Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1514
•27 May 2021
Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514 (27 May 2021)
Division:GENERAL DIVISION
File Number: 2020/2299
Re:Ater Chalou
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:27 May 2021
Place:Perth
The decision under review is affirmed.
...[SGD]...................................................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – refusal of a delegate of the Minister to grant the Applicant’s application for conferral of Australian citizenship – delegate not satisfied of the Applicant’s identity – delegate found that the Applicant was not of good character – Applicant is a citizen of South Sudan who arrived in Australia as a 14-year-old – limited primary documentation – Tribunal not satisfied of the Applicant’s identity – prohibition under s 24(3) of the Citizenship Act applies – reviewable decision affirmed
LEGISLATION
Australia Citizenship Act 2007 (Cth) – preamble, ss 21, 21(2)(h), 24, 24(1), 24(1A), 24(3), 52(1)(b)
CASES
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1716
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2576
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
RRML and XJFZ 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
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016) – ch 13
Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) < – ch 2.1.1
Department of Home Affairs, ‘Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act’ (2019) – para 4.4
REASONS FOR DECISION
Deputy President Boyle
27 May 2021
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent to refuse to approve the Applicant becoming an Australian citizen. The delegate refused the Applicant becoming an Australian citizen on the basis that the delegate was not satisfied as to the Applicant’s identity pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) and was also not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Citizenship Act.
BACKGROUND
The following facts are largely taken from the Respondent’s Statement of Facts, Issues and Contentions dated 4 November 2020 (Respondent’s SFIC). Except in relation to the authenticity of the Nationality Certificate (see [7] bellow) and the Passport (see [5] below), the facts are not in dispute.
The Applicant was born on 5 March 1999 and is a national of South Sudan. He was granted an offshore Orphan Relative (Subclass 117) visa on 4 June 2013 as a dependent.[1] The principal applicant for that visa was Chalou Alewei Yihon Acholdit,[2] the Applicant’s sister.
[1] T2/7.
[2] T2/9.
The Applicant arrived in Australia on 28 August 2013 and has remained here since that date.[3]
[3] T22.
On 28 March 2019 the Applicant lodged an application for conferral of Australian citizenship.[4] The Applicant provided a copy of a page of a Republic of South Sudan passport (the Passport) issued on 5 June 2012 in support of his identity.[5] He also provided a copy of a document headed “single journey visa”, a Western Australian concession card, a Western Australian driver’s licence, a high school student identification card and a single passport-sized photograph.[6]
[4] T10.
[5] T10/154.
[6] T10/155–7.
On 16 May 2019 the Department of Home Affairs (Department) wrote to the Applicant requesting further identity documents and, in particular, documents which were not issued in Australia.[7]
[7] T12.
On 22 May 2019 the Applicant sent an email to the Department[8] and provided, amongst other things, a copy of the Applicant’s Republic of South Sudan Nationality Certificate[9] (the Nationality Certificate). The Nationality Certificate was issued in 2018 in the name of Ater Chalou Alewei Yihhon. It was signed “Isaac Ater” and contained the same photograph which appeared in the Passport.
[8] T13/169.
[9] T13/198.
On 8 November 2019 the Department asked the Australian High Commission (AHC) in Nairobi to carry out verification checks of the Passport, Nationality Certificate and a Death Certificate relating to Abraham Chalou Alawei.[10]
[10] T14/199.
On 4 December 2019 the AHC advised the Department that the International Organisation for Migration (IOM) could only carry out verification checks on the Nationality Certificate and the Passport.[11]
[11] T16/209.
On 25 February 2019 the AHC advised the Department that the IOM had advised as follows:
Nationality Certificate
On multiple occasions IOM Juba attended the issuing office to seek their assistance in verifying the nationality certificate presented by the applicant, however, the issuing authority declined to provide assistance in verifying the document.
I note that nationality certificates can only be applied for in person, in Juba. As the applicant has not departed Juba since they arrived onshore in August 2013, this raises questions regarding the process they went through to obtain the document.
The issuing office has previously advised of issues of corruption involving the issuance of nationality certificates to individuals who have not applied in person and I strongly suspect that the document provided by the applicant has been obtained through non-genuine means.
Based on the above information the referral is verified as SERIOUS CONCERNS and has been finalised on ICSE to reflect this.
Passport
On multiple occasions IOM Juba attended the issuing office to seek their assistance in verifying the passport presented by the applicant, however, the issuing authority declined to provide assistance in verifying the document.
I note that passports can only be applied for in person, in Juba. As the applicant has not departed Juba since they arrived onshore in August 2013, this raises questions regarding the process they went through to obtain the document.
The issuing office has previously advised of issues of corruption involving the issuance of nationality certificate to individuals who have not applied in person and I note that nationality certificates are the main document required to support applications for passport. I strongly suspect that the document provided by the applicant has been obtained through non-genuine means.
Based on the above information the referral is verified as SERIOUS CONCERNS and has been finalised on ICSE to reflect this.[12]
[12] T17/211–2.
On 4 March 2020 the Department invited the Applicant to comment on the adverse information in respect of the suspected non-genuine documents.[13]
[13] T18/215–221.
In response to that invitation, the Applicant advised as follows:
Passport
On the 10th October 2012 an application was lodged for an orphan subclass 117 visa that was granted on the 4th of June 2013. My sister Chalou Alewei Yihon Acholdit was the main applicant while I and my brother Awenyin Chalou Alewei were dependent on the application. On the day that we received our passports, I was asked to sign my passport. At this point I couldn’t understand any other language apart from my mother tongue which is Dinka. Before I went in to sign my passport I was told that the people inside are going to ask me to write something, so just go there and write something simple and keep it short so you can remember what you wrote. So I ended up writing Isaac and then my name next to it (Ater). And So I was given the passport which includes all the information on it including the name Isaac Ater under the holder’s signature.
Nationality Certificate
On the 29th of March 2019 I received a letter from the department requesting further identity in the support of my claimed identity. I took the form and filled it up with every information that was requested and more that I could provide except the part that asked if I am or was known by any other name. I ticked no on that box because I was not or known by any other name. Also when I was lodging my application I was aware of my passport’s signature but I didn’t put the name (Isaac) on the form because I am not known by that name. I have provided the passport that was issued to me from south Sudan to support my claimed identity and it also contain all the information in the first paragraph including the picture of me as a child.
In November my uncle went to overseas. Since my passports expired on the 5th June and is also lost, we thought that I would need a new passport. So my uncle went over and he went to the minister of interior office and asked for my passport to be renewed. My uncle asked me for my passports details and I sent them to him so that they could renew the passport. We tried to renew it last year but they fail to do it. They only made the passports ID and sent it over. The images below are screenshots of me and my uncle talking about the passport and the new passport that was recently made. I have also attached these images with other documents.[14]
[14] T19/225.
On 16 April 2020 the delegate refused the application.[15] The Applicant sought review of the decision on 21 April 2020[16] pursuant to s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Administrative Appeals Tribunal for review of a decision to refuse to approve Australian citizenship under s 24 of the Citizenship Act.
[15] T20.
[16] T1.
THE ISSUES FOR DETERMINATION
The Respondent’s SFIC identifies the issues for determination as:
(a)Whether the Tribunal is satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act. If the Tribunal is not positively satisfied as to the Applicant’s identity, it must affirm the decision under review; and
(b)Whether the Tribunal is satisfied, at the time of its decision, that the Applicant is of good character for the purposes of s 21(2)(h) of the Citizenship Act.[17]
[17] Citing VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [42] and [69].
Other than the statement made by the Applicant in his application quoted at [26] below, the Applicant does not identify the issues for determination. I agree with the Respondent’s identification of the issues to be determined.
LEGAL FRAMEWORK
The Preamble to the Citizenship 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 Citizenship Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(2)(h) provides 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”.
Section 24(1) of the Citizenship Act provides:
Minister's decision
(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.
Section 24(1A) of the Citizenship Act provides:
(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).
By operation of s 24(1A), 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) (see [17] above).
Section 24(3) of the Citizenship Act relevantly provides that:
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Australian Citizenship Policy (the Policy) states, at ch 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 of citizenship if they are not satisfied of the person’s identity.[18]
[18] As to the status of the Policy see RRML and XJFZ 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 (Guidelines).[19] Chapter 2.1.1 of the Guidelines relevantly provides 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.
[19] Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) < – ch 2.1.1
The Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act, provides at para 4.4 as follows:
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.
Three pillars of identity
Individual characteristics
Biometrics
Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information
Life story
A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on departmental records are matched and confirmed.
THE HEARING
The application was heard on 18 March 2021. The Applicant appeared on his own behalf and the Respondent was represented by Mr A Gerrard of the Australian Government Solicitor. The Applicant was the only witness to give evidence.
THE PARTIES’ CONTENTIONS
The Applicant
In his application to the Tribunal, the Applicant stated his case as follows:
… I also believe that then decision is wrong because what seems to be affecting my application is my identity and that me not being a person of good character they said. When I was lodging my application for the Australian citizenship, I was asked to provide documents to support my application. So I provided applications that can easily show my identity and my home address. These documents included the copy of my passport, birth certificate, Medicare Card, my school ID and most importantly my drivers license. Four of these documents had the images of me on them and all of them had my home address on them. Also I claim that the decision is wrong because ever since I got in Perth I never got in any trouble either at school and anywhere else. I never been in a school fight both physically and verbally. So this is my reason that I think the decision is wrong.[20]
(Without alteration.)
[20] T1/5.
The Respondent
In opening the Respondent’s case, Mr Gerrard outlined the Respondent’s concerns as follows:
The difficulty for the minister in respect of identity, is that the applicant has provided two non-Australian identity documents. They both contain an unexplained name of Isaac. I think the applicant has provided an explanation in his response to the department - I think the applicant has said that he included it in his application for a passport because he needed to put something he could remember - that’s not really an adequate explanation for the inclusion of a completely different name, and that he…
In respect of the passport, the applicant explains that he couldn’t understand any other language apart from his mother tongue, and he was told that the people inside are going to ask him to write something, so just go in there and write something simple and keep it short so you can remember what you wrote, so I ended up writing Isaac, and then my name next to it.
…
There is, in the respondent’s submission, two documents from South Sudan. Both contain either an unexplained or a not adequately explained additional name of Isaac, which was not disclosed in the application for citizenship. Which contains a photograph of the applicant as a child, despite being issued five years apart, and in the case of the nationality certificate, when he was an adult. In circumstances where the Australian High Commission has expressed serious concerns that they are not genuine documents, and could not have been issued in the way, in the manner the applicant says they were, and in circumstances where corruption and document fraud is rife in South Sudan, and the concerns of the Australian High Commission are supported by the independent country information from UNHCR and DFAT.
Those concerns are significant, and they go to identity primarily, but the department’s position on character essentially lies in the provision of those documents. The concern is two-fold, that is, that there is concern, potentially, in how the document, particularly the nationality certificate, would have been procured, but more importantly, that it was relied upon and put forward to the department in circumstances where an applicant must be taken to have known that it was not a credible or a genuine document. There’s certainly a matter where it falls short of the standards expected of a person applying for citizenship in putting forward a document which is dubious.[21]
[21] transcript at 5–6.
The Respondent’ SFIC referred to the following passage from MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[22] at [75] in relation to the three pillars of identity:
The three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant. The Guidelines emphasise the combination of characteristics and attributes which allow an individual to be distinguished from others. In that context, to be satisfied if an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.
[22] [2020] AATA 2576.
The Respondent’s SFIC also cites the following passage from the Tribunal’s decision in Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[23] at [39]:
… [I]n circumstances where there is inconsistent information about a person’s biometrics in their identity documents, a person’s life story – their narrative of their life events – would be expected to provide a clear and consistent explanation about these differences.
and the following passage from CDNB and Minister for Immigration and Border Protection[24] at [9]:
… [T]he production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants.
[23] [2020] AATA 1716.
[24] [2018] AATA 757.
The Respondent contends that a certificate of Australian citizenship is a legal document of considerable significance and should not be granted where the identity of an applicant is not clear, citing Beyan and Minister for Immigration and Border Protection[25] (Beyan) (at [38]).
[25] [2015] AATA 256.
The Respondent’s SFIC contends as follows:
(a)The critical issue is not simply that the Passport and Nationality Certificate are not credible and verifiable documents for establishing the Applicant’s identity, but rather that they cast significant doubt over the entirety of the documentation and information provided by the Applicant.
(b)The Tribunal should accept the AHC’s observations in respect of the process of obtaining passports and nationality certificates over the self-serving, unsupported and unverified evidence of the Applicant’s uncle.
(c)UNHCR advice is that to obtain a passport or nationality certificate specified documents, including a birth certificate and a residency certificate, have to be provided and the applicant must attend the department in person for an interview.
(d)The AHC has advised that it has encountered “issues of corruption involving the issuance of nationality certificates to individuals who have not applied in person and … nationality certificates are the main document required to support applications for passport[s]”.
(e)The UNHCR has also noted that the “Directorate of Nationality, Passports and Immigration (DNPI) suffers from a problematic lack of capacity, with various misinterpretations of the Nationality Act and its Regulations by DNPI officers”. Furthermore, an April 2018 letter from the UN Panel of Experts on South Sudan addressed to the UN Security Council expressed concerns around practices of the DNPI. Specifically, several instances of corruption involving DNPI staff were highlighted, with DNPI staff seeking illicit payments to issue certain documentation.
(f)The concerns raised by the AHC align with the observations contained within the DFAT Country Report on South Sudan.
(g)Documents issued in such circumstances are of no value in determining an applicant’s identity (citing Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[26] (Sakhi Zada) at [47]).
(h)The provision of a dubious document “poisons the well” in the manner identified by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002.[27] (S20/2002) at [49].
(i)Where the evidence indicates that the Applicant has provided a counterfeit document that constitutes prima facie evidence of a lack of good character.
[26] [2020] AATA 1729.
[27] [2003] HCA 30; (2003) 198 ALR 59.
THE EVIDENCE
The Applicant filed two statements from family members in support of the application. The first was a letter from his uncle, YihHon Alewei YihHon dated 11 July 2020, which relevantly stated:
… I am writing this statement to clear some doubts that surround the renewal of Ater’s passport. When I left for Africa last year, Ater asked me to renew his passport when I get to South Sudan. Upon arrival, I went to immigration office here in South Sudan and asked them to renew Ater’s passport. They agreed and renewed the passport.
The renewal of a passport does not require the present of the passport holder nor new passport size photos here in South Sudan. Ater gave me passport size photos when I left Australia, but they were not used since immigration office still have his previous photos in the system. As long your details are in the system and pay the renewal fees, it can be done in your absent.
(Without alteration.)
The second statement filed by the Applicant was a letter from another uncle, Nak Isaac Kau, which relevantly stated:
… I am writing to affirm that South Sudan policy on passport renewal does not require the present of the applicant as long new passport size photos have been provided and presented to the Ministry of Interior by an adult person.
The South Sudan Minister of Interior, Directorate of Nationality, Passport and Immigration has previous applicants on its database. If the applicant has previously provided requisite documents as stipulated under the Nationality Act 2011, than passport renewal can be approved without the present of the applicant if two passport size photos and requires renewal fees is paid by the person requesting the renewal.
The required documents include Form 3A, two (2) passport size photos, Nationality Certificate, and a Birth Certificate issued by a competent authority and an optional but necessary evidence of the applicant’s blood group and a recommendation letter from a mature person usually a next of kin.
It is on this basis that I can unequivocally state that South Sudan policy on Passport renewal does not require the present of the applicant.
(Without alteration.)
The Applicant’s evidence at the hearing was consistent with the explanations provided to the Department quoted at [12] above and with the statements of his uncles referred to at [32] and [33] above. His evidence was that he lost his passport, probably in 2016, when he moved house. The Applicant’s evidence was that he was able to get a copy of the Passport, or at least the page containing his details,[28] from his high school.[29] That was the document provided to the Department.
[28] T14/200.
[29] transcript at 7–8.
The Applicant’s explanation for the photographs and signatures on the Passport[30] and the Nationality Certificate,[31] being the same notwithstanding that the Passport was issued in 2012 and the Nationality Certificate was issued in 2018, was that the issuing authority in South Sudan simply took the photograph and the signature that they had on their system from the 2012 Passport and scanned them onto the Nationality Certificate issued in 2018.[32]
[30] T10/154; T14/200.
[31] T14/201.
[32] transcript at 10.
The Applicant’s explanation for his signature including the name “Isaac” when that is not his name was that:
… So, back in South Sudan, I had no education, you know, so I couldn’t speak English. And the people working in there, they either speak Arabic or English, so I had no - I couldn’t speak English or Arabic, I only knew my mother tongue, which is Dinka. So, when I went in there, there’s queues, like there’s a lot of line, people waiting, and so the room the like this. So, when I went in there, I couldn’t understand why the women was staring, like was staring me, so I just had a little device, with a green screen on, with a little pane, digital pane, and so I asked her, what do you want me to put there. But I couldn’t understand what she told me. And so before I came in, my uncle write anything you can read, it can be anything that you can remember, you know. So, I just came up with a name, I put Isaac, which, I told them in the submission that has (indistinct words), yes, I put the name Isaac, then I just put my last name there, [Ater] at the end of it.[33]
[33] transcript at 10–11.
In cross-examination the Applicant was asked why, in his application form, he had answered in the negative when asked, “[h]ave you been known by any other names?”. Counsel pointed out that in both his Passport and his Nationality Certificate, his signature included that name “Isaac”. The Applicant repeated his explanation of why he used the name Isaac when he signed the Passport in 2012 and added that, while that name may have appeared in his signature on his Passport, he had never been known by that name.[34]
[34] transcript at 14.
CONSIDERATION
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[35] (Al-Hussaini) at [30]–[31]).
[35] [2020] AATA 1267.
In Confidential and Minister for Immigration and Citizenship[36] (Confidential) the Tribunal found (at [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.
(Footnote omitted.)
[36] [2013] AATA 144.
Deputy President Nicholson in Dhayakpa and Minister for Immigration and Border Protection[37] (Dhayakpa), commenting on Confidential, observed:
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.
[37] [2015] AATA 310.
The approach taken in Dhayakpa has been followed by Tribunals in a number of cases.[38]
[38] See YMPL and Minister for Immigration and Border Protection [2017] AATA 1458; Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97.
In Sinnathamby and Minister for Immigration and Border Protection,[39] 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.
[39] [2018] AATA 2579.
The Tribunal also notes the comments of Senior Member Puplick in Al-Hussaini:
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.
(Footnotes omitted.)
Based on the evidence that has been presented, can I be satisfied of the identity of the Applicant? If I 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.
Other than documents produced after the Applicant’s arrival in Australia, which were produced based on what the Applicant told Australian authorities, the only document that the Applicant has produced to evidence his identity are the copy of the single page from his Passport and the copy of the Nationality Certificate. The Applicant also produced a death certificate, which he claimed to be his father’s, however, that does not provide evidence of the Applicant’s identity.
The copy of the single page of the Passport and the Nationality Certificate are not sufficient to satisfy me of the Applicant’s identity, however, not for the reasons raised by the Respondent as outlined by Mr Gerrard in opening (see [27] above). I accept the Applicant’s explanation of why, as a 13-year-old with little English, at the suggestion of his uncle, he signed the Passport using a name that he could spell and remember.
I also do not accept the Respondent’s argument that, in answering the question in his application of whether he has been known by any other name in the negative, the Applicant misled or attempted to mislead the Department. Apart from his answer being technically correct, he had never been known (which, by necessity means known by others) by the name Isaac, the documents that he provided in support of his application disclosed that he had signed his Passport in 2012 using the name Isaac. It is difficult to accept that he was attempting to mislead the Department, or that the Department was misled, when the documents that he provided showed that he had signed his name on his Passport as Isaac. I do not accept that the Applicant's answer to that question is evidence that the Applicant is not of good character for the purposes of s 21(2)(h) of the Citizenship Act (see [17] and [20] above).
The bases upon which the AHC raised concerns about the Passport (see [10] above), which are relied on by the Respondent, are hard to follow and in some respects, nonsensical. The AHC’s report starts with the advice that the issuing authority refuses to cooperate in verifying the Passport. If that was the case, it is not apparent why IOM would have attended the issuing authority “on multiple occasions”. The report then notes that “passports can only be applied for in person, in Juba. As the applicant has not departed Juba since they arrived onshore in August 2013, this raises questions regarding the process they went through to obtain the document”.[40] That statement simply does not make sense. Even if one were to assume that the reference to the Applicant not having departed Juba since August 2013 was meant to be a statement that he has not departed Australia since he arrived in August 2013, it still does not make sense, because the Passport that AHC is being asked to verify was issued in June 2012. There is no suggestion that the Applicant was not in Juba in June 2012.
[40] T17/211.
The most likely explanation for the AHC’s report on the Passport not making sense is that it is a “copy-and-paste” of the report in relation to the Nationality Certificate. If one again assumes that the reference to the Applicant not having left Juba since August 2013 is meant to be a reference to the Applicant not having left Australia since August 2013, then at least the report in relation to the Nationality Certificate makes sense. The sum-total of the concern raised by AHC in relation to the Nationality Certificate (which is obviously a significant one) is that the Applicant would have to have attended in person to have obtained the Passport in accordance with South Sudanese law. Even the Applicant does not say that he did so. The Tribunal accepts that this is a significant issue for the Applicant relying on this document to establish his identity.
No weight can be given to the Nationality Certificate in establishing the Applicant’s identity. As I noted at [47] in Sakhi Zada, a case in which an Afghani driver’s licence had been obtained outside proper channels and without the applicant attending the issuing authority in person as required:
Even if the Tribunal were to accept the Applicant’s evidence as to the “need” for Hazaras to go through the unlawful avenues that he describes to obtain a driver’s licence, a driver’s licence issued as a result of the procedure described by the Applicant can be of no value in establishing the identity of the Applicant. The reason that documents issued by responsible authorities, such as a driver’s licence, are nominated in the citizenship application form as being documents verifying identity, is that they contain “photograph; signature; current address and date of birth”. The validity of such a document as evidencing identity is reliant on the document being issued in accordance with the relevant legal process applicable to the document. Obviously, a driver’s licence issued with a person’s photograph on it (such as the driver’s licence produced by the Applicant) is only evidence of the person’s identity if the issuing authority has seen the person to verify that the photograph on the licence is that of the person in whose name the licence is issued. A document that simply has a photograph of someone and a person’s name on it procured by a third party making unlawful payments is of no probative value in establishing that the name and the face on the licence belong to the same person. The process by which that would be assured has been subverted rendering the licence as issued of no value in determining the Applicant’s identity.
(Footnote omitted.)
The circumstances in the present case are the same.
That effectively leaves the copy of the single page from the Applicant’s Passport as the only document to substantiate his identity, other than documents issued since he arrived in Australia. As I noted in Sakhi Zada at [48], documents issued to an applicant by Australian authorities are of little value as they “are simply evidence of who the Applicant says he is, not of who he is”. The Passport itself is not available for examination and verification. That is a further concern.
The copy of the single page from the Applicant’s now lost and now expired Passport is not sufficient to satisfy me of his identity. I am mindful of the statement of Deputy President Nicholson in Dhayakpa cited at [40] above and the cases that have followed that approach, however, in the present case there is only a copy of a single page of a document that cannot now be examined to verify the Applicant’s identity prior to his arrival in Australia. There is no other evidence, such as third-party statements, to substantiate the Applicant’s identity. In the case of Dhayakpa there was at least one witness other than the applicant who gave a written declaration and oral evidence at the hearing.[41] That evidence was relied on by the Deputy President in making his finding on identity.[42] No such evidence was provided by the Applicant in this case, nor was there any explanation as to why statements could not have been provided. While his two uncles gave statements as to how passports are obtained in South Sudan, those statements did not, with a sufficient degree of specificity, go to the Applicant’s identity.
[41] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (Dhayakpa) at [54]–[63].
[42] Dhayakpa at [113], [115], [121].
Because I am not satisfied of the Applicant’s identity, the prohibition on the approval of the Applicant becoming an Australian citizen under s 24(3) of the Citizenship Act applies.
I am not, however, satisfied that the Applicant is not of good character. I have not rejected the copy of the page of the Passport as satisfying me as to his identity because I thought that the Passport was fake or improperly obtained. The reasons given by AHC, and relied on by the Respondent, for contesting the authenticity of the Passport are not correct (see [48]–[50] above). The Applicant putting that document forward as evidence of his identity cannot be evidence that he is not of good character.
While there is a question about the process by which the Nationality Certificate was obtained, the Applicant was open about how it was obtained. The Respondent in fact relies on the statements provided by the Applicant’s uncles to argue that that document is not legitimate. I do not accept that in those circumstances the provision of the document “poisons the well” as found in S20/2002 or establishes that the Applicant is no of good character. As I noted in Sakhi Zada at [72], commenting on the use of a “fixer” in Afghanistan to obtain driver’s licences rather than going through the prescribed process, the process by which the Applicant procured the Nationality Certificate is more an indication of the unfortunate state of government services in South Sudan than of the Applicant not being of good character.
In the end, however, because I am not satisfied of the Applicant’s identity, the prohibition on the Applicant becoming an Australian citizen under s 24(3) of the Citizenship Act applies. The decision under review to refuse to approve the Applicant becoming an Australian citizen is therefore the correct or preferable decision. My decision is therefore to affirm the decision under review. By so doing I am not affirming the delegate’s finding that he or she was not satisfied that the Applicant is of good character.[43] I am not reviewing the delegate’s reasons. The decision that I am reviewing, and that I am affirming, is the decision to refuse the Applicant becoming an Australian citizen.
[43] T2/11.
DECISION
The decision under review is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 27 May 2021
Date of hearing: 18 March 2021 Applicant: In person Counsel for the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Standing
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Statutory Construction
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