Ater and Minister for Home Affairs (Citizenship) - [2019] AATA 4677

Ater and Minister for Home Affairs (Citizenship) [2019] AATA 4677 (11 November 2019)
Division:GENERAL DIVISION
File Number:2018/1353
Re:Makuei Madol Ater
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member S Burford
Member S Barton

Date:11 November 2019
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
26 July 2017, is affirmed.
...................................................................
Member S Burford
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – satisfaction as to identity – insufficient evidence regarding identity of the Applicant – limited primary documentation produced – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 24, 24(3), 52(1)(b)
CASES
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw and Briginshaw (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015]AATA 310
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Mohsin and the Minister for Home Affairs (Citizenship) [2019] AATA 1999
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines, 2016
Department of Immigration and Border Protection, Australian Citizenship Policy, 1 June 2016 – Chapter 13
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member S Burford
Member S Barton
11 November 2019
THE APPLICATION

This is an application for the review of a decision by a delegate of the Respondent
made on 26 July 2017 (the Reviewable Decision). This decision refused the Applicant’s application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) (Exhibit R1, T1, p 8). The application was refused because the Respondent was not satisfied of the Applicant’s identity for the purposes of
s 24(3) of the Citizenship Act.
BACKGROUND
Mr Makuei Madol Ater (the Applicant) claims he was born on [redacted] in Rumbek, in Sudan. Rumbek is now in the Republic of South Sudan. The Applicant arrived in Australia on 15 November 2007 on a Global Special Humanitarian (subclass 202) visa in the company of his father and two brothers.
On the Applicant’s arrival in Australia, he was using the name Moses Makuei Athontung; the Global Special Humanitarian (subclass 202) visa was issued to him under that name. On 24 September 2014 he changed his name to Makuei Madol Ater (Exhibit R1, T1, p 7).
On 28 May 2016, the Applicant applied for Australian citizenship by conferral (Exhibit R1, T6). On 26 July 2017, the Department of Immigration and Border Protection
(the Department) refused the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied as to his identity (Exhibit R1, T1,
p 20).
On 19 March 2018, the Applicant applied to the Tribunal for a review of the decision (Exhibit R1, T1, p 1).
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Citizenship Act.
THE ISSUE
The issue to be addressed is whether the Tribunal is satisfied as to the Applicant’s identity.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Tuesday, 20 August 2019. The Applicant appeared in person and was self-represented.
The Respondent was represented by Mr Arran Gerrard from the Australian Government Solicitor, who appeared in person.
The Applicant gave oral evidence and was cross-examined. The Applicant called Mr Kedir Gose as a witness, who gave evidence by telephone. The Applicant also indicated he wanted to call his brother however three attempts to contact him during the hearing were unsuccessful. The Respondent made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Statutory Declaration made by the Applicant, dated 25 October 2018

(Exhibit A1);
(b)Identity declaration (Form 1195), dated 3 September 2018 (Exhibit A2);
(c)Declaration of service (Form 1399) undated, filed with the Tribunal on
21 August 2018 (Exhibit A3);
(d)copy of the Applicant’s Medicare card (Exhibit A4);
(e)copy of a Residential Tenancy Agreement, dated 5 October 2017 (Exhibit A5);
(f)copy of an invoice and water bill, dated 26 June 2018 (Exhibit A6);
(g)copy of a Marriage Certificate issued on 12 May 2017 (Exhibit A7);
(h)T documents (T1 – T10, pp 1 – 135) (Exhibit R1);
(i)
Respondent’s Statement of Facts, Issues and Contentions, dated

15 February 2019 (Exhibit R2);
(j)copy of a page from the Republic of South Sudan Passport of Mapet Athontung Mabo Marier, identified as the Applicant’s brother (Exhibit R3);
(k)copy of a page from the Republic of South Sudan Passport of Aluel Manuer Khok Kich, identified as the Applicant’s mother (Exhibit R4);
(l)Refugee and Special Humanitarian Proposal (Form 681) completed by Athontung Mabor Marier, identified as the Applicant’s father, dated 21 February 2011 (Exhibit R5);
(m)Application for an Offshore Humanitarian Visa (Form 842) completed by Aluel Manuer Khok Kich, identified as the Applicant’s mother (Exhibit R6);
(n)LandInfo Report on Documents in Somalia and Sudan, dated 5 January 2009 (Exhibit R7);
(o)Department of Foreign Affairs and Trade (DFAT) Country Information Report Sudan, dated 27 April 2016 (Exhibit R8); and
(p)
DFAT Country Information Report South Sudan, dated 5 October 2016

(Exhibit R9).
RELEVANT LEGAL PRINCIPLES
Section 24 of the Citizenship Act contains a number of provisions which prohibit the conferral of Australian citizenship in certain situations. Section 24(3) of the Citizenship Act states:
24Minister’s decision
…
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (subsequently enacted as the Citizenship Act) states:
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.
The issue of identity is also addressed by Chapter 13 of the Australian Citizenship Policy (the Policy),[1] which states (Exhibit R1, p 78):
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
[1] Department of Immigration and Border Protection, 1 June 2016.
The Policy refers to the Attorney-General’s Department National Identity Proofing Guidelines (2016) (the Guidelines) published for the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach.

The Policy provides that the concept of identity is described in the Guidelines.
The Guidelines state that:
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]
[2] The Guidelines at p 7, [2.1.1].
As established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal will apply Ministerial policy, unless there are cogent reasons not to do so.
The issue of establishing a person’s identity in applications for citizenship has been considered by the Tribunal in a number of decisions including Mohsin and Minister for Home Affairs (Citizenship) [2019] AATA 1999; Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808; Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222; CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 (CDNB); Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan); and Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (Dhayakpa).
The above decisions recognise that the issue of identity is of particular importance because of the very significant benefits conferred by Australian citizenship. The Tribunal has also emphasised the need to consider each case on its individual merits, including the consideration of particular impediments to obtaining documents related to identity in an individual case.
The Tribunal notes it is not bound to apply the common law rules of evidence,[3] however the Tribunal has the discretion to apply or inform itself by reference to such evidentiary concepts.[4]
[3] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [121].
[4] Ibid at [106].
In the matter of Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30] (Ahamod), the Tribunal considered the standard of proof contemplated in Briginshaw and Briginshaw (1938) 60 CLR 336 (Briginshaw) and considered that given the significance attaching to a grant of citizenship and the consequences that flow from it, a higher level of satisfaction is required in such cases:
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.
(Footnotes omitted.)
The Tribunal in Ahamod also noted the decision in the matter of Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579, where Senior Member D. J. Morris considered what was meant by the statutory phrase “satisfied” in consideration of Australian Citizenship applications (at [56] after considering Briginshaw):
Essentially … 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…
Accordingly, the Tribunal considers that given the particular significance of the consequences that flow from of the grant of citizenship, the Tribunal must be persuaded to a degree of reasonable satisfaction as to the Applicant’s identity, having regard to his particular circumstances.
EVIDENCE AS TO IDENTITY
In his application for the conferral of Australian citizenship, lodged 28 May 2016,
the Applicant provided the following documents to address proof of identity requirements:
·an Australian Change of Name Certificate, dated 25 September 2014;
·an Australian driver’s licence in the name of Makuei Madol Ater; and
·
a Document for Travel to Australia issued by the Australian Government in 2007 in the name of Athontung Mabor Marier and identifying Moses Makuei Athontung as his child (Document for Travel)

(Exhibit R1, T6, pp 99
– 101).
On 29 August 2016, the Department requested the Applicant provide further documentation (Exhibit R1, T8, p 121;[5] Exhibit R2, pp 1 – 2), specifically:
·copy of birth certificate;
·copy of Medicare card or Centrelink concession card;
·copy of evidence of the Applicant’s current residential address (e.g. Utilities or rates notice, rental contracts, bank statement);
·Original Form 1195 – with original endorsed photograph/s; and
·Original Form 1399.
[5] The Respondent’s submissions refer to the date of this email as 26 August 2019, a date which also appears in the Reviewable decision, however the email provided in the Department’s file appears to have been sent on 29 July 2016 with a follow-up email sent on 16 September 2016. As nothing turns on the date of the email the Tribunal places no weight on this discrepancy.
The correspondence indicated that these supporting documents were required before the Applicant could be booked for a citizenship appointment.
The Applicant replied to the Department on 21 September 2016 as follows (Exhibit R2,
p 2, paragraph [8]; Exhibit R1, T8, pp 119 – 120):
I would like to inform you that I have filled out all the basic information in the online forms on 29 May 2016 except form 1195. I will soon fill it out and send it to you.
I do not have any birth certificates though as they were not provided in the villages during the time I was born. I will also send my rental contract agreement documents as well as medicare card.
In response the Department asked whether the Applicant had “any documents in your possession from your birth country” and noted that the original Declaration of Service Form (Form 1399) was also required (Exhibit R1, T8, p 119).
According to the Reviewable Decision and the records before the Tribunal, the Applicant failed to supply these documents to the Department in the allotted time period
(Exhibit R1, T1, p 13, T8, p 119, T9, 133).
While some weight was placed on the Document for Travel to Australia as a primary identity document, the delegate was satisfied the Applicant had not provided the Department with the full facts about his identity and was therefore not satisfied of the Applicant’s identity.
On 11 June 2018 the Tribunal ordered the Applicant provide any evidence and submissions on which he sought to rely on by 3 August 2018. On 15 August 2018 the Tribunal contacted the Applicant to inquire as to whether he intended to submit any documents. In response on 21 August 2018 the Applicant stated (Exhibit A3):
I have been trying to get all my required documents together so I could send them in one bundle. However, I have not been able to get any help regarding the birth certificate.
I called the Canberra Embassy and they told me that there is no South Sudan embassy in Australia and that I should try to contact India. When I called they said they would get back to me and they have not yet contacted me and I have also tried in [sic] Ethiopia and couldnt [sic] find any help as well.
The Applicant requested, and was granted, more time to provide the documents.

On

29 August 2019 the Tribunal Conference Registrar emailed the Applicant to advise further time had been granted. In this email the Tribunal noted (Exhibit A2):
…the Tribunal will send a further direction granting you until 10 September to provide the birth certificate evidence. If you are unsuccessful in obtaining further documents would you please instead provide a statement setting out in detail what efforts you have made to obtain the birth certificate and what the outcome has been.
(Emphasis added.)
At the time of the hearing, the Applicant had provided the Tribunal with the following documents:
(a)
a copy of the Statutory Declaration made by the Applicant, dated 25 October 2018

(Exhibit A1);
(b)an Identity declaration (Form 1195), dated 3 September 2018 (Exhibit A2);
(c)
a Declaration of Service (Form 1399), undated, filed with the Tribunal on

21 August 2018 (Exhibit A3);
(d)a copy of a Medicare card in the name of Makuei M Ater (Exhibit A4);
(e)a copy of a Residential Tenancy Agreement, dated 5 October 2017 for an address in Kalgoorlie listing the tenant as Makuei Ater (Exhibit A5);
(f)a copy of a water use invoice to the Applicant issued by First National Real Estate Kalgoorlie, dated 26 June 2018, and attaching a Water Corporation bill for an address in Kalgoorlie (Exhibit A6); and
(g)a copy of a Marriage Certificate issued by the Victorian Registry of Births, Deaths and Marriages on 12 May 2017 evidencing the marriage of Makuei Madol Ater and Nyitur Marial Mawan on 8 July 2016 (Exhibit A7).
This evidence is considered further below.
Statutory Declaration – No Birth Certificate
In his Statutory Declaration dated 25 October 2018 (Exhibit A1, p 3), the Applicant states:
I was born in Rumbek, South Sudan on August 15, 1990, in a little village within Rumbek known as Mathiang, at the time of civil war when birth certificates were not provided. So I am declaring that I have no birth certificate.
In the Applicant’s evidence before the Tribunal, he contended that he was born during the civil war at home to parents who could not read or write. The Applicant further contended that his home birth, civil war and the Sudanese government’s indifference towards the people in his region were all contributing factors to him not being issued a birth certificate or any other form of documentation. He stated that the first official identity documentation he received was a ration card issued to him when he was in a refugee camp in Uganda.
The Tribunal notes that the LandInfo Report for Somalia and Sudan reported that while the percentages of births registered in Sudan is high, “[w]here no midwife is in attendance, the duty to register [the birth] is only met to a limited extent and the number of children registered is much lower” (Exhibit R7, p 12). Moreover, as the DFAT Country Information Report for Sudan observes, “[l]ong-term instability in Sudan has had a detrimental impact on reliable identification documentation” (Exhibit R8, p 27).
The Applicant stated, in oral evidence and in an email dated 21 August 2018 to the Tribunal accompanying his Declaration of Service, that he had contacted South Sudanese posts in India and Ethiopia to retrospectively obtain identity documents (Exhibit A3).
The Applicant stated that, to the best of his recollection, he may have also telephoned the post in India and emailed the post in Ethiopia but neither approach was successful.
The Applicant has not provided the Tribunal with any documentary record of these efforts.
The Applicant indicated he did not seek documents from the Sudanese Embassy in Australia. The Applicant told the Tribunal that, given he knows they would not have any records of him, there would be little point in doing so.
The Respondent’s submissions (Exhibit R2, p 4) drew the Tribunal’s attention to both the LandInfo Report on Documents in Somalia and Sudan and the DFAT Country Information Report for Sudan. The former outlines a process by which persons, like the Applicant, can contact the Sudanese Department of Statistics’ Birth and Death Register to confirm their birth is unregistered. The DFAT Country Information Report for Sudan also advises that birth certificates and other identity documents can be requested and issued. The DFAT Country Information Report on South Sudan indicates that the South Sudanese Government has started issuing certificates of nationality which are often in the form of a national identity card (Exhibit R9, p 25, [5.23]-[5.24]). The report further notes:
… Certificates of nationality can be issued to an individual of any age and are issued on the basis of information provided, with no supporting documentation required at the time of application.
DFAT understands that some South Sudanese Embassies have issued ‘Sudan People’s Liberation Movement (SPLM) Identity Cards’. SPLM Identity Cards are issued on the basis of information provided and DFAT understands that authorities rarely test the accuracy of this information.

While this information may raise questions about the weight to be placed on such identity documents when produced, it does suggest avenues are available for obtaining South Sudanese identity documents even in the absence of a birth certificate.
There is no evidence that the Applicant has pursued these potential avenues for obtaining information or documentation.
The Tribunal is mindful of the deficiencies in the provision and authenticity of birth certificates and identity documents by both Sudanese and South Sudanese authorities as detailed in the DFAT Country Information Reports for Sudan and South Sudan
(Exhibit R8, pp 27-28; Exhibit R9, pp 24-25). Nevertheless, on the Applicant’s own evidence he has taken only a small number of steps to obtain documents supporting his claimed identity. The Applicant’s limited efforts to date appear to result from his view that his lack of birth certificate is an insurmountable barrier to retrospectively sourcing documents from either the Sudanese or the South Sudanese authorities which may assist in confirming his identity at birth.
When asked at the hearing about obtaining a national identity card, the Applicant said he needed to be in South Sudan to obtain one. When asked whether he had inquired with any of the authorities whether any forms of identity other than birth certificates were available, he said he did not ask and they did not mention anything about an identity card.
The Tribunal accepts the Respondent’s contention that there are avenues that have not been pursued by the Applicant. The Tribunal notes that more extensive efforts to prove the Applicant’s identity might indeed ultimately prove fruitless; however, undertaking such efforts would assist in providing a reasonable explanation for why the necessary identity documents were not available. The Tribunal further notes that it has been possible for the Applicant’s mother and at least one of his siblings to obtain passports from the Republic of South Sudan.
On the basis of the evidence before it, the Tribunal has concerns regarding the absence of any documentary evidence supporting the Applicant’s identity at birth and the lack of evidence of steps taken to secure such documents from relevant authorities.
Identity Declaration
The Identity Declaration (Form 1195) submitted by the Applicant was made and signed by a Justice of the Peace, who according to oral evidence from the Applicant, is not personally known to the Applicant (Exhibit A2, p 3). The Tribunal notes that, at section three of the Identity Declaration (Form 1195), the declarant has left blank the box asking how many years the declarant has known the Applicant (Exhibit A2, p 3). The Tribunal notes that the form indicates that the declaration can only be completed by a person who has known the Applicant for at least one year.
Given the omissions on the form and the evidence of the Applicant, the Tribunal places no weight on the document as evidence of establishing the Applicant’s identity.
Declaration of Service
The Applicant in his Declaration of Service (Form 1399) (Exhibit A3) has identified his family members, including his wife, parents and four siblings.
The Respondent (Exhibit R2, p 6, paragraph [36]) submitted that this information is inconsistent with information held by the Department concerning the Applicant’s family, arising from an interview with the Applicant’s mother as part of an application for a visa on 19 September 2013. During the course of this interview, the Applicant’s mother advised she has nine children. One of whom, a brother, Mapet Marier, is reportedly only six months younger than the Applicant. This birthdate, [redacted], is confirmed on the copy of the passport for Mapet Marier (Exhibit R3). According to the Reviewable decision and the Document for Travel to Australia the Applicant’s birthdate is [redacted].
The Respondent contended that (Exhibit R2, p 6, paragraph [40]):
In these circumstances … the applicant’s identity is unclear and cannot be satisfactorily ascertained. The fact that there is inconsistent and implausible information in respect of the applicant’s family composition makes the need for a birth certificate all the more stronger.
The Tribunal accepts that this inconsistency casts some doubt on the Applicant’s identity claims.
In evidence before the Tribunal, the Applicant said he had made a mistake in filling out the Declaration of Service (Form 1399) by not including all of his siblings. He did not provide an explanation as to why he neglected to include some of his siblings on the form.
When questioned about one of his brother’s, Mapet, being six months younger than him, the Applicant answered that his brother was very premature, and that he only survived through “God’s help”. The Applicant also stated that his brother’s name, “Mapet” means “premature” in the Dinka language. As the Tribunal did not have the assistance of an interpreter, it was unable to verify if this was the case.
When questioned if he had any evidence or statements to support the timing of his brother’s birth, the Applicant replied that he can only repeat what his mother told him.
According to the Applicant, both he and his brother were born at home. On his evidence and on the documents before the Tribunal his brother would have been born at about
24-28 weeks gestation. Given the circumstances of the Applicant’s birth and his parent’s reported illiteracy, the Tribunal allows for some inaccuracy in the information regarding the respective birth dates of the Applicant and his brother. However, the Tribunal notes the Applicant did not suggest the birthdates were incorrect, but rather that his brother was born very early. Accordingly it does not appear that confusion or mis-recording of the dates of birth gave rise to the proximity of the dates of birth.
The Tribunal notes that the Applicant called a witness, Mr Kedir Gose, to give evidence by telephone.[6] Mr Gose is a former national of Ethiopia who met the Applicant in 2013,
[6] While the Hearing Certificate submitted by the Applicant indicated he wished to call three witnesses the Applicant indicated at the hearing that one was unavailable and attempts to contact the other on the telephone number provided were unsuccessful.
he lives with the Applicant and works as a mining technician. When it came to the Applicant’s lack of a birth certificate and the circumstances of his brother’s birth, the witness was only able to provide the Tribunal with information he had been given by the Applicant or the Applicant’s family who he said he had met at the Applicant’s wedding. The witness said he had met Mapet at the wedding and that the family told him the Applicant’s brother was born prematurely. The witness was not sure how many sisters or brothers the Applicant had but he thought it was two sisters and three brothers.
The Tribunal places some weight on Mr Gose’s evidence as supporting the Applicant’s account of his brother’s birth. However, as his evidence was reliant on information provided to him by the Applicant and the Applicant’s family, and he had no known personal knowledge of the Applicant’s background or identity in Sudan, the Tribunal regards his evidence is of limited assistance in resolving questions regarding the Applicant’s family background in the establishment of the Applicant’s identity.
Based on the limited evidence before it, including the failure of the Applicant to declare all his siblings (including omitting Mapet) on the Declaration of Service (Form 1399) and his lack of reasonable explanation for this omission, the Tribunal does not consider the Applicant’s claims regarding the conception, birth and survival of his brother to be plausible. Absent any corroborating evidence, including any evidence from members of the Applicant’s family, the evidence regarding the Applicant’s brother and the proximity of their birthdate’s raises concerns regarding the credibility of the Applicant’s claims, including his claimed identity. In the Tribunal’s view the questions raised with regard to this issue require further evidence to satisfactorily resolve questions concerning the Applicant’s family background.
Other Documents and evidence
With respect to the other documents provided by the Applicant, in the absence of any form of identity documentation confirming the details of the Applicant’s birth, limited weight can be placed on the Applicant’s driver’s licence, Medicare card, water bill, tenancy agreement, and marriage certificate all of which are documents issued in Australia after his arrival here (Exhibit R1, T6, p 100; Exhibits A4, A5, A6, A7). Put simply, the Applicant has provided no documentary evidence to the Tribunal to establish his identity, other than the grant of his Document for Travel to Australia and documents which have been obtained subsequent to the grant of his Document for Travel to Australia, the Class XB visa (Exhibit R1, T6, p 101).
Name Change
On arrival in Australia, the Applicant’s name was Moses Makuei Athontung, however on 25 September 2014, he changed his name to Makuei Madol Ater (Exhibit R1, T1, p 7).
The Applicant changed his name lawfully, and according to his evidence this was done to carry on the name of a grandfather. The Tribunal accepts the Applicant’s reason for changing his name and does not draw a negative inference from it. However, the Tribunal notes again that other than the Document for Travel to Australia the Applicant has provided no evidence to satisfy the Tribunal as to his name at birth.
CONSIDERATION
In determining whether the Tribunal is satisfied as to an applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not and are not, to use Deputy President Nicholson’s words in Dhayakpa at [117], “established or undisturbed”. In such places the issuing of official documentation may be hampered by conflict, civil strife, and/or under-developed bureaucratic and administrative structures.
As such, it is recognised by the Tribunal that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either 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”.
In considering the issues arising in this application, the Tribunal is guided by the approach taken by Member Kennedy in CDNB at [9], who states:
… production of documentation to establish identity is not legally essential,
but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for … [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants…
In Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (Confidential) at [34], the Tribunal found that where the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of an applicant, an application is properly rejected. The Tribunal also found that evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of a person.[7] In Dhayakpa (at [117]) the Tribunal notes that the decision in Confidential was not authority for the proposition that a document is a requisite for the Minister to be satisfied as to identity. However the Tribunal accepted the case:[8]
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…
[7] Confidential and Minister for Immigration and Citizenship [2013] AATA 144, [32] - [35]. See also Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (Dhayakpa) at [98].
[8] Dhayakpa at [117].
Section 24(3) of the Citizenship Act is clear: “The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.”
The Supplementary Explanatory Memorandum to the Citizenship Act also states, “[t]here may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen”.
In the Tribunal’s view, and consistent with the authorities, a certificate of Australian citizenship itself becomes an extremely important identification document.
This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship, and in the prohibition against the approval of citizenship in circumstances where the decision maker is not satisfied as to the identity of an applicant.
As noted by Senior Member CR Walsh in Beyan at [38]:
the Tribunal should not countenance an outcome which could lead to such a certificate [of Australian citizenship] being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
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.
The Applicant has provided little documentary evidence to establish his identity, other than the Document for Travel to Australia and documents subsequently issued in Australia following his arrival here. While the Tribunal acknowledges deficiencies in the provision of birth certificates and other identity documents in both Sudan and South Sudan,
the Tribunal is not satisfied that the Applicant has availed himself of opportunities to secure evidence of identity which might reasonably be expected to exist, based on the available country information and other evidence before the Tribunal. Further, the Applicant has not taken reasonable steps to avail himself of documents or evidence which he has been advised to, to establish his identity, or evidence of his efforts to obtain documentation.
Moreover, the composition of the Applicant’s family, specifically, having a brother only six months younger than him, presents a considerable inconsistency that in the absence of evidence to the contrary creates doubts as to his identity. The Respondent submitted and the Tribunal accepts that the Applicant is not prevented from making another application for citizenship. Therefore, there will be an opportunity for him to make a further application once additional efforts have been made to establish his identity should he chose so.
Having regard to the significance of the grant of citizenship and considering the Applicant’s individual circumstances and the evidence available to it, the Tribunal is not satisfied as to the Applicant’s identity.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

26 July 2017, is affirmed
.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Members S Burford and
S Barton

.......................................................................
Associate
Dated: 11 November 2019

Date of hearing:

20 August 2019

Applicant:

Representative for the Respondent:

Self-represented

Mr Arran Gerrard

Solicitors for the Respondent:

Australian Government Solicitor