Arol and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 2833
•25 August 2022
Arol and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2833 (25 August 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8006
Re:Achol Run Arol
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:25 August 2022
Place:Sydney
The reviewable decision is set aside and remitted to the Minister with a direction that the identity of the Applicant as Achol Run Arol is satisfied under the provisions of subsection 24(3) of the Australian Citizenship Act 2007 (Cth).
....................................[sgd]....................................
Chris Puplick AM, Senior Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – applicant claims to be a stateless person – documentary – biometric – life story – application of Citizenship Procedural Instructions – applicant request to extend scope of review to consider character issues – request refused – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24, 26
Australian Constitution ss 51, 128
Nationality and Citizenship Act 1948 (Cth)
Cases
Adalat v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 3360
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7
Ater and Minister for Home Affairs (Citizenship) [2019] AATA 4677
Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44
Briginshaw v Briginshaw [1938] HCA 34
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Chalou and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2021] AATA 1514
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation [2002] FCA 845
ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Fox v Percy [2003] HCA 22
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331
Hazara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2018] AATA 159
Karimi and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2021] AATA 2358
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4654
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
MDQK and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2020] AATA 2576
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Home Affairs v G [2019] FCAFC 79
Saki Zada and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 1729
Sherpa and Anor v Minister for Immigration and Anor [2020] FCCA 2988
Shi v Migration Agents Registration Authority [2008] HCA 31
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540
Thamby v Minister for Immigration & Border Protection [2018] AATA 2579
Yusuf v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 2096
Zaidi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2474
Secondary Materials
Australian Citizenship Bill 2005 (Cth) div 5, Revised Explanatory Memorandum
Australian Government Department of Foreign Affairs and Trade, COI/CTD: < Parliamentary Debates, House of Representatives, 9 November 2005 at 12 (John Cobb)
CPI 16 – Assessing identity under the Citizenship Act
National Identity Proofing Guidelines
Official Record of the Debates of the Australasian Federal Convention (Melbourne) 3 March 1898
Sir William Salmond, “Citizenship and Allegiance” (1902) 18 Law Quarterly Review 49
REASONS FOR DECISION
Chris Puplick AM, Senior Member
25 August 2022
The Application
Ms Achol Run Arol (the Applicant) has applied to the Tribunal seeking a review of a decision made by a delegate of the Minister (the Respondent) to reject her claim for Australian citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant was born on 8 June 1993 in Cueibet[1] in what was then the Republic of the Sudan. In 1983 the second Sudanese civil war erupted[2] which resulted in the division of the country along largely ethno-religious lines with the formation of the nation of South Sudan which gained international recognition in 2011.
[1] Tribunal documents (T-documents) at 239.
[2] The first Sudanese civil war raged between 1955 and 1972.
The Applicant’s place of birth is in what is now the Republic of South Sudan.
The Respondent asserts that the Applicant is a citizen of Sudan[3] whereas the Applicant herself claims to be stateless[4] and reinforces this claim by production of an Australian government issued Certificate of Identity in the name of “Monica Achil Pan Mading” showing her to be a stateless person.[5]
[3] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [3].
[4] Applicant’s Statement of Facts, Issues and Contentions (SFIC) at [65].
[5] T-documents at 208.
There was some discussion of this matter before the Tribunal given that the Applicant was born in what is now South Sudan and, as of the date of that nation being separated from Sudan, such persons are eligible for South Sudanese citizenship. Both parties then conceded that the Applicant should be accepted as a citizen of South Sudan rather than Sudan. The Applicant has not actually applied for any form of citizenship either in South Sudan or Sudan. However, later in the proceedings a new Certificate of Identity was produced by the Applicant dated 26 May 2022, issued by the Australian government showing the Applicant’s “nationality” to be “Stateless”. The Tribunal proceeds on that basis although for issues of establishing personal identity, nothing relevant turns upon it.
The Applicant first arrived in Australia on 15 February 2005 holding a Global Special Humanitarian (Subclass 202) visa. This was converted into a Resident Return (Subclass 155) visa on 25 October 2012.
On 4 December 2017 the Applicant applied for Australian citizenship by conferral and provided certain documents in support of her application of which two are particularly noteworthy. They are the Certificate of Identity mentioned above and a certificate from the NSW Registry of Births, Deaths and Marriages recording the change of name from Monica Achil Pan Mading to Achol Run Arol[6] by which name the Applicant appears before the Tribunal.
[6] Ibid at 209.
On 29 August 2019 the Applicant was asked by the Department to provide further information to establish her identity, in particular information which might help clarify issues around her use of more than one identifying name.
On 11 September 2019 the Applicant indicated that this was not possible as her personal narrative and circumstances made it almost impossible to do so.
She wrote:
“Good morning/afternoon, my name is Achol Run Arol who is also known as Monica Achil Pan Mading. I am writing this letter to inform that I was unable to provide any of the requested documents because I just found out from my sister Tereza that we actually never anything apart from the travelling document that Australia government provided for us which I have already lodged with my citizenship application. I was only 11 years old when I came to Australia and trying to get any of the requested documents from Africa is almost impossible, because I never had any giving the situation my family and I were in. please Australia is the only home I ever known who gave me so many opportunities to become the woman I am today. I am a great member of the Australian community and would love to be their citizen and raise my children in this promising land.”[7]
[7] Ibid at 221.
The Department sought further advice on 12 September 2019 advising:
“To assist in the processing of your application the Department requires further information to support your claimed identity before you arrived in Australia. This includes providing evidence of any overseas issued documents you have and details of your life story to support your identity. Where appropriate, family member’s documents should also be sought as this may support your claimed identity. Please provide any additional documents issued to your parents/family that may assist in supporting your identity and complete form 80.”[8]
[8] Ibid at 222.
The Applicant completed a Form 80 (Personal particulars for assessment including character assessment) and provided a copy of her birth certificate which had been issued in the name Achol Run Arol.
In response, the Department wrote again to the Applicant asking her to comment on two particular matters:
“Please provide reasoning to why your name was declared as Monica Achil PAN MADING during your Refugee and Humanitarian visa application and you now claim your birth name is Achol Run AROL.
The information you provided in your current Australian citizenship by conferral application in relation to your family composition appears to be inconsistent with information you provided at time of your offshore Refugee and Humanitarian visa application and the Orphan Relative visa applications. The change of family composition raises significant character and identity concerns with regards to you.”[9]
[9] Ibid at 243 and 249.
The Applicant was requested to provide a response to the Department’s inquiries by 4 August 2021 (following an extension of time to do so) but, despite having legal representation, she did not do so.
This resulted in the Respondent making a decision on 30 September 2021 to refuse the application for citizenship on the basis that the Minister could not be satisfied as to the identity of the Applicant as required by subsection 24(3) of the Act.
On 26 October 2021 the Applicant applied to this Tribunal for a review of that decision and the matter was heard on 5 August 2022. The hearing was conducted in person in accordance with the Tribunal’s COVID-19 protocols with both parties being legally represented.
The Applicant’s life story
The Applicant’s life story can be set out in relatively brief terms. However, before doing so the Tribunal notes that reference to “aunts”, “uncles” and “cousins” may not comport exactly with the definitions of these family relationships as understood in legal terms in Australia. They are more akin to the use of terminology such as “uncle” and “aunty” in our First Nations communities and in this instance are complicated further by the Applicant’s evidence that her father has 50 (fifty) wives. The Applicant’s story is as follows:
(a)She was born in 1993 in what is now South Sudan. Her birth name (as per a birth certificate) was Achol Run Arol. Her parents were Run Arol Kachoul (father) and Yar Maker Rei (mother).
(b)At the age of about three years she was separated from her biological family by pressures of the Sudanese civil war and was placed in the care of her uncle (Maker Mading) and aunt (Cholok Dut) by whom she was adopted in local customary fashion.
(c)Her adoptive parents gave her the name Monica Achol Pan Mading.[10]
(d)In about 2001 the Applicant and her (adopted) family moved to Kenya and then Uganda.
(e)In October 2003, in the name of Monica Achol Pan Mading, the Applicant was included as a dependent (of her stepsister/cousin Tereza Aman Pan Mading) in an application for a Global Humanitarian visa[11] which was granted in June 2004 leading to the arrival of the Applicant in Australia in February 2005. Thereafter the Applicant applied for and was granted a Resident Return visa in 2012 which is still current.
(f)At some time later in 2005 the Applicant was in contact with an aunt of hers who was still resident in Kenya and this aunt informed her that her biological parents were still alive and capable of being contacted.
(g)In 2012 the Applicant returned to South Sudan where, through the agency of her aunt she met her biological parents and her biological siblings[12] in their hometown of Cueibet. It was at this point that she was told of her original birth name which had been unknown to her previously.
(h)The Applicant remained in South Sudan for a period of some six months and on her return to Australia she made formal application through the NSW Registry of Births, Deaths and Marriages to change her name from her adopted name, Monica Achol Pan Mading to her birth name of Achol Run Arol. This legal change was affected by issue of the appropriate certificate on 14 August 2013.
(i)On 4 December 2017, in the name Achol Run Arol, the Applicant lodged her application for citizenship by conferral.
[10] It should be noted that the Applicant’s name on various documents is spelled Monica Achil Pan Mading.
[11] Tender Bundle at 1.
[12] Jok Johnson Run Arol; Arol Mary Aluak Run and Rose Achinok Run Arol.
The Tribunal also records that in 2013 the Applicant married Marial Majak Adel (who obtained Australian citizenship in 2011) and now has two Australian citizen children born in 2014 and 2017.[13] The Applicant works full time as a disability support worker and is in her second year of a degree (Bachelor of Social Science) at the University of Western Sydney.
[13] T-documents at 235.
In relation to the “adoption” of the Applicant by her uncle/aunt, paragraph 1.04(2)(a) of the Migration Regulations 1994 (Cth)provides:
10.4 (1) A person …. is taken to have been adopted by a person…. If, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under
…(c) other arrangements entered into outside Australia that, under subregulation (2) are taken to be in the nature of adoption.
(2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture of the adoptee and the adopter.
There is no dispute between the parties that in the Dinka culture to which both the Applicant and her uncle/aunt belonged such intra-family adoptions are accepted as customary practice.
In this respect, the Respondent’s submission that “[c]ritically, however, the applicant has provided no documentation demonstrating her adoption or baptism”[14] is not accorded any weight by the Tribunal.
[14] Respondent’s SFIC at [26].
Citizenship
In a democracy, citizenship is a bedrock issue. What makes a polity democratic is that the citizens have a free choice as to those who govern them and through the electoral process then hold them accountable. Thus, albeit indirectly in Australia’s case,[15] it is the citizens who are ultimately responsible for the enactment of the laws under which the whole community lives and operates. It is only by the consent of the citizenry that the Australian Constitution, our most fundamental law, may be changed.[16]
[15] In the absence of devices such as Citizen Initiated Referenda or Citizen Initiatives which may lead directly to legislative change.
[16] Australian Constitution s 128.
The Australian Constitution itself makes no mention of “citizenship”. Rather, section 51(xix) gives the Commonwealth Parliament power over “naturalization and aliens”.
This is not surprising given that the Founders were operating within the legal framework established by English law characterised as providing that:
“[t]here are citizens in France and the United States of America, but the law and language of England knows of subjects only.”[17]
[17] Sir William Salmond, “Citizenship and Allegiance” (1902) 18 Law Quarterly Review 49 at 49.
Hence, at the time of Federation there were, in Australia, only British subjects and aliens. In the Constitutional Debates leading to Federation, Sir Edmund Barton[18] said “[c]itizens is an undefined term, and not known to the Constitution.”[19]
[18] First Prime Minister of Australia (1901-1903), foundation member of the High Court (1903-1920).
[19] Official Record of the Debates of the Australasian Federal Convention (Melbourne) 3 March 1898 at 1786.
This approach was reflected in a decision of the High Court in 1906 where the Foundation Bench (Griffth CJ, Barton and O’Connor JJ), all of whom had major roles in writing Australia’s Constitution, said:
We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term "immigration," as used in s 51 of the Constitution, admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.[20]
[20] Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44.
Indeed, there was no such thing as a distinct Australian nationality or citizenship until the passage of the Nationality and Citizenship Act 1948 (Cth).[21] There were, effectively, no Australian “nationals” living in the Commonwealth from 1901 to 1948, simply “British subjects or nationals” who domiciled here.
[21] Renamed Australian Citizenship Act 1948 (Cth), replaced by Australian Citizenship Act 2007 (Cth).
After 1948 the concept of a genuine Australian citizenship emerges diachronically and after many changes to that law it was replaced in 2007 by the passage of the Australian Citizenship Act.
It is thus clear that citizenship is not something inherent but rather something which is a creation of the legislature, with terms and conditions attached.
It is, as the High Court stated:
by this means that Parliament determines who is to be part of the body politic and who is not to be.[22]
[22] Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 at [14] per Kiefel CJ in dissent.
People who are not citizens of Australia are “aliens”, unless of course they are First Nations people who, constitutionally cannot be aliens.[23] The terms and conditions upon which people who are not citizens are allowed to remain in Australia depends upon their visa status and their right to join the Australian “body politic” as citizens requires that they meet the tests of the Australian Citizenship Act.
[23] Ibid.
The Australian Citizenship Act is unique as a legislative instrument in that it contains a Preamble which is in the following words:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Legislative Framework – the Act
The Act provides that a person may make an application to the Minister for citizenship by conferral.[24] The Minister must either approve or refuse the application.[25]
[24] Act s 21(1).
[25] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[26] and, if they do, they must then undertake and pass the Citizenship Test[27] (unless they are exempted from so doing).[28] Once that is complete, a qualified applicant must make the Pledge of Commitment[29] (unless they are exempted from so doing) before their citizenship is finally granted.
[26] Act s 21(2).
[27] Act s 23A.
[28] Act ss 21(3)(d), (4)-(8).
[29] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[30] None of these are relevant in this present application.
[30] Act ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
The provisions of section 21 are themselves subject to an overriding prohibition which is contained in subsection 24(3) stating:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
When the new Act was passed it included provisions to strengthen the identity provisions so as to be more specific about what factors, especially biometric factors, should be taken into account when establishing an applicant’s identity.[31] In his Second Reading speech the Minister stated:
“Strengthened proof of identity arrangements is essential to protect the integrity of Australia’s citizenship process. The new act explicitly provides that the minister must be satisfied of the applicant’s identity before an application can be approved.”[32]
[31] Australian Citizenship Bill 2005 (Cth) div 5.
[32] Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 at 12 (John Cobb).
The accompanying Explanatory Memorandum made it clear that
“Subclause 19D(4) states that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. 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.”[33]
[33] Revised Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) at [29].
Determining “identity”
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are “2. the condition of being oneself or itself, and not another... 6. the state or fact of being the same one.”
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
(a)The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
(b)Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
To assist decision-makers the Department has produced a set of Citizenship Procedural Instructions (CPIs)[34] dealing with a variety of topics, including identity.
[34] Dated 10 April 2019.
The relevant CPI is CPI 16 – Assessing identity under the Citizenship Act. This CPI has been through several iterations and the original delegate’s decision would have been based upon the CPI 16 issued on 1 January 2019. However there is now a new version of CPI 16 current as from 1 January 2022 and that is the version which must be taken into account by the Tribunal as at the date of its decision.[35]
[35] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
In the first instance this establishes a regime built upon the concept of “three pillars of identity”:
Pillar of Identity
Individual Characteristics
Biometrics
Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life Story
A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
The provisions of CPI 16 most relevant to this application include:
4. What is identity?
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.
The Department is moving from transaction-centred to person-centred processes using biometrics (for example, using a facial image to identify a person rather than requiring them to provide a range of documents at each interaction). For further information, see Identity – Policy Statement (IIB-6798).
Identities need to be trusted and secure. The Department establishes identity records that are relied upon by Commonwealth, state and territory agencies, the judicial system, across international borders and in the private sector. Trusted and secure identities create opportunities for innovation, productivity and economic stimulation. Robust identity confirmation is the basis of a trusted and secured identity.
In the context of the Department's functions, identity integrity is essential in maintaining Australia's national security, law enforcement, and economic and social interests.
4.1 Certain humanitarian entrant citizenship applicants
While most citizenship applicants are likely to be well documented, some humanitarian entrant citizenship applicants may not be. Humanitarian and protection visa holders may have fled their homeland as a result of persecution or substantial discrimination, and/or have been displaced long-term in third countries prior to arrival in Australia. As a result, they often hold limited or no documentation from their country of origin and it is also often not appropriate to ask these applicants to seek country of origin documentation, either directly or via family or friends in-country. As outlined in the National Identity Proofing Guidelines 2016, an organisation may develop alternative identity proofing processes for 'exceptions cases' such as these.
It is still appropriate to rely on the three pillars in assessing identity for these applicants. Under the document pillar, however, it may be appropriate to take the point of permanent visa grant as the starting point of the identity assessment and consider Australian issued primary identity documents (for example PLO56, Document For Travel To Australia (DFTTA) or ImmiCards), giving significant weight, in the absence of contrary evidence, to these documents and continuity of identity from the point of issuance until the present.
As is the current practice, where identity-related inconsistencies or discrepancies arise, these must be investigated and actioned appropriately.
…
5. Three pillars of identity
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.
·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.
…
7. Name
An application for Australian citizenship must be made in the applicant's full legal name (that is, using the most recent name that the applicant has been known by) and supported by identity documents issued by a recognised authority. Where an applicant has changed their name, the application must be supported by acceptable documentation. See section 8.1 below when the name change is due to Anglicisation of their original name.
The allowable identity documents relating to the applicant's name for the purposes of a citizenship application would include officially issued documentation such as:
·family register;
·birth and adoption certificates;
·official change of name documentation;
·marriage, divorce or other relationship status certificates;
·national identity card;
·national passport; or
·other travel document.
…
8. Assessing changes to attributes of a person's identity
When assessing changes to a person's name or other identity information, delegates must consider:
·the reason that the person provided the original personal information relating to their identity when they applied for citizenship;
·the reason for changing the personal information;
·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes;
·the documentation provided to support the change of personal information.
…
8.1 Change to name
In circumstances where an applicant has changed their name since birth, they must provide official evidence of the change of name. The evidence is dependent upon the reason the person changed their name (for example, by choice, marriage, divorce) and the process in the country in which the person changed their name. For example, if a person chooses to change their name in the UK, a deed poll certificate is a legal document that proves a change of name.
In circumstances where citizenship delegates are unsure about change of name documentation from a particular country, this may be confirmed with the relevant overseas post.
The key element in cases involving a change of name is that the applicant has provided evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using, or seeking to use.
…
Adoption certificates issued through an Australian court or in accordance with the Hague Convention on Intercountry Adoption or through bilateral arrangements.
It is very common for the adopting parents to change the child’s name in some manner either at the time of the adoption or shortly after.
As with all cases of identity and change of name, each case must be treated on its merits and the level of evidence required may vary.
If the new name has not been recorded on the adoption certificate, or if the delegate has any doubts/concerns, the delegate must require some other form of official evidence to support the change of name, and provide evidence of links between birth name and current name.
…
[11] Assessing a person’s identity
…When assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent. Where inconsistencies are identified between the characteristics of the three pillars, for example, the biodata within a document is not consistent with an aspect of the person’s life story, officers should consider:
• the significance and corresponding weight of the inconsistencies in the broader context of the person’s claimed identity; and
• what further research, or information, is necessary in order to be satisfied.
…
While delegates must make every effort to inform themselves of an applicant’s identity, the onus is on the applicant to provide information or evidence to support their identity.
…
[11.2] Assessing pillar three-life story
When assessing a person’s life story in the context of a citizenship application, delegates must seek to create a complete identity ‘picture’ of the person from birth.
The objective is to link the applicant’s identity at birth to the identity provided in their application for Australian citizenship. This can be done by considering key chronological events in the person’s life and using pillar one (biometrics) and pillar two (documents), to piece together and corroborate information.
…
[11.3] Assessing a person’s identity on life story
There may be cases where one pillar may be given more weight than others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information. This research will enable the officer to test and verify the applicant’s claims, relevant to aspects of their life story are consistent with the situation in a particular country. Credible country information will support and add weight to a decision and can be cited in the decision record.
…
[12] What does it mean to be satisfied of a person’s identity
Reaching the point where a delegate is satisfied, or not satisfied, of a person's identity as required by the identity provisions is a process of exercising informed judgment. It must reflect a process of reasoning where the delegate has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
For a delegate to be 'satisfied', the delegate must consider whether or not he or she is persuaded on the basis of evidence of a person's identity. In other statutory contexts, judges have said the delegate must 'feel' an actual
persuasion of that matter; he or she cannot be satisfied merely as a result of a 'mere mechanical comparison of probabilities independently of any belief in its reality'. On the other hand, a delegate does not require incontrovertible evidence of a person's claimed identity to be satisfied of that identity.
Delegates must not merely collect information and documents but consider the quality, plausibility, and relevance of the information provided in the context of how it supports or refutes a person's claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy delegates that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point indifferent directions, that is, where there is conflicting evidence.
Biometrics can assist officers in streamlining applications by increasing the levels of confidence in the applicant's identity. Officers may be satisfied as to a person's identity where:
·the person provides their biometrics and reliable and secure authenticated identity documents, which are uploaded to the Evidence of Identity Store;
·the person's biometrics, documents, and life story are consistent;
·a person's biographical information and at least one form of identity document (containing a photograph or other facial image) matches the person's physical appearance; and
·there is no reason to suspect a false or fraudulent identity or that the identity documents are bogus.
What is the status of the CPIs?
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. Although the Tribunal is not bound to apply it, it is government policy and the Tribunal should consider, and where appropriate apply it, if it is consistent with the Act and unless there are cogent reasons not to do so.[36]
[36] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[37] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[37] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
As very recently stated by this Tribunal:
The CPIs are only policy guidelines, not delegated legislation.[38]
[38] Zaidi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2474 at [18].
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[39]
[39] ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[40]
[40] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
In Elias, this principle was expressed as:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[41]
[41] Elias v Commissioner of Taxation [2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[42] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[43]
[42] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement. The current set of Instructions are a different form of advice to decision-makers.
[43] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[44]
[44] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17]. Footnotes and citations omitted.
The Full Federal Court explained:[45]
[18] There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.
…
[58] It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision‐maker to take into account relevant considerations; it must not require the decision‐maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created.
[59] An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision‐maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision‐maker] will make in the circumstances of a given case”.
[45] Minister for Home Affairs v G [2019] FCAFC 79. Citations omitted.
None of this is to say that the Tribunal is free to ignore completely the provisions or guidance of the CPIs, rather to say that in being guided by them the Tribunal must look to the broader objectives of the Act, the restrictions which it imposes (or does not impose) and the clear guidance from all authorities that each case is to be determined upon its own unique set of facts and its own particular merits.
The mechanics of establishing identity
As noted, the Department’s standard approach to establishing matters of identity is to examine each of the three pillars of biometrics, documents and life story.
In this application there are no biometrics which have been recorded relevant to the Applicant in terms of the issue of primary documents and so that aspect of the matter need not be further considered. As will be noted below the ability of the Department to match photos supplied by the Applicant at different times will be considered in respect of the other pillars.
In relation to documents, the Attorney-General’s Department has issued the National Identity Proofing Guidelines which set out details of what documents can be used to establish identity and how much weight should be accorded to various types of documents. It distinguishes between “Primary” and “Secondary” documents.
In the table headed Evidence of a linkage between a person and a claimed identity, an Australian driver’s licence is listed as a “primary” document and in the table headed Evidence of Identity Operating in the Community, a Certificate of Identity issued by the Department of Foreign Affairs and Trade (DFAT) is assigned “secondary” status.[46]
[46] National Identity Proofing Guidelines at 28-29.
In her initial submission in support of her citizenship application the Applicant provided a number of documents, specifically:[47]
(a)a DFAT Certificate of Identity in the name of Monica Achil Pan Mading which was issued on 15 October 2012.[48] It shows a photograph of the Applicant, a date of birth (8 June 1993), a place of birth (Cueibet) and records the holder’s status as “Stateless”;
(b)a NSW Provisional Driver’s Licence (expiring on 25 November 2017) which contains a photograph, residential address and date of birth (8 June 1993);[49] and
(c)a variety of subsidiary documents including a Medicare card (in the name of Achol R Arol and with dependent children ALM and AJM), a pensioner concession card (in the name of Achol R Arol) and a National Australian Bank Visa card (in the name of Achol Arol).
[47] T-documents at 12.
[48] Ibid at 208.
[49] Ibid at 207.
Upon request to provide further documentation, the Applicant, on 27 September 2019, provided:[50]
(d)a birth certificate issued by the Ministry of Health, Government of South Sudan. The document bears a date stamp, the full details of which cannot be read but show clearly 3rd July 201X. The last figure is obscured but according to the Applicant’s testimony this would have been 2018 or 2019 (to fall between the first citizenship application and the revised submissions, that is between 4 December 2017 and 27 September 2019). This certificate shows the holder as Achor Run Arol, born 3 June 1993 at Cueibet with parentage of Run Arol and Yar Maker. It was the Applicant’s evidence that this certificate was obtained for her by her aunt in Juba (capital of South Sudan) on the basis of some documents which she, the Applicant, had sent to her.
[50] Ibid at 13.
At the Tribunal hearing the Applicant produced an updated DFAT Certificate of Identity in the name of Arol Achol Run, containing a photograph, date of birth (8 June 1993, place of birth (Cueibet) and nationality as “Stateless”.[51]
[51] Exhibit A1.
The Tribunal records that all of the photographs on any of the submitted material are clearly of the same person.
Certain inconsistencies
The Respondent lays out quite clearly its concerns about a variety of inconsistent claims made about the Applicant’s name and family relationships. In its SFIC (at [30], references removed) it states:
(a)In her Subclass 202 visa application lodged on 21 October 2003, the applicant’s name was listed as Monica Achil PAN MADING and her family composition was: Maker MADING (father); Cholok DUT (mother); Tereza Aman PAN MADING (sister); Natalina Akuel PAN MADING (sister); and Victoria Yar PAN MADING (sister);
(b)In the Subclass 117 visa applications lodged on 7 August 2017 for which the applicant was a sponsor, the applicant declared her family composition was: Run AROL KACHOUL (father); Yar MAKER REI (mother); Jok Johnson Run AROL (brother); and Mary Aluak Run AROL (sister);
(c)In her citizenship application lodged on 4 December 2017, the applicant stated her family composition was: Run AROL KACHOUL (father) and Yar MAKER RAI (mother). The applicant declared that she did not have any other immediate family members (including siblings); and
(d)In her completed Form 80 dated 27 September 2019, the applicant stated her family composition was: Run Arol KACHOUL JOK (father); Yar MAKER RAI (mother); Maker PAN-MADING (adoptive father); and Cholok DUT (adoptive mother). The applicant declared her adoptive mother and father were deceased and she had one brother (Arol Majun AROL).
Significant inconsistencies in material before the Tribunal must always raise doubts about the application in question[52] unless they are capable of some rational explanation. There are clearly inconsistencies in the Applicant’s application. The question becomes whether or not they are fatal to that application and raise sufficientdoubts about an applicant’s true identity.
[52] Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7 at [85].
The various statements as to parents/adoptive parents/siblings reflect the various stages of the Applicant’s life story as she has explained it to the Tribunal and the inconsistencies identified in relation to those matters are not ones which the Tribunal finds fatal to her application vis-à-vis matters of her own identity.
Conversely, the Tribunal is concerned that the Applicant may have stated on her citizenship application form that she had no other immediate family members, including siblings. She did this by ticking the “NO” box in relation to a question on the form (no. 34) “Do you have any other immediate family members whose details have not been provided in this application?”.[53] While appreciating what the Applicant said about her father’s uxorious state she has nevertheless made extensive reference to her full biological siblings in other representations.
[53] Ibid at 191.
Equally of concern are statements which explicitly state that her parents are deceased. This occurs in her application form Sponsorship for a child to migrate to Australia (form 40CH) which she completed in relation to her nomination of her sister (Mary Aluak Run Arol)[54] and in the related form Application for migration to Australia by a child (form 47CH).[55]
[54] Tender Bundle at 76.
[55] Ibid at 61.
In evidence before the Tribunal the Applicant agreed that she had no positive proof or knowledge that her parents were deceased, although she alluded to some difficulty in recontacting them after her initial visit.
These false or misleading statements do not reflect well upon the Applicant, but they tend to go to matters other than questions touching on her personal identity and the Tribunal regards them tangential to consideration of that issue.
Being “satisfied”
In LHSM I stated:
There is no discretion available to either the Minister or any other decision-maker, in this case the Tribunal, to grant citizenship unless that decision-maker is satisfied as to the identity of the applicant. In the absence of that satisfaction, the application must be refused.[56]
[56] LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4654 at [89].
“Satisfied” is both a term of art but also the specific term used in the statute. Classically, the exposition of the degree to which a decision-maker is “satisfied” of something was set out by Sir Owen Dixon in Briginshaw where he said:[57]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
…But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[57] Briginshaw v Briginshaw [1938] HCA 34.
The Briginshaw test is not however some sort of straitjacket as the Tribunal has made clear on a number of occasions.
In Ahamod it said:
A certificate of Australian Citizenship is a legal document of considerable significance. Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.[58]
[58] Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30].
Similarly, in CDNB:
In Sullivan v Civil Aviation Safety Authority, the Full Federal Court rejected the notion that the Tribunal is bound to apply the decision in Briginshaw when making findings of fact that are ‘grave or serious’, but “may inform itself – and in some circumstances should inform itself – by reference to evidence or other materials which properly support the seriousness of the findings being made and the seriousness of those findings upon a party”. While I accept the Respondent’s point that the grant of Australian citizenship is a serious issue, I do not purport to apply the ‘rule’ or ‘principle’ in Briginshaw having noted the analysis of the Full Federal Court in Sullivan. This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the CDNB and WLVM, in the context of a grant of Australian citizenship.[59]
[59] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [6]. Citations omitted.
The level of satisfaction required has been addressed by the Tribunal on numerous occasions, including where it held:
To be positively satisfied of the Applicant’s identity does not, as the Tribunal understands it, mean to be one-hundred percent free of doubt. That is a standard which would almost by definition prejudicial all applications from people coming from conflict zones, refugees or people otherwise unable to secure formal documentation, especially from regimes hostile to them on the basis of their race, ethnicity, religion, sexuality or other intrinsic identity.[60]
Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.[61]
[60] Yusuf v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 2096 at [143].
[61] Thamby v Minister for Immigration & Border Protection [2018] AATA 2579 at [56].
As outlined above, CPI 16 refers to that fact that satisfaction of identity “does not require incontrovertible evidence of a person’s claimed identity” and the National Proofing Guidelines (at 2.1.1) state, “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.”
Clearly, for the Tribunal to be “reasonably satisfied” in its conclusions about identity, and although it is not bound by the strict rules of evidence,[62] it cannot be capricious in its assessments but must have some solid evidentiary basis for its findings.[63] There is a requirement for some positive degree of satisfaction.
[62] Administrative Appeals Tribunal Act 1975 (Cth)s 33(1)(c); Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540 at [115].
[63] Sherpa and Anor v Minister for Immigration and Anor [2020] FCCA 2988 at [42].
The specific relevance of the Briginshaw test in applications such as this derives from the fact that one possible outcome is either the granting (or the lifting of some prohibition against) of Australian citizenship. It need hardly be said that possession of Australian citizenship is something of great value and something which should not be bestowed lightly or without a high degree of certainty about any recipient.
Of course it is incumbent on any applicant to offer proof of their identity and the onus always rests with them;[64] or else to explain why such proof is hard/impossible to come by. In situations where people have fled conflict zones, been victims of persecution or displacement, suffered at the hands of government officials, militia or people smugglers or endured physical trauma in their journey to Australia there may be legitimate reasons why no documents related to their identity are either available or could reasonably be secured.
[64] Adalat v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 3360 at [58].
Nevertheless, in situations such as this, where the Applicant, although displaced from her place of birth has been able to return to that place, where she has relatives there who are free to undertaken enquiries on her behalf and where she has managed to produce some supportive documentation (a birth certificate), it is legitimate for the Respondent to challenge the extent to which the Applicant has discharged her responsibilities to establish her identity by means other than exposition of her life story.
In Ater the Tribunal outlined the degree of effort which it expects an applicant to undertake as follows:
The identity of the Applicant in this matter is unclear. Having regard to the country information available, the Tribunal accepts that the Applicant has provided a plausible reason as to why he was not provided with a birth certificate around the time of his birth. However, there is an expectation that the Applicant demonstrate reasonable efforts to obtain those documents or other supporting evidence that may assist in satisfying a decision maker as to his identity. In the Tribunal’s view, it is not sufficient for the Applicant merely to state that such documents are not able to be produced in order to satisfy the Tribunal. Further, in the Tribunal’s view even where an applicant has demonstrated that reasonable efforts have been taken to obtain identity documents, if the applicant is unable to obtain those documents, it falls upon an applicant to provide other forms of evidence on which the Tribunal may be satisfied as to the identity of an applicant. As the Tribunal outlined to the Applicant at the hearing, this is not a prescriptive approach to determining what evidence will be acceptable. However, in the absence of documentary evidence confirming identity, persuasive evidence in other forms, for example third party statements and other material relevant to an applicant’s individual circumstances, may be required to enable a reasonable degree of satisfaction to be achieved.[65]
[65] Ater and Minister for Home Affairs (Citizenship) [2019] AATA 4677 at [72].
In Zaidi the Tribunal held that:
The Applicant has, however, on his own evidence an ability to obtain an identity document of significant weight, i.e., a passport issued by the Afghanistan government. In circumstances where the Applicant has not done so and has not adequately explained why he has not, I have come to the conclusion that this is fatal to me being satisfied of his identity.[66]
[66] Zaidi and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2022] AATA 2474 at [65].
The question arises as to what documentation the Applicant might have been able to obtain. In the first instance the Tribunal is satisfied that as her adoption was a result of customary practices – a matter not disputed by the Respondent – it is legitimate to accept that documentary proof of such an event does not actually exist. Similarly there are no details about the nature of what the Applicant claims to be her “baptism” (when she was given the name Monica). It is unclear whether baptismal certificates were issued on such occasions. The Tribunal is satisfied that these circumstances meet the description of being “cogent and acceptable”[67] reasons for the lack of relevant documentation.
[67] CDNB v Minister for Immigration and Border Protection [2018] AATA 757 at [9].
The Tribunal notes that the Applicant has produced a birth certificate from the authorities in South Sudan. In final submissions the Respondent called into question the probity and utility of this document. Their argument was based upon the fact that the birth certificate was obtained by a third party (an aunt) on behalf of the Applicant using Australian-based documents, details of which were not clear, and hence the birth certificate could not be regarded as any form of genuine identity document, let alone a primary one.
The Tribunal does not accept this argument. Although the details of how the document was procured may be uncertain, such processes are far from uncommon. It is the practical experience of this Tribunal that persons in Australia often go about obtaining copies of birth certificates, or the reissue of such certificates or the issue of first birth certificates, in this fashion. The fact that the birth certificate confirms the details of several earlier documents, such as those issued in connection with the Applicant’s original visa and her first DFAT Certificate of Identity reinforces the Tribunal’s thinking in this regard.
The production of this document similarly distinguishes this application from that discussed and relied upon by the Respondent in Sakhi Zada where not a single document was provided.[68]
[68] Respondent’s SFIC at [28]; Saki Zada and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 1729 at [48].
Although the Applicant appears eligible to obtain a South Sudanese passport, the Tribunal accepts that this would have been an unusual course of action for the Applicant to take during the process of applying for Australian citizenship.
It is hard to see what other relevant documents the Applicant might have been required to produce and the Tribunal distinguishes this case from those before the Tribunal in Ater and Zaidi.
On the other hand, it is difficult to understand why the Applicant has provided no letters of support or testimony from members of her family. She has had access to both her biological parents, and while it appears from her own statement that her adoptive parents may be deceased,[69] her birth parents, her aunt who facilitated their reconnection and her siblings/stepsiblings who are now in Australia were all in a position to provide some degree of testimony (written or oral) on her behalf. It was her evidence to the Tribunal that her cousin/step-sister (Tereza Aman Pan Mading) was initially prepared to provide a letter of support but later withdrew this offer for reasons unknown but which made the Applicant, in her own words, “angry”.
[69] T-documents at 236.
The absence of corroborative evidence in support from members of the Applicant’s family must count against her in this application, although not fatally so, given the assurances by the Applicant’s solicitor that this support was proffered but later withdrawn.[70] The Tribunal places some weight on the solicitor’s professional duty to the Tribunal to be honest in his representations and has no doubts in this regard.
[70] See Chalou and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2021] AATA 1514 at [53] where the Tribunal was concerned that “[n]o such evidence was provided by the Applicant in this case, nor was any explanation as to why statements could not have been provided”.
If an applicant cannot provide an exceptionally high level of comfort for a decision-maker in order to allow a clear determination of identity, what is an acceptable threshold?
This question was addressed by Deputy President Constance in MDQK where he returned to the previously identified issues of identity as a matter of continuity and contrast. The Deputy President stated:[71]
[71] MDQK and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2020] AATA 2576.
[77] The set of characteristics which distinguish the Applicant at all times and in all circumstances from others include:
(a) his date of birth;
(b) his place of birth;
(c) that he has no siblings of the same age;
(d) the name by which he was first known;
(e) his ancestry; and
(f) his ethnicity.
[78] There may be other characteristics of the Applicant which could be included in this list. The above are those of which I am satisfied on the balance of probabilities based on the evidence before me, and which allow me to be satisfied of the Applicant’s identity as distinguished from others.
He then went on to make the following findings:
[111] For the reasons stated I find that the Applicant’s identity is that:
·he is male;
·he was born on [day and month redacted] 1982 in a refugee camp in Yazd, Iran;
·he has been known by the name [given name and family name redacted] since his birth;
·he is the eldest of three siblings;
·he is the son of [name redacted] and grandson of [name redacted];
·his parents were born in Iraq;
·his ethnicity is Feyli Kurd.
[112] These are the relevant characteristics of the Applicant in relation to his application for Australian citizenship. I do not suggest that the above is a definitive list. The determination of the identity of others will depend on facts exclusive to a particular individual, including that individual’s own life story.
In this instance, the Tribunal is satisfied that the Applicant has established a date and place of birth; the name by which she was first known; her ancestry and her ethnicity. The Tribunal makes allowances in relation to details about her siblings given the fact that it accepts details of her life story and the consequences that arise from that.
The Department of Foreign Affairs and Trade (DFAT) website provides the following information in relation to Certificates of Identity:[72]
[72] Australian Government Department of Foreign Affairs and Trade, COI/CTD: < Certificate of Identity (COI) is issued only in Australia or its territories, under theAustralian Passports Act 2005, Section 9.
It is issued to people who are:
·not Australian citizens; and
·about to leave Australia or one of its territories; and
·stateless or unable to obtain a travel document from their country of nationality.
Applications for COIs must be lodged at a Passport Office using a PC5 application form...
Applicants must provide:
·evidence of intended travel (see Evidence of intended travel)
·evidence that they are stateless; hold an appropriate visa or are unable to obtain a travel document issued by their country of nationality.
The Applicant has been issued with two such Certificates, on 15 October 2012 and 26 May 2022.[73] It is to be assumed that the relevant officials in DFAT undertook appropriate verification of the Applicant’s claims for these Certificates and moreover that they would have noted that they were issued in two different names to the same person whose identity was capable of being established by the biometric matching of the two photographs submitted, at different times, with the relevant applications.
[73] T-documents at 208; Exhibit A1.
The Gospel of Saint Matthew (KJV 6:3) records Jesus as saying:
“But when thou doest arms,[74] let not thy left hand know what thy right hand doeth.”
[74] (Lit) giving to the poor.
It appears that the Australian Government has decided to follow Scripture in relation to this Applicant. DFAT is satisfied of her identity to the extent that it has twice issued a significant identity document under the provisions of the Passports Act 2005 (Cth), a piece of legislation in which the integrity of identity decisions is fundamental and central; whereas the Department of Home Affairs is unpersuaded of the Applicant’s identity for the purpose of granting citizenship.
The Australian Government is not entitled it have it both ways.
The gravamen of the submission from the Respondent (Department of Home Affairs) is to the effect that it cannot be satisfied as to the identity of the applicant for citizenship claiming to be Achol Run Arol whereas DFAT is sufficiently satisfied of that person’s identity as to issue her with a formal Certificate of Identity. The Department of Home Affairs says that the Applicant has not done what the DFAT says she has. The former relies upon a negative (a thing not done) and the latter on a positive (a thing done).
The Tribunal adopts the position taken by the Department of Foreign Affairs and Trade.
The Certificate of Identity joins the birth certificate and the succession of visas granted to the Applicant (whose identity must have been accepted by the granting authorities) as establishing a cohort of documents which attest to the true identity of the Applicant. This is a first “pillar of identity” satisfied.
The biometric factor of the easily verifiable photograph which led DFAT to issue a Certificate of Identity to Monica Achil Pan Mading (born 8 June 1993, in Cueibet, a stateless person) and to Achol Run Arol (born 8 June 1993, in Cueibet, a stateless person) constitutes a second “pillar of identity” favourable to the Applicant.
The Applicant’s life story has not been challenged in any way by the Respondent and, although (unfortunately) not supported by any third-party testimony, is both understandable and credible. It is moreover “a consistent persuasive timeline from birth to present”[75] as it should be.
[75] Karimi and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (Citizenship) [2021] AATA 2358 at [70].
The Tribunal gives credit to the Applicant in terms of how she appeared before it. Although, understandably, the Applicant was vague on certain details about dates related to the birth of family members, coming from a community less date-obsessed than many, she was a credible and forthright witness. The original decision-maker (the Delegate) did not have the advantage of personal observation of the Applicant, and this is not an irrelevant consideration.[76] Equally, the Tribunal is aware of the clear warning from the High Court about “the dangers of too readily drawing conclusions about truthfulness or reliability solely or mainly from the appearance of witnesses.”[77]
[76] Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331 at 334.
[77] Fox v Percy [2003] HCA 22 at [30] per Gleeson CJ, Gummow and Kirby JJ.
Nevertheless the Tribunal’s assessment of third “pillar of identity” is favourable to the Applicant.
There is enough to be drawn from these three pillars of identity for the Tribunal to be positively satisfied as to the identity of the Applicant.
Conclusion as to the identity issue
The Tribunal finds that the Applicant is Achol Run AROL, born on 8 June 1993 in Cueibet, South Sudan and she is a stateless person.
Extending the scope of review
The Applicant puts to the Tribunal that it should not only make a finding in relation to the Applicant’s identity (Act s 24(3)) but that it should go on to consider the eligibility requirements in subsection 21(2) and make findings related thereto.[78]
[78] Applicant’s SFIC at [37]-[43].
Subsection 21(2) sets out a series of criteria which must be met by an applicant for citizenship by conferral once their identity is established. It is clear that the Applicant already meets some of these such as those related to her age and permanent resident status (paras 21(2)(a), (b), (c)[79] and possibly (g)). There is little doubt from the Applicant’s evidence before the Tribunal that she would be able to satisfy the “citizenship test” requirements (paras 21(2)(d), (e) and (f)). That leaves only paragraph 21(2)(h) which is the requirement that the Applicant be “of good character at the time of the Minister’s decision on the application”.
[79] T-documents at 11. A positive finding to this effect has already been made by the Delegate in relation to ss 21(2)(a), (b) and (c).
The Applicant invites the Tribunal to make such a finding. It is always a seductive proposition for a decision-maker to be invited to expand the remit of their decision-making but, in this instance (and perhaps as a general principle) this is an attempted seduction to be resisted.
The Tribunal does not dispute the Applicant’s contention that this course of action is open to it. Two Tribunal Deputy Presidents have made this clear in their decisions in Hazara[80] (Deputy President Forgie) and Sakhi Zada[81] (Deputy President Boyle) that the Tribunal may extend the scope of its determination to include consideration of the “good character” requirement even where this had not been the subject of previous decision by the Minister/Delegate.
[80] Hazara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2018] AATA 159.
[81] Saki Zada and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 1729.
Unsurprisingly, the Respondent resists this application and makes the point that “consideration of character is a burdensome task that should not arise for the first time on review”.[82]
[82] Respondent’s SFIC at [37].
The Tribunal agrees with this assertion. There are many elements which go into the assessment of what constitutes “good character”, and they should be the subject of close attention by a decision-maker in possession of all the (available) facts necessary to undertake such a task. Those facts are not before this Tribunal and it would be premature to undertake an assessment, not least reason being that the Respondent, not having previously assessed the matter,[83] would be denied any opportunity to contest any such finding.
[83] T-documents at 12.
The invitation for tribunicial expansion to consider character issues under paragraph 21(2)(h) of the Act is declined.
In any event, even had the Tribunal pronounced on paragraph 21(2)(h) matters it would still have been required to remit the application to the Minister for formal determination of the paragraph 21(2) (d), (e) and (f) criteria.
DECISION
The reviewable decision is set aside and remitted to the Minister with a direction that the identity of the Applicant as Achol Run AROL is satisfied under the provisions of subsection 24(3) of the Act.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..................................[sgd]......................................
Associate
Dated: 25 August 2022
Date(s) of hearing: 5 August 2022 Solicitors for the Applicant: Mr M Mayek, Mayek Legal Barristers & Solicitors Solicitors for the Respondent: Mr E Taylor, Mills Oakley
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