Bayu and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 4126

Bayu and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4126 (2 December 2022)

Division:GENERAL DIVISION

File Number:2021/7596          

Re:Ayantu Tesfaye Bayu  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr M Evans-Bonner

Date:2 December 2022

Place:Perth

The Reviewable Decision is affirmed.

..............[Sgd]..........................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – eligibility – decision to refuse citizenship – whether Tribunal satisfied of Applicant’s identity – inconsistencies in Applicant’s documentation and life story – Applicant could make further attempts to obtain identity documents – Reviewable Decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24, 24(3)

CASES

Beyan and Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145
Shafari and Minister for Home Affairs [2019] AATA 808
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

Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act

Department of Foreign Affairs and Trade, DFAT Country Information Report South Ethiopia, 12 August 2020

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

2 December 2022

Overview

1. Ms Bayu has applied to this Tribunal seeking review of a decision by a delegate of the Minister made on 1 October 2021 (Reviewable Decision) (T10).

2. The Reviewable Decision refused Ms Bayu’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of her identity as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).

3. Consequently, the issue before me is whether I am satisfied as to Ms Bayu’s identity. For the reasons set out below, I have some doubts based on her documents and life story. I have therefore decided to affirm the Reviewable Decision.

4. Although this decision is likely to be disappointing to Ms Bayu, she can make another application for citizenship after she has made further attempts to obtain identity documents and to explain the inconsistencies in documentation provided to the Department of Home Affairs (Department).

5. In my conclusion below, I have made some suggestions about the steps Ms Bayu could take and the documentation she should obtain to have a better chance of success with any future citizenship application. However, I cannot comment on the likely success of any future application because it will be a new application that will be considered by a delegate of the Department.  

   Background

6. Ms Bayu was born in Ethiopia and travelled to Kenya in approximately 2014 or 2015. She arrived in Australia in March 2017 as the holder of a Refugee and Humanitarian (Class XB) Women at Risk (Subclass 204) visa (Visa).

7. She made an application for Australian citizenship by conferral on 8 May 2021 (T4; T6/99-100).

8. In support of her citizenship application, Ms Bayu submitted a form 1195 “Identity declaration” and copies of the following documents (T5):

   (a)her Western Australia Driver’s Licence (Driver’s Licence);

   (b)her Australian Government ImmiCard (Immicard);

   (c)an electricity account in her name;

   (d)a passport-type photograph; and

   (e)an advance booking notification made for Ms Bayu by the International Organization for Migration showing her travel itinerary to Australia (Travel Booking).  

9. In a letter from the Department dated 18 May 2021, Ms Bayu was invited to attend a citizenship interview on 13 July 2021. The letter requested that she bring identity documents to the interview and detailed the type of documents she should bring (T7/101-105).

10. On 14 July 2021, the Department wrote to Ms Bayu (T8/106-112) requesting further documents to confirm her identity including:

    (a)her full birth certificate;

    (b)Form 80 - “personal particulars for assessment including character assessment”;

    (c)National Accreditation Authority for Translators and Interpreters (NAATI) translation of documents;

    (d)school leaving certificate from Ethiopia Ministry of Education (if applicable) and/or school enrolment record;

    (e)hospital/medical records;

    (f)refugee documents;

    (g)other documents confirming her identity; and

    (h)a statutory declaration providing a detailed account of her life story if she was unable to provide identity or support documents (T8/106-112).  

11. On 17 July 2021, Ms Bayu provided further documents to the Department in support of her citizenship application (T9). These were:

    (a)a letter dated 22 January 2016 containing Ms Bayu’s photograph certifying that she is recognised as a refugee by the Commissioner for Refugee Affairs, Nairobi (Commissioner for Refugees Letter);

    (b)her National Hospital Insurance Fund membership card, Nairobi, valid from 31 March 2015 (Hospital Card);

    (c)an International Certificate of Vaccination or Prophylaxis for Ms Bayu showing a vaccination on 5 December 2016 (Vaccination Certificate); and

    (d)a GOK [Government of Kenya] proof of registration for Ms Bayu containing her photograph with a date of registration of 2 February 2015 (GOK Registration).   

12. On 1 October 2021, the delegate made the Reviewable Decision because, as I explained in the “Overview” above, the delegate was not satisfied of Ms Bayu’s identity.  

13. On 18 October 2021, Ms Bayu lodged an application in this Tribunal seeking a review of the Reviewable Decision.

14. With her application she lodged a statutory declaration dated 17 October 2021 which attached and declared that the following documents were true and correct (T2/26):

    (a)an incomplete Form 80 (T2/30-59); and

    (b)a copy of her birth certificate with a translation of that birth certificate by a NAATI accredited translator (T2/27-29).

15. Ms Bayu also lodged certified copies of the following documents (T2/14-25):

    (a)a copy of her Republic of Kenya, Refugee ID card which contains her photograph (Refugee ID card);

    (b)copies of documents she had already provided, namely her Hospital Card, Immicard, Drivers’ Licence, Vaccination Certificate, Commissioner for Refugees Letter and Travel Booking;

    (c)a letter from the Australian Government dated 1 February 2017 confirming Ms Bayu has been approved for travel to Australia as the holder of the Visa;

    (d)a UNHCR Asylum Seeker Certificate which contains Ms Bayu’s photograph, issued on 23 July 2015 (UNHCR Certificate);

    (e)an Australian Government Visa Detail Check for Ms Bayu; and

    (f)a letter from the Australian Government to Ms Bayu dated 1 February 2017 notifying her of the grant of her Visa.

16. On 17 January 2022, Ms Bayu lodged a bundle of Additional Documents (Exhibit 2) which included another incomplete Form 80, as well as a:

    (a)translated and untranslated letter from Ms Bayu’s mother dated 21 December 2021;

    (b)translated and untranslated letter from the Ethiopian Orthodox Tewahido Church dated 17 July 2019;

    (c)translated and untranslated letter from the Oromia Regional Government North dated 8 December 2021;

    (d)statutory declaration from Ms Bayu regarding “reasons why I could not have previous documents from Ethiopia” dated 10 January 2022;

    (e)letter from Pangani Police Station dated 7 December 2015;

    (f)statutory declaration from Ms Bayu’s father attaching a statement titled “My Testimony as the father of Ayantu Bayu on her identity issue” dated 14 January 2022;

    (g)letter from the Australian Government dated 16 May 2016 acknowledging Ms Bayu’s application for her Visa;

    (h)letter from the President of the Oromo Community Inc dated 13 April 2016; and

    (i)Certificate of Australian citizenship for Ms Bayu’s father dated 31 October 2013.   

    The hearing

17. I heard this application on 17 May 2022 at the Perth Registry of the Tribunal. The hearing was conducted by Microsoft Teams. Ms Bayu was assisted by her father who acted as her support person during the hearing. Ms Bayu gave evidence at the hearing with the assistance of an Oromo interpreter. Ms Jones-Bolla of Sparke Helmore Lawyers appeared for the Respondent.

18. The following documents were admitted into evidence:

    (a)“Applicant’s statement of law, fact, issue and contention” dated 24 March 2022 (Exhibit 1), admitted into evidence because it contains evidence from Ms Bayu;

    (b)Ms Bayu’s “Additional Documents” filed 17 January 2022 (Exhibit 2);

    (c)Section 37 T-Documents, labelled T1 to T12, comprising pages 1 to 156, filed 11 November 2021 (Exhibit 3); and

    (d)Supplementary T-Documents, labelled ST1 to ST6, comprising pages 1 to115, filed 4 March 2022 (Exhibit 4).

19. Prior to the hearing, the Respondent filed a Statement of Facts, Issues and Contentions dated 4 March 2022.

    Legislative and policy Framework

    Legislative provisions

20. Section 24 of the Citizenship Act provides, in part, that:

    (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).

    (Notes omitted.)

21. Section 24(3) of the Citizenship Act states that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”.

22. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (which became the Citizenship Act) explains that there is no discretion available to either the Minister, or any other decision-maker, to grant citizenship unless that decision-maker is satisfied of the identity of an applicant. In the absence of that satisfaction, the application must be refused:

    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.

    Decision-maker to be “satisfied of the identity of the person” at the time of the decision

23. In VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [42], Banks-Smith J confirmed, in the context of character in s 21(2)(h) of the Citizenship Act that, “the Tribunal is to consider whether it is satisfied as to the good character of the applicant as at the time of its decision and having regard to relevant evidence available to it at that time”.

24. The same can be said for identity. That is, I must be satisfied of the identity of Ms Bayu at the time of making my decision having regard to the evidence before me.

25. In BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, O’Bryan J explained, also in the context of character in s 21(2)(h) of the Citizenship Act, at [54], that: “The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities”. However, His Honour continued to explain, at [55], that:

    The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.

26. Again, the principles in this passage are also applicable to identity.

27. I agree with the following summary of the above principles, and their application to identity under s 24(3) of the Citizenship Act, by Member East in Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145 at [16]:

    The issue for review by the Tribunal is whether it is satisfied at the time of its decision as to the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act. For the Tribunal to be so satisfied, it needs to reach an affirmative belief as to the Applicant’s identity, rather than apply an evidentiary burden of proof, such as the balance of probabilities.

    (Footnotes omitted.)

    Policy and caselaw concerning identity

28. Identity is not defined in the Citizenship Act. Some guidance with respect to identity can be found in the Revised Citizenship Procedural Instructions which have been produced by the Department to help guide decision-makers.

29. The importance of establishing a person’s identity in applications for citizenship by conferral has been discussed by the Tribunal in decisions such as Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan) and Shafari and Minister for Home Affairs [2019] AATA 808 (Shafari).

30. In Beyan, Senior Member Walsh stated at [38]:

    ... 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.

31. Relevantly to Ms Bayu, who came to Australia as the holder of a humanitarian visa, in Shafari, Senior Member Morris stated at [55]:

    The steps taken to establish identity under the Migration Act 1958 (Cth) for visas are not the same as those under the Act and set out in the Citizenship Policy. This is necessarily a ‘higher bar’ to meet because of the privileges and responsibilities that flow from the grant of Australian citizenship.

32. “CPI 16 – Assessing Identity under the Citizenship Act” (CPI 16) explains, at [4], that, “[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”. 

33. CPI 16 provides at [11]:  

    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 holistically.

34. CPI 16, at [5], identifies three pillars of identity to be used when assessing identity. They are biometrics, documents and life story:

    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.

35. CPI 16 at [5] continues to state:

    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.

36. In other words, it may be inadequate to rely on a single pillar to establish a person’s identity and a decision-maker should consider each pillar of identity to comprehensively test and evaluate a person’s claims about their identity. Indeed, CPI 16 states at [11] that, “[w]hen assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent.” However, as the excerpt from CPI 16 at [5] above indicates, it may be possible for the decision-maker to be satisfied of a person’s identity based on less than three pillars being satisfied. For example, two pillars may be satisfactory to establish identity depending on the strength of the evidence before the decision-maker.

37. An applicant may have minimal, if any, documentation and may have difficulty trying to obtain documentation from overseas after they have come to Australia, depending on where they are from and their circumstances. Nevertheless, it may still be possible to establish identity to the satisfaction of the Tribunal, having regard to the other pillars of identity such as biometrics and life story.

38. However, an applicant will be expected to make efforts to obtain relevant identity documents which might reasonably exist. This was explained by Deputy President the Hon R Nicholson in Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa) at 175, [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.

39. Similarly, in YMPL and Minister for Immigration and Border Protection [2017] AATA 1458, at [34]-[35], Member Warner applied Dhayakpa as follows:  

    Relevantly, the test for establishing identity is outlined in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 where the Honourable R Nicholson, Deputy President was satisfied that the applicant in that matter had established his identity to the best of his ability. The Deputy President stated at [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”.

    Having carefully considered the evidence and the relevant circumstances, the Tribunal is reasonably satisfied that YMPL’s identity is that which he claims it to be.

    Consideration

40. I will now consider the evidence concerning Ms Bayu’s identity that is before me against the three pillars of identity.

    Biometrics

41. There are some biometrics, with several of Ms Bayu’s documents containing her photograph. These comprise identity documents issued in Kenya, namely the Commissioner for Refugees Letter, her Hospital Card, GOK Registration, Refugee ID card and her UNHCR Certificate. There are also Australian issued documents containing her photograph, namely her Driver’s Licence and Immicard. However, Australian identity documents are given minimal weight because they do not assist to establish a person’s identity from birth, or indeed for any period prior to arriving in Australia. That is, they are not feeder documents with an unbroken link to primary identification documents.   

    Life story

1. There is some evidence from Ms Bayu and her father about her life story. Ms Bayu’s evidence was that she was born in Ethiopia on [redacted]. She was born at home and baptised at the local Church. She attended primary school, secondary school, and post-secondary school in Ethiopia (transcript/24). She has five siblings. Two siblings have the same mother and father as Ms Bayu. They are a brother who lives in Australia and a sister who lives in Ethiopia. She also has three half siblings through her mother who live in Ethiopia (ST2/30; transcript/46-47).

2. Ms Bayu’s evidence was that she was separated from her father when she was six years of age and did not see him again in person until she arrived in Australia in 2017 when she was 27 years old. She spoke to him in 2009 but only recommenced proper communication with him in approximately 2012 or 2013 (transcript/49). Her father gave evidence at the hearing that he was present for her birth and named her “Ayantu” which means “new hope”, but within a month he went away for work and so they were separated between 1995 and 2017 (transcript/58-59). He agreed that they spoke on the telephone again in 2009. Ms Bayu’s father said that after her birth he financially supported her and visited many times (transcript/57).

3. Ms Bayu started working as a teacher at Abdisa Aga elementary school (ST2/49) in Ethiopia in 2009 when she was 20 years old (transcript/30) and worked as a teacher for approximately five years (transcript/25). This, according to Ms Bayu, was the first time that she received an identity document in the form of an employment ID card from the school she worked at. She said she did not have a National ID card and that she only needed her employment ID card in Ethiopia.

4. At the hearing Ms Bayu said that she had been detained in a military camp in Ethiopia on two occasions (transcript/35-39). The first occasion was in 2013 when she was imprisoned for two weeks, and the second occasion was in 2014 where she was detained for half a day after a student uprising before escaping and fleeing to Kenya. However, in an earlier written statement Ms Bayu had written that she had been detained for six months (ST2/49). When asked about this inconsistency at the hearing Ms Bayu said that whether it was two weeks or six months, that the Australian government had recognised her claims. When asked about the inconsistency again, Ms Bayu she had someone else help her complete the forms for immigration because she could not understand or speak English (transcript/40-41).

5. She then stated that she had also been imprisoned in Ethiopia for six months in 2012 (that is, there were in fact three periods of imprisonment or detention). However, Ms Bayu had not previously disclosed this in any of her forms or statements. She explained that “I didn’t want that to mention in my application because it doesn’t have direct relation to my visa application” (transcript/41). She then added that she forgot to include it (transcript/42). This omission continued through to Ms Bayu’s Form 80 (in Exhibit 2, question 19) where she did not disclose a break from her employment in 2012 when she was allegedly in prison (transcript/43).

6. Ms Bayu said that she left Ethiopia to “save my life” (Exhibit 1). She lived in Kenya as a refugee but said that she became a victim of violence there and that she was targeted by Ethiopian security agencies. Her father, an Australian citizen, helped Ms Bayu apply to come to Australia. When she came to Australia in 2017, she studied English and obtained work in “the hospital and community setting” (Exhibit 1).

7. There are other inconsistencies in some of the forms that Ms Bayu has completed that make parts of her life story unclear. In question 17 of her Form 80, Ms Bayu stated that she left Ethiopia and began residing in Kenya in February 2015 (T2/35). However, in her citizenship application she stated that she resided in Ethiopia until 24 October 2014 (T4/69). In her citizenship application, Ms Bayu listed four siblings (T4/73-75), however did not include her youngest sister, B, who was born in 2009 (transcript/48).

8. There are also inconsistencies concerning her residential addresses in her citizenship application, when compared to her Form 80. Ms Bayu listed addresses from 12 January 2018 to 18 April 2019 and 15 February 2020 to 14 March 2021 (T4/67-68) that are not listed on her Form 80. In her Form 80 she said that she lived at another address from October 2018 to November 2020. However, her citizenship application states that in that time she lived at the address as well as two other addresses (T4/67-68; transcript/45-46).

9. Unfortunately, these inconsistencies in Ms Bayu’s life story raise some doubts about her identity and require further clarification.

   Documentation

10. Ms Bayu’s evidence at the hearing was that she was robbed in Kenya in 2015 and that her bag containing her employment ID card (from the school where she had worked) was stolen. Her evidence was that she did not have or need a National ID card because she only needed her employment ID card. She said that she was issued with this ID card in 2009 when she was 20 years of age and commenced working as a teacher. Ms Bayu’s evidence was that she was not able to take any of her school certificates because she fled Ethiopia with what she had on hand at the time (transcript/27-30).

11. Unfortunately, there are some inconsistencies between the evidence Ms Bayu gave about this incident at the hearing and in her statutory declaration dated 10 January 2022, and the report from the Pangani Police station dated 7 December 2015. That police report states that Ms Bayu “was assaulted by three persons unknown to her and managed to run away from them” (Exhibit 2). However, in her statutory declaration dated 10 January 2022, Ms Bayu stated that:

    On the 12.09-2015 [9 December 2015] I was approach and assaulted by unknown group of men on my way back from a shop. They snatched my purse which had my ID and other personal items. They left me for dead and took off with my items. I managed to go to Pangani Police station and reported the incident …

12. The letter from the police does not record that Ms Bayu’s purse or any of her belongings were stolen. It does not state that she was “left for dead”, but rather that she was able to run away from her attackers.

13. When questioned at the hearing about whether she had made any attempts to obtain identity documents from Ethiopia, Ms Bayu stated that she had telephoned to ask for copies of her school and employment records (although it was unclear if she was referring to one or both records). Her evidence was that she was told that she needed to be physically present for the documents to be issued. However, there is no corroborating evidence that Ms Bayu has attempted to obtain these identity documents, such as copies of correspondence to and from the school she worked at. Also, Ms Bayu did not mention her telephone enquiry in her statutory declaration dated 10 January 2022. She simply stated:

    In Ethiopia documents are not issued to any one unless I am physically present & apply. As a result I couldn’t obtain any documents.  

14. I have some doubt about whether this telephone enquiry was made. It seems more likely that Ms Bayu believed that she had to be physically present to obtain the documents and so she did not make efforts to make enquiries to obtain them. It also did not appear to me that Ms Bayu had tried to obtain her National ID card because when I asked her about that she replied, “Unless I am physically there I can’t obtain” (transcript/26).

15. Ms Bayu was able to obtain an original and translated copy of a birth certificate in her name. In her statutory declaration dated 10 January 2022, she explained:

    My mother managed to get my birth certificate. As I was born & baptized in the community Church.

16. Ms Bayu’s mother provided a signed and witnessed declaration dated 21 December 2021 confirming that she had requested the church where Ms Bayu was baptised to provide her with an official letter so that she could obtain the birth certificate. There is also a letter from the Church verifying Ms Bayu’s date of birth as being [redacted] and her date and place of baptism.

17. Finally, there is a letter dated 8 December 2021 from the administrative office of the Oromia Regional Government North. This letter confirms that Ms Bayu’s mother had applied to this government authority for her birth certificate. It states that Ms Bayu’s mother had provided details of her birth and baptism to them, and that they have given her a legal document (which I infer is the birth certificate). Ms Bayu disagreed that the birth certificate was obtained based on self-reporting from her mother. She said in her evidence at the hearing that the translated letter from the administrative office was different to the original. She stated that it was “not entirely translated”, that there were “a lot of mistakes” in the translated document and that “the version you are reading in English, is totally different” (transcript/17-18).

18. A translated and untranslated copy of the birth certificate appears in the section 37 T-documents (T2/27-28). The translated document shows that Ms Bayu’s birth was registered on 28 July 2019 and that the birth certificate was issued on the same day. I note that the DFAT country information report on Ethiopia, at [5.42], states:

    Birth certificates are issued by the Vital Events Registration Agency (VERA) via the local administrative (kebele) office, within which jurisdiction the applicant was born. To obtain a birth certificate, an applicant under the age of 18 must provide national identification cards for both parents, two passport sized photographs and a notification of birth either from a hospital (if the birth took place in a hospital) or from the kebele office (if the birth took place at home). Both parents must be present at the registration. Applicants over the age of 18 must present their national identification card or passport, a completed application form and two passport-sized photographs. All applicants, regardless of age, must present a statutory declaration issued by a court and signed by three witnesses.

    Ethiopian law requires the registration of all children within 90 days of birth. In practice, only a small percentage of births are registered and children issued birth certificates (according to the UNDP [United Nations Development Programme], 3 per cent of births under the age of five are registered). Non-registration is particularly acute in rural areas, where most births occur outside of health facilities. …

19. This country information continues, at [5.46]:

    The format of birth and death certificates is not uniform and varies by state. All legitimate birth and death certificates contain a photograph of the applicant and wet seals of the issuing authority.

20. It is plausible that Ms Bayu’s birth was not registered at the time, as per the country information that only a small percentage of births are registered. However, the way the birth certificate was obtained is not consistent with the country information which requires an applicant who is over the age of 18 to present their national ID or passport together with a statutory declaration issued by a court and three witnesses. In her evidence at the hearing, Ms Bayu confirmed that she did not send her mother a passport or a national ID card to obtain the birth certificate (transcript/19).

21. I note that the letter from Ms Bayu’s mother was witnessed, as well as the letters from the Church and local administration, but this falls short of being a statutory declaration issued by a court and witnessed by three witnesses. There are also some inconsistencies in the spelling of Ms Bayu’s parents’ names in the translated and untranslated versions of the birth certificate, as well as against other documents. As such, I have some concerns about whether the birth certificate is an official document and I would suggest that the birth certificate requires official verification, if that is possible.     

22. Even if I accepted that Ms Bayu’s birth certificate was an official document, the next documents in time are Kenyan documents from some 26 years later, in 2015 and 2016 after Ms Bayu relocated there. Those documents include her Commissioner for Refugees Letter, Hospital Card, Vaccination Certificate, GOK Registration, Refugee ID card and UNHCR Certificate. It is problematic that there is a lack of documentation for the first 26 years of Ms Bayu’s life. Apart from the birth certificate, there are no other documents from her time in Ethiopia, such as school certificates, academic transcripts, employment-related documents such as payslips, her employment ID or hospital or medical records. That is, although Ms Bayu lived in Ethiopia for approximately 25 years, studied there for 10 years and worked there for five years, there are no documents to corroborate this. In summary, there is a gap from her birth until she is a 26-year-old woman living in Kenya. According to CPI 16, identity must be verified incrementally throughout a person’s life and considered holistically, which makes this 26-year gap problematic.   

23. Further, I do not accept that Ms Bayu has made sufficient attempts to try to obtain any documents from her time in Ethiopia which would assist to verify her life story.

24. Unfortunately for Ms Bayu, the issues that I have identified with her documentation mean that there is insufficient evidence about her identity from birth until she came to Kenya for me to be satisfied as to her identity.

    CONCLUSION

25. Based on the numerous issues I have identified concerning two of the three pillars of identity, namely Ms Bayu’s life story and documents, I am not satisfied of her identity for the purpose of 24(3) of the Citizenship Act.

26. For completeness, I accept that Ms Bayu’s father is being truthful when he says she is his daughter. However, as I have explained above, based on the limited documentary evidence from Ethiopia, together with the inconsistencies in Ms Bayu’s life story, I cannot be satisfied of Ms Bayu’s identity holistically and throughout her life.    

27. As I mentioned in the “Overview” section above, Ms Bayu can make another application for citizenship in the future. I would suggest that if she does, it would likely benefit her to explain some of the inconsistencies in her life history including the recording of the inconsistent information in her citizenship application form and her Form 80. I would recommend that she should provide evidence that she has made further attempts to obtain documents from Ethiopia such as school records or certificates, academic transcripts, vaccination/ medical records or employment records and ID. This evidence could include copies of email requests and responses from Ethiopian authorities. Ms Bayu also mentioned during the hearing that she thought there were issues in the accuracy of the interpretation of documents, including her birth certificate and the letter from the local administration. Although these documents appear to have been translated by accredited persons, if Ms Bayu thinks there are inaccuracies in them, it may be prudent for her to obtain another translation from a NAATI accredited translator.

28. I cannot comment on Ms Bayu’s chances of success in any new citizenship application because it will be for the Departmental delegate to assess the application and decide the application. Obtaining or attempting to obtain the above information may, however, assist to improve Ms Bayu’s chances of success with a future citizenship application.  

    Decision

29. The Reviewable Decision is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..................[Sgd].....................................................

Associate

Dated: 2 December 2022

Date of hearing:	17 May 2022
Representative for the Applicant:	Self-represented, with assistance from her father
Representative for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers