Baah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2023] AATA 78
•3 February 2023
Baah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 78 (3 February 2023)
Division:GENERAL DIVISION
File Number(s): 2021/2734
Re:Mercy Baah
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:L M Gallagher, Member
Date:3 February 2023
Place:Perth
The reviewable decision, being the decision of a delegate of the Respondent dated 28 April 2021 to refuse the Applicant’s application for citizenship by conferral, is affirmed.
...........[Sgd].............................................................
L M Gallagher, Member
Catchwords
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 24(3) - whether Tribunal satisfied of applicant’s identity – applicant claims to be a 41-year-old citizen of Ghana – pillars of identity – biometrics – documents – life story – Tribunal cannot satisfactorily ascertain the applicant’s identity - reviewable decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97.
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54]
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310.
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3884
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
Secondary Materials
Australian Citizenship Policy (1 June 2016)
Revised Citizenship Procedural Instructions (1 January 2019)
REASONS FOR DECISION
L M Gallagher, Member
3 February 2023
the application
The Applicant seeks review of a decision made by a delegate of the Respondent on 28 April 2021[1] to refuse her application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (Act) (Reviewable Decision).
[1]R1, T10.
The basis of the Reviewable Decision was that the delegate was not satisfied of the Applicant’s identity, applying s 24(3) of the Act.[2]
[2]R1, T10, p 56.
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of a decision under s 24 of the Act.
issue
The issue for review is whether the Tribunal is positively satisfied as to the Applicant’s identity,[3] for the purposes of s 24(3) of the Act.
[3]In the requisite sense of the Tribunal being “actually persuaded” of the Applicant’s identity. The state of satisfaction must be as the date of the Tribunal’s decision, not the Reviewable Decision, so new information supporting, or detracting from, an applicant’s case, may be taken into account. See Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) AATA 3884 at [89].
background
The Applicant claims to be a 41-year-old citizen of Ghana. The Applicant arrived in Australia on 3 December 2008.[4]
[4]R1, T10, p 56.
On 5 September 2012, the Applicant was granted a Permanent Spouse (Class BS) (Subclass 801) visa.[5]
[5]R1, T10, p 56.
On 13 November 2020, the Applicant applied for Australian citizenship by conferral under s 21(1) of the Act.[6] In support of her application, the Applicant provided various documents, including:[7]
(a)A certified copy of any entry in the Republic of Ghana Registry of Births, dated 30 August 2007;
(b)A Ghanaian passport issued on 12 June 2008; and
(c)Various identity documents obtained since her arrival in Australia, namely:
(i)A Security Industry Identification issued by WA Police;
(ii)a Western Australian driver’s licence; and
(iii)a Commonwealth Health Care Card.
[6]R1, T4. The Applicant included her minor-aged daughter in the application. The Applicant’s daughter is not a party to these proceedings.
[7]R1, T4, pp 25 – 29.
On 26 March 2021, the Department of Home Affairs (Department), requested the Applicant provide specific documents issued prior to 2007 within 28 days, namely:[8]
(a)A birth certificate, or other forms of documentation from birth such as hospital records, baptismal certificates or register entries;
(b)School certificates issued by a country other than Australia;
(c)Passports and/or other forms of documentation;
(d)Any additional evidence in support of the Applicant’s claimed identity;
(e)A “Form 80,” being personal particulars for assessment including character assessment; and
(f)A statutory declaration responding to ten questions set out in the Department’s request letter.
[8]R1, T9, p 51.
The Applicant did not provide the additional information, or request additional time, within the specific 28-day timeframe.
On 28 April 2021, a delegate of the Respondent made the Reviewable Decision.[9]
[9]R1, T10.
Later on 28 April 2021, the Applicant provided a response to the Delegate’s request for information.[10]
[10]See [8(e)]. R1, T11: the Applicant provided a Form 80 dated 28 April 2021, a copy of a Republic of Ghana Social Security Scheme Membership Certificate, a copy of a Republic of Ghana Driver Licence, a copy of a staff identification card for ‘Fiesta Royale Hotel’ in Accra and copies of extracts from passports issued to her by the Republic of Ghana on 12 June 2008 and 14 October 2020.
On 29 April 2021, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[11]
[11]R1, T2.
In her application for review, the Applicant claimed the Reviewable Decision was wrong because:[12]
I applied for Citizenship and I was invited to the Office with all original documents and other documents. The Officer was satisfied with what he had and did not ask for anything. I took the Citizenship test and passed [sic] he said I could go and wait for the citizenship Ceremony. As I await the ceremony he requested the same documents from my country of birth the time frame and the postal was a day late. I contacted the department on several occasions through phone calls to [sic] advice but unsuccessful.
[12]R1, T2, p5.
legislative and policy framework
The Preamble to the Act states that:
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.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’
Further, s 24 of the Act provides:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Accordingly, under s 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, that being the requirement of
s 21(2)(h) of the Act (see [17] above).
Section 24(3) of the Act relevantly provides that:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
‘Identity’ is not defined in the Act; however, it is addressed in the Australian Citizenship Procedural Instructions (CPIs).[13] The CPIs provide guidance to decision makers on the interpretation and exercise of the powers under the Act.
[13]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth); the relevant CPI was reissued on 01 January 2022.
The Australian Citizenship Policy (the Policy) relevantly provides the following guidance.[14] The Policy states, at Chapter 13:
The identity provisions prohibit the approval of a citizenship application 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 if they are not satisfied of the person’s identity.
[14]As to the status of the Policy, see RRML and Minister for Home Affairs [2020] AATA 1654 [105].
The Tribunal, as the decision maker, will generally apply policy such as that contained the Policy unless there are cogent reasons not to do so.[15]
[15]Minister for Home Affairs v G and Another [2019] FCAFC 79 [57]-[62].
The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines).[16] The Guidelines provide:
2.1.1A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
2.1.2 A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual-such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
[16]Attorney General’s Department, National Identity Proofing Guidelines (29 February 2016).
The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives.
Those objectives are in part 1:
1. To confirm the uniqueness of the identity in the intended context to ensure that
individuals can be distinguished from one another.
2. To confirm the claimed identity is legitimate to ensure the identity has not been
fraudulently created through evidence of commencement of identity in
Australia.
3. Confirm the operation of the identity in the community over time to provide
additional confidence that an identity is legitimate in that it is being used in the
community.
4. Confirm the linkage between the identity and the person claiming the identity
to provide confidence that the identity confirmed through objectives 2 and 3 is
not only legitimate, but that the person claiming the identity is its legitimate
holder.
5. Confirm the identity is not known to be used fraudulently to provide additional
confidence that a fraudulent (either fictitious or stolen) identity is not being
used.
The Revised Citizenship Procedural Instruction[17] No 16 – Assessing Identity under the Citizenship Act (CPI 16) provides that:
It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
[17]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 explained in relation to s 24(3):
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 three pillars of identity
CPI 16 provides further guidance at [4.4]:
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.
Table 3 – The three pillars of identity
Three pillars 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.Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.[18]
In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on departmental records are matched and confirmed.
[18]There may be cases where one pillar may be given more weight that the others. In such cases, the available pillar may become more significant when assessing the person’s identity: CPI 16 [4.12].
Case law on the identity requirement
Regarding the level of satisfaction required for a decision maker to be satisfied as to identity for the purposes of s 42(3) of the Act, the Tribunal is guided by the authorities considered by Deputy President Boyle in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 (Sakhi Zada):
Identity
[36] Senior Member CR Walsh in Beyan at [38] noted:
…As submitted by the Minister, a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
(see also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] (Al-Hussaini) at [30]-[31])
[19][2020] AATA 1267.
[37]In Confidential and Minister for Immigration and Citizenship[20] (Confidential) the Tribunal found:
[20][2013] AATA 144.
[34]I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.
[38]Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection[21] (Dhayakpa), commenting on Confidential, observed:
[21][2015] AATA 310.
[117]Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society.
The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.[118]I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
[39]The approach taken in Dhayakpa has been followed by Tribunals in a number of cases (see YMPL and Minister for Immigration and Border Protection[22]; [sic] Al Temimi and Minister for Immigration and Border Protection[23]).
[22][2017] AATA 1458.
[23][2014] AATA 97.
[40]In Sinnathamby and Minister for Immigration and Border Protection[24]
[24][2018] AATA 2579.
the Tribunal accepted that the applicant had lost his identity documents in the capsizing of a boat en route to Australia, but found that the inconsistencies in his other evidence and the bogus nature of some documentation provided in support of the citizenship application gave rise to a conclusion that he was not a person of good character.
[41]The Tribunal also notes the comments of Senior Member Puplick in
Al-Hussaini:[25]
[25][2020] AATA 1267. See also Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
[41]In Nguyen I came to a conclusion, affirming a denial of citizenship, in the following terms:
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[42] Similarly, in Fang, I said, in relation to the use of false documents:
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.
[42]Based on the evidence that has been presented, can the Tribunal be satisfied of the identity of the Applicant? If it cannot, the prohibition on the approval of the person becoming an Australia citizen under s 24(3) of the Act will apply and the decision under review must be affirmed.
(Original emphasis.)
evidence
The matter was heard in Perth on 14 December 2021. The Applicant was self-represented. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
Both parties appeared in person.
The Tribunal received the following evidence:
(a)A letter from M Plaza Hotel dated 9 July 2021, an M Plaza Hotel pay slip dated November 2006 and the Applicant’s Social Security statement as at 19 July 2021, filed on 20 July 2021 (A1);
(b)The Applicant’s baptismal certificate (unsigned and undated), filed on 2 August 2021 (A2);
(c)The Applicant’s bank statements (transactions dated 1 October 2002 to 30 June 2007) filed on 2 August 2021 (A3);
(d)The Applicant’s bank statements (transactions dated 5 January 2007 to 8 September 2014) filed on 2 August 2021 (A4);
(e)The Applicant’s Social Security Statement as at 19 July 2021 (duplicate), filed om 2 August 2021 (A5);
(f)A letter from the Applicant’s friend, Don Jenkins (Mr Jenkins) dated 28 July 2021 and filed on 2 August 2021 (A6);
(g)The Applicant’s bank statements (transactions dated 3 October 2014 to 30 June 2021) filed on 2 August 2021 (A7);
(h)The Applicant’s statutory declaration declared on 2 August 2021 and filed on 4 August 2021 (A8);
(i)Applicant’s statement (undated), filed on 4 August 2021 (A9);
(j)Applicant’s statutory declaration declared on 14 September 2021 and freedom of information request dated 6 September 2021, together filed on 5 September 2021 (A10);
(k)The Section 37 T documents (111 pages) (T1-T13) filed on 14 July 2021 (R1); and
(l)Respondent's Statement of Facts, Issues and Contentions (SFIC) dated and filed on 10 November 2021 (R2).
The Tribunal heard oral evidence from the Applicant. The Applicant did not call any witnesses to give evidence.
The Tribunal has taken into account the letter of support from Mr Jenkins.[26]
[26]A6.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Applicant’s evidence
The Applicant gave evidence, including at hearing and during cross-examination by
Mr Burgess.[27]
[27]Transcript, pp 9-41; 46-54; and documents listed at [30].
The Applicant gave evidence that she was born in Ghana in 1981. The Applicant said that she was young when her mother died.
The Applicant said that when she was in Ghana just prior to travelling to Australia, she personally attended the secondary school she had previously attended and obtained the available records as part of her related supporting documentation.
The Applicant said that it was only when she applied for citizenship in Australia that she was required to provide documentation regarding her birth and early years, including her early education. The Applicant said that she had previously told the Department that she had contacted the school she attended prior to her secondary schooling and was unable to obtain any information.
The Applicant also said that it was difficult for her two sisters in Africa to assist her in obtaining supporting documentation for her citizenship application, in circumstances where they were moving from place to place and where records were not kept on a computer system.
Regarding the Applicant’s Ghanaian passports,[28] the Applicant said that she had never lived in Albania, despite her residence indicating as such in her later issued passport.
The Applicant said she had thought the word written was “Australia,” not “Albania:”[29]
MEMBER: … [y]our passport says that your residence is Albania, have you ever lived in Albania?
APPLICANT: I got this passport from Ghana high commission in Canberra.
MR BURGESS: Have you ever been to Albania?
APPLICANT: I don't know where Albania is … I'm sure they were trying to write Australia which I don't know how it's got to [sic] Albania, this is the passport.
[28]The Applicant has provided evidence of two Ghanaian passports at R1, T11, p 84: Date of issue 12 June 2008 and p 85: Date of issue 14 October 2020.
[29]Transcript p 50 [10]–[20]
When asked about her schooling, the Applicant said:[30]
(a)She attended nursery/kindergarten from the age of five or six years, then classes one through to six, then junior high school.
(b)She started senior high school in 1997 and graduated from high school in 1999.
(c)She could not remember what time of year each school year finished, but she thinks it was in December.
[30]Transcript pp 15–17.
The Applicant said that she had had attended the same school from nursery/kindergarten through to the end of senior high school. The Applicant said that (in Australia) she had tried to obtain records from the school, by speaking to the “manager” however there is no record of this.
Regarding her declaration that:[31]
…[m]y childhood school certificate, Junior High and Senior High School certificates cannot be found. They are the only school certificates I have ever had before leaving Ghana to Australia in 2008.
the Applicant said she had taken steps to request these documents by looking up her school on Facebook and contacting the management personnel listed, however, nothing was sent to her.
[31]A8.
The Applicant said that she had wanted to contact the school directly herself, rather than have her sisters in Ghana attend the school and make the request on her behalf, because she and her sister “had a little issue.”[32]
[32]Transcript p 19 [45].
As to the school record the Applicant did provide,[33] being a record the Applicant described as a list of those persons (including herself) in her school year who have requested and taken their senior high school certificate from the school.[34] The Applicant said the record demonstrates the effort she went to in trying to contact the school, and in turn, what she received. When asked, the Applicant said she has no records in relation to her junior high school or her primary school, which she said are still operating.
[33]See A10.
[34]Transcript p 20.
The Applicant said that in 2000, she then completed a remedial course for a couple of months.
The Applicant said that between finishing high school in 1999 and when she started working in 2003 she supported herself with the help of her stepbrother, who was “helping on and off.”
The Applicant said that regarding the balance brought forward in her bank account in October 2002[35] she wasn’t working at this time but knew money had been deposited in her account.[36] As for the “cash deposit” figures that followed, the Applicant said that while she was working at those times, she had never earned those amounts (the figures being too large) and “wasn’t paid that much.”[37]
[35]See A3.
[36]The Applicant was unable to explain the particular transaction beyond that description.
[37]The Applicant was unable to explain 1) the numerous transaction descriptions including the word “salary” and 2) the cash deposits of large amounts during the period she claims to have worked in various hotels given her evidence that 1) she was paid cash in an envelope rather than a salary deposited into her bank account and 2) that in any event the amounts were far less than the amounts being deposited into her account in either case. The Applicant also gave evidence that the record in her bank account of having been paid an amount in 2007 from the Fiesta Hotel was incorrect as she was not working at that hotel during that year.
The Applicant said she started working in Ghana in 2003.
Regarding letter from the M-Plaza Hotel, which stated, among other things:[38]
It is my pleasure to recommend Ms. Mercy Opokuaa Baah for the employment with your organisation. I have known her for over four years (2002 -2007), during which time she worked as a waiter in our institution…”
[38]A1. Letter dated 9 July 2021.
The Applicant said that the author of the letter knew her from before she worked at the
M-Plaza Hotel and that she worked in different hotels in Ghana between the end of 2003 and 2007, namely:
(a)The Marina Hotel, for approximately two years;
(b)The Fiesta Royale Hotel, for a little longer than a year;
(c)The Miklin Hotel, for three of four months;
(d)The M-Plaza Hotel, which was the last hotel she worked at before she moved to Australia although she cannot remember for how long she worked there.
The Applicant said that she left Ghana in 2007, when she was 26 years old.
When it was put to her, the Applicant agreed that the author of the M-Plaza Hotel letter also forwarded to her a copy of the baptismal certificate,[39] and explained that she had asked him to obtain a copy as they had attended the same church in Ghana.
[39]A2.
When taken to her birth certificate,[40] the Applicant said that it had been registered on 30 August 2007 and not earlier, as she had requested a copy when preparing to travel to Australia. The Applicant said that she had never seen her original birth certificate, which would have been provided to her parents,[41] and that she did not know where her parents had kept it or what they had done with it.
[40]A7.
[41]The Applicant claims her parents are deceased.
When asked what steps she had taken to obtain her birth certificate and what she needed to provide to the registry in order to do so, the Applicant said she had attended the registry, made the request and “did not think” that or “was not sure” whether the registry checked any documents she had.[42]
[42]Transcript p 32 [5].
When asked, the Applicant said that she had not reviewed the documents she provided (the passports, bank statements, baptismal and birth certificates, school information and bank statements) before she provided them to the Department.
consideration
The issue for review is whether, at the time of its decision,[43] the Tribunal is positively satisfied as to the Applicant’s identity[44] for the purposes of s 24(3) of the Act.
[43]See VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.
[44]In the requisite sense of the Tribunal being “actually persuaded” of the Applicant’s identity. The state of satisfaction must be as the date of the Tribunal’s decision, not the Reviewable Decision, so new information supporting, or detracting from, an applicant’s case, may be taken into account. See Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) AATA 3884 at [89].
For the Tribunal to be so satisfied, it would need to reach an affirmative belief as to the Applicant’s identity, rather than apply an evidentiary burden of proof, such as on the balance of probabilities.[45]
[45]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54].
If it cannot, the prohibition on the Applicant becoming an Australian citizen under s 24(3) of the Act will apply and the Reviewable Decision must be affirmed.
The Tribunal understands that the Applicant contends that it should be satisfied as to her identity. The Applicant is of the view that she used her best endeavours to obtain the necessary identity documents, and provided all that she could to the Department.
The Applicant said that she has done the best she could to provide what was asked of her and that should be sufficient to satisfy the Tribunal of her identity.
The Respondent contended that the Tribunal cannot be positively satisfied of the Applicant’s identity in the requisite sense of being “actually persuaded”[46] for the following reasons:[47]
[46]See [4].
[47]R2 [21] – [41].
(a)The Applicant has provided limited biometric identifiers such as photographs, fingerprints or signatures prior to her arrival in Australia.
(b)The documents that the Applicant has provided in support of her identity[48] do not sufficiently establish her identity for the purposes of s 24(3) of the Act and should be given little or minimal weight because:
[48]Listed in R2 [22]; see also [30] above.
(i)The Applicant’s Australian identification documents are not ‘feeder documents’[49] with an unbroken chain linking to a primary official identity document and go no further than demonstrating what she has previously told the Australian government and Australian organisations.
[49]See CPI 16 [4.14] – Feeder Documents.
(ii)The Applicant’s copy of her birth certificate purports to be a record of an entry in the Ghanaian Register of Births. This suggests that the original document, presumably registered on or around the Applicant’s date of birth, remains in existence and could therefore be accessed by the Applicant. It is unclear what the birth certificate provided is based on.
(iii)In relation to the letter from the M-Plaza Hotel,[50] prior to that letter, the Applicant had provided no information about her previous employment as a waitress in Ghana. The letter attests to the Applicant working as a waiter, but also “in the office” and at times as a “he.” The author of the letter was unavailable for cross-examination.
[50]A1.
(iv)Much of the Applicant’s payslips are incomplete and do not line up with the figures in her bank statements. There is no salary recorded, no social security number and no bank account number. The addresses on the statements are not addresses that the Applicant has declared in the past.[51]
[51]See R1, T11, p 68.
(v)The Applicant’s social security statement dated July 2021[52] records the Applicant’s current employer as “Callwall Limited (Fiesta Royale Hotel),” when the Applicant’s current employer is Baaz Security.[53] The reason for the discrepancy is unclear.
[52]A1.
[53]R1, T11, p 68.
(vi)The Applicant’s baptismal certificate is unsigned and undated and it unclear when it was produced.
(vii)Mr Jenkins, who provided a letter of support,[54] did not know the Applicant prior to her arrival in Australia.
[54]A6.
(viii)The WhatsApp conversation transcribed between the Applicant and “Adonten,”[55] regarding the Applicant’s school documents, presumably provided to evidence her unsuccessful attempt to obtain them, appears disjointed and suggests that the Applicant had already taken her school certificates. It is entirely unclear who “Adonten” is and the transcription also suggests that, for a fee, the Applicant is able to apply for her school documents to be reissued. The conversation ends abruptly with any resolution and there is a complete lack of context to accompany it.
[55]A10.
(ix)As for the three-page document the Applicant claims to be a school document evidencing the year in which she completed her studies at school,[56] it is entirely unclear what that document actually is and it is not apparent what the “4 June 2008” date is referring to.
[56]A10.
(x)
In circumstances where the Applicant still has two siblings that reside in Ghana,[57] the Applicant has not availed herself of opportunities to secure evidence of identity which might reasonably be expected to exist.
[57]R1, T11, p 78. The Tribunal notes the Applicant’s evidence that she was unable to obtain assistance from her sisters to obtain documentation from the Ghanaian authorities due to their having “a little issue” [43].
In particular, there is a period of some 20 years between 1981 and 2001 in which there is no documentation attesting to the Applicant’s identity.
(c)The Applicant has provided minimal evidence about her life story prior to her arrival in Australia.[58] There is also no evidence from the Applicant’s siblings or acquaintances in Ghana who would be able corroborate her life story.
(d)In conclusion, and given the above, the state of the evidence is such that:
(i)While the Applicant has provided some documentation from Ghana, it is inconsistent with other information, or is missing crucial contextual information, such as how those documents were obtained, or why certain unusual dates are included on them;
(ii)Some documents are unsigned and undated, and for reasons which are not apparent, came from unusual sources, such as the baptismal certificate coming from the Applicant’s former employer;[59]
(iii)It is unclear what efforts the Applicant has undertaken to seek to obtain documents from Ghana, including whether she has made any contact with her siblings who still live there; and
(iv)There is minimal evidence demonstrating the Applicant’s life story in Ghana.
(e)Therefore, there are simply too many issues with the evidence, and too few details in the Applicant’s life story, to satisfy the Tribunal of the Applicant’s identity.
[58]For example, in her Form 80, the Applicant did not provide any information about her employment in Ghana: R1, T11, p 68.
[59]The Tribunal notes the Applicant’s evidence that the Applicant and her former employer attended the same church, being the church in which the Applicant claims to have been baptised.
As set out above, when assessing a person’s identity, the Department relies on the three pillars of identity, being biometrics, documents and life story.[60]
[60]See above para [28].
Biometrics
For completeness, the Applicant’s biometric data was first captured on 16 March 2021 when she presented for her citizenship test.[61] The Tribunal understands there were no previously held biometric records to enable any comparison.[62]
[61]R1, T10, p 59.
[62]R1, T10, p 59.
Documents
The Applicant’s claimed date of birth is 1981. The earliest identity document that the Applicant has provided is the bank statement containing entries from 2002. This leaves the Tribunal in a position where there is, at the least, a 21-year period where it needs to satisfy itself of the Applicant’s identity. The Department requested further evidence from the Applicant in this regard and the Applicant has indicated she had used her best efforts to provide such evidence.
The Applicant claims to have been born in Ghana in 1981. The Applicant has provided a copy of the registration of her birth from 2007, however, has been unable to explain with certainty any documents she provided in order to obtain this or the whereabouts of her original birth certificate. At best, the document is based on the Applicant’s evidence as to who she was at the time she obtained it. The Tribunal is of the view that because of this, and because it was not issued following the provision of any documents obtained prior to 2007, it cannot be relied upon as a ‘feeder’ document.
The Applicant’s school records are, in substance, a list of names entered into a register held in a book. The record provides no further information or context in relation to what it is or about the school the Applicant claims to have attended. The record of the Applicant’s name in this document was entered on 4 June 2008. However, the Applicant claims to have graduated senior high school in 1999. The Tribunal has not been presented with any evidence to enable it to explain or otherwise provide context to this discrepancy.
The Applicant’s current passport states she is a resident of Albania. The Applicant claims she has never been to Albania. Clearly, there is an error in this document and calls into question whether the Applicant’s other passport (or the documents provided in order to obtain it) contains any errors.
The Applicant’s bank statements demonstrate that between 2002 and 2007, large sums of money were deposited at various times. These deposits are inexplicable given the Applicant’s evidence regarding:
(a)where she worked over the years,
(b)when she worked there,
(c)the amount she was paid; and
(d)her being paid in cash rather than a salary that was paid into her bank account.
Further, the bank records contain no bank branch or account number, no social security number and the addresses on the statements are not addresses that the Applicant has declared as being hers previously. The Tribunal is of the view that the movement of funds in the bank statement the Applicant claims to be hers is inconsistent with the Applicant’s life story.
The document the Applicant claims is a payslip from the M-Plaza Hotel contains limited information; the branch and account number and social security number are again not visible and the salaried amounts do not match those in her bank account. The Applicant’s explanation that she was paid in cash also does not appear to match any deposited amounts in the statements provided.
Therefore, the Tribunal is of the view that it cannot place any meaningful or substantial weight on the documents provided by the Applicant.
Life Story
The Applicant gave evidence that she started working in hotels in 2003, which is inconsistent with the social security statement provided, showing that over 11 months in 2002 the Applicant earned a total salary amount of 2,156,000.00 Ghanaian cedi.[63]
The social security statement also shows that in 2006, the Applicant earned a total salary amount of 9,038,130.06 Ghanaian cedi over 12 months.[64] This is inconsistent with the Applicant’s evidence that she did not work for many months that year.[65]
[63]A5. At the present exchange rate (January 2023) that amount is over $200,000 Australian dollars.
[64]A5. At the present exchange rate (January 2023) that amount is over $1 million Australian dollars.
[65]See above para [50].
Further to her claimed hotel work, even if the Tribunal were to accept the Applicant’s letter from the M-Plaza Hotel as evidence of the Applicant having worked there for some time between 2003 and 2007, it does not serve to establish her identity prior to this date and is inconsistent with the evidence of her having been paid by the Fiesta Royale Hotel in April 2007.
As to her story regarding her schooling, the Applicant said that prior to completing senior high school in 1999, she completed three years of junior high school, six years of primary school and nursery/kindergarten. The Applicant has provided no documentary evidence of her schooling and her oral account and recollection was, at best, patchy. For example, the Applicant struggled to recall the month of the year that each school year would end, despite her evidence that the school started and ended during the same months each year, presumably for 12 years.
The Applicant has also provided no evidence of her remedial course undertaken after high school.
Whilst the Applicant’s baptismal certificate states she was baptised in December 1983, it is undated and not signed by anyone who would be in an authoritative position to do so.
The above matters further demonstrate the inconsistencies in the Applicant’s life story and its interaction with the documentary evidence relied upon.
This leaves the Tribunal in circumstances where it is unable to be positively satisfied of the Applicant’s identity at the present time. The uncertainties and inconsistencies presented in the Applicant’s evidence (and detailed above) are not relieved by any of the Applicant’s accounts and no other witnesses were made available for cross-examination.
Character references
For completeness, the reference provided by Mr Jenkins[66] attest solely to the Applicant’s character and does not address any matters relevant to her identity. Mr Jenkins has known the Applicant since 2014, several years following her move to Australia. Further, Mr Jenkins was not made available for cross-examination at the hearing. In the circumstances, and referring to the Policy,[67] very limited weight can be placed on this reference.
[66]A6.
[67]Extracted at [38] above.
conclusion
The Tribunal has found that the Applicant’s identity cannot be satisfactorily ascertained, rather it is far from clear.[68] Neither the available documents nor the Applicant’s life story serve to resolve the interrelated inconsistencies.
[68]See [28] above.
This leaves the Tribunal is a position where it is unclear on, or cannot satisfactorily ascertain the Applicant’s identity, such that it cannot approve the Applicant becoming an Australian citizen.[69]
[69]See [26] above.
Based on the evidence before it, and for the reasons set out above, the Tribunal is not satisfied of the identity of the Applicant. Accordingly, the prohibition under s 24(3) of the Act applies and the Applicant’s application for citizenship by conferral must not be approved. The Reviewable Decision must therefore be affirmed.
decision
The reviewable decision, being the decision of a delegate of the Respondent dated
28 April 2021 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
............[Sgd].......................................................
Associate
Dated: 3 February 2023
Date of hearing: 14 December 2021 Applicant: Self-represented Solicitors for the Respondent: Mr Ashley Burgess, Sparke Helmore
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