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

[2022] AATA 2285

Ghalib and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2285 (18 July 2022)

Division:GENERAL DIVISION

File Number:          2020/4986

Re:Luula Hassan Ghalib

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:18 July 2022

Place:Perth

The decision of the delegate of the Respondent dated 22 July 2020 is set aside and the matter is remitted for reconsideration with a direction that the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Australian Citizenship Act 2007 (Cth).

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

Deputy President Boyle

CATCHWORDS

CITIZENSHIP – s 24(3) of the Australian Citizenship Act – refusal to approve the Applicant becoming an Australian citizen – delegate not satisfied of the Applicant’s identity – prohibition on approval of citizenship – Applicant claims to have been born in Somalia – government policy documents applied – Three Pillars of Identity – lack of source biometric documents – UNHCR documentation – Applicant’s life story – Tribunal satisfied of the Applicant’s identity – reviewable decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) preamble, s 24(1), 24(3)

Freedom of Information Act 1982 (Cth)

CASES

Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97

Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162; [2015] AATA 310

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20

Khin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4138

Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79

YMPL and Minister for Immigration and Border Protection [2017] AATA 1458

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2016) paras 2.11, 2.1.2, 2.2.1, 2.2.3, 5.1, 5.1.2, 5.1.3

Department of Home Affairs, Citizenship Policy and Instructions, Australian Citizenship [Policy Statement] (27 November 2020)

Department of Home Affairs, Citizenship Policy and Instructions, CPI 16 – Assessing Identity under the Citizenship Act (27 November 2020) paras, 5, 11.2, 11.3

REASONS FOR DECISION

Deputy President Boyle

18 July 2022

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 22 July 2020[1] 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 of the Applicant’s identity and that, accordingly, the prohibition on approval under s 24(3) of the Australian Citizenship Act 2007 (Cth) (Act) applies.

   [1] R3, T2.

   BACKGROUND

2. The Applicant says that she believes that she was born in Somalia in 1964.[2]

   [2] Applicant’s statutory declaration, A5, para 1.

3. The Applicant says that she had five children by her husband whom, she says, was abducted when they were living in Somalia in 2004. She has not heard from her husband since his abduction.[3]

   [3] A5, para 10.

4. The Applicant says that in December 2006 she left Somalia with her children and travelled to Nepal where she sought asylum through the UNHCR.

5. On 28 February 2013 the Applicant was granted a subclass 204 visa and on 31 July 2014 she and her children arrived in Australia.

6. By application submitted on 31 December 2018, the Applicant applied for Australian citizenship by conferral. The application was accompanied by:

   (a)a certified passport photo of the applicant;[4]

   (b)Titre de voyage issued by the Australian Government on 19 December 2016;[5]

   (c)a Document for travel to Australia issued by the Australian Government with Australian subclass 204 visa granted 28 February 2013;[6]

   (d)a Western Australian photo card valid until 18 November 2023;[7]

   (e)a Synergy electricity account for period 15 August 2018 to 15 October 2018 addressed to Mrs L Ghalib;[8] and

   (f)a completed Form 1195 Identity declaration.[9]

   [4] R3, T3/49–50.

   [5] R3, T3/51.

   [6] R3, T1/7.

   [7] R3, T1/11.

   [8] R3, T3/53.

   [9] R3, T3/52.

7. By letter dated 7 May 2019,[10] the Department requested that the Applicant provide further documents. In response, on 30 May 2019 the Applicant provided:

   (a)a Form 1399 Declaration of service dated 20 May 2019;[11]

   (b)a Form 80 Personal particulars for assessment including character assessment dated 20 May 2019;[12]

   (c)a Government of Nepal Police Crime Investigation Department certificate dated 23 July 2014 certifying that the Applicant has no adverse record against her from 20 December 2006 to 18 July 2014 (including a photograph of Applicant);[13] and

   (d)a letter from UNHCR dated 9 October 2009 advising of recognition of the Applicant as a refugee.[14]

   [10] R3, T5/58–9.

   [11] R3, T6/62–71.

   [12] R3, T6/72–89.

   [13] R3, T6/90.

   [14] R3, T6/91.

8. By decision dated 22 July 2020 a delegate of the Minister refused the Applicant’s application for citizenship by conferral (see [1] above).

9. On 18 August 2020 the Applicant lodged the application with the Tribunal for the review of the delegate’s decision. The applicant filed with the application for review, amongst other documents, the following:

   (a)Medicare card in the Applicant’s name valid until March 2025;[15] and

   (b)copies of the documents identified in [6(c)] and [6(d)] above.

   [15] R3, T1/9.

   THE ISSUE

10. The parties agree that the sole issue for determination is whether the Tribunal is satisfied of the Applicant’s identity.[16] I too agree that that is the sole issue for determination.

    [16] Applicant’s statement of facts, issues and contentions (ASFIC) para 1; Minister’s statement of facts, issues and contentions (MSFIC) para 10.

    THE HEARING AND THE EVIDENCE

11. The application initially came on for hearing on 8 March 2021. At that time the Applicant was represented by a migration agent. It became evident early in the hearing that the migration agent had insufficient experience and knowledge of the relevant law to adequately represent the Applicant at the hearing. I therefore adjourned the matter and made a direction for the filing of any further evidence by the Applicant and the filing of submissions and further evidence by the Minister.

12. Thereafter the Applicant retained her current solicitors who filed further evidence and, on 16 August 2021, a statement of facts, issues and contentions[17] to which the Minister filed a reply on 17 September 2021.[18]

    [17] A3.

    [18] Minister’s reply, R4.

13. The hearing of the application resumed on 20 January 2022. Mr H Glenister appeared for the Applicant and Ms C Taggart appeared for the Minister. The following documents were put into evidence:

    Exhibits admitted into evidence on 8 March 2021

    (a)Applicant’s reply with annexures A–D (A1);

    (b)Applicant’s submissions with annexures A–N (A2);

    (c)MSFIC filed 13 January 2021 (R1);

    (d)AUSTRAC report filed 1 March 2021 (R2);

    (e)Section 37 documents filed 15 August 2020 (R3);

    Exhibits admitted into evidence on 20 January 2022

    (f)ASFIC filed 16 August 2021 (A3);

    (g)Bundle of documents filed with the ASFIC on 16 August 2021 (A4);

    (h)Statutory declaration of the Applicant dated 22 November 2021 (A5);

    (i)Statutory declaration of Aisha Abdi Noor Awale dated 22 November 2021 (A6);

    (j)Statutory declaration of Saeed Abdi Noor Awale dated 30 September 2021 (A7);

    (k)Statutory declaration of Ahmed Abdi Noor Awale dated 22 November 2021 (A8);

    (l)DFAT Country Information Report for Somalia (13 June 2017) (A9); and

    (m)Minister’s reply filed 17 September 2021 attaching AUSTRAC report in MS Excel format (R4).

14. The following witnesses gave evidence at the hearing:

    (a)The Applicant; and

    (b)Aisha Abdi Noor Awale, the Applicant’s daughter.

15. The whole of the Applicant’s evidence was given through an interpreter.

    LEGAL FRAMEWORK

16. The Preamble to the 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.

17. Section 24(1) of the Act provides:

    24   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.

    (Original emphasis.)

18. Section 24(3) of the 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.

19. In deciding whether to grant Australian citizenship under the Act, decision-makers can be guided by government policy.[19] Relevant polices are set out in the Australian Citizenship Policy Statement,[20] Australian Citizenship Procedural Instruction 16 (CPI 16 - Assessing Identity under the Citizenship Act)[21] and the National Identity Proofing Guidelines[22] (together referred to herein as the Policy).

    [19] Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20 at [41].

    [20] Department of Home Affairs, Citizenship Policy and Instructions, Australian Citizenship [Policy Statement] (27 November 2020) (the Policy Statement).

    [21] Department of Home Affairs, Citizenship Policy and Instructions, CPI 16 – Assessing Identity under the Citizenship Act (27 November 2020) (CPI 16).

    [22] Attorney-General’s Department, National Identity Proofing Guidelines (2016) (the Guidelines).

20. The Full Court of the Federal Court of Australia has held that the discretion to approve or refuse Australian citizenship is unfettered, and “not inimical to the adoption of executive policy ... to guide the exercise of discretion”.[23] The Full Court reasoned that the Act envisaged the application of executive policy to promote consistency and rationality in decision-making.[24] Each case before the Tribunal is considered afresh, and government policy is ordinarily considered unless there is a cogent reason not to do so.[25] In the present case there is no reason why the Policy should not be applied. Both parties referred to and sought to rely on the Policy.

    [23] Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79, [64].

    [24] Ibid [65], [70].

    [25] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

21. Paragraph 5 of CPI 16 describes three pillars of identity comprising biometrics, documents, and life story, as the foundation on which assessments of identity are to be made. It states that:

    Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence-base to establish identity.

22. Paragraph 11.2 of CPI 16, which deals with the third pillar of identity, life story, provides:

    When assessing a person's life story in the context of a citizenship application, delegates must seek to create a complete identity 'picture' of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person's identity, while at the same time considering their life story, is to consider their identity timeline.

    The objective is to link the applicant's identity at birth to the identity provided in their application for Australian citizenship. This can be done by considering key chronological events in the person's life, and using pillar one (biometrics) and pillar two (documents), to piece together and corroborate information.

    In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, delegates must locate the information provided during these interactions, plot it on the person's identity timeline, and compare it with information provided at the time of applying for Australian citizenship.

    …

    The characteristics of a person's life story can also extend to other events that have occurred in their life. Information and/or documentation pursuant to these life events can be valuable when delegates are trying to piece together a person's identity timeline. For example, where a person fled their country of origin and resided in a country of refuge, delegates could seek to determine whether the person was registered with the UNHCR. If they were, it may be possible to verify with the UNHCR the identity the person used at that point in time.

23. Paragraph 11.3 of CPI 16, dealing with the assessment of a person’s life story, observes:

    There may be cases where one pillar may be given more weight than the others. For example, cases where the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person's identity.

    …

    Family relationships can be very useful when establishing an individual's identity. Relationships form an important characteristic of a person's life story.

    It is important for delegates to compare the family composition provided by the applicant at various interactions with the Department.

    In order to corroborate information, delegates are expected to examine the family composition provided to the Department by the citizenship applicant's claimed family members, as well as the particulars of the information. There are generally common elements between family members who travelled to Australia together, or were from the same village. A claim that can be corroborated by independent evidence is more likely to be reliable.

24. The Policy Statement refers to the concept of identity as described in the Guidelines. Paragraphs 2.1.1–2.1.2 of the Guidelines relevantly provide 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.

    … For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.

25. The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some, or all, of the five identity proofing objectives. Those objectives are set out in para 2.2.1 as follows:

    1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another...

    2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created ... through evidence of commencement of identity in Australia...

    3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community...

    4.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder...

    5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used...

    (Original emphasis.)

26. The Guidelines also refer to the level of assurance that a decision-maker should have as to a person’s identity being, in part, dictated by the purpose for which the identity is to be established. Paragraph 2.2.3 relevantly provides:

    These Guidelines recognise that it will not always be necessary or appropriate to confirm a person’s identity with a high degree of confidence, particularly for transactions or services that are low value or involve low levels of risk…

27. Relevant to the present case, para 5.1 of the Guidelines also addresses the case where a person does not possess or is unable to obtain documents establishing identity. Paragraphs 5.1.2–5.1.3 relevantly provides:

    5.1.2Exceptional cases are those where a person does not possess, and is unable to obtain, the  necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented  arrivals to Australia; people living in remote areas; people who are transgender or intersex;  people effected by natural disasters; people with limited access to identity documents…

    5.1.3Alternative identity proofing processes that organisations MAY consider for these exceptions cases include (note different combinations of these processes may be appropriate depending on the individual circumstances).

    1.Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).

    2.Verification of the person’s claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.

    …

    4.A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.

    (Original emphasis; footnotes omitted.)

    CONSIDERATION

28. There is no requirement that identity must be established by documentary evidence alone, however, an application may be refused if an applicant has failed to avail themselves of opportunities to secure evidence of identity which might reasonably be expected to exist and which they have been advised to secure.[26] At [117] of Dhyakpa, Deputy President Nicholson stated:

    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.

    [26] Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162; [2015] AATA 310 at [117] per Deputy President Nicholson.

29. The approach taken in Dhayakpa has been followed by Tribunals in a number of cases.[27]

    [27] See YMPL and Minister for Immigration and Border Protection [2017] AATA 1458; Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97; Khin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4138.

30. The Minister contends that the Applicant's evidence is insufficient to satisfy the Tribunal about the applicant’s identity. In particular, the Applicant's key identity documents reflect the applicant’s identity at a point in time (after her arrival in Australia in 2014), and do not provide an unbroken chain linking to a primary official identity document such as a birth certificate.[28] The Minister further contends that the Applicant could make more extensive inquiries with respect to obtaining further identity evidence[29] and that there is only superficial evidence about the Applicant's life story which raises substantial questions about her identity.[30]

    [28] MSFIC para 20.

    [29] MSFIC para 21.

    [30] MSFIC para 23.

1. In closing, the Minister’s counsel referred to the lack of documentary evidence and the “absence of records of the life lived”,[31] in particular prior to the Applicant’s arrival in Nepal. As counsel noted, there are no photographs from that period nor records of children’s births which, in at least one case, was in a hospital which would have kept records. Ms Taggart also referred to “some slight differences between the applicant's written evidence and what evidence was received today”.[32]

   [31] transcript at 55.

   [32] transcript at 55.

2. The lack of documents dating from the period when the Applicant and her family lived in Somalia was, in part at least, explained by the Applicant’s evidence at the hearing that her house in Somalia was bombed in or around 1993 or 1994.[33] It was pointed out to the Applicant in cross-examination that she had never before advised that records that she may have had were destroyed when her house was bombed. Her explanation was that in her previous statements she had, in effect, responded to questions asked of her and that subject had not come up. I accept the Applicant’s evidence on that issue. More generally I found the Applicant to be an honest witness doing her best to recall the events in relation to which she was asked questions. The Applicant is not a sophisticated person and has little to no education. She did not attend school and her ability to read is limited to reading the Koran in Arabic.[34] While she can read the Koran in Arabic, she cannot read Arabic more generally and cannot read Somali which is the only language that she can speak.

   [33] transcript at 16.

   [34] transcript at 9.

3. I am satisfied that what might be considered inconsistencies or omissions in her recounting of her life story (including those identified in paras 24 and 25 of the MSFIC) are not the result of fabrication on the Applicant’s part, but rather a result of her lack of sophistication and difficulties in communication through interpreters and in an environment and context which is foreign to her.

4. Insofar as the Minister argues that the Applicant has not made sufficient efforts to obtain identity documents from Somalia, I note the DFAT Country Information Report,[35] in particular paras 5.20 and 5.21, which advises that there is not systematic registration of birth in Somalia and that “[v]erifying is impossible as there are no reliable government held registries to compare against”. Indicative of the lack of credibility of Somali issued documents, the Australian government does not recognise Somali passports.[36]

   [35] A9.

   [36] A9, para 5.21.

5. Statutory declarations were provided by the Applicant’s daughter, Aisha Abdi Noor Awale born in Somalia in 1990,[37] the Applicant’s son Saeed Abdi Noor Awale born in Somalia in 1993[38] and the Applicant’s son Ahmed Abdi Noor Awale born in Somalia in 1997.[39] Aisha gave evidence at the hearing. The statements of the Applicant’s children and the evidence of Aisha at the hearing, are consistent with the life story provided by the Applicant in her statutory declaration[40] and in her previous statement.[41]

   [37] A6.

   [38] A7.

   [39] A8.

   [40] A5.

   [41] A2, annexure J.

6. As was observed in Dhayakpa, an applicant’s identity can be established in a number of ways. As set out above, CPI 16 describes the “three pillars” principle in establishing identity. The third of those pillars is the applicant’s life story. In my view the Applicant’s life story, as told through her statements, her evidence at the hearing and the evidence of her children, is consistent and, together with the documents that the Applicant has provided, are sufficient for me to be satisfied of her identity. Insofar as the Applicant has been able to produce documents evidencing her life after she left Somalia, those documents (in particular the UNHCR documents produced by the Department pursuant to a request under the Freedom of Information Act 1982 (Cth))[42] are consistent with her life story as recounted by her and her children and support her being who she claims to be. As Deputy President Nicholson did in Dhayakpa at [118], I accept that in the unusual circumstances of the Applicant’s life, she has established her identity to the best of her ability, and I accept that her identity is as she claims.

   [42] Contained in A1, annexure A (unpaginated); A2, annexure F.

   DECISION

7. For the above reasons the decision under review is set aside and the matter remitted for reconsideration with a direction that the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

Associate

Dated: 18 July 2022

Dates of hearing:	8 March 2021, 20 January 2022
Counsel for the Applicant:	Mr H Glenister
Solicitors for the Applicant:	William Gerard Legal Pty Ltd
Counsel for the Respondent:	Ms C Taggart
Solicitors for the Respondent:	MinterEllison