Appiah and Minister for Immigration and Border Protection (Migration)

Appiah and Minister for Immigration and Border Protection (Migration) [2016] AATA 720 (16 September 2016)

Division

GENERAL DIVISION

File Number

2015/0210

Re

Charles Appiah

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 16 September 2016

Place Sydney
The decision under review, being the decision made on 4 December 2015 to refuse Mr Appiah’s application for Australian citizenship, is affirmed.

.................[sgd].......................................................
J W Constance
Deputy President
CATCHWORDS
CITIZENSHIP- citizenship by decent - whether at the time of the Applicant's birth his father was an Australian citizen - where date of birth in dispute - reliability of documents showing the Applicant's date of birth - decision affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 16(2), 17

REASONS FOR DECISION
Deputy President J W Constance
16 September 2016
INTRODUCTION

Mr Appiah was born in the Republic of Ghana. His date of birth is in issue in this application.
On 26 June 2014 Mr Appiah applied for Australian citizenship in accordance with the provisions of the Australian Citizenship Act 2007 (Cth). His application was made on the basis that at the time he was born his father was an Australian citizen.
By a decision made on 4 December 2014 a delegate of the Minister refused Mr Appiah’s application for citizenship. Mr Appiah has applied to the Tribunal to review this decision.
Mr Appiah was represented at the hearing of this application by his father, Mr Appiah Senior.
For the reasons which follow the decision under review will be affirmed.
LEGISLATION
Subsection 16(2) of the Citizenship Act provides in part:
A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth …….
Section 17 provides in part:
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
ISSUE FOR DETERMINATION
The only issue for determination in this application is whether Mr Appiah’s father was an Australian citizen at the time of Mr Appiah’s birth.
EVIDENCE
The evidence of Mr Appiah Snr
Mr Appiah Snr confirmed statements he made in a letter dated 14 January 2013 addressed to the Visa Integrity Unit, Australian High Commission, Nairobi, Kenya.[1]
[1] Exhibit R1 p.27.
Mr Appiah was conceived during a brief sexual relationship between Mr Appiah Snr and a lady he met at an African Community party in Sydney in early 1990. At the time he learned that the lady knew one of his school friends in Ghana. The friend was referred to as “Bernard”.
Mr Appiah Snr was granted Australian citizenship on 31 October 1990.[2] He believes his son, Mr Appiah, was born 17 days later, on 17 November 1990.
[2] Exhibit R1 p.61.
The lady also informed Mr Appiah Snr that she was on a business visit from Ghana and would be returning to that country soon. Subsequent efforts by Mr Appiah Snr to contact the lady by telephone were unsuccessful. He conducted further investigation and was told by members of the Ghanaian Community in Sydney that the lady was under extreme pressure to leave Australia. Mr Appiah Snr did not hear from the lady after they first met.
Mr Appiah Snr believes that the lady returned to Ghana where she gave birth to Mr Appiah. The lady contacted Mr Appiah’s family through the school friend, Bernard. She died very shortly after Mr Appiah was born.
After his mother’s death, Mr Appiah was taken from Kumasi and raised by his paternal grandparents who lived in the countryside.
In 2006 Mr Appiah Snr was contacted by Mr Appiah through Bernard. Subsequent DNA testing confirmed that Mr Appiah was in fact the son of Mr Appiah Snr.
The evidence of Mr Frimpong
Mr Frimpong provided a statutory declaration made 21 April 2016. He did not give oral evidence.
Mr Frimpong stated that he is the father of the late Akosua Addai, the mother of Mr Appiah. He was a witness to the birth of Mr Appiah which took place at Komfo Anokye Teaching Hospital on 17 November 1990. He became the guardian of Mr Appiah after the death of Mr Appiah’s mother. Mr Appiah lived with him and was raised by him.
Mr Frimpong further stated that his daughter, Akosua Addai, travelled to Australia in 1989 and returned to Ghana in early 1990. Upon her return from Australia she told him that she was pregnant to a person she met at a party in Sydney, Australia. She also told him that the father of her child was Johnson Appiah who had previously lived in a suburb of Kumasi and that he had told her the name of his school friend called Bernard.
Years later, when Mr Appiah enquired of his father, Mr Frimpong directed him to Bernard who assisted him in contacting Mr Appiah Snr in Australia in 2006.
Mr Appiah has lived with his father’s family in Ghana since he met his father and looks after his father’s business interests in Ghana.
Documentary evidence
Mr Appiah relies on the following documents as evidence of his date of birth:
·a copy of Mr Appiah’s baptism certificate;[3]
·a copy of Mr Appiah’s Ministry of Health Identity Card;[4]
·a copy of Mr Appiah’s Voter Card issued 27 April 2012;[5]
·a copy of Mr Appiah’s Student ID Card;[6]
·a certified copy of the entry in the Register of Births (issued 5 April 2012) showing his date of birth as 17 November 1990;[7]
·copy letter dated 10 February 2014 from the Registrar of Births and Deaths, Republic of Ghana;[8]
·a copy of Mr Appiah’s passport issued on 17 November 2012.[9]
·a copy of a letter dated 22 April 2016 from New Tafo-Dichemso M/A Junior High School;[10]
·a copy letter dated 25 April 2016 from Nkawie Senior High School (Technical);[11]
Evidence as to the validity of the documents relied upon by Mr Appiah
[3] Exhibit R1 p. 30 – 31.
[4] Exhibit R1 p. 33.
[5] Exhibit R1 p. 37.
[6] Exhibit R1 p. 38.
[7] Exhibit R1 p. 63.
[8] Exhibit R1 p. 72.
[9] Exhibit R1 p. 64.
[10] Exhibit A4.
[11] Exhibit A6.
Baptism Certificate
On 26 February 2013 two Departmental officers attended St Peter’s Cathedral in Kumasi and met with Rev Father Addai-Kankam. Having viewed the Register of Baptisms the officers observed that the entry number recorded on Mr Appiah’s baptism certificate related to another person and that the Church records indicated that no baptisms took place on 3 December 1991, being the date of baptism indicated on the certificate relating to Mr Appiah. There were no records of the baptism of Mr Appiah during December 1991.
The entry number recorded on Mr Appiah’s baptism certificate related to a baptism that took place in 1977. The Father who conducted that baptism was the same person who allegedly signed the certificate presented by Mr Appiah. Rev Father Addai-Kankam advised the officers that the Father who signed the document was previously the Father of the Cathedral, but was not at the Cathedral during the 1990s.
The officers further reported that:
Baptismal records of the church were well-maintained and contained information relating to the name of the child, the child’s parents names, the date of birth of the child, the date of baptism, the father who conducted the baptism, the names of the god parents and the entry number of the certificate.[12]
[12] Exhibit R1 p.41.
Ministry of Health Identity Card
An identity card is issued in Ghana to entitle the holder to receive medical treatment. Mr Appiah’s card appears to have been issued in 1998.
The Minister does not dispute that the document relied on was genuine, but does not agree that the birthdate recorded on the document is accurate. It was issued after Mr Appiah’s birth certificate was issued.
Voter Card dated 27 April 2012
The Minister accepts that this is a genuine document but it is noted that it was issued after the issue of the birth certificate.
Student ID Card
On 26 February 2013 two Departmental officers attended Nkawie Senior High School (Technical) and met with the Acting Assistant Headmaster, Mr Kuma. Mr Kuma advised the officers that:
·the School ID card indicated that Mr Appiah had graduated from the school in 2007;
·Mr Kuma could not locate any record of Mr Appiah having graduated from the school in 2007;
·it was the belief of Mr Kuma that Mr Appiah may never have attended the school.[13]
[13] Exhibit R1 p.47.
Mr Appiah Snr argued that a disruption of Mr Appiah’s schooling may account for the failure of the school to locate records of Mr Appiah’s graduation.
Birth Certificate
Mr Appiah Snr stated that Mr Appiah’s birth had not been registered when he was born by reason of the death of his mother. Mr Appiah had relied on his baptism certificate and his Student ID card as means of identification prior to his birth being registered.
Mr David Stead, First Secretary (Immigration and Border Protection) at the Australian High Commission, Nairobi, provided written evidence in the form of an affidavit dated 16 March 2016.[14] He has extensive experience in the examination and evaluation of documents in various roles as an officer of the Department.
[14] Exhibit R4.
The certified copy of the Entry in Register of Births provided by Mr Appiah[15] records Mr Appiah’s birth as having taken place on 17 November 1990 at the Komfo Anokye Hospital at Kumasi.
[15] Exhibit R1 p.63.
Mr Stead stated that he and Officer Martino attended the Hospital on 7 October 2015 and met with Mr Sarpong, the Head of the Biostatistics Unit. Mr Sarpong produced to them the Nominal Role of Maternity Patients Admitted which contained Mr Appiah’s birth record. The Role covered the period October to December 1990.
Mr Stead further stated:
The entries in the Roll were handwritten and made in ink. Every page of the Roll was followed by a carbon copy. Each birth record in the Roll contained only the mother’s name, not the name of the child. Accordingly, the record that Mr Sarpong indicated related to the Applicant’s birth used the name Akosua Addai. I understand that Akosua Addai is the name of the Applicant’s biological mother.
My first impression of the record of Akosua Addai was that an alteration had been made to the name entry on both the original page of the Roll and on the carbon copy.
When I examined that back of the original page, it appeared that a different name had previously been recorded. I could discern the outline of previous but different pen marks. In addition, I could feel raised paper fibres around the name entry, as if the previous name entry had been erased by friction (ie the ink had been scratched off) and that the name Akosua Addai had been written on top. I also observed that there had been some damage to the paper in the vicinity of the name entry. No other entry in the record for Akosua Addai appeared to have been altered.
Mr Sarpong agreed that an alteration had been made to the name entry and suggested that perhaps, at the time of registering the Applicant’s birth, the relevant Hospital staff member had made an error and subsequently amended it.
I carefully examined every page of the Roll (including the carbon copies). I could not find any other entry where erasure by friction was used to correct a mistake. Instead, in every instance where a correction had been made, the entry had been simply struck through with a pen. I pointed out this discrepancy to Mr Sarpong and he was unable to provide an explanation.
From my examination of the record for Akosua Addai and the balance of the Roll, I was unable to discern how recently the alteration to the name entry had occurred. I was also unable to discern whether the handwriting of the name entry matched the handwriting of the other entries relating to the same birth record.[16]
[16] Exhibit R4 p.2.
On 8 March 2016 Mr Stead and Officer Martino again attended the Hospital and met with the Chief Executive Officer and Directors of the Hospital. During that meeting they were informed that Mr Sarpong did not have authority to undertake searches of the Roll or to engage in written correspondence with external parties in relation to such searches. Mr Sarpong had written to the Department on 19 November 2014 setting out details of the birth record of Mr Appiah as it appeared in the Roll.
The Chief Executive Officer informed Mr Stead that the Hospital had a procedure for amending or deleting registrations in its physical records. This protocol required that a line be put through the incorrect information to indicate that an amendment had been made and that the correct information was to be written in a space next to the original entry. In the opinion of the Chief Executive Officer information in the Roll would not be physically erased.
In his evidence, Mr Stead expressed serious concern as to the accuracy of Mr Appiah’s birth certificate dated 5 April 2012. He has observed that there are a number of weaknesses in the process by which a person can obtain a birth certificate in Ghana where more than one year has passed since the birth. In most cases limited supporting documents are presented and no checks are conducted to confirm the identity of the person registering the birth. In his view “there is a real possibility that the Births and Deaths Registry issued the Applicant’s birth certificate either without any supporting documents of the Applicant’s date of birth or on the basis of the Applicant’s baptism certificate or Hospital record (without conducting any checks to confirm the validity of the documents).”[17]
Letter dated 10 February 2014 from Registrar of Births and Deaths, Central Registry Office, Republic of Ghana
[17] Exhibit R4 para.4.4.
This letter states:
I refer to your letter dated 5th of February, 2014 and to inform you that the Birth Certificate that entry number 2135 in respect of Charles Appiah issued at Child Welfare Centre Registry on 30^th March, 2012 is a genuine document.[18]
The letter referred to was a letter from Mr Appiah Snr requesting verification of the Birth Certificate.
[18] Exhibit R1 p.72.
Basic Education Certificate dated 22 April 2004
This certificate was issued by the West African Examinations Council and records Mr Appiah’s date of birth as 17 November 1990.[19]
[19] Exhibit A3.
Mr Stead provided further written evidence in the form of a further affidavit sworn 29 June 2016.
Mr Stead gave evidence that the Department of Immigration and Border Protection has a Memorandum of Understanding with the International Organisation for Migration. The Organisation undertakes document verifications on behalf of the Department across East and West Africa. It is an intergovernmental organisation with 162 member states and offices in over 100 countries.
In accordance with the Memorandum of Understanding the Australian High Commission requested that a representative of the Organisation attend an office of the West African Examinations Council to seek verification of the certificate provided by Mr Appiah.
By letter dated 1 June 2016 the WAEC Office advised that it had checked the detail of the certificate and found it to be at variance with the Office’s database. On 3 June 2016 the Organisation provided a Document Verification Report to the Australian High commission concluding that the Basic Education Certificate was genuine but had been improperly altered. It also stated:
The date of birth of the applicant reflects 22^nd July 1989 and not 17^th November 1990 as indicated on the certificate.[20]
[20] Exhibit R5.
Evidence of Ms San Juan, Australian Border Force Supervisor
Ms San Juan provided a written statement dated 17 March 2016.[21] Her duties include responsibility for the retrieval of information from the Movements Reconstruction database and from incoming and outgoing passenger cards.
[21] Exhibit R2.
Ms San Juan stated, in part:
On 17/03/2016 the External Engagement Section received a request from the Department of Immigration and Border Protection to produce documents relating to international movements at Australian ports for the period 01/01/1981 to 16/03/2016 for Akosua ADDAI aka Akosuah ADDAI, born 20/05/1965 aka Akosua ADDAI aka Akosuah ADDAI, born unknown.
On 17/03/2016 a search was conducted in DIBP records for the above information.
No records were found under the name(s) of:
Akosua ADDAI aka Akosuah ADDAI, born 20/05/1965 aka Akosua ADDAI
aka Akosuah ADDAI, born unknown.
CONSIDERATION
For Mr Appiah to be approved to become an Australian citizen I must be satisfied on the balance of probabilities that his father, Mr Appiah Snr, was an Australian citizen at the time of Mr Appiah’s birth. If I am so satisfied Mr Appiah is eligible to become an Australian citizen and approval for his becoming a citizen must be given.
Mr Appiah claims to have been born on 17 November 1990.
Based on the evidence to which I have referred I am satisfied that there are significant irregularities in some of the documents relied upon by Mr Appiah.
The only contemporaneous records relating to Mr Appiah’s birth are those contained in the Hospital records. Copies of the relevant documents annexed to exhibit R3 show that the relevant records have been altered. The circumstances in which the alteration was made are unknown. Furthermore, I am satisfied that the method of alteration did not follow the protocol of the Hospital. This suggests that the alterations made were made without authority. This is confirmed by the evidence of Mr Stead. I find that the Hospital records of Mr Appiah’s date of birth are unreliable.
Although Mr Sarpong states that the Hospital records are accurate, the discussions between Mr Stead and the Chief Executive Officer and the Directors indicate that these letters were written without authority. There is no explanation as to why this occurred.
Similarly, the evidence causes me to doubt the veracity of the Baptism Certificate relied upon by Mr Appiah and consequently the statement of Mr Appiah’s date of birth in that document is unreliable.
I accept the statements of the Departmental officers that the Church records were well maintained and that there was no record of Mr Appiah’s baptism on the date shown in the purported certificate.
The Minister accepts that the copy of the entry in the Register of Births is genuine. However I accept the evidence of Mr Stead that records of the Registry, particularly those relating to births registered a significant time after the event, can be unreliable.
I am satisfied that the passport, voter card and health card are genuine documents. However, in the absence of evidence to the contrary I am satisfied that it is likely they were issued in reliance, at least in part, on the information in Mr Appiah’s birth certificate.
The evidence of Mr Stead raises doubt as to the reliability of the information in the Basic Education Certificate provided by Mr Appiah. The records of the West African Examinations Council show an earlier date of birth than that shown in the certificate purportedly issued by that Council. This discrepancy is not explained by the evidence.
The school letters relied upon do not assist Mr Appiah. Both letters appear to be references for prospective employees and do not disclose the source of the information as to Mr Appiah’s date of birth. Only the letter from NTD Junior High School refers to Mr Appiah’s birth date.
I have also taken into account that there is no record of Ms Akosua Addai having entered Australia. Although there is some evidence that Ms Addai was under pressure to leave Australia, there is no evidence of any assumed name which she may have used and in respect of which enquiries could be made.
I have given careful consideration to the evidence of Mr Frimpong, particularly as he says he was present at the birth of Mr Appiah. However the statement by Mr Frimpong was provided by Mr Appiah after the first day of the hearing and after the parties agreed that thereafter the matter should proceed without further attendance on behalf of the parties. There was no explanation offered on behalf of Mr Appiah as to the reason Mr Frimpong’s statement was not provided prior to the hearing. I note that despite requests by the Department for further evidence prior to the reviewable decision being made, a statement by Mr Frimpong was not provided at that time.

I have taken into account that Mr Frimpong gave first-hand evidence as to the date of Mr Appiah’s birth and he was not cross-examined on that evidence. However, given the timing of that evidence and the weight of the evidence that documents provided by Mr Appiah were unreliable, Mr Frimpong’s evidence does not persuade me on the balance of probabilities that Mr Appiah was born on 17 November 1990 or any other day on which his father was an Australian citizen.
CONCLUSION
The decision under review, being the decision made on 4 December 2015, to refuse Mr Appiah’s application for Australian citizenship, will be affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.....................[sgd]...................................................
Associate
Dated 16 September 2016

Date of hearing 30 March 2016

Date final submissions received 20 July 2016

Advocate for the Applicant Mr J Appiah

Solicitor for the Respondent Ms L Christopher, Clayton Utz

[2016] AATA 720

16 September 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Division	GENERAL DIVISION
File Number	2015/0210
Re	Charles Appiah
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Deputy President J W Constance
Date	16 September 2016
Place	Sydney

Date of hearing	30 March 2016
Date final submissions received	20 July 2016
Advocate for the Applicant	Mr J Appiah
Solicitor for the Respondent	Ms L Christopher, Clayton Utz