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

[2021] AATA 3018

Beet Sayed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3018 (24 August 2021)

Division:                  GENERAL DIVISION

File Number:          2020/4283

Re:  Ghaleb Abdullah Chwaid Beet Sayed

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:24 August 2021

Place:Melbourne

The Tribunal sets aside and remits to the Respondent the reviewable decision of 6 July 2020, pursuant to s.43(1)(c)(ii) of the Administrative Appeals Act 1975 (Cth), with the direction that the Applicant satisfies the identity requirement under s. 24(3) of the Australian Citizenship Act 2007 (Cth).

........................................................................

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – refusal of application for citizenship by conferral – whether Applicant has satisfied identity requirement under s. 24(3) of Australian Citizenship Act 2007 – identity documents contained inconsistent information about Applicant’s ‘life story’  –   Respondent makes no challenge to identity on Biometrics or Documents pillars – Tribunal satisfied as to the Applicant’s identity

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)

Cases
Ahamod v Minister for Immigration and Border Protection [2019] AATA 7
Alimoradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) 2021 AATA 2054
Briginshaw v Briginshaw (1938) 60 CLR 336
CDNB v Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579

Secondary Materials
Attorney-General’s Department’s National Identity Proofing Guidelines 2016
Australian Citizenship Policy Statement

Revised Citizenship Procedural Instructions, Chapter 16

REASONS FOR DECISION

Mr A. Maryniak QC, Member

24 August 2021

1. The Applicant seeks review of the decision of a delegate of the Respondent to refuse the Applicant’s application for a grant of Australian citizenship by conferral, under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The sole issue for determination by this Tribunal is whether it is satisfied of the Applicant’s identity pursuant to s. 24(3) of the Act.

   BACKGROUND

3. The Applicant is a citizen of Iraq who first arrived in Australia on 3 August 2011.  He holds a Permanent Protection (subclass 866) visa, granted on 28 March 2013. On 7 May 2018 the Applicant included his five children in his application for Australian citizenship. On 5 November 2014 the Applicant lodged an application for a Partner visa to sponsor his spouse and children to come to Australia.

4. On 12 October 2016, the Applicant’s Protection visa was cancelled under s 109 of the Migration Act 1958 (Cth) on the basis that the Applicant had provided incorrect information. On 2 July 2017, the cancellation decision was set aside. The Applicant’s Partner visa application was granted on 26 April 2017. The Applicant informed the Tribunal that he has not worked since he has been in Australia.[1]

   [1] Transcript of Proceedings at p 23 [20].

   APPLICABLE LEGAL PRINCIPLES

5. The Tribunal, as presently constituted, has recently discussed the relevant legal approach to be taken to this identity issue in Alimoradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2054 at [8] to [22]. For ease of reference, such paragraphs are set out below:

   [8] Section 21(1) of the Act permits a person to make an application to the Minister to become an Australian citizen; and where such application is made, by s. 24(1), the Minister must approve or refuse the person becoming an Australian citizen.

   [9] The question for this Tribunal is whether it is satisfied as to the Applicant’s identity for the purposes of granting Australian citizenship under s. 24(3) of the Act. Section 24(3) of the Act contains a prohibition to conferral:

   The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

   [10] The term ‘identity’ is not defined in the Act.

   [11] The Tribunal notes that the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) 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.

   [12] The Attorney-General’s Department National Identity Proofing Guidelines 2014 (Guidelines), referred to in the Citizenship Procedural Instruction 16 (CPI 16), strengthen identity proofing processes and are also to be considered.

   [13] The Guidelines acknowledge [at 5.1] that:

   (a)  in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance; [2] and

   [2] National Identity Proofing Guidelines at [5.1.1].

   (b)   Alternative identity proofing processes that organisations MAY consider for these exceptional cases include… [a] detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[3]

   [3] Ibid at [5.1.3].

   [14] Three elements are relevant in assessing identity, known as the “three pillars of identity” in paragraph 4.4 of Chapter 16 of the CPI:

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 the 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.

[15] Chapter 16 provides guidance in relation to the policies to be applied when assessing a person’s identity under the Act. Paragraph 4.15 provides guidance when assessing pillar three – life story:

There may be cases where one pillar may be given more weight than the others. For example, cases were the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information.[4]

[4] CPI 16 at [4.15].

[16] CPI 16 at paragraph 4.16 states with regard to being ‘satisfied of a person’s identity’:

Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.[5]

[5] Ibid at [4.16].

[17] Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether he or she is persuaded, on the basis of the evidence, of a person’s identity. In other statutory contexts, judges have said the decision-maker must feel an actual persuasion of that matter; he or she cannot be satisfied as a result of a “mere mechanical comparison of probabilities independently of any belief in its reality”.[6] On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

[18] Officers should not merely collect information and documents, but consider the quality, plausibility and relevance of the information provided, in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person. Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions; that is, where there is conflicting evidence.

[19] The relevant policies are generally to be applied by the Tribunal, unless there is a cogent reason not to.[7]

[20] The relationship between the determination of identity and the grant of Australian citizenship is of fundamental importance. Substantial significance and privileges are part of such a conferral.

[21] A certificate of Australian citizenship is a legal document of considerable significance. 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 prerequisite 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.

[22] Further, in Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579 the meaning of the statutory term “satisfied” was considered in respect of Australian citizenship applications at [56]:

… 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…

[6] Briginshaw v Briginshaw (1938) 60 CLR 336, 361.

[7] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

CONSIDERATION

1. The hearing of this application took place on 22 July 2021. During the hearing, oral evidence was given by:

   (a)the Applicant (through an interpreter);

   (b)the Applicant’s sister, Jenan Al Saedy;

   (c)the Applicant’s wife, Rana Al Sahi (through an interpreter); and

   (d)the Applicant’s nephew, Ahmed Alohe.

2. The documentary evidence before the Tribunal consisted of:

   (e)T-Documents (‘R1’);

   (f)Supplementary T-Documents (‘R2’);

   (g)the Applicant’s witness statement dated 24 November 2020 (‘A1’);

   (h)the Applicant’s statutory declaration dated 12 June 2020 (‘A2’);

   (i)the Applicant’s statutory declaration dated 10 February 2015 (‘A3’); and

   (j)Witness statements of Jenan Al Seady, Rana Al Sahi and Ahmed Alohe, all dated 20 July 2021 (‘A4-6’).

3. The Applicant lodged with the Tribunal and provided to the Respondent statements from the Applicant’s sister, wife and nephew, which are now exhibits A4, A5 and A6, the day before the hearing.  The Respondent took no objection to the lodgement and tender of these statements and did not challenge the authenticity of the authors’ identities.[8] Each of the Applicant’s sister, wife and nephew gave oral evidence consistent with their statement and they were not cross examined. The essence of this unchallenged evidence was that the Applicant was who he claimed he was.

   [8] Transcript of Proceedings at p 8 [5].

4. Included in the documentary evidence are certified copies of the Applicant’s Iraqi Nationality Certificate, National ID Card and a copy of his Iraqi passport, all of which were provided with his citizenship application. The Respondent did not challenge the authenticity of these documents. [9]

   [9] Transcript of Proceedings at pp 9-10.

5. In addition, the Respondent conceded that no issue was taken with either of first two pillars of the Applicant’s identity, namely, biometrics or documents. The Tribunal could, by consequence, ‘put a tick’ against those two pillars regarding the Applicant’s identity.[10]

   [10] Transcript of Proceedings at p 76 [15]-[20].

6. In light of the above, the Respondent accepted that the only task for the Tribunal was to look at the inconsistencies in the Applicant’s ‘life story’ and then balance those against the remaining evidence before the Tribunal. Such evidence clearly supports the Applicant’s identity as claimed.

7. As to inconsistencies in the name of the Applicant, the Tribunal accepts that these are adequately explained as translation errors and finds accordingly on the evidence.[11]

   [11] Transcript of Proceedings at p 9.

8. The other inconsistencies in information given over time by the Applicant, relied upon by the Respondent, related to the correct number of children of the Applicant, their gender, their dates of birth, his wife’s date of birth, and the date of the Applicant’s marriage.[12]

   [12] Transcript of Proceedings at p 10 [20].

9. The Tribunal accepts the Applicant’s explanation, given during oral evidence, as to the inconsistencies regarding the number and gender of the Applicant’s children (the Applicant has a nephew who he considers a son) and finds that these do not detract in substance from the Applicant’s ‘life story’.

10. After considering the remaining inconsistencies as to dates of birth and marriage, even though not adequately explained (as discussed below), and balancing them against the substantial body of unchallenged evidence as to the Applicant’s identity as outlined above, the Tribunal is satisfied, on the evidence before it, as to the Applicant’s identity for the purposes of s. 24(3) of the Act. The Tribunal is of the opinion that such inconsistencies are not significant enough when balanced against the preponderance of evidence which clearly establishes the Applicant’s identity. This opinion is underscored by the fact that the Respondent did not challenge such supporting evidence and stated that both the Biometrics and Documents pillars of identity were not in issue.

11. However, of significant concern to the Tribunal is the fact that the Applicant’s evidence comprised conflicting explanations for such inconsistencies, one from a sworn statutory declaration dated 12 June 2020 (exhibit A2) and the other from his affirmed oral evidence during the hearing.[13]

    [13] Transcript of Proceedings at pp 40-47.

12. The Respondent at the outset informed the Tribunal that the issue of ‘good character’ of the Applicant was not before this Tribunal for consideration. Hence, it is not for the Tribunal to consider this development further, save to say that the state of the Applicant’s evidence in his attempts to explain the ‘date’ inconsistencies results in a real tension between the two explanations, insofar as it is difficult to avoid a conclusion that one explanation cannot be true.

13. It may be that this internal conflict in the Applicant’s evidence before the Tribunal will be relevant should the Applicant’s ‘good character’ be in issue at a future date, during his journey to acquiring Australian citizenship. This discreet issue is a matter for the Respondent to consider as a consequence of these Reasons for Decision.

    DECISION

14. The correct or preferable decision is that the reviewable decision of 6 July 2020 be set aside. Further, the matter is to be remitted to the Respondent for reconsideration pursuant to s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act1975 (Cth), the Tribunal being satisfied as to the Applicant’s identity.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Mr. A. Maryniak QC, Member.

..........[sgd]..............

Associate

Dated: 24 August 2021

Date of hearing:

22 July 2021

Advocate for the Applicant:

Solicitors for the Applicant

Mr Anthony Krohn

Vrachnas and Co Lawyers

Advocate for the Respondent:

Ms Sarah Hardie

Solicitors for the Respondent: 

HWL Ebsworth