BSYH and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 814

BSYH and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 814 (17 October 2016)

Division	GENERAL DIVISION
File Number	2016/2570
Re	BSYH
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	17 October 2016
Place	Sydney

1.    The reviewable decision made 4 April 2016, being the decision of the delegate of the Minister for Immigration and Border Protection refusing the Applicant’s application for Australian citizenship by descent, is set aside.

2.    In substitution it is decided that the Applicant’s becoming an Australian citizen is approved.

3. In accordance with subsection 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision shall not come into operation until 14 November 2016.

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

J W Constance
Deputy President

CATCHWORDS

CITIZENSHIP – citizenship by descent -identity – where Applicant's father is Australian citizen – where identity of Applicant's mother is uncertain – where there are multiple personal identifiers – whether identity of mother is relevant consideration – decision set aside and substituted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 10(1), 16(2), 17, 19

Administrative Appeals Tribunal Act 1975 (Cth) s 43(5B)

CASES

Confidential and Minister for Immigration and Citizenship [2013] AATA 144

Obeya v Minister for Immigration [2013] FCCA 1444

X1 & X2 and Minister for Immigration and Border Protection [2016] AATA 48

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

National Identity Proofing Guidelines 2014, Attorney-General's Department

REASONS FOR DECISION

Deputy President J W Constance

17 October 2016

INTRODUCTION

1. The Applicant was born on 25 November 2015 in the Republic of Belarus where he has lived ever since.

2. The Applicant’s father, Mr B, is a citizen of Russia and of Australia. He was an Australian citizen at the time of the birth of the Applicant, having acquired his Australian citizenship by conferral on 1 August 2014.

3. On 4 December 2015 Mr B lodged an application for Australian citizenship by descent on behalf of the Applicant.[1] This application was refused by a delegate of the Minister in a decision dated 21 April 2016; the sole ground for the refusal was that the delegate was not satisfied of the identity of the Applicant.

   [1] Exhibit R1 p.33.

4. On behalf of the Applicant, Mr B has applied to the Tribunal to review the delegate’s decision.

5. For the reasons which follow the decision under review will be set aside. In substitution it will be decided that, in accordance with subsection 16(2) of the Australian Citizenship Act 2007 (Cth), the Applicant is approved to become an Australian citizen.

   BACKGROUND

6. On the basis of the documents contained in Exhibit R1 I am satisfied of the facts set out in the following five paragraphs. These findings of fact are not disputed by the Minister.

7. The Applicant was born in Minsk, Republic of Belarus on 25 November 2015.[2] He is the biological son of Mr B. At the request of the Minister the Applicant and Mr B have undergone DNA testing.

   [2] A copy of the Applicant’s Birth Certificate and an English translation thereof appear at pages 51-53 of Exhibit R1.

8. The Applicant’s Birth Certificate was validly issued by the Civil Registry Office, Minsk City Notarial Office on 1 December 2015.

9. The Birth Certificate records the following information:

   ·the full name of the Applicant;

   ·an identification number for the Applicant;

   ·the date of birth of the Applicant being 25 November 2015;

   ·the number of the entry in the Birth Registration Book;

   ·the date of registration of the birth being 1 December 2015;

   ·the birthplace of the Applicant as being City of Minsk, Republic of Belarus;

   ·the Applicant’s father being Mr B, of Russian nationality;

   ·the Applicant mother being Ms B, of Russian nationality;

   ·the birth registration place being Civil Registry Office of Frunzenskiy District of Minsk.

10. Mr B and Ms B were married to each other in 2003 and have not divorced.

11. The Applicant holds a valid passport issued by the Ministry of Internal Affairs, Republic of Belarus.[3]  It records the following:

    ·the name of the Applicant;

    ·the passport number;

    ·the nationality of the Applicant as “Republic of Belarus”;

    ·the date of birth of the Applicant as 25 November 2015;

    ·an identification number which corresponds to the identification number on the Applicant’s birth certificate;

    ·the Applicant’s sex as male;

    ·the Applicant’s place of birth as “Republic of Belarus”;

    ·a photograph of the Applicant.

    [3] Exhibit R1 p.47.

    LEGISLATION

12. Subsection 16(2) of the Australian Citizenship Act provides in part:

    A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

    (a)a parent of the person was an Australian citizen at the time of the birth;…

13. Section 17 of the Act provides, in part:

    (1)If a person makes an application under section 16, 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 16(2) or (3).

    (2)Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

    Identity

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

14. Section 40 of the Act provides that, for the purpose of the Minister being satisfied of the identity of a person applying for citizenship, the person may be requested to provide one or more specified personal identifiers.

15. Personal identifiers are defined in subsection 10(1):

    For the purposes of this Act, a personal identifier is any of the following (including any of the following in digital form):

    (a)fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

    (b)a measurement of a person's height and weight;

    (c)a photograph or other image of a person's face and shoulders;

    (d)an iris scan;

    (e)a person's signature;

    (f)any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 ).

16. There are no other identifiers prescribed by regulation. 

    THE ISSUE

17. The Minister agrees that the Applicant is eligible to become an Australian citizen under subsection 16(2)(a) as his father was an Australian citizen at the time of the Applicant’s birth.

18. The only issue for determination is whether the Tribunal, standing in the shoes of the decision maker, is satisfied of the identity of the Applicant as required by subsection 17(3) of the Act.

    THE ARGUMENT ON BEHALF OF THE MINISTER

19. It is put on behalf of the Minister that the Tribunal cannot be satisfied of the identity of the Applicant. The basis for this submission is that the Tribunal cannot be satisfied that Ms B, the person named in the Birth Certificate as the mother of the Applicant, is in fact his biological mother. Unless the Tribunal is satisfied of the identity of the Applicant’s mother, it cannot be satisfied of the identity of the Applicant.

    DISCUSSION

    The identity of the Applicant’s mother

20. Taking into account the documents forming part of Exhibit R1 and the fact that Mr B, who was present during the hearing of this application, did not give evidence, I cannot be satisfied as to the identity of the Applicant’s mother. However, in my view, this is irrelevant to the issue I have to decide.

21. Counsel for the Minister went to considerable length to point out the inconsistencies in the evidence relating to the identity of the Applicant’s mother. The argument put is summarised in the following three paragraphs from the Respondent’s Statement of Facts and Contentions dated 21 September 2016:

    29.  These inconsistencies and lack of evidence have not been sufficiently explained.

    30.  Furthermore, Mr and Mrs [B] have chosen not to give witness statements or give oral evidence in support of the applicant’s application. In those circumstances, the Tribunal is entitled to infer that her evidence would not assist and that Ms B is not the applicant’s biological mother.

    31.  In those circumstances, the Tribunal could not be satisfied on the evidence before it that Ms B is the biological mother of the applicant. Accordingly, there is insufficient evidence for the Tribunal to be positively satisfied of the applicant’s identity.

22. I do not accept the argument put on behalf of the Minister. To do so would replace the requirement of satisfaction as to the identity of the Applicant with a requirement of satisfaction as to the identity of one of the Applicant’s parents. Clearly, the identity of the Applicant’s parent who was the Australian citizen at the time of the Applicant’s birth must be established. In this application that fact is not in dispute.

    Personal identifiers

23. There is nothing in the Act to suggest that the personal identifiers set out in section 10 are the only identifiers which can be relied upon to establish identity. When read in conjunction with section 40, section 10 simply provides a list of particular identifiers which may be requested. These particular identifiers require the active participation of the Applicant. It is likely they were specifically included in the Act for this reason.

    The meaning of “identity”

24. In the National Identity Proofing Guidelines issued by the Commonwealth Attorney-General’s Department, identity is described as follows:

    A 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.[4]

    [4] At p.7.

25. The Oxford English Dictionary defines identity to include:

    The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.

    The Applicant’s identity

26. In the evidence before me there are several factors which, combined, establish the “sameness” of the Applicant or, put another way, establish the condition of the Applicant “being a single individual”:

    ·he is male;

    ·he is the biological child of Mr B who was born on a specified date and who is the holder of a specified Australian passport;[5]

    ·he was born on 25 November 2015 at Minsk in the Republic of Belarus;

    ·he is the person with the identification number allocated to him in the records of the Republic of Belarus;

    ·he is the person referred to in the specified passport issued by the Ministry of Internal Affairs, Republic of Belarus;

    ·he is the person whose photograph appears on the specified passport.

    [5] For privacy reasons, these details are not set out in these reasons; they appear from documents included in Exhibit R1.

27. These are all identifying factors which the Minister accepts have been established.  Combined, these factors will identify the Applicant “as being the same person at all times” and in all circumstances and will establish the condition of the Applicant “of being a single individual”. Further I am satisfied that the above factors are a sufficient combination of attributes to allow the Applicant to be uniquely distinguished from others within the context of citizenship of Australia.

28. As was pointed out by the Counsel for the Applicant, if the argument put on behalf of the Minister is correct, a child whose mother could not establish the identity of the child’s father, would not be able to establish the child’s identity for the purpose of becoming an Australian citizen. There is nothing to suggest that this is the intent of the legislation.

    Previous decisions of the Tribunal

29. The conclusion I have reached is consistent with previous decisions of this Tribunal.

30. In Confidential and Minister for Immigration and Citizenship[6] the Tribunal considered an application on behalf of a child whose birth name was not the name given to the Applicant by her parent. There was no evidence of a change of name. The Tribunal held that the application was deficient “because there is no birth certificate of the applicant or any documentary evidence of the change of name of the applicant.”

    [6] [2013] AATA 144 at para. 35.

31. The situation before the Tribunal in the above matter is distinguishable from the facts of this application. In this case there has been no change of name and the Applicant’s birth certificate is in evidence. The facts which caused the Tribunal to reach the conclusion it did in the Confidential matter are not present in the application before me.

32. In X1 & X2 and Minister for Immigration and Border Protection[7] the Tribunal identified two separate questions for determination:

    (i)whether it was satisfied of the Applicants’ identities; and .

    (ii)whether it was satisfied that the person claiming to be the father of the Applicants was in fact their father.

    [7] [2016] AATA 48.

33. In its reasons for decision the Tribunal said:

    On the basis of the documentation provided which included passport, birth certificates, Tazkira and birth registration certificates, when taken together, I am satisfied of the identities of the Applicants. However, without reaching individual conclusions as to each of the issues raised with respect to the discrepancies identified in the identity documents by the Respondent, I am not satisfied that the documents, of themselves, are proof of [the] parentage of the Applicants.[8]

    [8] At para 31.

34. In the above matter the Tribunal was able to find that identity had been established without being satisfied of parentage. Unlike the situation in the application before me, the parentage of the person claiming to be the Australian citizen at the time of the birth of the Applicants was in issue.

    Obeya v Minister for Immigration

35. Counsel for the Minister referred me to the decision of the Federal Court in Obeya v Minister for Immigration[9], where the Court considered an application by Mr Obeya to be provided evidence of his Australian citizenship. His application was refused on the ground that the delegate of the Minister was not satisfied of his identity. The applicable provision (section 37) of the Act is the same as subsection 17(3).

    [9] [2013] FCCA 1444.

36. In particular I was referred to what the Court said in part of paragraph 21:

    Section 37 requires that such evidence is not to be issued unless the Minister is satisfied of the identity of the person in question but it does not direct the Minister to consider evidence of a particular sort or to give greater or lesser weight to evidence of a particular sort.

37. Although the Court was considering a different provision of the Act, what was said is equally applicable to the interpretation of subsection 17(3). The approach I have adopted is consistent with the judgement of the Federal Court. In my view there is ample evidence of the identity of the Applicant and evidence relating to the identity of his mother (even if relevant) does not outweigh the other evidence of his identity. If it was established on the balance of probabilities, (which in my view it has not) that the person shown on the Applicant’s Birth Certificate as his mother is, in fact, not his biological mother, this would not change the decision I have reached.

    Citizenship Policy

38. I have considered the provisions of the Citizenship Policy issued in 1 June 2016. There is nothing in this Policy which is inconsistent with the decision I have reached. I was referred to the provisions of Chapter 20 (Parents and Parent-Child Relationships) in particular. I note that this chapter concentrates on the relationship of the parent claiming to have been an Australian citizen at the time of the birth of the Applicant.

    National Identity Proofing Guidelines

39. I have considered also the provisions of the National Identity Proofing Guidelines which are referred to in the Citizenship Policy.[10] There is nothing within those Guidelines which suggests that the Applicant’s identity has not been established in this matter.

    [10] At p.158.

    Operation of the decision

40. Section 19 of the Act provides that a person becomes an Australian citizen on the day approval is given. To enable the parties time to consider these reasons the decision will not come into operation until 14 November 2016.

    CONCLUSION

41. The reviewable decision made 4 April 2016, being the decision of the delegate of the Minister for Immigration and Border Protection refusing the Applicant’s application for Australian citizenship by descent, will be set aside.

42. In substitution it will be decided that the Applicant’s becoming an Australian citizen is approved.

43. In accordance with subsection 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision shall not come into operation until 14 November 2016.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 17 October 2016

Date of hearing	7 October 2016
Date final submissions received	7 October 2016
Counsel for the Applicant	Mr N Poynder
Solicitors for the Applicant	Mr V Malakhov; Malakhoff & Koloyaroff Legal
Solicitors for the Respondent	Ms B Griffin; Australian Government Solicitor