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

[2022] AATA 3154

Davey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3154 (3 August 2022)

Division:GENERAL DIVISION

File Number:          2021/3317

Re:Run Davey

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mr A. Maryniak KC, Member

Date:3 August 2022

Date of written reasons:        13 September 2022

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration under section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), with a direction that the Applicant’s identity is established pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth).

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

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – citizenship by conferral application – section 24(3) of the Australian Citizenship Act 2007 (Cth) – Identity – no allegation that identity documents fraudulent – consistent life story evidence – identity requirements satisfied – decision under review set aside and remitted to the Respondent

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Alimoradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2054

Secondary Materials

Department of Home Affairs, Revised Citizenship Procedural Instruction 16 – Assessing Identity Under the Citizenship Act

REASONS FOR DECISION

Mr A. Maryniak KC, Member

13 September 2022

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

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

Associate

Dated: 13 September 2022

Date of hearing:	2 and 3 August 2022
Counsel for the Applicant:	Mr Min Guo
Solicitors for the Respondent:	WLW Migration Lawyers
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor

ANNEXURE A

1. MEMBER:  This is an application for review of a decision of the delegate of the Respondent made on 22 April 2021 to refuse the grant of Australian citizenship by conferral pursuant to section 24 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

2. The delegate was not satisfied of the Applicant's identity for the purposes of section 24(3) of the Act. The Tribunal has been greatly assisted by the advocacy of both the solicitor for the Respondent and Counsel for the Applicant. The background facts are conveniently set out in paragraphs [4] to [22] of the Respondent's Statement of Facts, Issues and Contentions and the helpful chronology set out in the Applicant's Statement of Facts, Issues and Contentions.

3. The applicable principles, as highlighted by the Respondent, are discussed by this Tribunal as presently constituted in the decision of Alimoradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2054 at paragraphs [8] to [25].

4. The Applicant has given oral evidence before the Tribunal and has been fairly and thoroughly cross-examined, and questioned by the Tribunal. The Tribunal finds the Applicant to be a highly credible witness. The Applicant's cousin has also given credible and consistent oral evidence. 

5. The Applicant's pastor and an expert witness, Professor Skidmore also gave oral evidence in support of the Applicant's case. The Tribunal accepts the oral evidence, which was consistent with, and explanatory of, the respective statements lodged by each witness.

6. The documentary evidence before the Tribunal consists of the T-documents, supplementary T-documents, further T-documents and other documents tendered including a DNA test, which was tendered without objection, establishing a link between the Applicant and her younger sister.

7. The Applicant, in essence, submits to the Tribunal that she has put a consistent story about her identity throughout and that various documents, including documents produced since the Applicant's arrival in Australia, including importantly a recreated baptism certificate relevant to her life prior to her arrival in Australia, clearly point to the Applicant being who she says she is.

8. Further, the Applicant submits that she has told her life story consistently at least nine times, and this is essentially accepted by the Respondent. The Respondent submitted quite persuasively that there are questions about the Applicant's identity; importantly, in respect of the Applicant's sister's failure to remember the Applicant's change of name on at least one occasion, and the poorly worded description of the Applicant's baptism certificate in her statutory declaration of 22 August 2020.

9. Pursuant to the guidance in paragraph 4.16 of the Citizenship Procedural Instruction 16 (‘CPI 16’), the task of the Tribunal is to balance all of the evidence before it. The sole issue before the Tribunal is whether the Tribunal is satisfied as to the Applicant's identity pursuant to section 24(3) of the Act. The Tribunal has considered the body of evidence before it together with the submissions of the parties.

10. As to the documents, the Respondent properly submits that the baptism certificate produced by the Applicant is not a document obtained by the Applicant prior to her arrival in Australia. However, the Respondent does not submit that the recreated baptism certificate is fraudulent.

11. The Tribunal needs to balance that against the body of evidence before it, including the associated explanatory letter regarding the baptism certificate, and the evidence of the Applicant and her pastor which were consistent with the validity of that baptism certificate.

12. On balance, the Tribunal, whilst acknowledging that a copy of the actual church record may incrementally be a purer form of evidence, accepts the validity of the baptism certificate.  Accepting also the DNA test results, the Tribunal is of the view that on balance, the evidence in respect of the first two pillars, namely documents and biometrics, support the Applicant's submission that she is who she says she is. The Tribunal finds these two pillars to be satisfied.

13. Further, this is not strictly a case on the evidence before the Tribunal where the Applicant can be found to be stateless. However, the life story still has an important role to play and is to be considered. As mentioned above, the Respondent correctly points out the valid concern regarding the sister's failure to remember the Applicant's change of name and one other matter of particular concern to the Tribunal is the wording and the creation of the statutory declaration of 22 August 2020.

14. However, having considered the credible oral evidence of the Applicant, the Tribunal accepts the explanations and finds that these two aspects do not sufficiently detract from the preponderance of evidence supporting the consistent life story given by the Applicant. Further, the Tribunal recognises the obvious language and other challenges the Applicant and her husband would have had in dealing with the citizenship application. They made an admirable effort and did their best, prior to engaging lawyers in November 2020. 

15. Having considered the totality of both the documentary evidence and oral evidence before the Tribunal, the Tribunal is satisfied of the Applicant's identity in accordance with the relevant principles identified above, and hence is satisfied of the Applicant's identity under section 24(3) of the Act.

16. The correct or preferable decision is that the reviewable decision be set aside.

17. The matter is to be remitted to the Respondent for reconsideration pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal, being satisfied as to the Applicant's identity.