Beyan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 3980
•30 November 2023
Beyan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3980 (30 November 2023)
Division:GENERAL DIVISION
File Number: 2021/8834
Re:Bebe Beyan
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:30 November 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 1 November 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 33-year-old citizen of Liberia – pillars of identity – biometrics – documents – life story – Tribunal cannot satisfactorily ascertain the Applicant’s identity – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(1), s21(2)(h), 24, 24(1), 24(1A), 24(3), 52(1)(b), s101(b), 107
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
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rezaei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) AATA 3884
RRML and Minister for Home Affairs [2020] AATA 1654
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 2020
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
Attorney General’s Department, National Identity Proofing Guidelines (29 February 2016)
Australian Citizenship Policy (1 June 2016) Chapter 13
Department of Home Affairs, Revised Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act
Revised Citizenship Procedural Instructions (1 January 2019)
Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
L M Gallagher, Member
30 November 2023
THE APPLICATION
The Applicant seeks review of a decision made by a delegate of the Respondent on 1 November 2021[1] to refuse his application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) (Reviewable Decision).
[1] R1, T32.
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, T2, p 7.
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 (the 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 33-year-old[4] citizen of Liberia[5]. The Applicant arrived in Australia on 3 December 2008.[6]
[4] The Applicant claims he was born on 12 April 1990.
[5] R1, T4, p 49.
[6] R1, T4, p 49.
The Applicant arrived in Australia as an included applicant on Yassah Beyan’s application for a Refugee and Humanitarian (Class XB) visa (the Visa), received by the Department on 8 January 2007.[7]
[7] R2, document R1a), pp 1-2.
On the application form for the Visa:[8]
(a)Yassah Beyan, the main applicant, identified herself as having been born in Monrovia, Liberia on 26 July 1978.[9]
(b)Yassah Beyan identified her parents as Quaqua Sackie Beyan and Gayduo Beyan.
(c)Yassah Beyan identified the Applicant as both her “brother”[10] and her “brother-in-law,”[11] born in Monrovia, Liberia on 12 April 1990.[12]
(d)Yassah Beyan included the Applicant in the visa application as a member of her family unit.
(e)Yassah Beyan stated that both of the Applicant’s parents are deceased,[13] and that custody commenced in September 1990.[14]
(f)Yassah Beyan identified that the proposer of the visa, Mr Moriba Beyan, was born in Liberia on 15 March 1973,[15] and is her half-brother.[16]
(g)Yassah Beyan indicated that the Applicant had attended primary school from 1995 to 2002.[17]
[8] R2, document R1a).
[9] R2, document R1a), p 1.
[10] R2, document R1a), p 2.
[11] R2, document R1a), p 5.
[12] The “Document for travel to Australia” lists the Applicant as Yassah Beyan’s “sibling” (R1, T4, p 49).
[13] R2, document R1a), p 5.
[14] R2, document R1a), p 5.
[15] R2, document R1a), p 7.
[16] R2, document R1a), p 7.
[17] R2, document R1a), p 20.
On 11 September 2008, the Applicant was granted the Visa under the name Bebe Beyan.[18]
[18] R1, T4, p 49.
On 7 January 2009, Moriba Beyan was interviewed by Ms Cindy Wittenbaker, a Senior Investigator in the Australian Federal Police Identity Security Strike Team. In her statutory declaration,[19] Ms Wittenbaker declared, among other things, that during that interview, Moriba Beyan said:[20]
On 26 December 2008, after his siblings had been granted visas and arrived in Australia, they told [him] that the man who had been granted a visa under the name of Bebe Beyan was not their brother Bebe, but was in fact Oman, a cousin of Moriba’s siblings Yassah and Alphanso (their mother’s older sister’s son). Oman had applied for a visa under the name of Bebe Beyan because the real Bebe was too far away for a photo to be obtained.
[19] Declared on 15 December 2014: R2, document 5.
[20] R2, document 5, p 55 [4.6].
The Department of Immigration and Citizenship[21] (the Department) then proceeded to investigate the Applicant’s identity and considered cancelling his Visa under s 107 of the Migration Act 1958 (Cth) (the Migration Act).[22]
[21] As it was then known.
[22] R2, document R3, pp 35-42. On 9 August 2011, the Department decided to “not pursue possible cancellation of the Applicant’s Visa.
In his interview with Ms Wittenbaker on 7 January 2009, Moriba Beyan also said:[23]
(a)He arrived in Australia on 17 September 2004.
(b)His siblings contacted him via his mobile number. They obtained his mobile number from ‘Sam’ who Moriba had befriended when they were both in a refugee camp in Conakry, Guinea.
(c)After contact with his siblings, Moriba contacted the Department of Immigration to initiate visa application processes for his siblings, and supported his siblings by renting them a house in Conakry, paying for their food and bills, and sending them a camera to allow them to provide photographs that were required as part of the visa application process.
(d)His siblings sent him the photographs they had taken for their visa applications. He was not able to identify the man who had been granted a visa under the name of Bebe Beyan because Moriba had last seen Bebe (the Applicant) when Bebe was less than two years old. However, Moriba believed that the man in the photograph that his siblings identified as a photograph of Bebe Beyan was Bebe (the Applicant).
(e)Moriba believes that his siblings Alphanso, Mulbah and Yassah used their influence over the other family members to prevent them from telling Moriba that the man identified as Bebe Beyan was in fact not Bebe Beyan. Moriba also believes that Alphanso, Mulbah and Yassah told the other siblings that if they told Moriba that the visa applicant who identified himself as Bebe Beyan was not in fact Bebe, they would not be able to come to Australia.
[23] R2, document 5, p 55 [4.1] – [4.5], [4.7].
On 30 April 2009, Ms Wittenbaker interviewed the Applicant.[24] In the interview, the Applicant stated that:
[24] R2, document 2, p33.
·His full name is Moma Sumo Bebe BANNAH and his date of birth is 12 April 1990.
·There were two persons with the name of Bebe BEYAN.
·He had adopted the name Bebe BEYAN out of respect for his Aunt (Gayguo [sic] dec) who he had gone to live with. He stated he had lived with everyone in the compound for a long time and considered himself one of her sons.
·Gayduo is the mother of Yasser [sic] and Alphonso [sic].
·He is the cousin of Yasser [sic] and Alphonso [sic] and the rest of the family that came to Australia.
·His mother is Mary SUMO and his father is Amos BANNAH and claims they are in a refugee camp (Mamu) along with his [6] siblings.
…
·[At the time of applying for the visa,] [t]he family were unable to find the “real” Bebe BEYAN [who was the brother of Moriba] and as he [the Applicant] was known by the same name his photo was used and he attended the interviews and had the medicals [that is, the Applicant applied for the visa, for which Moriba was the proposer, in the place of the “real” Bebe Beyan].
·A definite answer as to whether Moriba BEYAN was aware of the substitution was not given [sic] Bebe [the Applicant] claimed that he [the Applicant] filled out the forms and sent them in [so] he [Moriba] should have known [about the Applicant’s substitution for Moriba’s brother Bebe Beyan]. I explained that Moriba had not seen Bebe since he was a small child and he relied on the family to provide him with the correct information. There was no response.
·“Bebe” [the Applicant] has spoken to his parents since he arrived in Australia and they are aware he is in Australia.
·In regards to [sic] the real Bebe Beyan, I was told that he does not know where he is and if he is in contact with anyone.
·“Bebe” has also provided a copy of his Liberian motor vehicle licence issued on 12 November 2008 in the name of Bebe BEYAN born 12 April 1990 which also has his photograph on it (copy attached).
On 20 May 2009, Ms Wittenbaker interviewed Moriba, which was recorded as follows:[25]
[25]R2, document 2, p 34.
Moriba Beyan stated that he was unaware that the person who cam [sic] to Australia on 3 December 2008 was not his brother Bebe BEYAN. He said that he only became aware of the truth on 25 December 2008 and that is when he tried to injure himself.
Moriba was [sic] he was able to reconnect with his family and he stated that he had received a call from one of his siblings. When asked how the family was able to obtain his phone number he said that he had given the number to a friend “Sam” who was to pass it on if any of the family tried to contact him. “Sam” gave the number to a pastor in Conakry.
Moriba said that he had sent money to the family in order to support them in a house so that they could all be together. He told the family to pay a years [sic] rent in advance. He said that all had been declared in his application for migration. When asked why he thought his brother had been left behind, he said that he was told because the brother could not give a photo. It was put to him why he thought that the person who came was his brother “Bebe” and he responded that he was told it was his brother by his family. Even though he had not seen him since he was two years old her believed them.
Moriba was asked why he thought his family did not say anything and he said the family believed them. Even though he had not seen him since he was two years old he believed them.
Moriba was asked why he thought that the family did not say anything and he said the family were told if Bebe didn’t come no one would come (nfd) [sic].
Clarification was also sought on the two children that Moriba BEYAN is the father. He stated that “Sam” contacted the mother of the children and told her their father was in Australia. Moriba thought that the children were dead when contact was made with the mother of the children, Kumar, the children were added to the application and Morbah [sic] was asked to bring the children to Australia.
Moriba was asked what he expected DIAC to do, where he stated that he wanted the imposter removed from Australia and his real brother to be [sic] replace him as he already had a visa that was being used by the imposter.
Further clarification of the situation was sought from Yasser and Alphonso. They made claims that Moriba knew that the person who came to Australia was not his brother but the cousin. When I asked how Moriba knew, both became very evasive with the answer and claimed that he “knew.”
It was put to them that the only reason Moriba knew that the person who was coming was Bebe, was because the family had not disclosed any information that may cause for the application to be refused. This was corroborated when during the interview information was not confirmed by Alphonso and Yasser that Gaydou [sic], one of the siblings, was pregnant and had not disclosed this fact to DIAC because everyone believed this would also cause a problem and she may have been left behind in the camp.
(Emphasis added.)
On 9 August 2011, a delegate of the Respondent decided not to pursue possible cancellation of the Applicant’s Visa on the basis that cancellation would mean he return to Liberia, which was likely to cause him ongoing hardship.[26]
[26] R2, document R3, pp 40-41. However, the delegate noted that if there was reliable evidence that the Applicant could be removed to Liberia with the support of his biological family or that he had lived in Liberia until about the time of the Visa application then he would be inclined to give the Applicant a s 107 notice (being a notice of intention to consider cancelling a visa).
However, in considering the matter, the delegate found the Applicant had not complied with the requirement in s101(b) of the Migration Act to give or provide correct answers in a visa application. Namely, the Applicant’s parents (as named by the Applicant in his 30 April 2009 interview with Ms Wittenbaker) were different to Yassah Beyan’s parents as stated in the visa application received on 8 January 2007:[27]
Was the visa holder the brother of Yassah? On the application form, Yassah declared her father as Qaqua [sic] Sackie Bayan and her mother as Yassah Gbaware Beyan.[28] The visa holder now declares his father is Amos Bannah and his mother is Mary Sumo. The visa holder and Yassah do not have the same parents. I consider that the visa holder is not the natural brother of Yassah. I consider that the answer “Brother” to question 3 was incorrect.
[27] R2, document R3, p 40.
[28]The Tribunal notes that the visa application form indicates Yassah’s mother as “Gayduo Beyan” (R2, document R1(a) p 7). In any event, a discrepancy remains.
On 19 December 2012, the Applicant applied for Australian citizenship by conferral under s 21(1) of the Act.[29] In his application, the Applicant listed Quaqua Sackie Beyan and Gayduo Beyan as his parents, being the same parents as Yassah Beyan.[30]
[29] R1, T3.
[30] R1, T3, p 25.
In response to the Department’s invitation to do so,[31] on 15 July 2013 the Applicant commented on an allegation that he had assumed a false identity when migrating to Australia, as follows.[32]
There is overwhelming evidence to prove that my brother, Mr Moriba Beyan, knew about my migration to Australia instead of my other brother who bears the same name as me; a fact which my brother and sister, Alphanso and Yassah also make very clear in the investigation conducted by Cindy.
…
The entire migration process for us took about two years before we could finally be granted Australian visa in Sept, 2008. Although he had left us for some times, [sic] Moriba knew everybody on that application; as he talked to us more than three times on average each week.
…
…[t]he allegation that I assumed a false identity to migrate to Australia under a false name is a misinterpretation of the fact and simply not true. I have always been known as Bebe Beyan, one of the sons of our late father, Mr Sackie Beyan.
[31] R1, T5 (h), p 75.
[32] R1, T5 (h), pp 75-76.
On 16 August 2013, a delegate of the Minister refused the Applicant’s application for citizenship because:
(a)He was not satisfied of the Applicant’s identity for the purposes of s24(3) of the Act; and
(b)He was not satisfied the Applicant was of “good character” for the purposes of s21(2)(h) of the Act.[33]
[33] R2, Document R4, pp 43-54; and R2, Document R6, p 69 [30].
On 15 October 2013, the Applicant applied to the Tribunal for review of the delegate’s decision dated 16 August 2013.[34] At the hearing of the Applicant’s application for review, Moriba gave evidence that:[35]
[N]ot all of his family members were included in the Visa Application. For example, there is another family member who is also called “Bebe Beyan” but that this family member has not been included as an applicant on the Visa Application. Moriba Beyan also stated that the Applicant (who he verbally acknowledged as being present in the hearing room) was the “Bebe Beyan” that he intended be included on the Visa Application as an applicant.
[34] Document R6, p 69 [30]. The Applicant did not provide additional supporting evidence or identity documents in support of his application. However, the Applicant did provide two statements detailing why he believed the decision dated 18 August 2013 was incorrect and that he was Bebe Beyan (R2, Document R6, pp 70-71).
[35] R2, Document R6, p 66, [22].
On 24 April 2015, the Tribunal affirmed the decision to refuse the Applicant’s application for citizenship on the basis of not being satisfied of his identity, detailing a number of inconsistencies including the Applicant’s relationship to Yassah and Moriba, who his parents were, and the filing of a bogus Red Cross document.[36]
[36] R2, document R6, pp 58, 72-75 at [39]-[33] and 78 at [56].
On 6 February 2014, the Applicant was granted a Resident Return Class BB Subclass 155 (BB-155) visa (resident return visa).[37]
[37] The resident return visa was granted whilst the Tribunal’s proceedings in relation to the Applicant’s application for citizenship were on foot.
On 28 January 2016, the resident return visa was cancelled on the basis that the Applicant had failed to comply with s 101(b) of the Migration Act in failing to inform the Department in regard to his true identity, his true relationship with the main applicant and the sponsor, and his family composition at the time of his application for the Visa. Aa bogus document (being a Red Cross card) was included in that application.[38]
[38] R1, T5(d), p 57 [2].
The Applicant appealed the delegate’s decision dated 28 January 2016. The matter was heard and the Applicant provided evidence along with four other members of his family. On 15 November 2016, the Tribunal found that a ground for cancellation did not exist and set aside the delegate’s decision[39], for the following reasons:
(a)The Tribunal was satisfied that the witnesses and the evidence provided was credible.
(b)The Tribunal found that Moriba intended, at the outset, to sponsor the Applicant in the group of 18 of his extended family members who he sponsored for settlement in Australia.
(c)The Tribunal accepted that Moriba had made a statement to the investigating and departmental officers in the heat of the moment and at a time where his instructions for the Applicant to resist contact or communication with his ex-wife had been ignored. The Tribunal considered Moriba’s statements could reasonably have been interpreted by the relevant officers to suggest that the Applicant was in fact not his biological brother and not a member of his extended family who he had sponsored. It noted that Moriba subsequently retracted those statements.
(d)Having regard to all of the evidence presented, the Tribunal was satisfied that the Applicant is in fact Moriba’s adopted brother and the Applicant had not misrepresented himself as an imposter.
(e)The Tribunal accepted that the Applicant is in fact the person who was intended to be nominated in the Visa application.
(f)The Tribunal examined a copy of the Red Cross card and accepted that it does look like the photographs have been substituted on the card because the wet stamp on the card is not visible covering the bottom left corner of the photograph. However, the Tribunal was satisfied that the Applicant is the Bebe Beyan referred to in that card based on the evidence that he was in fact identified as a refugee.
[39] The effect of this decision that the resident return visa was reinstated and is taken to have never been cancelled (pursuant to s114 Migration Act).
Current citizenship application
On 27 January 2017, the Applicant lodged a further citizenship application.[40] In support of his application, the Applicant provided a copy of the Document for Travel to Australia and Australian identity documents.
[40] R1, T4, pp 32-51.
In response to the question of whether the Applicant had any other immediate family members whose details had not been provided in the application, the Applicant responded “No”.[41]
[41] R1, T4, p 41, qu. 34.
On 1 November 2021, a delegate of the Respondent made the Reviewable Decision.[42]
[42] R1, T2.
On 22 November 2021, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[43]
[43] R21, T1.
In his application for review, the Applicant stated that he believes the Reviewable Decision is wrong because:[44]
I AM AN AUSTRALIAN PERMANENT RESIDENT WHO HAS LIVED HERE FOR OVER 10 YERAS. I DO NOT HAVE ANY CRIMINAL CONVICTION, MY CHILDREN TWO CHILDREN WHO WERE BORN HERE ARE AUSTRALIAN CITIZENS.
[44] R1, T1, p 4.
LEGISLATION 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.
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).[45] The CPIs provide guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, will generally apply what is contained in the Policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J).
[45] 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.[46] 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.
[46] As to the status of the Policy, see RRML and Minister for Home Affairs [2020] AATA 1654 at [105].
The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines).[47] 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.
[47] 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 CPI 16 further provides that[48]:
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.
[48] CPI 16 [11].
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.
CPI 16 provides further guidance at [5]:
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
· Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.
· Documents – reliable and secure identity documents as defined by the Security Standards for Proof of Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
· Life Story – an account of the events that happened to a person during their lifetime.
Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence-base to establish an identity.
The level of risk associated with the service being applied for determines the type of evidence required to assess a person’s life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not of all the pillars of identity are necessary to establish a person’s identity.
EVIDENCE
The matter was heard in Perth on 14 March 2023 and 4 April 2023. The Applicant was represented by Mr Nino Sekyere-Boakye of Allworld Migration Services. The Respondent was represented by Ms Madisen Scott from the Australian Government Solicitor. All appeared in person.
The Tribunal received the following evidence:
(a)Notification of approval for Australian citizenship for Audrina Younger Beyan, dated 5 October 2021 (Exhibit A1);
(b)Notification of approval for Australian citizenship for Audrey Kebeh Beyan, dated 5 October 2021 (Exhibit A2);
(c)International Refugee Committee School, Junior High Division, school report filed 21 September 2022 (Exhibit A3);
(d)Letter of International Refugee Committee School, Conakry Refugee School, dated 22 August 2022 (Exhibit A4);
(e)Conakry Refugee School Promotion Statement, dated 21 September 2022 (Exhibit A5);
(f)Applicant's submission, dated 21 December 2022 (Exhibit A6);
(g)Applicant's email regarding home loan, dated 24 December 2022 (Exhibit A7);
(h)Applicant's email regarding home loan contract, dated 24 December 2022 (Exhibit A8);
(i)Applicant's Application for First Home Owner Rate of Duty, Form FDA7, filed 9th March 2023 (Exhibit A9);
(j)First Home Owner Grant Approval letter, dated 10 February 2023 (Exhibit A10);
(k)Letter of Westpac regarding home loan approval, dated 30 January 2023 (Exhibit A11);
(l)Land purchase agreement, dated 23 February 2023 (Exhibit A12);
(m)Record of Certificate of Title, dated 23 February 2023 (Exhibit A13);
(n)Australian passport of Yassah Younger Beyan, filed 9 March 2023 (Exhibit A14);
(o)Australian passport of Evon Beyan, filed 9 March 2023 (Exhibit A15);
(p)Additional seven statements provided by hand at hearing, filed 14 March 2023 (Exhibit A16), being:
(i)Statutory Declaration of the Applicant, dated 19 April 2022;
(ii)Statutory Declaration of Moses Beyan, dated 31 January 2022;
(iii)Statutory Declaration of Moriba Beyan, dated 18 April 2022;
(iv)Statutory Declaration of Yassah Younger Beyan, dated 30 January 2022;
(v)Statutory Declaration of Meo Debbah Beyan, dated 20 April 2022;
(vi)Letter from Rufus Thulsay Keljeh, dated 20 April 2022; and
(vii)Letter from Kollie Bobo dated 11 April 2022.
(q)Respondent’s Section 37 T-Documents, labelled T1-T34, consisting of pages 1-222, filed 20 December 2021 (Exhibit R1);
(r)Respondent's Bundle, labelled R1-R13, consisting of pages 1-138, filed 11 November 2022 (Exhibit R2);
(s)Respondent’s Statement of Position, dated 13 June 2022 (Exhibit R3); and
(t)Respondent’s Statement of Facts, Issues and Contentions, dated 16 November 2022 (Exhibit R4).
At hearing, the Tribunal heard oral evidence from the following witnesses, who had earlier provided statements to the Tribunal:
(a)The Applicant (in person);
(b)Meo Debbah Beyan (by telephone);
(c)Yassah Younger Beyan (in person);
(d)Evon Beyan (in person); and
(e)Moriba Beyan (in person).
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.
CONSIDERATION
The issue for review by the Tribunal is whether the Tribunal is satisfied, at the time of its decision,[49] as to the Applicant’s identity for the purposes of s24(3) of the Act.
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.[50]
[49] See VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.
[50] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54]. It is insufficient for the Tribunal to believe there is a chance that the Applicant is who he says he is. Equally, it is unnecessary for the Tribunal to have a high degree of confidence that the Applicant is who he says he is.
If it cannot, the prohibition on the Applicant becoming an Australian citizen under s24(3) of the Act will apply and the Reviewable Decision must be affirmed.
The Tribunal takes guidance on this issue from 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[51] (Al-Hussaini) at [30]-[31])
[51] [2020] AATA 1267.
[37]In Confidential and Minister for Immigration and Citizenship[52] (Confidential) the Tribunal found:
[52] [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[53] (Dhayakpa), commenting on Confidential, observed:
[53] [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[54]; [sic] Al Temimi and Minister for Immigration and Border Protection[55]).
[54] [2017] AATA 1458.
[55] [2014] AATA 97.
[40]In Sinnathamby and Minister for Immigration and Border Protection[56]
[56] [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:[57]
[57] [2020] AATA 1267.
[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.)
Parties’ contentions
The Applicant is of the view that the Tribunal ought to be satisfied as to his identity.
The Respondent contends that the Tribunal cannot be positively satisfied of the Applicant’s identity in the requisite sense of being “actually persuaded”[58] for the following reasons:[59]
(a)The documents provided by the Applicant in support of his identity carry little weight in establishing his identity.
(b)The Applicant has not addressed the omissions or inconsistencies in his family composition and history that were identified in the Reviewable Decision.
(c)The Applicant has not addressed the inconsistencies and concerns which were the subject of the Tribunal’s finding that it was not satisfied of his identity in relation to his first application.[60]
(d)The recent information is unpersuasive in establishing the Applicant’s identity. The declarations are vague and do not provide any specific accounts or details which enable a life story to be built for the Applicant prior to his arrival in Australia.
(e)While it acknowledges the decision in relation to the Applicant’s resident return visa,[61] it does not consider that this is determinative of the Applicant’s identity. The Tribunal in Beyan came to a different view on the same topic (i.e., the Applicant’s identity) one year earlier on similar information. This demonstrates that each case must be determined one its own facts and circumstances.
[58] See fn 3.
[59] R3, [7]-[9].
[60] Referring to Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan) at [34]-[48].
[61] See [23] above.
As set out above, when assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity, being biometrics, documents and life story.[62]
[62] See [42] above.
Biometrics
The Applicant’s biometric data was captured on 16 August 2021 and the related Biometric Enrolment Report was produced on 17 August 2021.[63]
[63] R1, T27(a).
The Biometric Matches and Associated Images were obtained after the Applicant’s arrival in Australia. The Applicant submitted that he cannot provide his biometric data prior to migrating to Australia because “his countries of birth, countries of sojourn, UNHCR, Red Cross and OIM did not take his biometric data.”[64]
[64] A6, p 2.
The Tribunal considers that even so, the fact remains that the Biometric Matches and Associated Images were obtained after the Applicant’s arrival in Australia and therefore, bear no weight in verifying the Applicant’s identity. That is, there is no biometric information which the Tribunal can rely on to form the view that the Applicant is who he claims.
Documents
The Applicant has provided the following identity documents:
(a)Guinean Red Cross Identity Card;[65]
(b)Conakry Refugee Schools Records;[66]
(c)Guinean Local Drivers Licence;[67]
(d)International Guinean Drivers Licence;[68]
(e)IOM Cultural Orientation Certificate;[69] and
(f)Liberian Traditional Marriage Certificate.[70]
[65] R1, T5(a); R2 document R1(e).
[66] R1, T8(c).
[67] R1, T29(c).
[68] R1, T21.
[69] R1, T8(e).
[70] R1, T8(d).
In relation to these documents, the Respondent submitted that none of them can be considered reliable or of any weight in establishing the Applicant’s identity from birth.[71] In support of its submission, the Respondent noted the high prevalence of document fraud in the Economic Community of West African States (ECOWAS)[72] and that none of the documents have been shown to be the subject of ‘robust’ identity proofing processes.[73]
[71] R4, [38], [56]. The Respondent’s submissions in relation to each identity document listed in [56] above are set out in R4 [41]-[54].
[72] R4, [39] referring to the DFTA Thematic Report – Economic Community of West African States at [5.22], [5.23], [5.25] and [5.28].
[73] R4, [55].
The Respondent also emphasised that there is an absence of documentary evidence (if the Tribunal accepts the documents) prior to 2004 and in the 14 years prior to this, the Applicant has no documented history.[74]
[74] R4, [40].
The Respondent acknowledged that the Applicant was living in an area where record-keeping and registrations were not enforced or regulated, and the circumstances of fleeing the Ivory Coast.[75] The Respondent submitted that, however, one would expect that the Applicant would have some documentary records from this period, for example UNHCR documents, photographs or vaccination records.[76]
[75] R4, [40].
[76] R4, [40].
The Applicant submitted that the Respondent’s views on document fraud in the ECOWAS is a ‘prejudice generalisation,’ which is difficult to argue against and there is nothing the Applicant can do to convince the Respondent otherwise.[77]
[77] A6, p2.
At hearing, the Applicant gave the example that, in Ghana, for instance, when two people intend to marry, the two families conduct a thorough investigation on each family’s background. The Applicant also said his family was unable to provide any assistance to him in relation to the documents required for his citizenship application.[78]
[78] Transcript, p 27 [10]-[20].
Guinean Red Cross Identity Card
The Applicant said that he was aware of the issues that had been raised in relation to his Guinean Red Cross Identity card, namely that there is no wet stamp mark on his photo.[79] When asked, the Applicant said he could not recall the process of how his date and place of birth were provided in order to obtain the card and that his brothers had completed all the paperwork and applied on his behalf.[80] The Applicant said he could not recall when the photograph for the card was taken,[81] where he went to get it taken or who was with him at the time it was taken.[82] The Applicant said he attributes the error to the fact, in Africa, documents are handled manually and an error was made.[83]
[79] Transcript, p 31 [20] and p 32 [10]. The Applicant’s six other family members’ Guinean Red Cross Identity Cards that appear to have been stamped at the same time as his card show the wet stamp mark on the photo: R2, document R1, pp 29 to 30.
[80] Transcript, p 31 [25]-[40].
[81] Transcript, p 31 [40]-[45].
[82] Transcript, p 32 [5].
[83] Transcript, p 32 [10]-[25].
When asked why he was unwilling for the Respondent to contact the UNHCR to verify his Guinean Red Cross Identity card, the Applicant said that he could not allow this to happen given his view that the Respondent already had its “mind set” (that he be denied citizenship) and that this process had being going on for so long that he questions how sure he would be that in making this inquiry “they would ring the right people.”[84]
[84] Transcript, p 33.
The Respondent contended that the Tribunal should be cautious to accept the Guinean Red Cross Identity Card as a reliable document.[85]
[85] R4, [41].
The Tribunal has reviewed the available copy of the Applicant’s Guinean Red Cross Identity card along with the copies of the six other Guinean Red Cross Identity cards.[86] The Tribunal observes that the wet stamp on those six other cards, belonging to the Applicant’s family members covers the card itself as well as the photograph attached to it. The wet stamp om the Applicant’s card does not appear over his photo at all. The Tribunal accepts that the practice of stamping the card over both the card itself and the photograph attached to is for the purpose of fraud prevention.
[86] R2, document R1, pp 29 to 30.
The Tribunal has also considered that the Applicant has been unable to detail how he obtained the card, what information he provided in order to obtain it and that he turned down the opportunity offered by the Respondent to have the card verified by the UNHCR.
Therefore, the Tribunal attributes little weight to the Applicant’s Guinean Red Cross Identity card.
Conakry Refugee Schools Records
In his Visa application, the Applicant detailed that he had attended school from 1995 to 2002.[87] However, the Applicant also produced a record he claims to be from Conakry Refugee School confirming his attendance from 2005 to 2008[88] and an undated statement of results from Conakry Refugee School, which do not name the student to which the results relate.[89] The Applicant also provided a copy of a promotion statement dated 16 July 2006 certifying that a “Bebe Beyan” satisfactorily completed 8th grade and is promoted to 9th grade.[90]
[87] R2, document R1.
[88] A4.
[89] A3.
[90] A5.
At the hearing, the Applicant stated he had been unable to obtain any information from the schools he attended about his school attendance because when war broke out in Africa, they left everything to escape to Guinea.[91] When asked if he knew “Ansumana M J Kromah,”[92] the Applicant said he was a teacher at Conakry Refugee School, who he had known from the time he went to Conakry Refugee School.[93] The Applicant said Mr Kromah knew him at the time he attended the Conakry Refugee School, although he wasn’t the Applicant’s teacher per se.[94] The Applicant said that he had obtained Mr Kromah’s statement by contacting the schooling assistant.[95]
[91] Transcript, p 33 [45], p 34 [5].
[92] A4. Mr Kromah wrote in his letter that he knows a “Mr Bebe Beyan” who attended Conakry Refugee School from 2005 to 2008.
[93] Transcript, p 34 [5]-[10].
[94] Transcript, p 34 [25], [40]-[45].
[95] Transcript, p 34 [25].
When asked if he knew Kollie Bobo[96], who had also provided a statement confirming that he knows a “Bebe Beyan,”[97] the Applicant said Mr Bobo is a friend and they had lived in the same home in Conakry.[98]
[96] Mr Bobo is Chairman of the Liberian Community in Guinea. See A16.
[97] A16.
[98] Transcript, p 34 [25].
The Tribunal has considered the available records in relation to the Applicant’s schooling at Conakry Refugee School. The Tribunal is satisfied that the records indicate a “Bebe Beyan” attended Conakry Refugee School from 2005 to 2008. However, the Tribunal cannot be satisfied that the Bebe Beyan referred to in the records is the Applicant given that:
(a)The Applicant did not record his attendance at Conakry Refugee School in his Visa application.
(b)There is another individual who goes by the name of Bebe Beyan.
Indeed, at hearing, the Applicant questioned how one could, in any event, test the school records in circumstances where these records do not contain a person’s date of birth or their photograph, that being the practise in Guinea.[99]
[99] Transcript, p 21 [45], p 22 [5].
Therefore, the Tribunal attributes little weight to the Applicant’s Conakry Refugee School Records.
Guinean Local Drivers Licence
The Applicant has provided a copy of his Guinean Local Drivers Licence.[100]
[100] R1, T29(c).
In submitting that no weight can be placed on this document, the Respondent noted that in 2019, the Transport Minister of Guinea is reported to have stated:[101]
We have made statistics at the Ministry of Transport and they are staggering. 80 percent of Guinean licenses are fake because there is no safety element on them… and there are also a lot of false car registration documents.
…
We are in a country where anyone can register any vehicle without having to comply with all the administrative procedures required in this area.
[101] R4, [47].
At hearing, the Applicant conceded that his Guinean Local Drivers’ Licence shows its date of issue as being when he was 15 years old, when “you have to be 18 [years old] to get it.”[102]
[102] Transcript, p 15 [35]-[45].
In light of the matters raised by the parties in relation to the Applicant’s Guinean Local Drivers’ Licence, the Tribunal places little to no weight on it.
International Guinean Drivers Licence
The Tribunal has reviewed the available evidence regarding the Applicant’s International Guinean Drivers Licence,[103] being his related declaration that:[104]
We were refugees in Guinea so we were not required to provide any documents. All we had to do was complete a form, provide 2 passport photos and pay for the application fees.
[103] This licence appears at R1, T21.
[104] R1, T29(a).
The Respondent submitted that, accordingly, the information contained in the Applicant’s International Guinean Drivers Licence is self-reported and cannot be considered as a reliable or authoritative source of the Applicant’s identity.[105] The Tribunal agrees.
[105] R4, [49].
IOM Cultural Orientation Certificate
The Applicant has provided a copy of a Certificate issued to “Bebe Beyan” by the International Organisation for Migration on 16 November 2008.[106]
[106] R1, T8(e).
The certificate was issued after the Applicant’s visa to travel to Australia was granted.[107]
[107] The Applicant’s visa to travel to Australia was granted on 11 September 2008 (see [8] above).
The issue before the Tribunal is whether it is positively satisfied as to the Applicant’s identity. The Tribunal accepts the Applicant claims to be Bebe Beyan and that he has been known as (or that he has identified as being) Bebe Beyan in Australia. However, the Tribunal is also concerned with the Applicant’s identity in the years of his life prior to his arrival in Australia.
The certificate gives no indication of the Applicant’s identity prior to the Visa being issued and hence can be given no weight.
Liberian Traditional Marriage Certificate
The Applicant has provided a copy of his Liberian Traditional Marriage Certificate.[108] According to the Applicant, the certificate was issued based on his Australian identity documentation.[109]
[108] R1, T8(d), p101.
[109] R4, [54]; R1, T29(a). See also transcript, p18 [10]-[25] and p 100 [45].
The Applicant submitted that weight ought to be placed on the certificate because “it is not easy to purchase” and he “went through a thorough process to get it.”[110]
[110] Transcript, p20 [35]-[40].
The Respondent noted that information from UNICEF indicates that the information required for the registration of the marriage is ‘Date of birth or age of bride, Place of usual residence of bride, Religion of the bride, Date of birth or age of the groom, Place of usual residence of groom, Religion of the groom.’[111] The Respondent also noted that the couple must provide ‘proof’ of their age.
[111] R4, [53], referring to .
The Respondent submitted that while it accepts that is accepts the ‘generalness’ of the document and that it was issued by the Ministry of Justice,[112] it does not appear that any verification is undertaken, and the information is largely self-reported.[113]
[112] Transcript, p 21 [10]-[15].
[113] R4, [54].
This being so, the Tribunal considers that no weight can be placed on the Applicant’s Liberian Traditional Marriage Certificate.
Overall, the Tribunal is of the view that it cannot place any meaningful or substantial weight on the documents provided by the Applicant. None of these documents serve as reliable evidence of the Applicant’s identity. By the Applicant’s own evidence, the information provided in order to obtain these documents is largely self-reported. Further, it appears that no external verification was undertaken.
While the Tribunal appreciates that the available information indicates that in countries such as where the Applicant is from those robust verification procedures do not exist, the Applicant also opted against the option of having his Guinean Red Cross Card verified and hence against the option of potentially providing more reliable evidence to the Tribunal of his identity.
Life Story
Applicant’s evidence
The Applicant’s clamed date of birth is 12 April 1990,[114] which the Applicant said was the date his family told him he was born.[115] The Applicant said the date of birth recorded provided by his sister Yassah and recorded in his question form for Conakry Refugee School, being 5 April 1990, is incorrect and he does not think she would have provided that date.[116]
[114] Transcript, p 23 [40]. See, for eg, R1, T3, p 32.
[115] Transcript, p 23 [45].
[116] Transcript, p 24 [15]-[20], referring to R1, T25, p 165.
The Applicant stated his legal name is Bebe Beyan and this name was given to him by his aunty and “host mum”, Gayduo Beyan.[117] The Applicant said note records by Ms Wittenbaker in 2009 that he adopted the name Bebe Beyan out of respect for his aunt Gayduo[118] is untrue[119] and rather, Ms Wittenbaker recorded her understanding of what he had said.[120] The Applicant said that he did not tell Ms Wittenbaker that he had adopted his name, he does not know if there is a special meaning to his name cannot remember why he might have been given that name.[121]
[117] Transcript, p 27 [30]-[35].
[118] See [12] above.
[119] Transcript, p 28 [5]-[10].
[120] Transcript, p 28 [10]-[15].
[121] Transcript, p 28 [20]-[25].
The Applicant said there is another person in him family whose name is Bebe Beyan, who is his adopted brother.[122] The Applicant said he knows about the other Bebe Beyan because his family told him,[123] he is not contact with the other Bebe Beyan, he “can’t really tell” if his siblings are in contact with the other Bebe Beyan and “can’t really recall”
when the other Bebe Beyan was born other than to say that his brother told him that the other Bebe Beyan is older than him.[124]
[122] Transcript, p 30 [40]-[45].
[123] Transcript, p 30 [45].
[124] Transcript, p 31 [5].
When asked, the Applicant said he could not remember if he knew there was another Bebe Beyan at the time of his application.
The Applicant also said when he originally left Liberia in 1990, he cannot remember whether Moriba was there with the family or not, nor could he recall whether anyone had told him so.[125]
[125] Transcript, p26 [30]-[45].
When asked, the Applicant said he doesn’t talk often with his family (sometimes every six months, to a year) because there is no internet network where they live.[126] The Applicant said he can’t really remember the last time he made contact with his family (except for one sibling) or when he first made contact with his mother in Africa when he first came to Australia.[127]
[126] Transcript, p24 [40]-[45].
[127] Transcript, p24 [45] and p25 [5]-[10].
Evidence of Applicant’s claimed siblings
The Applicant’s claimed siblings have provided a number of statutory declarations.[128] Each of these statements are similarly or identically worded to each other both initially (dated in 2015) and subsequently (in 2022). In any event, the later statements generally repeat the declaration made in the earlier statements.
[128] See A16: Statutory Declaration of Moses Beyan, dated 31 January 2022; Statutory Declaration of Moriba Beyan, dated 18 April 2022; Statutory Declaration of Yassah Younger Beyan, dated 30 January 2022; and Statutory Declaration of Meo Debbah Beyan, dated 20 April 2022. See also R2, Document R8(a) to (j), pp 101 to 109.
As such, the Tribunal is disinclined to accept the matters declared by the Applicant’s claimed siblings in their statements at face value. Further, the Tribunal has considered the weight to be attributed to the matters attested to in these statements only in relation to those claimed siblings (plus the Applicant) who provided oral evidence.[129]
[129] See persons listed at [45].
Having done so, the Tribunal understands the Applicant’s life story to be as follows:
(a)In the Visa application, the Applicant was stated to be Yassah Beyan’s ‘brother’[130] as well as her ‘brother in law.’[131]
[130] R2, Document R1a), p 2.
[131] R2, Document R1a), p 5.
(b)In the same application, Yassah identified Moriba Beyan as her ‘half-brother.’[132]
[132] R2, Document R1a), p 7.
(c)When interviewed in 2009, Moriba identified the Applicant as his ‘brother,’ which is biologically inconsistent with Moriba being Yassah’s ‘half-brother.’
(d)When interviewed in 2009, the Applicant, Yassah and Alphonso all claimed that the Applicant’s was Yassah’s ‘cousin.’
(e)The Applicant currently claims he is Yassah’s ‘half-brother.’
(f)The Applicant gave evidence that he adopted the name ‘Bebe Beyan’ out of respect for his ‘aunt’ who he had gone to live with in the compound for a long time. The Applicant said he considered himself one of his ‘aunt’s’ sons. There is no evidence to suggest if and what name the Applicant was previously identified as.
(g)In the Visa application, Yassah Beyan report that her mother and father were deceased and that custody commenced in September 1990. Going by the Applicant’s claimed date of birth, he would have been five months old at the time he ‘adopted’ the name Bebe Beyan. Going by Yassah’s claimed date of birth of 26 July 1978,[133] she would have adopted the Applicant when she was 12 years of age. The circumstances of the Applicant’s adopted by Yassah are unclear.
[133] R2, Document R1a), p 1.
(h)When interviewed in 2009, the Applicant stated that his biological mother and father were alive and were with his six siblings in a refugee camp. The Applicant claims to be in contact with his parents.[134] The Applicant’s parents have not, however, provided any evidence regarding the Applicant’s date of birth, his adoption by Yassah, or how he came to go by the name Bebe Beyan as opposed to the numerous other names he claims to be known by.[135]
(i)At hearing, Meo Beyan gave evidence that the Applicant has always been ‘Bebe’ and it was not unusual for more than one person to be ‘called the same way.’[136] Meo Beyan gave evidence that (similarly), Bebe, the Applicant was also known by several other names, whatever was ‘convenient.’[137]
(j)According to Meo Beyan, the other Bebe Beyan, who did not migrate to Australia is also his (Meo’s) half-brother.[138] Meo Beyan said that the Applicant was “small,” “a couple of months” old when he came to live with him, although he was unsure of this.[139] Meo Beyan said that he thinks the other Bebe Beyan lives in Liberia, or between Guinea and Liberia, although he has not spoken to him in a year or two and “definitely could not locate him at the time of the application to Australia.”[140] When asked, Meo Beyan said that he thinks he became aware that the other Bebe Beyan was still alive after he (Meo) arrived in Australia.[141]
(k)Evon Beyan gave evidence that she knows there is another Bebe Beyan (not the Applicant), as she was told about him back home, but she doesn’t really know him and has not met him.[142]
(l)When asked at hearing, Moriba Beyan explained that he first came to Australia on 17 September 2004.[143] Moriba said that he first learned his family, including the Applicant, were in Guinea around February 2005 and it was his idea to sponsor them to come to Australia.[144]
(m)Moriba said that on receiving photos of the family members to progress the Visa application, he did not recognise the person identified as Bebe Beyan because the Applicant was a few months old when Moriba had left the family.[145] Moriba said he had relied on his family to tell him that the person in the photo identified as Bebe Beyan was the Applicant, and he had trusted them in doing so.[146]
(n)When interviewed in 2009, Moriba Beyan reported that he wanted the Applicant, to whom he referred as an ‘imposter,’ removed from Australia and his real brother to be replace him as he already had a visa that was being used by the Applicant.[147] At hearing, Moriba said that he did not tell (and later that he did not remember telling)[148] the interviewer that the Applicant was an ‘imposter’ but that the Applicant had betrayed him and was not his brother.[149]
(o)At hearing Moriba stated that he had said this in 2009 out of anger and frustration in relation to his wish that the Applicant does not speak to or have anything to do with his ex-wife.[150] Moriba said that he had made that statement to imply the Applicant was a traitor[151] and emphasised that the 2009 interview had been conducted when he was on admission in Fremantle Hospital where had been admitted for stabbing himself[152] and was in a ‘very very disturbed’ state of mind.[153] During cross-examination, Moriba stated that he had been interviewed twice, once at the hospital and then once at his home[154] and prior to that Ms Wittenbaker and her two colleagues had visited him in hospital ‘a few times.’[155] Moriba said that at the times he was questioned, he did not really understand that it was regarding his citizenship or sponsorship process.
(p)Moriba Beyan has since given evidence that the Applicant is his half-brother by adoption,[156] a member of the Beyan family and ‘not an outsider.’[157]
(q)At hearing, Moriba said that the reason there is only one Bebe Beyan included in the Visa application form is because the ‘other’ Bebe Beyan (not the Applicant) was missing at that time[158] and he had no idea of the other Bebe Beyan’s whereabouts.[159] When asked why other family members claimed to be missing were listed on the form and had “missing” written next to their name (compared to the ‘other’ Bebe Beyan, who was neither listed on the form and hence, also not declared “missing” on the form), Moriba said that the missing persons listed were known to be alive and missing somewhere in the Ivory Coast.[160] Moriba said that he had “no clue” of the other Bebe Beyan’s whereabouts.[161]
[134] See [96] above, for example.
[135] See R1, T29(a), including tribal names and nicknames.
[136] Transcript, p 46 [25].
[137] Transcript, p 46 [40]-[45].
[138] Transcript, p 47 [10]-[15].
[139] Transcript, p 49 [35]-[40].
[140] Transcript, p 47 [10]-[25], p 50 [20]-[30].
[141] Transcript, p 50 [35]-[40].
[142] Transcript, p 59 [15] and p 60 [25]-[30].
[143] Transcript, p 76 [15].
[144] Transcript, p 76 [35]-[45].
[145] Transcript, p 77 [15].
[146] Transcript, p 77 [10]-[15].
[147] See [13] above.
[148] Transcript, p 81 [10], [25].
[149] Transcript, p 79 [40]-[45]. See also transcript, p 80 [45], p 81 [5] and p 82 [45].
[150] Transcript, p 74 [25]-[45]. See also transcript, p 84 [20].
[151] Transcript, p 75 [5].
[152] Transcript, p 75 [5]-[25].
[153] Transcript, p 82 [25].
[154] Transcript, p 80 [35]-[40]. The Tribunal understands Ms Wittenbaker’s evidence to be that she visited Moriba on two occasions between December 2008 and January 2009: Transcript, p 86 [5]-[15]; R2, Document R6, p 65.
[155] Transcript, p 86 [35]-[45].
[156] Transcript, p 73 [45].
[157] A16.
[158] Transcript, p 78 [40]-[45].
[159] Transcript, p 79 [30]-[35].
[160] Transcript, p 79 [25]-[30].
[161] Transcript, p 79 [35].
The Applicant’s life story, as the Tribunal sees it, is filled with a number of gaps, changes of information and contradictions which cause it significant doubt and ambiguity. In particular:
(a)The Applicant has been identified by numerous names throughout the documentary evidence. The Applicant first declared he was adopted only when this issue was raised with him in relation to his possible Visa cancellation when confronted with Moriba’s statement that the Applicant was an imposter. The Applicant also claimed that he was born with name ‘Bebe’ and also took on this name at the time he was adopted.
(b)The documents that have been provided that relate to the Applicant’s life story, for example, school records relating to his educational background, and his identity card relating to his family composition, however, those documents cannot or have not been tested, their origins are unknown[162] and they have been based on self-reported or self-declared information.
(c)The Tribunal finds it implausible that Moriba Beyan would have raised the issue of the Applicant being an ‘imposter’ in 2009 unless there was at the least, some basis to it. While Moriba has since retracted this statement and given evidence regarding his recollection of what he did in fact say at the time and the context in which it was said,[163] the Tribunal finds it difficult to accept that a claim such as this would have been made in a moment of anger.
[162] For example, the Applicant was unable to say when the photograph for his Guinean Red Cross Identity Card was taken, who he was with at the time, who provided the information that appears on the card, or how he received the card. The Applicant had the opportunity to have the card verified by the UNHCR and declined.
[163] At hearing, Moriba Beyan confirmed he did not consent to the recording of the interview in 2009 between himself and Ms Wittenbaker being admitted as evidence in the present matter (see transcript, p 72 [15]). Therefore, the Tribunal has been unable to reliably confirm what comments Moriba did or did not make in 2009 regarding the Applicant.
The Tribunal is left in a position where it has no real confidence in the life story that has been provided and its interactions with the documentary evidence relied upon. The Applicant’s life story brings the Tribunal no closer to being positively satisfied of his identity and the oral accounts of the available witnesses, including the Applicant, do not relieve the uncertainties and inconsistencies in this matter regarding his family composition and his life prior to coming to Australia.
CONCLUSION
The Tribunal has found that the Applicant’s identity cannot be satisfactorily ascertained, rather it is far from clear.[164]
[164] See [42] above.
Based on the evidence before it, and for the reasons set out above, the Tribunal is not positively satisfied of the Applicant’s identity. 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 1 November 2021 to refuse the Applicant’s application for citizenship by conferral, is affirmed.
I certify that the preceding 104 (one-hundred and four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
............. [Sgd]...........................................................
Associate:
Dated: 30 November 2023
Dates of hearing: 14 March 2023 and 4 April 2023 Advocate for the Applicant: Mr N Sekyere-Boakye, Allworld Migration Services Solicitors for the Respondent: Ms M Scott, Australian Government Solicitor
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