GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Case [2023] AATA 3245

GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3245 (11 October 2023)

Division:General Division

File Number(s):2023/0787      

Re:GJDB  

APPLICANT

AndMINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

RESPONDENT

DECISION

Tribunal:The Hon Justice Kyrou, President

Date:11 October 2023

Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that the prohibition in s 24(3) of the Australian Citizenship Act 2007 does not apply to the applicant.

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

Justice Kyrou

Catchwords

CITIZENSHIP – concept of ‘identity’ for purposes of s 24(3) of Australian Citizenship Act 2007 – relevant legal principles – concept bound up with sameness of a human being – individual indicia of identity such as name, appearance and documents must not be conflated with identity itself – BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 applied.

CITIZENSHIP – state of being ‘satisfied’ of a person’s identity for purposes of s 24(3) of Australian Citizenship Act 2007 – relevant legal principles.

MINISTERIAL POLICY – citizenship policy instructions promulgated by Minister on assessing identity – whether policy instructions should be applied by Tribunal unless good reasons exist – policy instructions directed at process of reasoning for forming a statutory state of satisfaction – policy instructions not those of the kind referred to in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 – policy instructions do not bind Tribunal but can be adopted by Tribunal if considered helpful – Green v Daniels (1977) 13 ALR 1 applied.

CITIZENSHIP – citizenship by conferral – delegate not satisfied of applicant’s identity – applicant claimed to be an Afghan national who had fled to Pakistan – applicant held Pakistani identity documents in a different name – Pakistani identity documents found to have been obtained fraudulently – strong evidence of continuum in applicant’s claimed identity – delegate’s decision set aside and matter remitted to respondent for reconsideration with a direction that prohibition in s 24(3) of Australian Citizenship Act 2007 does not apply to applicant.

Legislation

Australian Citizenship Act 2007

Cases

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

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

Green v Daniels (1977) 13 ALR 1

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Secondary Materials

Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan (Report, 20 February 2019)

Department of Immigration and Border Protection, Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (Policy, 1 January 2022)

Landinfo, Report Afghanistan: Tazkera, passports and other ID documents (Report, 22 May 2019)

Table of Contents

Decision

REASONS FOR DECISION

INTRODUCTION AND SUMMARY

STATUTORY PROVISIONS AND RELEVANT PRINCIPLES

APPLICANT’S FACTUAL CONTENTIONS

EVIDENCE ADDUCED AND CREDIT FINDINGS

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Details
AGLC
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3245
Case
[2023] AATA 3245
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia considered the meaning of "identity" for the purposes of section 24(3) of the *Australian Citizenship Act 2007* (Cth) in a dispute between GJDB and the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought citizenship by conferral, but a delegate of the Minister was not satisfied of the applicant's identity. The applicant claimed to be an Afghan national who had fled to Pakistan, and held Pakistani identity documents under a different name. These documents were found to have been obtained fraudulently.

The primary legal issue before the Court was to determine the correct interpretation of "identity" as used in section 24(3) of the Act, which requires the Minister to be satisfied of a person's identity before approving their application for citizenship. The Court also considered the application of ministerial policy instructions concerning the assessment of identity, and whether such instructions were binding on the Administrative Appeals Tribunal.

Justice Kyrou, President, reasoned that the word "identity" in section 24(3) refers to the sameness of a human being, meaning the person is who they claim to be. This identity is a continuum from birth to death, and while attributes such as name, appearance, nationality, and life experiences may change or be subject to fraud, they are not to be conflated with or treated as equivalent to the person's fundamental identity. The Court noted that ministerial policy instructions, while not binding on the Tribunal in the same way as legislation, could be adopted if considered helpful in the process of forming a statutory state of satisfaction.

The Court found that despite the fraudulent acquisition of Pakistani identity documents and the use of a different name, there was strong evidence of a continuum in the applicant's claimed identity. Consequently, the delegate's decision was set aside, and the matter was remitted to the Minister for reconsideration with a direction that the prohibition in section 24(3) of the *Australian Citizenship Act 2007* did not apply to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 24 of the Act relevantly 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.…(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. Section 24 is to be construed according to established principles of statutory construction. The starting point is the text of the statutory provision, considered in the light of its context and purpose. Context includes the legislative context, because the meaning of the provision must be determined by reference to the entire Act.[1][1] This paragraph is based upon James v The King [2023] VSCA 34, [28], which cites SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20], 157 [41], 162-3 [64], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-7 [47] and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]. The word ‘identity’ is not defined in the Act and it does not have a single meaning, as its meaning can vary according to the statutory or other context in which it is used. In some contexts, ‘identity’ may have a broad meaning which incorporates a person’s views of themselves and their cultural attributes. In other contexts, ‘identity’ may have a narrower meaning which focuses exclusively upon physical traits – such as those found in DNA or fingerprints – that are unique to each individual. Dictionary definitions of ‘identity’ tend to incorporate a spectrum of meanings, including those referred to above. For example, one of the definitions of ‘identity’ in the Oxford English Dictionary is: ‘The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality’. All but the last two words in that definition may be seen to reflect the concept of permanent sameness, whereas the last two words may be seen to reflect a broader concept of outward expression of a person’s character. In my opinion, s 24(3) of the Act uses the word ‘identity’ in the sense that the person seeking citizenship is the human being that they claim to be. Identity involves a continuum: a person remains the same human being from the moment they are born until the moment they die. In between these times, many attributes associated with them – such as their name, physical appearance (such as their height, weight and the colour of their hair), personality, gender, nationality, languages spoken, manner of speaking and religion – and their life experiences and fortunes may change, but they will remain the same human being.[2] Whilst each of these matters may assist in ascertaining a person’s identity, it is of fundamental importance that, for the purposes of s 24(3), they are not confused with, or treated as equivalent to, a person’s identity.[2] Some changes may occur naturally whilst others may involve surgical intervention. The reference to ‘nationality’ in this context is to the legal status of being a member of a particular nation and being entitled to the rights and subject to the obligations of that membership. See generally Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681, 685–6, 689, citing Liechtenstein v Guatemala (1955) ICJR 4.

Ratio Decidendi

Legal Principle Established

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