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

Arok and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3812 (25 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8281
Re:John Chol Arok
APPLICANT

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

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:25 September 2020
Place:Perth

The Tribunal affirms the decision to refuse the Applicant’s application for
Australian citizenship by conferral, dated 19 November 2019.
...................[sgd].....................................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – permanent resident – whether Tribunal satisfied of identity – date of birth – origin of birth certificate – failure to attempt to secure evidence of life story - Tribunal not satisfied of identity – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 24, 52(1)(b)
CASES
Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634
Re Shafari and Minister for Home Affairs [2019] AATA 808
ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection
[2018] AATA 3045
SECONDARY MATERIALS
Attorney-General’s Department’s National Identity Proofing Guidelines (2004)
Department of Immigration and Border Protection Citizenship Policy Chapter 13
(1 June 2016)
Department of Foreign Affairs and Trade DFAT Country Information Report South Sudan (5 October 2016)
Department of Immigration and Border Protection Revised Citizenship Procedural Instructions 16 – Assessing Identity under the Citizenship Act
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
25 September 2020

INTRODUCTION

Mr Arok seeks review of the decision of a Delegate of the Respondent (Delegate) made on 19 November 2019 to refuse the grant of Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (the Act).
The application for review is made in accordance with s 52(1)(b) of the Act,
which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of a decision made under s 24 of the Act.
The hearing was conducted by telephone conference.
Mr Arok was represented by Mr Vamanan Yogendran of Savannah Legal and gave evidence on affirmation.
Mr Ashley Burgess of Sparke Helmore Lawyers represented the Respondent.
BACKGROUND
Mr Arok claims to be a 37-year old citizen of the South Sudan born on 27 November 1982.
On 22 October 2007, Mr Arok applied for a Prospective Marriage (subclass 300) visa
(R1, para 6) and attached numerous supporting documents to his application (ST1-ST6).
Mr Arok’s application for that visa (first visa application) was refused.
On 12 February 2009, Mr Arok lodged a new application for a Prospective Marriage (subclass 300) visa (ST8) (second visa application). On 21 October 2010, Mr Arok was granted a Prospective Marriage (subclass 300) visa and subsequently arrived in Australia on 30 November 2010 (T20/125).
On 11 October 2011, Mr Arok was granted a Spouse (subclass 820) (temporary) visa, and on 18 November 2013, he was granted a Spouse (subclass 801) (permanent) visa.
On 5 July 2016, Mr Arok applied for Australian citizenship by conferral (T4/10).
On 11 October 2017, the Department of Immigration and Border Protection
(the Department) requested further information and documents from Mr Arok to support his claimed identity (T8/56).
On 17 August 2018, Mr Arok was invited to comment on adverse information regarding his previously undisclosed criminal convictions and having provided inconsistent birth dates (T10/80). On 28 September 2018, Mr Arok provided a response and further documentary evidence (T11).
On 11 June 2019, the Department invited Mr Arok to comment on adverse information regarding the veracity of documents he had provided and various inconsistencies in his evidence (T14/103). Mr Arok subsequently provided further documentary evidence on
26 July 2019 (T16/112).
On 19 November 2019, the Delegate refused Mr Arok’s application for Australian
citizenship (T20). The Delegate found that the prohibition in s 24(3) of the Act
applied because the Delegate could not be satisfied of Mr identity.
On 13 December 2019, Mr Arok applied to the Tribunal for review of the Delegate’s decision (T2). Mr Arok claims the decision is wrong because:
Citizenship has been refused on the basis that I am not able to establish my identity. I have provided all of the documents I have in my possession. I am not able to get any further documents because in my country of origin, South Sudan, there are no proper avenues to obtain identity documents. (T2/6).
ISSUE
The Respondent contends that the Tribunal cannot be satisfied of Mr Arok’s identity and that the Delegate’s decision should be affirmed (Exhibit R1, para 4).
The issue before the Tribunal is whether it can be satisfied of Mr Arok’s identity for the purposes of s 24(3) of the Act.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in the Act.
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.
Section 24(3) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of that person.
‘Identity’ is not defined in the Act. However, The Citizenship Policy (the Policy) advises in Chapter 13 that the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2004) (the Guidelines).
Relevantly, the Guidelines at page 7, 2.1.1 to 2.1.2, describe ‘identity’ as follows:
2.1.1 A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
2.1.2 …For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives detailed in
Chapter 2 of the Guidelines:
1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another…
2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created… 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…
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 Revised Citizenship Procedural Instructions, CPI 16 Assessing Identity under the Citizenship Act (CPI) provide at 4.12 that:
In order to make an informed assessment of a person’s identity,
officers must seek to establish a person’s identity from birth using an evidence-based approach. 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 historically (T21/152).
Applicants are required to make at least some effort to obtain material and documents to assist the decision maker to establish their identity. The CPI 16 further states that
‘…the onus is on the applicant to provide information or evidence to support their identity’ (T21/152).
The Tribunal also has regard to the relevant policy contained in the Policy,
the Guidelines and the CPI. The Tribunal as a decision maker will generally apply the guidance provided in these documents unless there are cogent reasons not to do so
(Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634,
644-645).
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T22, pp 1-185);
·The Supplementary ‘T Documents’ (ST1-ST13, pp 186-319);
·Applicant’s Statement of Facts, Issues and Contentions filed 29 April 2020
(Exhibit A1);
·Statement of Mr John Chol Arok filed 29 April 2020 (Exhibit A2);
·A bundle of documents (marked JCA1-JCA11) filed 29 April 2020 (Exhibit A3);
·Respondent’s Statement of Facts, Issues and Contentions dated 5 June 2020 (Exhibit R1); and
·The oral evidence of the Applicant.
CONSIDERATION
The Respondent relevantly and conveniently sets out the identity documents provided by
Mr Arok in support of his citizenship application as below (Exhibit R1, para 26):
(a)Australian Certificate of Identity (T5/21);
(b)Australian Drivers Licence, Livebay card, Western Australia Proof of Age Card, Licence to Perform High Risk Work, Medicare Card, HBF private health insurance card (T5/22);
(c)Australian birth certificates for his children (T9/62 and 70);
(d)Western Australia Marriage Certificate dated 24 June 2011 (T9/74)
and Certificate of Marriage dated 23 February 2011 (T9/75);
(e)UNHCR Movement Pass dated 22 January 2010 (T9/72);
(f)Declarations by Mr Arok that he did not have a birth certificate dated
22 August 2017 (T9/76) and 22 October 2017 (T9/73);
(g)Republic of South Sudan Age Assessment Certificate dated 20 January 2015 (T11/93);
(h)Basic Counselling Skills Certificate issued in Kakuma Refugee Camp, Kenya dated 5 December 2009 (T5/23);
(i)Peace Education Programme Certificate of Training issued in
Kakuma Refugee Camp dated 21 July 2010 (T5/24); and
(j)Kakuma Leaders’ Training Agenda (9^th and 10^th August 2010) document (T9/61).
Mr Arok also provided the following non-Australian documents in support of his first and second visa applications (paragraphs [7] and [8] above refer). Those documents included:
(a)Republic of Kenya Alien Certificate (ST4/224);
(b)Sudan People’s Liberation Movement Membership Card (ST4/225); and
(c)Birth Certificate purported to have been issued by the Juba Civil Hospital, South Sudan on 12 May 1983 (ST4/226).
Mr Arok submits that he has submitted sufficient evidence to satisfy the Tribunal of his identity and that he has taken reasonable steps to obtain documents to assist in verifying his identity (Transcript p4). The Respondent, however, contends that the above documents do not sufficiently establish Mr Arok’s identity for the purposes of s 24(3) of the Act.
At the outset of this de novo review, the Tribunal notes the statement by Deputy President, the Honourable R Nicholson, in the matter Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117] (Dhayakpa), as it is relevant to the consideration of the level of satisfaction required for a decision maker to be satisfied of an applicant’s identity in circumstances akin to those of Mr Arok:
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 Australian identity documents demonstrate a consistency and contribute to establishing Mr Arok’s identity, but they are not ‘feeder documents’ (CPI 16 at 4.14) with an unbroken chain linking to a primary official identity document. The Respondent submits that these documents are ‘unlike a driver’s licence issued to a person who has provided a birth certificate, for example (Re Shafari and Minister for Home Affairs [2019] AATA 808 at [41])’ (Exhibit R1, para 29). [The Tribunal notes that this case name should be ‘Shafari’]. The documents reflect the information that Mr Arok has provided previously to the Australian government and do not create a picture of identity from birth to present as required by CPI 16 at 4.12 (T21/152).
Discrepancies noted by the Delegate
In Exhibit R1, the Respondent details discrepancies in Mr Arok’s documents as noted by the Delegate as follows:
(a)The applicant has provided numerous birth dates (27 November 1982,
27 December 1982, 1 January 1982, 27 December 1979 and 1989).
The applicant admitted the 1 January 1982 date on his UNHCR card issued in 2002 was incorrect (T16/116). In his first visa application, his sponsor asserted that he was born in 1979 (ST2/209). In previous applications the applicant claimed his birthdate was December 1982 and then altered that to November 1982 when applying for citizenship (ST3-11). The document purporting to be the applicant’s birth certificate asserted that he was born on 22 December 1982 (ST4/226).
(b)In the first visa application, the applicant claimed to have seven siblings:
i.                   Peter Deng Arok;
ii.                   Awak Arok Deng;
iii.                  Ajok Arok Deng;
iv.                  Marko Akoi Arok;
v.                   Michael Kiir Arok;
vi.                  Adit Aork [sic] Deng; and
vii.                 Tabisa Adau Arok.
(c) When applying for citizenship, the applicant submitted a Declaration of Service in which he then listed eight siblings:
i.                   Peter Deng Arok;
ii.                   Awak Arok;
iii.                  Ajok Arok;
iv.                  Akoi Arok;
v.                   Kiir Arok;
vi.                  Adit Arok;
vii.                 Adau Arok;
viii.                 Awakthi Arok
(d)   When given an opportunity to comment on the discrepancy the applicant simply stated that he had two brothers and five sisters. The applicant did not address the discrepancies in his reported family composition.
(e)In the first visa application, the applicant stated that he had a brother Peter Deng Arok, date of birth 4 April 1966 and a sister Mary Akoi Arok, date of birth 4 June 1984. When he applied for citizenship, the applicant then asserted that his brother Peter Deng Arok was born on 20 October 1978 and his sister Mary Akoi Arok was born on 31 December 1980.
(f) When applying for citizenship, the applicant stated that he had a daughter,
[redacted] (no date of birth given), and a son, [redacted] (date of birth [redacted]). When given an opportunity to comment on why the applicant had not provided birth certificates for the children to support his claimed identity,
the applicant then admitted that the children were his deceased brother’s children and stated that he was unable to obtain birth certificates for the children.
(g) When lodging the first visa application, the applicant stated that he studied in Eldoret, Kenya, started in class six in 2001 and that his brother paid his school fees. In the second visa application the applicant stated that he had private tuition. In contrast, when lodging the citizenship application, the applicant stated that he attended primary and high schools in Kakuma, Kenya. The applicant has provided no documents from any school to support the assessment of his identity.
(h) The applicant has consistently maintained his name is John Chol Arok and stated that he has not ever been known by any other name. Notwithstanding this,
the applicant provided an Age Assessment Certificate to the Delegate on
29 September 2018, in the name John Chol Arok Deng.
(Exhibit R1, para 32).
Date of birth
Mr Arok acknowledges the discrepancies in relation to his date of birth, with the evidence of three dates – 27 November 1982, 27 December 1982 and 1 January 1982 (Transcript p29).
Mr Arok told the Tribunal: ‘We Sudanese we don’t have real date of birth – by – in terms of birth certificate’ (Transcript p9). He said that birthdays were not celebrated in South Sudan, and he was unaware of the importance of date of birth in the citizenship process until advised by his wife.
Mr Arok entered a date of birth of 27 December 1982 (ST3/217) in the Personal particulars for character assessment form he signed on 22 October 2007 (ST3/223), prior to the dates on which he may have obtained the birth certificate. The same date of birth is entered in the Application for migration to Australia by a partner form signed by Mr Arok on 12 February 2009 (ST8/248).
The Republic of Sudan Nationality Certificate cards issued on 21 January 2015 and
26 July 2018 both show a date of birth of 27 November 1982 (Exhibit A3/JCA11).
The evidence is that these cards resulted from information provided to the relevant officials by Mr Arok rather than from source documents or an established data base.
The Republic of Kenya Alien Certificate issued on 29 November 2002 shows a date of birth only as the year 1982 (Exhibit A3/JCA2), and the Kenya Police Certificate of Good Conduct dated 23 February 2010 does not include a date of birth (T9/63). The Tribunal can afford these documents little weight in satisfying itself of Mr Arok’s identity.
The UNHCR Movement Pass issued at Kakuma Refugee Camp and dated 21 January 2010 gives a date of birth of 1 January 1982 (T9/72). Mr Yogendran submitted that it is
‘common for the UNHCR to list dates of birth as 1 January in the case of those who have been displaced with limited or no access to official government documentation regarding their birth.’ (Transcript p30). However, Mr Yogendran told the Tribunal that he had no evidence to verify that submission and no personal experience of refugee camps (Transcript p32).
Birth certificate
The DFAT Country Information Report South Sudan states in relation to birth certificates:
South Sudan does not require births to be registered. As a result, there are no official procedures for the issuance of birth certificates. DFAT understands that several government departments issue birth certificates, but it is difficult to ascertain which are officially recognised. Birth certificates are often issued on the basis of the information provided, with no checks to confirm the accuracy of the information. Hospitals are also known to issue a range of different birth certificates,
often featuring Government stamps. Individuals are able to obtain birth certificates from hospitals even if the birth did not occur at the hospital. Individuals who are not in possession of a birth certificate are often required to undergo an age assessment, which can be imprecise (Exhibit A3/JCA9, para 5.21).
When lodging the first visa application, Mr Arok provided a copy of a document purporting to be his birth certificate stating his date of birth was 27 December 1982.
The document’s date and place is shown as ‘12/05/1983 JUBA’ (ST4/226). He later signed a statutory declaration in support of this citizenship application, stating that he had never been issued a birth certificate (T9/76). In his written statement, Mr Arok acknowledges that this document contained incorrect information. He stated that he obtained the certificate ‘after a lot of effort’, and was not aware of the error on it until his mother advised him that he was born in November rather than December 1982 (Exhibit A2, para 19).
In his oral evidence, Mr Arok said that he obtained the certificate in 2009 (Transcript p15, p34) and does not now consider the document a birth certificate given the inaccuracy of his date of birth (Transcript p29).

The origins of the birth certificate remain unclear to the Tribunal. As noted in paragraph [39] above, the document purports to having been made on 12 May 1983.
In his Statutory Declaration dated 22 August 2017, Mr Arok states: ‘I don’t have a birth certificate because [sic] born at wartime year later then the war brok [sic] out in 1983…’ (T9/76). In a further Statutory Declaration dated 28 September 2018, Mr Arok states:
‘In 2015, I went back to South Sudan and I managed to get a birth certificate and it state [sic] my date of birth 27 November 1982’ (T11/94). Mr Arok’s evidence in relation to the
birth certificate appeared somewhat inconsistent, confusing and evasive.
Family issues
Mr Arok told the Tribunal that his family were close during their time in the refugee camp in Kenya, but that his brother was away in a camp for lost boys and his biggest sister was married (Transcript p23).
In information provided in relation to his first visa application, Mr Arok recorded the date of birth of his brother Peter as 11 December 1964 and that of his sister Mary as 4 June 1984 (ST7/247). In the later Personal particulars for assessment including character assessment form, Mr Arok records these siblings’ birthdates as 20 October 1978 (a difference of almost 14 years) and 31 December 1980 (a difference of more than four years) respectively (T7/40). Mr Arok told the Tribunal that his mother gave him the incorrect first-recorded dates of birth and he subsequently changed them following contact with his siblings after he arrived in Australia. In cross examination, Mr Arok accepted that his late mother did not have a good recollection of birthdays: ‘Yes, of course, she’s too old actually. When she was alive – she passed away this year anyway’ (Transcript p22).
Having regard to Mr Arok’s evidence regarding his mother’s record and competence in relation to the dates of birth some of her children, and Mr Arok’s earlier use of the date of birth shown on the birth certificate, the Tribunal struggles to understand why Mr Arok chose to disregard the birth certificate that he had obtained ‘after a lot of effort’ (Exhibit A2,
para 19) because his mother told him the date of birth recorded was incorrect by one month.
Availability of evidence
Exhibit A1 notes that ‘…the applicant has been able to provide documents which,
although insufficient of themselves to establish identity, can be regarded as providing reliable evidence to support the applicant’s claimed life story and timeline’ (Exhibit A1,
para 58). However, there are no documents attesting to Mr Arok’s identity between 1982 and 2002. Whilst Mr Arok has stated that he was living in various UNHCR refugee camps since the age of one and attended various schools, he has not provided any evidence from the UNHCR prior to 2002, any evidence from the schools he attended or any medical evidence of treatment he received during that period. In cross examination during the hearing, Mr Arok confirmed that he has not taken steps to attempt to obtain such evidence (Transcript p17 and 18).
Mr Arok told the Tribunal that he and his wife’s family knew each other well in South Sudan and in Kakuma, stating: ‘I know her mum and I know the sisters’ (Transcript p23).
There is evidence that two sisters reside in Australia (ST12/306). Mr Arok told the Tribunal that he had not asked any member of his wife’s family to provide statements as to his identity, date of birth or background (Transcript p24).
Similarly, Mr Arok confirmed that he had not sought evidence or statements from members of his own family, such as his sister who lives in Canberra or his brother who lives in Canada. The Tribunal finds Mr Arok’s explanation for his failure to seek evidence of his life history prior to arrival in Australia less than satisfactory. Mr Arok said:
I’m really suspicious with the information given to me outside, like,
the other documents which happened to be untrue document [sic]. So it makes me cautious on doing things like getting information. Like, the information I have here are [sic] all messed up and I have to be very careful with the citizenship thing so when these messed up it’s now vey hard to depict so I didn’t ask them because I’m worried about the different information that I collect from different people
(Transcript p24).
Having regard to the conflicting information about Mr Arok’s date of birth, the uncertain origins of the birth certificate, and the absence of evidence of his life story between his birth and 2002, the Tribunal cannot at this time be satisfied of Mr Arok’s identity.
Further, the evidence does not establish that Mr Arok has exhausted all avenues of enquiry to obtain relevant identity documentation and has failed to avail himself of opportunities to secure evidence of identity and his life story which might reasonably be expected to exist, and in these circumstance his application ought to be rejected (see Dhayakpa,
paragraph [29] above).
The Tribunal reached a similar conclusion in ZVNT, GNGJ, SWQL and MFYW and
Minister for Immigration and Border Protection [2018] AATA 3045, where the Tribunal stated:
57.The Tribunal accepts that a certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256).
58.The Tribunal, having considered all the evidence before it,
given that the ZVNT and MFYW were issued with pink cards, finds that ZVNT, MFYW and SWQL, should be required to make an attempt to secure certified copies of pre requisite documents required for citizenship. The Tribunal supports the contention of the Respondent that there was no effort made to do so,
and consequently, this has impacted adversely on the success of this application.
…
62. Having considered all the evidence before the Tribunal,
the Tribunal holds the view that further inquiries and production of documents are required to satisfy the criteria for identity under the Citizenship Act.
CONCLUSION
A certificate of citizenship, should it be granted, would become the foundational document of Mr Arok’s identity. Satisfaction of his identity is therefore a matter of considerable importance. On the material before it, the Tribunal finds that there is an insufficient basis for satisfaction of Mr Arok’s identity and that without further evidence this is one of those cases where identity is unclear or cannot be satisfactorily ascertained.
Finally, the Respondent ‘…does not invite the Tribunal to draw a negative inference regarding the applicant’s identity from the difficulties he might face in procuring reliable identity documentation.’ (Exhibit R1, para 35), and the Tribunal does not do so.
Nothing about this decision prevents Mr Arok from making a further application for citizenship in the future.
DECISION
For the above reasons, the Tribunal affirms the citizenship decision dated 19 November 2019.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner,
AM LVO (Retd), Member

..........................[sgd]..............................................
Associate
Dated: 25 September 2020

Date of hearing: 20 August 2020

Counsel for the Applicant: Mr Vamanan Yongendran

Solicitors for the Applicant: Savannah Legal Pty Ltd

Counsel for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 3812

25 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	20 August 2020
Counsel for the Applicant:	Mr Vamanan Yongendran
Solicitors for the Applicant:	Savannah Legal Pty Ltd
Counsel for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers