Geele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 253
•20 February 2020
Geele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 253 (20 February 2020)
Division:GENERAL DIVISION
File Number: 2019/4214
Re:Ifrah Geele
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:20 February 2020
Place:Melbourne
The Tribunal sets aside the decision of the Respondent dated 3 July 2019 refusing Ms Geele’s application for Australian citizenship by conferral. It remits the matter to the Respondent for reconsideration with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, that the Applicant is a person of good character; and that it is satisfied of their identity for the purposes of the Australian Citizenship Act 2007.
[sgd]........................................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether satisfied of identity of applicant – whether the applicant is not of good character – whether the application for citizenship made by the applicant should be approved – decision under review set aside and remitted with directions.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)Australian Citizenship Regulations 2007 (Cth)
Cases
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
Department of Foreign Affairs and Trade Country Information Report Somalia 13 June 2017
REASONS FOR DECISION
Ms Anna Burke AO, Member
20 February 2020
INTRODUCTION
Ms Ifrah Geele (the Applicant) is a 33-year-old Somali citizen, who arrived in Australia on the 23 December 2011 as the holder of a Partner (Provisional) (Subclass 309) visa (Partner visa). On 13 February 2013 Ms Geele was granted a permanent Partner (Migrant) (Subclass 100) visa. On 17 January 2019 she was granted a Resident Return (Subclass 155) visa. Ms Geele subsequently separated from her husband, with whom she has two children (both are Australian citizens). She is working full-time and actively involved as a volunteer in the Somali community.
On 5 August 2016 Ms Geele lodged an application for Australian citizenship by conferral. On 25 October 2016 the Department of Immigration and Border Protection (the Department) sent Ms Geele an e-mail letter requesting additional information to assist with the processing of her citizenship application, including material such as Medicare card, credit card or bankcard details, a Form 1399 (Declaration of Service), and any primary identification document such as a birth certificate or national identity card from Somalia.
Ms Geele replied on the same day stating:
…I have been told to provide my origin birth certificate from my country. For my Australian citizenship application. But i cant provide this document. As is beyond my control. Because i came from a country that is been in civil war for past 20 years. And i cant get my birth certificate i hope this is enough reason…
Ms Geele sent a further email to the Department later that day stating:
…I have attached documents that i have been asked to provide as well as medical certificate that is showing i need to travel a gently as my father is really sick and he needs me. Please consider my request to process my application as soon as possible please…
On 14 March 2017 the Department wrote to Ms Geele again requesting further documents. The letter states:
I am writing regarding your application for Australian citizenship. You have recently attended the Perth Citizenship office to complete your Citizenship Test. Although you were allowed to sit your citizenship test, in order to process your application further, more information will be required from you in order to be satisfied of your identity.
…
Further documents required:
·Certified copy of birth certificate Reg. No: 644400
·Certified copy of marriage certificate Reg. No: B14312
·Statutory Declaration if authorities will not issue replacement documents and attach evidence of their response.
·Titre de Voyage
On 3 July 2017, Ms Geele submitted a Form 80 providing her personal particulars for assessment, including a character assessment which she had signed on 13 March 2017, and an uncertified copy of her marriage certificate from overseas. The Tribunal was unable to verify the marriage certificate as no copy was included in the “T documents” or “Supplementary T documents” (the documents lodged by the Department pursuant to s 37 of the Administrative Appeals Tribunal Act 1975).
A file note dated 28 August 2017 states that the Department advised Ms Geele that she was permitted to sit her Australian citizenship test as she had presented her Western Australian driver’s license and Document for Travel to Australia. The note advises that Ms Geele’s birth certificate had been found on her permanent residency file. The note further advises that Ms Geele claims she had forgotten of its existence and that she would need to contact the Consulate of Somalia in Melbourne for its reissue. Similarly, she would make arrangements for her mother to obtain a reissue of the marriage certificate from Kenya. The note again advises that further documents are required, as outlined in the letter of 14 March 2017.
Ms Geele provided the Department with a statutory declaration dated 22 September 2017, in which she declares:
As I have been told on my interview day. Due to my citizenship to provide a proof of an indentity. Which is a birth certificate or marriage certificate. I am not able to get these two document I have tried my best but I couldnt get any of this. As it is beyond my control. Please I am asking for my citizen application to be proceed or to give me more time so I can try to find them.
On 6 February 2019 the Department sent a letter inviting Ms Geele to comment on adverse information in her application for citizenship by conferral, the Delegate states:
The Department has received advice from the Australian High Commission in Nairobi that the birth certificate you provided to the Department, No. 644400, is considered fraudulent. Verification checks of the details of the document were unable to support that Ali Haji MUSSE was ever the mayor of Mogadishu or held the position as claimed at the time of issuance of the document. The Australian High Commission in Nairobi have considered it to be highly unusual for the birth details to be registered during this time (issued 4 December 1988), due to a lack of civil registration in Somalia.
Citizenship Policy states that a person of good character would be honest and not practise deception or fraud in their dealings with the Australian Government and would not provide false information or other material during visa and citizenship applications.
On 3 July 2019 a Delegate of the Minister refused Ms Geele’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act) as the Department was prohibited from approving the application because the Delegate was not satisfied of the identity of Ms Geele. Further, the Delegate was also satisfied that the Applicant did not meet the criteria concerning good character. The Delegate stated in conclusion:
When assessing your life story in the context of citizenship, it is necessary to be able to create a complete identity ‘picture’ from birth. The objective is to link your identity at birth to the identity provided in your application for Australian citizenship. This can be achieved by considering key chronological events in your life, and using other pillars of identity assessment to piece together and corroborate information.
Your citizen application includes very little evidence, which might be considered relevant to building a picture about your identity for the period you spent overseas before you first arrival in Australia. The types of documents you could provide should include, but are not limited to birth certificate, marriage certificate, National Identity card school records or travel documents issued to you from outside Australia. The Department made numerous requests for more identity documents from you and explained that if unable to obtain the documentary evidence, then you should provide a statutory declaration with detailed explanation of your efforts to get the documents and together with your personal life story.
… Your statutory declaration did not produce your life story and its most significant events, making it impossible to collaborate with your migration history or with your documentation or the lack of. Coupled with this, the fact that you provided a fraudulent birth certificate during your interactions with the Department raised serious concerns about your claimed identity.
Equally important, in the context of citizenship, “Citizenship Policy states that a person of good character would be honest and not practice deception or fraud in their dealings with the Australian Government and would not provide false information or other material during visa and citizenship applications”. You provided a fraudulent birth certificate with your previous Partner visa application...
In summarising your case, I find that the information you have provided about your identity does not support your identity and I am not satisfied that you are “of good character” in the citizenship context.
On 15 July 2019 Ms Geele lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal stating: The decision that was made for the refusal for my citizenship application, was unfair. I strongly believe that deserve second chance for my application to be review. Thank you!
At the hearing, Ms Geele was represented by Mr Navid Baghi of Amity Lawyers. Mr Christopher Orchard, solicitor of Sparke Helmore Lawyers, appeared on behalf of the Respondent Minister.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are whether:
·it is satisfied of the identity of Ms Geele, to fulfil the requirements of s 24(3) of the Act; and if so
·it is satisfied that Ms Geele is of good character, as required by s 21(2)(h) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
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.
…
(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).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
…
The term good character is not defined in the Act. However, guidance is provided by the Citizenship Policy (the Policy) issued by the Minister in 2016.
The stated role of the Policy is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth).
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated at the outset that it is not departmental policy for decision makers to be bound by a checklist. Rather, decision makers are to look at the merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character.
Reference is made to the definition of good character by Lee J in Irving v Minister of State for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431-432):
…the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Policy also refers to Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at para 8):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home... The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
To assist decision-makers, the Policy contains a non-exhaustive list of the characteristics of good behaviour:
[A]n applicant of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds);
·be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o involvement in bogus marriage
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o involvement in Centrelink or Australian Tax Office fraud
o giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not to have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
The Policy also provides guidance on weighing a decision about character. It points out that the assessment of whether an applicant is of good character requires the consideration of an aggregate of qualities. The policy notes more weight is to be given to serious offences.
The Policy further states:
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy references Deputy President Forgie in Zheng v Minister for Immigration and Citizenship [2011] AATA 304 (at para 120), to demonstrate this point:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
EVIDENCE
The evidence before the Tribunal included the two sets of documents lodged by the Respondent, referred to as the “T documents”, the “Supplementary T documents”, and Ms Geele’s witness statement.
On 8 January 2019 a Locally Engaged Integrity Officer in the Visa Integrity Unit of the Department of Home Affairs situated in the Nairobi office of the Australian High Commission (the Nairobi Post) reported in an e-mail:
Post is aware that birth registration in Somalia, both historically and currently, is extremely limited with very few civil events seeking to be registered. The birth of the applicant is claimed to have been registered five and three years after the birth of the children, respectively, which is uncommon in Post’s experience with the Somali caseload and registration of civil events.
The birth certificates provided for the applicants claim to have been issued on 04 December 1988 and signed by the Mayor of Mogadishu, Ali Haji MUSSE. I find it highly unusual that the applicant’s birth was registered at this time due to the lack of civil registration in Somalia.
There is no open source information which supports that Ali Haji MUSSE was ever the Mayor of Mogadishu or held that position as claimed at the time of issuance of the document.
This name has appeared as the claimed issuing officer on other birth certificates presented to Post which have been identified as counterfeit with varying signatures and wet seals appearing on these documents all claimed to be issued by Ali Haji Musse.
The format of the certificate provided is consistent with counterfeit samples previously seen by Post and are not consistent with genuine birth certificates being issued from Mogadishu.
While I accept that the applicant has provided a consistent date of birth with her dealings with the department, based on the above information the birth certificate is verified as COUNTERFEIT…
On 14 November 2019 Ms Geele made a statutory declaration in respect of her identity and the steps she had taken to provide evidence of her identity for these proceedings. In it she declared:
I was born and raised in the city of Bosaso in the northern part of Somalia. When I was quite young my parents were separated. My father…left us, and I lived with my mother… for some time. My mother remarried after a while and moved to Mogadishu with her husband. As she had remarried, I could no longer live with her therefore she left me to live with my Aunt…. She is my maternal aunt.
I believe I would have been around the age of six at the time. My aunt was also separated and had one child from her marriage, a son who is older than me… I stayed with my aunt in Bosaso until I left Somalia in 2010. My aunt passed away in 2012…
I undertook my education in primary and secondary schools in Bosaso. I had documentation from my schools, including my school report cards, however as I will explain below these documents have been misplaced and I have not been able to retain any further documentation in relation to my education.
I was not ever formally employed in Somalia. The only kind of employment that I had was that I help my aunt in her shop. She sold grocery items. I also assisted her at home with her house chores.
While I was growing up there was a lot of political and social unrest in Somalia. Our part of the country was not as unstable as places like Mogadishu. However, there was still violence and safety issues. As a female I could not go anywhere by myself. It was definitely not possible at night.
Apart from my school studies I also attended some religious classes, but I was never issued any documentation for those classes. In Somalia I never had a driver’s license as I never drove and never had a car. I continued living with my aunt and assisting her in her shop until the age of 23 when I left Somalia to get married to my now ex-husband.
I was introduced to my ex-husband by... who is my ex-husband’s close friend. I believe he has referred to him as his brother, but they were not actually blood related and it was a term they used to refer to each other… is a distant relative of mine and used to live in Australia. On one of his visits to Somalia he saw me, and he introduced me to my ex-husband... now lives in Kenya.
I met my husband over the phone and based on our common interest and values we became quite interested in one another. Things moved along quite fast. He could not come to Somalia due to the unrest and uncertainties, so he suggested that I go to Kenya to meet him. I left Somalia for Kenya in March 2010. Not long after, my ex-husband joined me and we agreed to get married shortly after. Our wedding ceremony was a religious one. Our religious marriage was held in a private ceremony in a mosque and we had a small reception at our house with some people that we knew. We had no family members in attendance.
Sometime after, we travel to Mombasa to get documentation for our marriage. I do not know the details of what was involved in obtaining a marriage certificate. I was quite young and inexperienced. I basically followed my ex-husband and his cousin who told us we need to travel to Mombasa. The affidavit that we provided to the Department was completed at this time. I believe the next day my ex-husband and his cousin went to the court and they were issued with our marriage certificate. I believe we sent the original marriage certificate to the Department with my application.
My ex-husband is a citizen of Australia and so the intention was to make arrangements for me to migrate to Australia so that we could build our lives together. He told me that I needed all the documentation that I could get as I would need to provide them with my visa application.
In Somalia I had never had any use for any identity documents. It was not something that me or everyone else that I knew ever dealt with. At the time I did not know whether I had a birth certificate or what documents I could provide. I called and asked my aunt… about identity documents. I asked whether I had a birth certificate or whether we could apply for one. She told me that she will make enquiries and try to organize it through the issuing office.
Some time later my aunt told me that she was able to obtain my birth certificate and she sent it to me in Kenya. I did not know the process of obtaining a birth certificate. I was not concerned about it at the time. My understanding was that she had approached the relevant office and given my details and they had issued it in my name…
While I was in Kenya I did not visit Somalia due to safety concerns. At the time I did not have any family in Kenya. My ex-husband was with me for some time and we stayed at a rental property. I stayed in Nairobi Kenya for some time until my partner visa application was approved. I left Kenya for Australia in late 2011.
…
I wish to provide some explanation about the documentation I have so far provided to the Department. I can confirm that all documents that I provided in support of my application were genuine to the best of my knowledge. I have never intentionally provided any false documents or information to enhance my migration application. I never had any reason to do this. My ex-husband and I were in a real and genuine relationship. We lived with each other for a few years and we now have two children together...
In their decision the Department has determined my birth certificate to be fraudulent. I was quite shocked when I first found out about this, which was when I receive the actual decision record...
In regard to my birth certificate as I explained above my aunt had applied for it after I had left Somalia. I am not sure what process or what office she had applied through to obtain it. I remember she mentioned something about paying a small fee before it was issued. When I received it, as far as I knew it was a genuine document issued by the relevant authorities. As mentioned above my aunt passed away in 2012 after I arrived in Australia. Therefore, unfortunately I cannot get any more information about where or how this document was issued. I can confirm that I had no part in obtaining it, and at the time I assumed that it was genuine and had been obtained through the right channels.
I did not have a Somali passport and I did not use a passport to go to Kenya. At the time there were no other identity documents issued in Somalia. No one held national identity cards; I believe there were only introduced a few years ago after I came to Australia.
When I came to Australia, I had a copy of my birth and marriage certificates. The only other documents that I had which were issued in Somalia were my school records however these documents were misplaced during the time I was going through my marriage breakdown. As I mentioned previously this was a turbulent time in my life and having two young children made things so much harder to deal with. I had made several moves to different addresses and in the end to another state. At the time I was not thinking about preserving any documents, I was trying to get away from the situation that I was in as I was under a lot of stress.
I wanted to get in contact with the authorities inside Somalia and to inquire about identity documentation. I did not know who I could contact and enquire about this inside Somalia. There is a high level of corruption in these offices and getting any kind of assistance from them, especially when overseas seems to be impossible. I hope the tribunal considers that things in Somalia are different to a western country. Somalia has been affected by civil war for decades. The government offices are ineffective and incompetent.
…
I wish to also address the recent steps I have taken in verifying my identity. I made several attempts to contact the Somalian consulate in Melbourne and I was finally successful in doing so. They told me the usual process through their office is that I would need to provide statutory declarations from people that knew me and who can confirm my identity. As per their request I provided them with these statutory declarations. I have now been issued with proof of identity certificate issued by the Somalian consulate in Melbourne on behalf of Federal Republic of Somalia.
…
I have made numerous requests from my ex-husband to provide a statement in of support my application as he was aware of a lot of these events. But despite initially agreeing to, he has been uncooperative. I have done all that I can in my power to provide evidence and information about my identity and I hope what I have provided will be sufficient for the tribunal considering the circumstances.
Ms Geele advised the Tribunal at the hearing that while in Somalia there was no need for her to have any form of identification documentation and she had never seen anyone in Somalia use a birth certificate or other identity documentation (for example, enrolling in school did not require identity documents). Ms Geele stressed that Somalia was an unstable country and that there was no functioning government to issue such documentation.
Ms Geele told the Tribunal that when she agreed to travel to Kenya to meet her now ex-husband she had travelled on a Somali passport. She explained that the passport had been issued to her on the basis that people knew which clan you came from and that was enough to be recognised as Somali. In Kenya she had relied upon her husband to undertake most of the work in respect of her spousal visa application. Ms Geele’s ex-husband had asked her to provide her birth certificate. She had contacted her aunt in Somalia via the neighbour’s telephone, as her aunt had no telephone in her home, to see if she had such a document. Ms Geele explained that her aunt had told her she had been able to get such a document, recalling that her aunt had paid a small fee. At no stage was she aware of how her aunt had obtained this document and was unaware that it was a bogus document.
Under cross-examination, Ms Geele indicated to the Tribunal that:
(a)she could not assert that the birth certificate she had provided was fraudulent as she had never seen a genuine birth certificate from Somalia to compare the document with;
(b)during her visa process she had been young, inexperienced and had no English language skills;
(c)she had not knowingly provided to the Department a fraudulent document; indeed had never sought to provide the birth certificate with her application for citizenship by conferral; and
(d)she had genuinely forgotten about the existence of the birth certificate as a great deal of time had passed since the birth of her children, the breakdown of her marriage, being a single mother to two young children, numerous moves including one interstate, and the stress of dealing with this application.
The Department of Foreign Affairs and Trade Country Information Report for Somalia (the Somalia Report) provides the best judgement and assessment of the country at the time, based on credible sources of information. It describes the political system as follows:
Somalia was without an effective government from 1991 until the Federal Government of Somalia (FGS) was formed in 2012. During these two decades, Somalia was considered a failed state by the majority of the international community. The political, security and humanitarian situation in Somalia remains unstable and complex. State-building continues at the federal level, but progress is slow and the Government’s capacity to provide basic services or respond to humanitarian or conflict-related disasters is low.
…….
The security situation in Somalia is highly volatile and security incidents and crime are a common feature of everyday life...
The Somalia Report states the following in respect of available documentation in Somalia and related fraud:
DFAT assesses that document fraud is highly prevalent in Somalia and there are no verifiable Somali identity documents. There is no systematic birth and death registration in Somalia: UNICEF reported that only 3 per cent of births between 2005 and 2012 were registered. Most Somalis do not have valid identity documentation due to a lack of government capacity to issue documents and access restrictions for rural communities who are isolated from government offices or cannot afford travel to main cities to register. Verifying documents is impossible as there are no reliable government-held registries to compare against. Fraudulent documentation can take the form of fake documents, or genuine documents that have been obtained on the basis of fraudulent information.
Most Somalis do not have the means to obtain a passport and the majority of countries, including Australia, do not recognise the Somali passport...
Dr Hussein Haraco, Secretary of the Somali Australian Council of Victoria (SACOV) provided a reference for Ms Geele dated 17 September 2019, in which he states:
I have known Ms. Ifrah since she arrived to Australia. She is a mother of 2 children and a great mother...
…She is volunteering our homework program in Broadmeadows. She is also volunteering the weekend soccer program the leadership training program we run at SACOV office. She is a hardworking and dedicated volunteer who likes to give back her time to the community.
…SACOV believes that Ms Ifrah has a good character. Our stuff[sic] and the executive Committee of SACOV have not seen or heard any adverse comments about Ms. Ifrah’s character. The kids in the homework program love her and she is amazing in support of the homework program. The other volunteers, the leadership group all respect her and love her in her support for them.
Osman Ali Mohamed, founder and chief operations officer of GURMAD Somalian Relief, provided a reference in Ms Geele dated 18 September 2019 in which he states:
…The community members who know Ms Ifrah since her arrival in Australia in have confirmed to us that Ms Ifrah has always been known as Ifrah Salat Geele. We are all certain that identity has always been the same including in Somalia and Kenya. She was married with this name and all her friends and family referred to her by the same name.
We wish to note that obtaining identity or any other kind documentation in Somalia is extremely difficult given the social and political unrest that has plagued the country for many years.
Ms Ifrah is a caring single mother of two children and also contributing member. She has been a generous donor and supportive member of our Somali Community in Australia.
CONSIDERATION
Identity
Mr Baghi on behalf of Ms Geele contended that the Citizenship Policy observes that a person’s identity is not a fixed concept and is highly dependent on context. The assessment of identity entails the consideration of what is referred to as the three pillars of identity, namely biometrics, documents and life stories. Fundamentally, based upon the Policy guidelines the Tribunal should be satisfied of Ms Geele’s identity because no issues had been raised regarding her biometrics, that she had provided a detailed account of her life story from her childhood until she had arrived in Australia and this account was consistent with the identity she had always claimed. This claim was supported by that of her family composition, which she had provided in her original visa application.
Mr Baghi further contended that in accordance with the Somalia Report, Ms Geele was unable to produce any identifying documentation from her country as the report clearly indicated Somalis do not have valid identity documents due to a lack of government capacity to issue such documents.
Mr Baghi argued that Ms Geele had provided a full and frank account of how she had acquired the birth certificate which she had submitted with her original Partner visa application. She had never seen a birth certificate as no one in Somalia had such documents and therefore she was in no position to determine if the document was genuine or bogus. Ms Geele had relied upon her aunt to obtain the document and had scant contact with her during this period as Ms Geele was residing in Kenya at the time and her aunt did not have a telephone.
Ms Baghi submitted that under the Act there was no requirement that identity can only be established by documentation; and that Ms Geele had provided a detailed account of her life story, which should be given more weight as she was unable, because of her country of origin, to provide primary documentation. Additionally, Ms Geele had provided her marriage certificate which the Department had affirmed was genuine; affidavits from family members attesting to her identity; and a proof of identity document issued by the Consulate General of Somalia in Australia.
Mr Orchard on behalf of the Minister contended that the Tribunal could not be satisfied of Ms Geele’s identity or good character and accordingly should affirm the Delegate’s decision to refuse Ms Geele citizenship by conferral. He referred the Tribunal to Beyan and Minister for Immigration and Border Protection [2015] AATA 256, where Senior Member Walsh found:
Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. 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.
Mr Orchard argued that as the birth certificate provided by Ms Geele to the Department with her Partner visa application had been found to be counterfeit the Tribunal could not be satisfied of her identity. Additionally, Ms Geele had provided no genuine documents from Somalia to satisfy her identity.
The Tribunal notes the Policy indicates that assessment of the person’s identity must be on an evidenced-based approach, which seeks to establish a person’s identity from birth. And that it cannot be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept but must be verified incrementally through a person’s life and considered historically. When assessing a person’s identity the objective is to determine whether inconsistencies are identified with any aspect of a person’s life story, biometric data and documentary information (i.e. an individual’s birth certificate).
Further the Policy clearly identifies that individuals seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arriving in Australia. In this situation, the Policy articulates that an informed assessment is necessary, based on research of country of information and weighed against the evidence provided by an applicant.
The Tribunal finds Ms Geele to be a credible and reliable witness who had provided a consistent life story. The Tribunal, relying upon the information provided by the Nairobi Post, finds that the birth certificate provided by Ms Geele for her visa application was a bogus document. However, the Tribunal does not find Ms Geele had knowingly provided a bogus birth certificate because it accepts that she believed the document provided by her aunt to be genuine.
The Tribunal finds Ms Geele’s account of her life story and inability to provide any documentation plausible. Additionally, the Tribunal does not find that Ms Geele had failed to avail herself of opportunities to secure evidence of identity, as demonstrated by her actions in securing identity documentation from the Consulate General of Somalia in Australia
The Tribunal relies upon the Somalia Report, finding it corroborates Ms Geele’s account of the political situation in Somalia. The report noted that due to a lack of a functioning government in Somalia identity documentation was unobtainable and not necessary in Somalia or for travel purposes.
The Tribunal does not draw the conclusion, as the Department had, that Ms Geele’s refusal to accept any responsibility for the provision of a bogus birth record was indicative of her lack of good character. However, the Tribunal determines another narrative could have easily been assumed, namely that Ms Geele’s aunt had obtained a document, as others had seeking to flee the situation in Somalia, in an attempt to assist her niece to travel to Australia to commence a new secure and stable life with her now former husband. The Tribunal noted that the Nairobi Post had stated that the name Ali Haji Musse had appeared as the claimed issuing officer on other birth certificates presented to Post which had been identified as counterfeit.
Good character
Mr Baghi contended that Ms Geele has demonstrated her enduring qualities as a person of good character through having never contravened any laws in Australia or Somalia. Additionally, Ms Geele, despite the difficulty she has faced as a result of her separation from her former husband, has contributed positively to the community, mastering the English language, obtaining qualifications, holding down a full-time job whilst raising her two daughters, and contributing in a voluntary capacity to the Australian-Somali community.
Mr Baghi contended that Ms Geele had not knowingly provided a bogus document in her visa application. She had submitted a document acquired by her aunt which she believed was a genuine document. She had no way of verifying its authenticity having never seen a Somali birth certificate.
Mr Baghi contended that Ms Geele had provided a consistent and credible explanation of her life story and how she had acquired the birth certificate. He argued that a one-off incident of unknowingly providing false documentation to the Department should not diminish her good character in the citizenship context, or otherwise.
Mr Orchard contended that the Tribunal should be satisfied that Ms Geele’s birth certificate was a fraudulent document based on the information provided by the Australian High Commission Nairobi; and that Ms Geele had knowingly provided this bogus birth certificate which demonstrated she was not of good character. Mr Orchard argued that Ms Geele’s evidence of how she acquired the birth certificate was vague and there was no way of testing the evidence.
Additionally, Mr Orchard contended that Ms Geele’s testimony at the hearing that she had forgotten about her birth certificate was implausible. He asserted Ms Geele was fully aware of the importance of obtaining identity documents for this process and she had not provided the birth certificate “knowingly” as part of a citizen application as she knew it to be bogus.
Mr Orchard also stressed that Ms Geele’s testimony at the hearing was inconsistent as she had proffered different accounts in her evidence: that she had forgotten about the existence of the birth certificate; that she did not know it was fraudulent; that she had not been involved in obtaining the document; and she did not accept the Australian government’s finding that the document was fraudulent.
Mr Orchard argued that fundamentally the Tribunal could not be satisfied that Ms Geele was of good character, given the circumstances and provision of her fraudulent birth certificate when applying for a Partner visa and her assertion that she could not provide any Somali identity documents when applying to become a citizen. He argued that a person of good character would not rely upon a bogus document that she had knowingly provided to the Department.
On balance, however, the Tribunal finds that Ms Geele was a person of good character, who respected and abided by Australian laws, was honest and financially responsible, had been truthful in her dealings with the Australian government, had not been violent, was not involved with drugs, had no serious driving offences, and had not been involved in any criminal activity.
The Tribunal finds that whilst the birth certificate Ms Geele had provided in her visa application was bogus, Ms Geele had not knowingly provided a fraudulent document to the Department. The Department did not present any evidence or contend to the Tribunal that Ms Geele was not who she claims to be. Nor has it provided any evidence it has concerns about her character beyond the production of her Somali birth certificate.
Ms Geele has been living in Australia for nine years, is in full-time employment, has learnt the English language, undertaken training certificate qualifications, is raising two Australian citizen children as a single mother, has no criminal record, or traffic offence before the Tribunal. The Tribunal finds that Ms Geele has demonstrated enduring good moral qualities over time that are in conformity with Australian community values; as attested to by character references which state that she is who she claims to be, and describe her as honest, generous and of great integrity.
CONCLUSION
The Tribunal, having considered all the evidence placed before it, is satisfied of Ms Geele’s identity and that she is of good character. As such, she should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the Delegate dated 20 October 2017, refusing Ms Geele application for Australian citizenship by conferral. It remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act that the Applicant is a person of good character; and that it is satisfied of their identity for the purposes of the Act .
I certify that the preceding 59(fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
[sgd]........................................................................
Associate
Dated: 20 February 2020
Date of hearing: 21 January 2020 Advocate for the Applicant: Mr Navid K. Baghi Solicitors for the Applicant: Amity Lawyers Advocate for the Respondent: Mr Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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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Statutory Construction
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