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

[2024] AATA 1824

Bonimpa and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1824 (19 June 2024)

Division:GENERAL DIVISION

File Number(s): 2023/2100

Re:Alain Bonimpa

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:19 June 2024

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.  

...[SGD].........................................................

Member W Frost

Catchwords

CITIZENSHIP – must be positively satisfied of applicant’s identity – evidence-based approach to establishing identity – ‘pillars of identity’ – inconsistent details – lack of biometric data – inconsistent documentation – inconsistent life story – orphan visa – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 29, 37, 43

Australian Citizenship Act 2007 ss 20, 21, 24, 50

Cases

Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

Beyan and Minister for Immigration and Border Protection [2023] AATA 3980

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808

Tella and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2115

Secondary Materials

Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Member W Frost

19 June 2024

INTRODUCTION

1. The Applicant, Mr Alain Bonimpa, was refused Australian citizenship by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) because they were not satisfied of his identity and that he was of ‘good character’, both elements being required to be met under the Australian Citizenship Act 2007 (Citizenship Act).

2. Mr Bonimpa applied for review by the Administrative Appeals Tribunal (Tribunal). The Tribunal has considered all of the material filed in this proceeding, including pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[1] For the following reasons, the Tribunal affirms the decision under review refusing to grant Mr Bonimpa Australian citizenship. This means that Mr Bonimpa’s application to the Tribunal is unsuccessful.

   [1] Exhibit 1-22.

   ISSUES

3. The issues in this proceeding were whether the Tribunal was satisfied:

   (a)of Mr Bonimpa’s identity, as required under subsection 24(3) of the Citizenship Act to approve him becoming an Australian citizen; and

   (b)that Mr Bonimpa ‘is of good character’, as required by subsection 21(2)(h) of the Citizenship Act, for him to be eligible to become an Australian citizen.

   BACKGROUND

4. In May 2014, Mr Bonimpa arrived in Australia on an Orphan Relative (subclass 117) visa.[2]

   [2] Exhibit 1, pages 126, 145 and 248; Exhibit 21, pages 1-88.

5. In May 2020, Mr Bonimpa applied for Australian citizenship by conferral.[3]

   [3] Exhibit 1, pages 124-152.

6. In July 2022, a delegate of the Minister refused Mr Bonimpa’s application for Australian citizenship because they were not satisfied of Mr Bonimpa’s identity or that he was a person of good character as required by the Citizenship Act.[4]

   [4] Ibid., pages 10-23.

7. In March 2023, Mr Bonimpa lodged an application with the Tribunal for review of the decision to refuse his application for Australian citizenship by conferral.[5] In June 2023, a differently constituted Tribunal granted Mr Bonimpa an extension of time to make his application for review pursuant to subsection 29(7) of the AAT Act.

   LEGISLATION & POLICY

   [5] Ibid., pages 1-9.

   Citizenship Act

8. Section 20 of the Citizenship Act relevantly states that a person becomes an Australian citizen if ‘the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen’.

9. Subsection 24(1) of the Citizenship Act states that if a person makes an application for Australian citizenship by conferral under section 21, the Minister ‘must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Subsection 24(1A) states that the Minister ‘must not approve the person becoming an Australian citizen’ unless the person meets the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.

10. Relevantly in this proceeding, subsection 21(2)(h) of the Citizenship Act states that a person is eligible to become a citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’.

11. Additionally, subsection 24(3) of Citizenship Act provides that:

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

12. For completeness, the Tribunal notes that subsection 52(1)(b) of the Citizenship Act permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.

    Citizenship Procedural Instructions

13. The Tribunal will generally follow policy guidance issued by the government in reviewing a decision, unless cogent reasons are demonstrated for it not to do so.[6] The Minister’s Department has issued Citizenship Procedural Instructions (CPI), which identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Citizenship Act.[7] The Tribunal is not aware of any cogent reasons why it should not apply the CPI in this proceeding.

    [6] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

    [7] Exhibit 1, pages 60-123 and Exhibit 22.

14. Chapter 16 of the CPI, titled ‘Assessing Identity under the Citizenship Act’, provides information on the legal requirements, related policy and procedures that apply when undertaking an assessment of a person’s identity for the purpose of the Citizenship Act (CPI 16).[8]

    [8] Exhibit 22.

15. CPI 16 notes that the identity provisions under the Citizenship Act ‘prohibit the approval of a citizenship application in cases where the delegate is not satisfied of the person’s identity’.[9] It further provides that to establish an identity with confidence, it is necessary to obtain and confirm information about a person and their claimed identity. This means ‘collecting quality information about a person (biometrics) and their claimed identity (biographical information contained in documents and a person’s life story)’.[10]

    [9] Ibid., page 2.

    [10] Ibid., page 3.

16. CPI 16 refers to the following three elements, known as the three ‘pillars of identity’, being relevant to the assessment of a person’s identity:[11]

    Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

    Documents – reliable and secure 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.

    [11] Ibid., page 4.

17. CPI 16 further relevantly provides that:[12]

    (a)in order to make an informed assessment of a person's identity, delegates must seek to establish a person's identity from birth using an evidence-based approach. 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; and

    (b)the onus is on the applicant to provide information or evidence to support their identity.

    [12] Ibid.

    EVIDENCE

18. The Tribunal has considered Mr Bonimpa’s written material provided in this proceeding in making its decision.[13]

    [13] Exhibits 2-20.

19. Mr Bonimpa gave evidence by video at the hearing and told the Tribunal that his sister was in South Africa for one or two months, at the same time that he was in that country, before she left for Australia. The fear of deportation back to Burundi led Mr Bonimpa to increase his age on a form in order to receive a letter to leave South Africa for Australia.

20. Mr Bonimpa said his home town of Bukavu in the Democratic Republic of the Congo (Congo) is close to Burundi, and he found himself in that new country after fleeing Congo.

21. Mr Bonimpa told the Tribunal that his parents are deceased, and he only has a sister in Australia, with whom he has a strained relationship. He said there was no point in him telling lies and wasting time in this proceeding.

22. Mr Bonimpa said calling elders in the African community ‘mother’ or ‘father’, was a cultural practice and did not mean that person was their biological parent. He would like the chance to become an Australian citizen like his children. Mr Bonimpa also told the Tribunal that he previously sent money to family members in Africa, but he no longer knows of their location. He did not realise that omitting to list these family members in his citizenship application would be a problem, and said he had not intentionally lied to the government by leaving them out.

23. Under cross-examination from the Minister’s representative, Mr Bonimpa said that he was born in Congo on 31 December 1994. He was referred to a translation from 24 March 2024 of what was purported to be his Birth Certificate, which stated that his mother had made a declaration in January 2024 regarding Mr Bonimpa’s birth in 1994.[14] Mr Bonimpa said the translated document was ‘different’ to what the original document said in the French language. In this regard, Mr Bonimpa again told the Tribunal that his mother had passed away and could not have made the declaration. He said there was no possibility of retrieving his original birth certificate, his mother had the original document, which was lost during the war in Congo and that the document provided was what he received from the government in Congo. Mr Bonimpa had requested his birth certificate from Congo, but this was not possible due to recent internal unrest. He obtained this birth certificate document by contacting a person he knows in that country, said to be ‘Pinja’s brother’, Pinja being a person who had previously helped Mr Bonimpa. He confirmed there was no written statement from this person in this proceeding. Mr Bonimpa told the Tribunal that he sent correspondence to government officials in Congo requesting his identity documents but received no response. Mr Bonimpa subsequently said that this particular document was an original document issued by the government of Congo, but was not his original birth certificate.  

    [14] Exhibits 9 and 10.

24. Mr Bonimpa told the Tribunal that his sister had applied for him to receive the Orphan Visa to Australia, which was granted in 2014.[15] He underwent a medical examination, including a chest x-ray, in South Africa. Mr Bonimpa was referred to the associated Australian government document, titled ‘Radiological report on chest x-ray of an applicant for an Australian visa’, which twice listed his date of birth as 1 February 1990, not 31 December 1994.[16] He said this earlier date was a mistake and when he was in South Africa he was under 18 years of age and inflated his age so as to receive asylum and not be ‘deported back to Congo’. Mr Bonimpa could not recall why he had told someone filling in an Australian government form that he was born in 1990, but maintained that this was not his birth date.   

    [15] Exhibit 21, pages 1-88.

    [16] Ibid., pages 21-24.

25. Mr Bonimpa was taken to a South African Police Service ‘Clearance Certificate’ from 2014 also listing his date of birth as 1 February 1990.[17] He again told the Tribunal that he listed this incorrect birth date because he did not want to be deported back to Congo and maintained that this was in fact not his date of birth. The Minister’s representative asked Mr Bonimpa why South African authorities would not grant him a refugee document if he was under 18 years old. He told the Tribunal it was because people usually have parents to apply for their refugee status, but the South African police deported people to their home country if they had ‘no money’. He acknowledged he had lied in the past because he wanted a better life, and this had led to these present issues with his citizenship application.

    [17] Ibid., page 28.

26. Mr Bonimpa was also referred to the document listing his place of birth as Burundi, not Congo.[18] He told the Tribunal that he had listed Burundi as his place of birth in case he was deported from South Africa, as he knew Burundi better than he knew Congo, having left Congo at a young age. Mr Bonimpa was referred to his statements that South Africa did not issue identity documents to people from Congo. He told the Tribunal that he was instructed by people in South Africa on what to say to receive refuge, and this was why he said he was from Burundi.

    [18] Ibid.

27. Mr Bonimpa said he left Congo during the war in 2007, when he was 12 or 13 years of age. Mr Bonimpa told the Tribunal that ‘we’ ran to Burundi, which country is close to his hometown in Congo. He was unsure how long he lived in Burundi, but left at the end of 2010 or 2011 and went to South Africa. Mr Bonimpa said he attended a now destroyed school in Burundi.[19] Mr Bonimpa had not attended school in Congo because his parents were ‘village people’ and they did not have money to pay for tuition. His parents were not employed; they were farmers looking after stock and their house.

    [19] Exhibit 1, page 241.

28. Mr Bonimpa told the Tribunal he is fluent in Swahili, but not French. He said people do not have to speak French in Congo because Swahili and Lingala are also spoken in that country. He can also only speak a few words in Lingala. Mr Bonimpa was able to use Swahili in Burundi; he learnt the national Burundian language in that country, but is not fluent.

29. The Minister’s representative again asked Mr Bonimpa why South African officials would issue people a document if they were from Burundi but not Congo. He told the Tribunal he did not know, but said he was told they do not give papers to Congolese people. He chose to say he was from Burundi because he had knowledge of that country and it was ‘easy’ for him to ‘speak the language’; he had no intention of creating future complications. It was put to Mr Bonimpa that there was no sensible reason why South African authorities would not provide documentation to people from Congo. In response, Mr Bonimpa said no papers were being issued to people from Congo and he was worried police would catch him and deport him back to Congo.

30. Mr Bonimpa agreed that there was a four year age gap from the date of birth provided to South African authorities, being 1 February 1990, and the birthdate of 31 December 1994 used for the Orphan Visa. He told the Tribunal he did not believe he would have been ineligible for the Orphan Visa if his date of birth was 1990, which would have made him 22 years old at the time of application rather than 17, and said his sister had lodged the application. Mr Bonimpa said he was not in contact with his sister before arriving in South Africa. The Orphan Visa application was made in November 2012 and Mr Bonimpa said he arrived in South Africa in 2011.

31. It was put to Mr Bonimpa that if he was born in 1990, he would not have been eligible for the Orphan Visa because he would have been an adult. Mr Bonimpa said he had no knowledge about visa issues so did not want to comment; he did not believe his sister changed his age and believed that he was born in 1994. Mr Bonimpa said he listed the 1990 date because he wanted to be given asylum in South Africa. It was put to Mr Bonimpa that one conclusion was that his age was deliberately reduced in 2012 so he would be eligible for the Orphan Visa. He replied, ‘I don’t believe that’.

32. The Minister’s representative referred Mr Bonimpa to a document titled ‘Birth Certificate’ stating that he was born on ‘31/12/1994’, which was said to have been certified from a ‘true translation copy’ of the original document.[20] Mr Bonimpa said that this was not a fake document, but was not the original document; he included it with his citizenship application as a birth certificate because he was unsure whether he could obtain that original document. Mr Bonimpa said this translated document was issued to him in South Africa in 2012. He did not have the original document. Mr Bonimpa told the Tribunal that his late mother had had the original document. He told the Tribunal he was present when the document was stamped in South Africa in 2012, but not at the time the original was signed and issued in Congo. It was put to Mr Bonimpa that this translated document was not evidence that he was born on a particular day, only of a person’s belief that he was born on that day. He disagreed and said the person knew him as a child and gave accurate evidence regarding Mr Bonimpa’s birth date. He did not believe someone could manipulate his birth date. Mr Bonimpa told the Tribunal he did not have the original or translated version of the document because he lost ‘a lot of paper’ when leaving South Africa for Australia and when moving internally in this country.

    [20] Exhibit 21, page 27.

33. Mr Bonimpa was referred to his application for Australian citizenship and his response therein that he did not have, and never has had, any national identity documents.[21] It was put to Mr Bonimpa that this response was inaccurate because he did have official documents. He apologised for the error and said he inaccurately completed the form. Mr Bonimpa told the Tribunal he understood the importance of being accurate when completing the citizenship application but had made a mistake.

    [21] Exhibit 1, page 126.

34. The Minister’s representative referred Mr Bonimpa to a document setting out his ‘Family Tree’, which was submitted as part of the application for an Orphan Visa.[22] He said this was accurate when the application was submitted, but later told the Tribunal his sister had prepared the document so he could not attest to its accuracy. Mr Bonimpa was also taken to a list of his siblings set out in the completed ‘Application for migration to Australia by a child’ form for his travel to this country.[23] Mr Bonimpa told the Tribunal that he could not confirm the accuracy of the information in the form.

    [22] Exhibit 21, page 49.

    [23] Ibid., page 77.

35. The Minister’s representative noted that five of the siblings were listed in the ‘Family Tree’ document as having been born on 31 December in a particular year.[24] Mr Bonimpa said he believed that he was born on 31 December 1994, but could not answer in relation to his siblings. It was put to Mr Bonimpa that this information undermined his evidence of having been born on 31 December. He said that he could not necessarily confirm some of the information in the form because he did not personally complete it, but again said he believed he was born on 31 December. Mr Bonimpa told the Tribunal he was unsure when his other four siblings with the same listed day and month of birth were born.

    [24] Ibid., page 49.

36. The Minister’s representative referred Mr Bonimpa to a table setting out his ‘Family outside Australia’ from a ‘Personal particulars for assessment including character assessment’ form he completed on 25 June 2020.[25] He was asked about the person, ‘Solange Bonimpa’, identified as a sibling, who was not included in the family information recorded for the Orphan Visa application.[26] Mr Bonimpa said that he completed the form but ‘did not actually have the knowledge’, his understanding was that the names listed in all of the documents were the same and accurate. Mr Bonimpa said that ‘Chantal Bonimpa’ and ‘Solange Bonimpa’ were ‘the same person’, ‘Solange’ was the middle name of ‘Chantal Bonimpa’, and it was ‘a mistake’ to list them as two separate people rather than ‘one person’.

    [25] Exhibit 1, pages 153-176.

    [26] Ibid., page 174 and Exhibit 21, page 49.

1. It was put to Mr Bonimpa that his other siblings have middle names and he had not listed those in the table completed in 2020. Mr Bonimpa said that he was ‘going through a lot’ when he completed this form and wanted to see whether he could be granted citizenship in order to travel to China to visit his daughter. Mr Bonimpa was referred to a document he prepared and provided to the Minister’s Department in July 2022, which listed ‘Chantal Bonimpa’ and ‘Solange Murekatate Bonimpa’ as two separate people, said to have been residing in Burundi and Uganda respectively.[27] Mr Bonimpa told the Tribunal that they were ‘two people completely different’ and ‘Solange’ was a stepsister. As a result, the Minister’s representative put to Mr Bonimpa that this was a completely different answer to that previously given when he said they were the same person. He then told the Tribunal that ‘Chantal’ and ‘Solange’ Bonimpa were ‘actually one person’, but ‘Solange Murekatate Bonimpa’ was a ‘completely different’ person to ‘Chantal’. It was subsequently put to Mr Bonimpa that if ‘Chantal’ and ‘Solange’ Bonimpa were the one person he should have written their full name. Mr Bonimpa told the Tribunal that usually only two names, rather than three, are used for one person. The Minister’s representative noted that Mr Bonimpa had listed in the document three names for other siblings, but not ‘Chantal Bonimpa’. He replied that his sister had provided this information.

   [27] Exhibit 1, page 242.

2. Mr Bonimpa was referred back to the list of siblings from the personal particulars form he completed in 2020 and it was put to him that the full name listed therein, ‘Chantal Murekatate Bonimpa’ was inconsistent with his previous evidence that the full name of that sibling was ‘Chantal Solange Bonimpa’.[28] He told the Tribunal that the information on the form was not based on his own knowledge and he could not answer the question. The Minister’s representative asked Mr Bonimpa whether there were in fact two separate people, ‘Chantal’ and ‘Solange’. He told the Tribunal that he could not give specific information, but believed they were two separate people, however he did not know when ‘Solange’ or any of his other siblings (but one) were born.

   [28] Exhibit 21, page 77.

3. Mr Bonimpa was taken to a letter he signed in May 2022 addressed to the Minister’s Department, which relevantly identified two separate siblings, ‘Solange’ and ‘Chantal’.[29] He agreed that this information was accurate, however their whereabouts were said to be unknown and he had lost contact with them. Mr Bonimpa said he and his sister in Australia have lost contact and do not have a ‘great connection’. Mr Bonimpa told the Tribunal he used to send money to his siblings overseas, but it was hard to continue doing so due to having his own family in Australia. He agreed having sent money to one brother overseas from 2020 up until 2022.

   [29] Exhibit 1, page 235.

4. Mr Bonimpa was referred to his interactions with his siblings on Facebook. He was asked how he could interact with these siblings and send them money without knowing their location. Mr Bonimpa told the Tribunal that interacting was one thing, but their whereabouts is ‘another thing’; they can move around to various countries and he does not know exactly where they reside at any one time. Mr Bonimpa said that he talks with these siblings approximately monthly and they may have moved or changed phones. He was asked why he did not provide this information to the Department at the time of his statement, which said that their whereabouts were unknown. Mr Bonimpa said that there was ‘no point’ lying and it was difficult to locate his siblings; their location may have changed after he listed it in the document. He was not in contact with Solange, but recently spoke to Chantal and the last time he saw some of his siblings was in Burundi.    

5. The Minister’s representative referred to Facebook posts of one of Mr Bonimpa’s sisters indicating their ‘mother’ had died in 2009, when his evidence was that she died in 2007.[30] Mr Bonimpa said that an older relative would be called a ‘mother’ or a ‘father’ and that the person referred to in that post was someone who looked after them. This was said to not be his biological mother, but rather was an aunt. Mr Bonimpa was taken to his own post on Facebook referring to his ‘mother’ and told the Tribunal that people can use emotive language to express their feelings.[31]

   [30] Ibid., pages 213-214.

   [31] Ibid.

6. Mr Bonimpa was again referred to his letter to the Minister’s Department in May 2022, which said that upon arriving in South Africa ‘I find that my sister left the country and now she is in Australia which was really hard for me as I did not have anyone there’.[32] It was put to Mr Bonimpa that this statement was inconsistent with his earlier evidence to the Tribunal that he met up with this sister in South Africa. He told the Tribunal that this was the reason why he said he would ‘speak the truth’; at the time he prepared the letter in 2022 he was not in a ‘correct state of mind’ and was experiencing anxiety, depression and trauma. Mr Bonimpa apologised for the errors and ‘mistake’ of providing incorrect information in his letter to the Department; he confirmed his sister was in South Africa when he arrived in that country.

   [32] Ibid., page 234.

7. Mr Bonimpa was referred to his letter to the Minister’s Department from July 2022, in which it was stated that he had provided money to his siblings in Africa and ‘thought that advising my financial assistance would be detrimental to my application’.[33] He told the Tribunal that when he was doing things himself, here being the citizenship application, he thought he was doing them correctly. Mr Bonimpa agreed that he did not inform the Department of contact with his siblings and his financial assistance to them because he considered it would be detrimental to his application for citizenship.

   [33] Ibid., page 242.

8. Mr Bonimpa told the Tribunal that a document purporting to be from a ‘Chef d’avenue’ in Congo regarding Mr Bonimpa’s Congolese nationality was from a person who knew his parents, but that he had not met the person.[34]

   [34] Exhibit 8.

9. Mr Bonimpa agreed that his other character references provided in this proceeding were all from people whom he had met since residing in Australia.[35]

   [35] See, for example, Exhibits 4-7, 17-18 and 20.

10. The Minister’s representative again referred to Mr Bonimpa’s siblings and the discrepancy between his previous evidence that they were his brothers and sisters, but more recent evidence that all but one of them are his stepsiblings. Mr Bonimpa apologised for the error of not initially correctly identifying his siblings as stepsiblings.  

11. Mr Bonimpa agreed that his driver licence was disqualified in 2018.[36] He agreed that reckless driving places members of the public in danger and can bear on an assessment of a person’s character. Mr Bonimpa told the Tribunal he was ‘going through a lot’ at the time of his offending and had become a ‘better person’.

    [36] Exhibit 21, page 91.

12. It was put to Mr Bonimpa that he had made up the idea that the middle name of his sibling ‘Chantal’ was ‘Solange’ in order to cover up the omission of his sibling ‘Solange’ in the visa application. He denied this proposition and said there was no point to him lying.

13. Mr Bonimpa told the Tribunal that people make mistakes, he has learnt to minimise them and asked for forgiveness, saying his evidence was ‘accurate’ and truthful.

14. The Tribunal referred Mr Bonimpa to his earlier evidence that ‘we’ fled the Congo and asked with whom he lad left that country. He said that ‘we’ were running, there were a lot of people and he was running with his siblings. Mr Bonimpa told the Tribunal that when he reached Burundi he saw his siblings ‘two or three weeks’ later at a refugee camp and from there ‘we found a person which is actually looking after us’, whom he called ‘mother’. The Tribunal therefore put to Mr Bonimpa that he found family in Burundi. He agreed that he found his siblings in Burundi and said the last time he saw them was when he left that country. As a result of this evidence, the Tribunal referred Mr Bonimpa to his written statement to the Department in July 2022, in support of his citizenship application, that ‘I fled the Democratic Republic of Congo on my own…and I eventually ended up in Burundi’.[37] He told the Tribunal that he was running on his own but his siblings were ‘among the group’ that was running. The Tribunal again noted that the written statement was that he ‘fled’ Congo ‘on my own’ amongst other people, suggesting that he was on his own without family.[38] Mr Bonimpa again said his siblings were ‘among’ the people running and he was not with them, but was on his own at that time.

    [37] Exhibit 1, page 243.

    [38] Ibid.

15. The Tribunal also referred Mr Bonimpa to his written statement to the Department from May 2022 that, after reaching Burundi, ‘I had support from everyone as I did not have any family member in Burundi as we both run in completely separate ways’.[39] It was put to Mr Bonimpa that this statement appeared to be different from his recent evidence that he was reunited with family in Burundi and they had run in the same direction towards that country. In response, Mr Bonimpa said that everything he was saying at the hearing was ‘accurate and true’; when he arrived in Burundi he met his sisters. He said a Google translation resulted in the written statement containing incorrect information. Accordingly, the Tribunal noted that none of Mr Bonimpa’s written documentation mentioned him having close family, such as siblings, in Burundi. He told the Tribunal that close family were living in Burundi, but in a ‘different city’.

    CONSIDERATION

    [39] Ibid., page 234.

    Biometrics

16. Mr Bonimpa provided no biometric information in relation to his identity prior to his arrival in Australia. He provided no photographic identification and no biometric descriptions on any official, or unofficial, documentation. Moreover, the date of birth listed on Mr Bonimpa’s chest x-ray report for the purpose of his application for an Orphan Visa was 1 February 1990, not December 1994 as claimed in his application for Australian citizenship and as maintained in this proceeding. Accordingly, that information undermines Mr Bonimpa’s position regarding his identity. For these reasons, the Tribunal finds that this pillar weighs neutrally in its consideration of Mr Bonimpa’s identity.

    Documents

17. Mr Bonimpa provided identity documents issued by Australian authorities, including:[40]

    (a)a ‘Provisional Driver’s Licence’ issued in South Australia, with the date of expiry listed as 16 September 2021;

    (b)a ‘Document for travel to Australia’ granted in 2014; and

    (c)a ‘Pensioner Concession Card’ issued by the Department of Human Services, which expired on 9 January 2020.

    [40] Ibid., pages 144-146. See also Exhibit 12.

18. In Mr Bonimpa’s application for Australian citizenship made in 2019, he claimed to have been born in Congo on 31 December 1994 and that he did not have, and had never had, any ‘national identity documents’.[41] However, when an application was made in 2012 for Mr Bonimpa to be granted an Orphan Visa, the following documentation was provided:

    (a)his ‘Application for migration to Australia by a child’, received by the Australian High Commission in Pretoria, South Africa, in November 2012, which listed Mr Bonimpa’s date of birth as 31 December 1994, making him just under 18 years of age and a child at the time of the application for an Orphan Visa;[42]

    (b)a document, stamped by South African Police in October 2012, purporting to be a translated Birth Certificate from Congo for Mr Bonimpa, which stated that he was born on 31 December 1994.[43] The document was not Mr Bonimpa’s original birth certificate and noted that it was certified ‘from a true translation copy of the original’;[44]

    (c)a ‘Medical examination for an Australian visa’ form signed by Mr Bonimpa on 18 February 2014, which twice listed Mr Bonimpa’s date of birth as being 31 December 1996, not 31 December 1994 as claimed in his 2012 Orphan Visa application or his 2019 application for Australian citizenship;[45]

    (d)a ‘Radiological report on chest x-ray of an applicant for an Australian visa’ signed by Mr Bonimpa on 24 February 2014, which twice listed his date of birth as being 1 February 1990, not 31 December 1994 (as claimed in his Orphan Visa application or citizenship application) or 1996 (as claimed in the above medical examination document);[46]

    (e)a South African Police ‘Clearance Certificate’ for Mr Bonimpa authorised on 28 February 2014, which listed his date of birth as 1 February 1990, not 31 December 1994 or 1996, and his place of birth as Burundi, not Congo.[47] The document also noted that ‘[p]ersonal details [were] provided by the applicant’;[48] and

    (f)a ‘Family Tree’ document, which listed four other siblings of Mr Bonimpa with the same day and month of birth (in different years), being 31 December.[49]

    [41] Exhibit 1, pages 124 and 126.

    [42] Exhibit 21, pages 73-74;

    [43] Ibid., page 27.

    [44] Ibid.

    [45] Exhibit 21, pages 13-14; Exhibit 1, page 124.

    [46] Exhibit 21, pages 21-22.

    [47] Ibid., page 28.

    [48] Ibid.

    [49] Ibid., page 49. See also the Orphan Visa application document listing three other siblings with the same day and month of birth, at Exhibit 21, page 77.

19. Additionally, during this proceeding, Mr Bonimpa provided what he claimed to be a Congolese Birth Certificate and a translated copy of that document from French to English.[50] However, based on the translated version, the original document appeared to be a declaration made by someone who attended the office of Births, Deaths and Marriages in Congo in January 2024 regarding Mr Bonimpa’s date and place of birth, said to be 31 December 1996 in Burundi.[51] Based on the translated version of the document, the person who attended the government office in Congo this year was Mr Bonimpa’s biological mother, whom Mr Bonimpa maintained had died in 2007.[52] Mr Bonimpa told the Tribunal that this translation was different to the original document and it was not his mother who obtained the document in Congo in 2024.

    [50] Exhibits 9 and 10.

    [51] Ibid.

    [52] Ibid.

20. Mr Bonimpa indicated to the Minister’s Department in July 2022 that he obtained his Congolese ‘Birth Certificate/Identity card’ through a ‘respected Elder Pindjin of the Congolese Community in Johannesburg, South Africa’, and that he was able to have his personal documents sent from Congo to South Africa.[53] However, Mr Bonimpa did not provide any further details regarding the identity of this person, or why he claimed in his Australian citizenship application that he had never held identity documents in circumstances where he had already provided a purported birth certificate in 2012 with his application for an Orphan Visa.[54]

    [53] Exhibit 1, page 240.

    [54] Exhibit 21, page 27.

21. The Tribunal acknowledges that, depending upon a person’s background, it may be impracticable for them to obtain any form of identity documentation. As the Tribunal said in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117], not all applicants may be required to produce ‘documents appropriate to an established or undisturbed society’. However, as the Tribunal observed, the question is whether, in the absence of such documentation, the Tribunal can be satisfied that the person has availed themselves of ‘opportunities to secure evidence of identity which might reasonably be expected to exist’.

22. As set out above, the documentary evidence before the Tribunal contained significant inconsistencies and undermined Mr Bonimpa’s testimony regarding his identity. Most importantly, there were discrepancies between Mr Bonimpa’s stated place and date of birth in documents provided to South African and Australian authorities in 2012, 2014 and 2019. Mr Bonimpa acknowledged that sometimes people can be uncertain about exact dates of birth in Africa and this explained why four of his siblings were listed as having the same day and month of birth as Mr Bonimpa, being 31 December in various years. However, while this explanation may be correct, it merely underscores the difficulties with accepting as correct Mr Bonimpa’s now claimed date of birth given the earlier stated birth dates.

23. Mr Bonimpa also claimed to have lost identity documentation when migrating from South Africa to Australia and when moving internally in this country. While the Tribunal accepts that Mr Bonimpa may have misplaced this identity documentation, the material before the Tribunal is contradictory. By way of further example, the most recent document provided by Mr Bonimpa regarding his date of birth was translated as recording that his mother, whom he claimed was deceased, made a statement this year regarding his identity.[55]

    [55] Exhibits 9 and 10.

24. The Tribunal also notes and endorses the position that only limited weight may be attributed to identity documentation issued after a person’s arrival in Australia, such as a driver licence or health care card. Such documentation has normally been issued on the assumption that the identity provided on a person’s visa is accurate, but it provides no independent support for that identity.[56] That is, they do not provide ‘an unbroken chain linking to a primary official identity document such as a birth certificate’.[57] Accordingly, the Tribunal places minimal weight on the identification documents from after Mr Bonimpa’s arrival in Australia as an independent support for his identity.

    [56] Shafari and Minister for Home Affairs (Citizenship) [2019] AATA 808 at [41]; Tella and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2115 at [51].

    [57] Ibid.

25. Having regard to all of the above, the Tribunal finds that the majority of the identity documents which Mr Bonimpa has provided in these proceedings undermine his claimed identity, because they are fundamentally inconsistent with other information provided to the Department and other authorities in relation to his identity. As a result, the Tribunal finds that the documents before the Tribunal weigh against it being satisfied of Mr Bonimpa’s identity as required by subsection 24(3) of the Citizenship Act.

    Life Story

26. In circumstances where the majority of the identity documents provided by Mr Bonimpa post-date his arrival in Australia (and those that pre-date his arrival are inconsistent as to his claimed identity), Mr Bonimpa’s life story necessarily assumes greater significance when assessing his identity for the purposes of his application for Australian citizenship. However, Mr Bonimpa’s life story also contained crucial inconsistencies.

27. Mr Bonimpa claimed that when he was young he fled Congo and, in written evidence provided to the Minister’s Department in 2022, stated that this occurred when ‘on my own’, he followed people until he reached Burundi where he ‘did not have any family member’ as ‘we both run in completely separate ways’ and ‘I didn’t know where they went too [sic]’.[58] However, Mr Bonimpa directly contradicted this evidence in his testimony to the Tribunal. On questioning from the Tribunal, Mr Bonimpa’s evidence was that, while he was running on his own, he did have immediate family members among the group leaving Congo and that they did meet up after arriving in Burundi. Additionally, the 2022 statement contradicted information contained in the Orphan Visa application, where Mr Bonimpa identified two of his brothers as being resident in Burundi, and his sister, Ansila Bonimpa, made a statutory declaration in 2012 which noted that Mr Bonimpa had told her that their siblings were living in an orphanage in Burundi.[59]

    [58] Exhibit 1, pages 234 and 243.

    [59] Exhibit 21, pages 50 and 77.

1. Mr Bonimpa also claimed to have attended a now closed school in Burundi, but did not provide any records of his enrolment or any other information which would corroborate this assertion.[60]

   [60] Exhibit 1, page 241.

2. Furthermore, in a written statement to the Minister’s Department from 2022, Mr Bonimpa claimed that, upon arriving in South Africa, he discovered that one of his sisters had ‘left the country’ and was in Australia.[61] However, Mr Bonimpa changed this evidence at the hearing and agreed that he had met up with his sister in South Africa before she left that country. 

   [61] Ibid., page 234.

3. On the evidence before the Tribunal, when Mr Bonimpa lived in South Africa, he appeared to hold identity documents from Burundi.[62] The Tribunal has also set out above the inconsistencies regarding Mr Bonimpa’s date and place of birth, including the South African Police document listing his place of birth as Burundi, seemingly on information provided by Mr Bonimpa. In any event, the Tribunal did not have before it in this proceeding any of the Burundian documents which Mr Bonimpa apparently held in South Africa in 2011. Mr Bonimpa’s evidence was that he held himself out to be a citizen of Burundi to the government of South Africa because South Africa did not provide documents to citizens of Congo or minors, meaning he needed to inflate his age in order to avoid being detained and he listed Burundi because he knew that country, having lived there after leaving Congo. Mr Bonimpa did not provide a credible explanation regarding the basis for his assertion that South Africa would not provide documentation for refugees from Congo, but would provide documents in relation to people from Burundi.

   [62] Ibid., pages 240-241.

4. Following Mr Bonimpa’s Orphan Visa application, he provided inconsistent information regarding the details of his siblings; he failed to include one of his sisters in some forms and indicated that he was unaware of the location of other siblings in differing departmental forms. In particular, in two forms provided in 2020 and 2022, Mr Bonimpa identified ‘Solange Bonimpa’ as being his sister, in circumstances where this person had not been identified in the Orphan Visa application. As set out above in these reasons, Mr Bonimpa gave contradictory evidence to the Tribunal regarding this sibling.

5. The Tribunal also notes the previously inconsistent, or at least incomplete, information regarding Mr Bonimpa’s knowledge of the whereabouts and contact with his siblings in Africa.[63] When information was put to Mr Bonimpa regarding financial assistance he had provided to his siblings overseas up until 2022, and recent social media contact he had with his siblings, Mr Bonimpa acknowledged that he has contact with them, but said he did not always know their exact location.

   [63] Ibid., pages 133-134, 166-167, 174, 195-196 and 235; Exhibit 21, page 77.

6. The Tribunal further notes the concerns raised by the Minister’s Department that Mr Bonimpa claimed both of his parents were killed in a civil war in Congo in 2007, but multiple Facebook posts by his sister indicated that her ‘mother’ died in 2009.[64] Mr Bonimpa’s evidence was that the words ‘mother’ and ‘mama’ are cultural terms for respected members in the community. While the Tribunal can accept this explanation, the recent translation of a document titled ‘Birth Certificate’ from Congo and purporting to confirm Mr Bonimpa’s birth only serves to confuse the situation regarding his mother because it stated that she attended the Births, Deaths and Marriages office in Congo in 2024 to confirm her son’s date and place of birth.

   [64] Exhibit 1, pages 213-214.

7. While the Tribunal accepts, and has taken account of, Mr Bonimpa’s stated contrition, language difficulties and identified psychological symptoms, in the Tribunal’s view these matters do not sufficiently explain the multiple, and fundamental, inconsistencies in his life story.[65] As a result of all of the above, the Tribunal finds that critical elements of Mr Bonimpa’s life story are inconsistent, raising serious doubts about his identity and weighing against establishing his identity.

   [65] Exhibit 14.

   CONCLUSION

8. The Tribunal and the Federal Court of Australia have previously held that, given the centrality of a person’s identity as expressed in their citizenship information, the Tribunal needs to be ‘positively satisfied’ of their identity; it is not enough that an applicant could be who they say they are.[66] For the Tribunal to be satisfied, it would need to reach an affirmative belief as to the person’s identity, rather than apply an evidentiary burden of proof, such as on the balance of probabilities.[67]

   [66] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [4]; Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267, at [100] – [103]; Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].

   [67] Beyan and Minister for Immigration and Border Protection [2023] AATA 3980 at [47] citing BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54].

9. For the reasons set out above, and based on the available evidence, the Tribunal is not satisfied of the identity of Mr Bonimpa as required by subsection 24(3) of the Citizenship Act. He therefore cannot be approved to become an Australian citizen. As a result of the Tribunal’s finding regarding Mr Bonimpa’s identity and the consequence for his application for Australian citizenship, it is unnecessary for the Tribunal to consider whether Mr Bonimpa is ‘of good character’ pursuant to subsection 21(2)(h) of the Citizenship Act. The Tribunal notes for completeness that Mr Bonimpa is a permanent resident of Australia and can re-apply for Australian citizenship in the future.

   DECISION

10. The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...[SGD].....................................................................

Associate

Dated: 19 June 2024

Date(s) of hearing:	9 May 2024
Date final submissions received:	24 April 2024
Applicant:	By MS Teams
Solicitors for the Respondent:	Mr Ingmar Duldig, Clayton Utz Lawyers