee Camp, and any school records. This was because earlier records held by the Department relating to her visa application indicated that Mrs Ajang had a ration card and had completed primary school to “certificate level”. Mr Gerrard also asked if Mrs Ajang could complete a family composition table declaring all her relatives in Australia and overseas (E2/5).

14. Mrs Ajang did not provide the requested information, nor did she complete the family composition table. Instead, her son S emailed a letter to Mr Gerrard dated 22 November 2020 from MM, Chairman of Twic East Community Association in Western Australia which explained (E2/7):

    I [MM], chairman of Twic East community Association in Western Australia here to write on behave of Rebecca Aguil Ajang. I have been made aware of specific documents required of Rebecca to help in the processing of her Australia citizenship. The first document is the evident of completion of high school and primary school. Rebecca did not accomplished any of the above mentioned qualifications, Her education was disrupted due to then civil war in Sudan. . The second document is the refugee ratio card. Rebecca came to Australia in 2006. It been over fourteen years now, the system in Kakuma refugee Camp where Rebecca came from keep changing. The system had updated several times. In this regards. It is impossible to obtain Rebecca's ration cards details.

    The last requirement was if any of Rebecca's relatives are present here. As chairman of this community, none of her relatives are here or even in Kenya. Many refugees who didn't had chance to come to Australia through humanitarian visas returned back to South Sudan after government peace agreement. As a chairman of this community, I know Rebecca as worker, she pays taxes and she is law a bidding individual. She deserves the very best of becoming Australian citizen. I will always be available or supply more information.

    (As original.)

15. After receiving this letter, on 18 December 2020, Mr Gerrard emailed a response to S, to follow up the provision of information regarding Mrs Ajang’s identity (E2/10). The email stated:

    Thank you for this letter. Are you able to provide answers to the following questions?

    a) Rebecca has previously advised that she held a Ration Card issued in Kenya with the number KENK 911800. Can you ask her if she still has this card and, if not, what happened to it?

    b) Can Rebecca also advise what other UNHCR or refugee documentation she (or her family) was issued in Kakuma and what has happened to that documentation if she does not still hold it?

    c) Does Rebecca still have her Titre de Voyage and can that be provided?

    d) Rebecca’s children [D] and [A] are said to have been born in Kenya in which case they should have been issued with Kenyan birth certificates. Can those birth certificates please be provided?

    e) Finally, the UNHCR letter provided previously is dated 3 September 2020. Can you please advise how this letter was obtained and provide any relevant correspondence in relation to obtaining this document?

    (As original, except for redactions.)

16. After Mr Gerrard sent a follow up email, S responded by email on 21 April 2021 (E2/9) as follows:

    A) Rebecca used to have a ration card a long time ago and she has lost the card n there’s no way of regaining it.

    B) There are no more documents of the UNHCR that Rebecca or her family hold in possession. Any other document was lost n couldn’t be recovered.

    C) Rebecca doesn’t not hold a Tire de voyage

    D) [D] n [A], weren’t given birth certificates in Kenya only thing that was proved was there immunisation letters in the refugee camp which I’ve sent to you previously.

    E) There’s a friend of Rebecca [full name omitted], that went in person to UNHCR and obtained the documents. The UNHCR letter n her sons immunisation letters were the only thing the UNHCR held in possession. I have sent all the documents that could be provided other documents you ask for, there’s nothing more we can do.

    (As original, except for redactions.)

17. The Department sent the Purported UNHCR Letter to the Australian High Commission in Nairobi, Kenya (Nairobi Post). In an email dated 26 November 2020, the First Secretary of the Nairobi Post raised several concerns about the authenticity of the Purported UNHCR Letter due to several irregularities. These included the UNHCR registration ID number not being recorded on the letter, irregular formatting, the use of unorthodox phrasing and the word “refugees” being mis-spelt as “refuges” (E2/13-14).

18. Due to these concerns, the Nairobi Post sent a copy of the Purported UNHCR Letter to the UNHCR who confirmed that it was “fake” and “not issued by UNHCR” (E2/12 and 17).

19. On 22 July 2021, Mr Gerrard wrote to S, asking if Mrs Ajang could comment on the adverse information that the Nairobi Post had made enquiries with the UNHCR who confirmed that the Purported UNHCR Letter was not genuine (E2/18). However, Mrs Ajang did not respond to this letter.

    The hearing

20. I heard this application on 28 April 2022. Mrs Ajang was assisted by her son S who acted as her support person during the hearing. Mrs Ajang gave evidence at the hearing with the assistance of an interpreter. Mr Gerrard appeared for the Respondent.

21. The following documents were admitted into evidence:

    (a)Section 37 T-Documents, labelled T1 to T16, comprising pages 1 to 168 (Exhibit 1);

    (b)Bundle of Relevant Documents, labelled document 1 to 8, comprising pages 1 to 20 (Exhibit 2);

    (c)child immunisation card for another of Mrs Ajang’s sons, A (Exhibit 3); and

    (d)letter dated 6 December 2019 from the Department to Mrs Ajang attaching decision record (Exhibit 4).

22. Prior to the hearing, the Respondent filed a Statement of Facts, Issues and Contentions dated 18 November 2021.

    Legislative and policy Framework

    Legislative provisions

23. Section 24 of the Citizenship Act provides, in part, that:

    (1)If a person makes an application under section 21, the Minister must,
    by writing, approve or refuse to approve the person becoming an Australian citizen. …

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

    (Notes omitted.)

24. Section 24(3) of the Citizenship Act states that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”.

25. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (which became the Citizenship Act) provides that there is no discretion available to either the Minister, or any other decision-maker, to grant citizenship unless that decision-maker is satisfied of the identity of an applicant. In the absence of that satisfaction, the application must be refused:

    There 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.

    Decision-maker to be “satisfied of the identity of the person” at the time of the decision

26. In VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [42], Banks-Smith J confirmed, in the context of character in s 21(2)(h) of the Citizenship Act that, “the Tribunal is to consider whether it is satisfied as to the good character of the applicant as at the time of its decision and having regard to relevant evidence available to it at that time”.

27. The same can be said for identity. That is, I must be satisfied of the identity of Mrs Ajang at the time of making my decision having regard to the evidence before me.

28. In BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, O’Bryan J explained, also in the context of character in s 21(2)(h) of the Act, at [54], that: “The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities”. However, His Honour continued to explain, at [55], that:

    The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.

29. Again, the principles in this passage are also applicable to identity.

30. I agree with the following summary of the above principles, and their application to identity under s 24(3) of the Citizenship Act, by Member East in Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145 at [16]:

    The issue for review by the Tribunal is whether it is satisfied at the time of its decision as to the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act. For the Tribunal to be so satisfied, it needs to reach an affirmative belief as to the Applicant’s identity, rather than apply an evidentiary burden of proof, such as the balance of probabilities.

    (Footnotes omitted.)

    Policy and caselaw concerning identity

31. Identity is not defined in the Act. Some guidance with respect to identity can be found in the Revised Citizenship Procedural Instructions which have been produced by the Department to help guide decision makers.

32. The importance of establishing a person’s identity in applications for citizenship by conferral has been discussed by the Tribunal in decisions such as Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan) and Shafari and Minister for Home Affairs [2019] AATA 808 (Shafari).

33. In Beyan, Senior Member Walsh stated at [38]:

    ... 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.

34. Relevantly to the Applicant who came to Australia as the holder of a humanitarian visa, in Shafari, Senior Member Morris stated at [55]:

    The steps taken to establish identity under the Migration Act 1958 (Cth) for visas are not the same as those under the Act and set out in the Citizenship Policy. This is necessarily a ‘higher bar’ to meet because of the privileges and responsibilities that flow from the grant of Australian citizenship.

35. “CPI 16 – Assessing Identity under the Citizenship Act” (CPI 16) explains, at [4], that, “[a] person’s identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context”. 

36. CPI 16 provides at [11]:  

    It is not sufficient to be satisfied of a person's identity at one point in time, as a person's identity is not a point in time concept; it must be verified incrementally throughout a person's life and considered holistically.

37. CPI 16, at [5], identifies three pillars of identity to be used when assessing identity. They are biometrics, documents and life story:

    When assessing a person's identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.

    ·     Biometrics – a measurable characteristic that is unique to a person such as      fingerprints or face.

    ·     Documents – reliable and secure identity documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    ·     Life Story – an account of the events that happened to a person during their lifetime.

38. CPI 16 at [5] continues to state:

    Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.

    The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.

39. In other words, it may be inadequate to rely on a single pillar to establish a person’s identity and a decision maker should consider each pillar of identity to comprehensively test and evaluate a person’s claims about their identity. Indeed, CPI 16 states at [11] that, “[w]hen assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent.” However, as the excerpt from CPI 16 at [5] above indicates, it may be possible for the decision-maker to be satisfied of a person’s identity based on less than three pillars being satisfied. For example, two pillars may be satisfactory to establish identity depending on the strength of the evidence before the decision-maker.

40. An Applicant may have minimal, if any, documentation and may have difficulty trying to obtain documentation from overseas after they have come to Australia, depending on where they are from and their circumstances. Nevertheless, it may still be possible to establish identity to the satisfaction of the Tribunal, having regard to the other pillars of identity such as biometrics and life story. However, an applicant will be expected to make efforts to obtain relevant identity documents which might reasonably exist. This was explained by Deputy President the Hon R Nicholson in Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa) at 175 [117]:

    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.

41. Similarly, in YMPL and Minister for Immigration and Border Protection [2017] AATA 1458, at [34]-[35], Member Warner applied Dhayakpa as follows:  

    Relevantly, the test for establishing identity is outlined in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 where the Honourable R Nicholson, Deputy President was satisfied that the applicant in that matter had established his identity to the best of his ability. The Deputy President stated at [117]: “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”.

    Having carefully considered the evidence and the relevant circumstances, the Tribunal is reasonably satisfied that YMPL’s identity is that which he claims it to be.

1. I now turn to Mrs Ajang’s situation.

   Consideration

2. There is minimal information concerning the three pillars of identity, which has made it difficult for me to reach an affirmative belief as to Mrs Ajang’s identity.

3. There are minimal biometrics. Mrs Ajang’s “Document for travel to Australia” (T14/158; T9/105) contains her photograph. So does her Western Australia Driver’s Licence (T9/106; T14/159).

4. There is also some evidence from Mrs Ajang, and other evidence about her life story. She was born in Sudan and fled with her parents to Kenya in approximately 1992. She lived at the Kakuma Refugee Camp and had a ration card. Her schooling in Kenya was limited (transcript/11-13) and she completed primary school to “certificate level” (E2/5). She married her husband in a traditional Dinka ceremony at the Kakuma Refugee Camp (E2/3). She gave birth to her two oldest sons in a hospital in Kakuma. She came to Australia in January 2006 as the holder of a humanitarian visa (T2/5).

5. Mrs Ajang has produced some Australian identity documents such as her Driver’s Licence, and an electricity account showing her name and address (T14/159-161). However, Australian identity documents are given minimal weight because they do not assist to establish a person’s identity from birth, or indeed for any period prior to arriving in Australia. I note that she has submitted a letter from AR confirming that he witnessed Mrs Ajang’s marriage in the Kakuma Refugee Camp, which I give some weight to concerning Mrs Ajang’s life story (E2/3). She has also submitted another letter from the Chairman of Twic East Community Association in Western Australia (E2/7), although it mainly summarises information that would have been provided to him by Mrs Ajang. 

6. She has only been able to produce minimal documentation to the Tribunal regarding her identity prior to coming to Australia. There is, as I have mentioned, her “Document for travel to Australia” (T14/158). There are immunisation records for the Applicant’s sons (E2/2 and E3) however, they do not state the names of the children’s parents.

7. Information from the Nairobi Post suggests that there may be further identity documents that Mrs Ajang can obtain. In the email dated 26 November 2020, I mentioned in the “background” section above, the First Secretary of the Nairobi Post also confirmed that further UNHCR identity documents should be available for the Applicant including ration cards, an identity document for the Kakuma Refugee Camp as well as Kenyan birth certificates for the Applicant’s children which the Nairobi Post thought the UNHCR would have applied for on her behalf (E2/13-14).

8. At the hearing Mrs Ajang confirmed that she had not tried to contact the Kenyan authorities, the Kakuma Refugee Camp, the hospital where her sons were born, or the UNHCR to attempt to obtain any identity documents. It is expected that Mrs Ajang should try to make enquiries to obtain documents which can be reasonably be expected to exist (Dhayakpa), and to provide evidence that she has done so and of any responses.

9. At the hearing Mrs Ajang confirmed that she paid $100 US dollars to a relative of her husband to obtain her children’s immunisation cards and the Purported UNHCR Letter. I accept the evidence from the Nairobi Post confirming that this letter is not genuine. I also accept Mrs Ajang’s evidence that she trusted the relative to “follow up genuinely” and obtain the documents for her, and that she did not know the Purported UNHCR Letter was not genuine (transcript/17). Also, as the same relative obtained the immunisation records for Mrs Ajang’s sons, I also have some reservations about those documents.

10. Unfortunately for Mrs Ajang, the issues that I have identified with her documentation mean that there is insufficient evidence about her identity before she came to Australia. There are insufficient foundations for the other pillars of identity, being biometrics and life story, to be corroborated.  

    CONCLUSION

11. Unfortunately for Mrs Ajang, based on the evidence before me, I am not satisfied of her identity for the purpose of 24(3) of the Citizenship Act.

12. However, as I have said above, Mrs Ajang can make another application for citizenship in the future when she has been able to make enquiries, and hopefully obtain, further information about her identity.  

    Decision

13. The Reviewable Decision is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.................[Sgd]......................................................

Associate

Dated: 6 October 2022

Date of hearing:	28 April 2022
Representative for the Applicant:	Self-represented, with assistance from her son
Representative for the Respondent:	Mr A Gerrard, The Australian Government Solicitor