Gjura and Minister for Home Affairs (Citizenship) - [2018] AATA 4222

Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 (13 November 2018)
Division:GENERAL DIVISION
File Number: 2018/1034
Re:Edmond Gjura
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:13 November 2018
Place:Brisbane

The decision under review is affirmed.
..........................[sgd]........................................
Member D K Grigg
CATCHWORDS
CITIZENSHIP –refusal of approval to grant citizenship – whether satisfied of applicant’s identity – applicant’s purported use of two different identities – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection [2018] MTA 757
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640
Hneidi And Others v Minister for Immigration and Citizenship (2010) 265 ALR 292
SECONDARY MATERIALS
Australian Citizenship Policy (2016, Cth)
Attorney General's Department's National Identity Proofing Guidelines
Explanatory Memorandum to the Australian Citizenship Bill 2005
REASONS FOR DECISION
Member D K Grigg
13 November 2018
INTRODUCTION

The Australian Citizenship Act 2007 (“the Act”) sets out the criteria that must be satisfied for a person to be eligible to become an Australian citizen.[1]
[1] Section 21, Act.
A critical element of any assessment of eligibility is that the Minister for Home Affairs (“MHA”) is satisfied regarding the identity of the applicant for citizenship, that is, that they are who they say they are. If the MHA is not satisfied of a person’s identity, he is prohibited from approving that person becoming an Australian citizen.[2]
[2] Section 24(3), Act.
The Department of Home Affairs (“DHA”)[3] began to have doubts about the Applicant and his identity when he indicated in his citizenship application that he had been known by another name “Simon Djuraj”. The Applicant says that he was living in Australia between 1999 and 2009 using the alias “Simon Djuraj”. The DHA had no record of the Applicant arriving in Australia under the name Simon Djuraj. The Applicant told the DHA that after 2009 he reverted to using his “real” name “Edmond Gjura”. The Applicant, as Edmond Gjura, was granted a partner visa in 2010. The Applicant says he originally assumed the identity of Simon Djuraj because he believed that it would be easier for him to obtain a protection/refugee visa.
[3] Previously known as the Department of Immigration and Border Protection (“DIBP”).
The DHA advised the Applicant on 31 January 2018 that his application for Australian citizenship by conferral had been refused. The MHA was not satisfied of his identity pursuant to section 24(3) of the Act on the grounds that (“MHA Decision”):[4]
(a)records showed that, according to the Applicant’s story, between 1999 to 2009 Edmond Gjura had remained in Australia without a substantive Visa and that throughout that time he had used the name Simon Djuraj;
(b)there is no record of an Edmond Gjura arriving in Australia using the name Simon Djuraj;
(c)records show that Simon Djuraj departed Australia on 14 July 2009;[5]
(d)on 17 September 2009, Edmond Gjura from Albania, applied for an offshore prospective spouse Visa which was granted on 25 November 2009.[6] At the time of the spousal visa application the Applicant did not inform the DHA that he had previously used an alias or that he had previously spent 10 years in Australia under the name Simon Djuraj;
(e)the Applicant had provided false and misleading identity information to the DHA despite multiple interactions with DHA officials;
(f)the provision of false and/or misleading information to obtain immigration outcomes is a very serious matter that can result in up to 12 months imprisonment under section 50 of the Act; and
(g)pursuant to section 234 of the Migration Act 1958 (Cth) a person shall not present false information and material to an officer for the purposes of obtaining entry into Australia.
[4]           Exhibit 1, T Documents, T2, pages 12-27, Notification of decision to refuse an application for Australian
citizenship and decision record application by conferral and decision record dated 4 July 2017
[5]           Exhibit 1, T Documents, T11, page 118, Movements of Simon Djuraj
[6]           Exhibit 1, T Documents, T 20, pages 1388 – 1512, Departmental records.
On 25 February 2018 the Applicant sought a review of the MHA Decision by this Tribunal and provided additional documents in an attempt to prove his true identity.[7]
[7]Exhibit 1, T Documents, T1, pages 1-11, Application for Review of Decision dated 5 March 2018.
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether it can be satisfied of the identity of the Applicant for the purposes of section 24(3) of the Act.
The Tribunal has jurisdiction to review the MHA Decision pursuant to section 52(1)(b) of the Act.
CHRONOLOGY – DEPARTMENT OF HOME AFFAIRS RECORDS
On 15 August 1996 a person holding a passport in the name of Edmond Gjura, born in Albania on 29 March 1982, entered Australia on a tourist visa.[8]
[8] Exhibit 1, T Documents, T13 A, page 319 A, Department record.
Simon Djuraj, born 18 April 1981, first arrived in Australia on 13 April 1999, and was granted a bridging visa on 10 June 1999.
Between 15 June 1999 and 7 April 1999 Simon Djuraj was granted 42 bridging visas, enabling him to remain in Australia while he pursued a more permanent protection entry visa.[9]
[9] Exhibit 1, T Documents, T 14 – T 15, T 16 – T19, pages 320 – 759 and 760 – 1387, Departmental records.
On 15 December 1999 Simon Djuraj’s protection visa application was refused.[10] Subsequent appeals to the Refugee Review Tribunal, Federal Court and requests for Ministerial Intervention were also unsuccessful.[11]
[10] Exhibit 1, T Documents, T 13, pages 176-177, Protection visa refusal
[11] Exhibit 1, T Documents, T 13, pages 120 – 319, Departmental records regarding application for protection Visa by Mr Simon Djuraj.
Between 1 March 2001 and 5 February 2009 Simon Djuraj spent a total of 320 days unlawfully onshore in Australia.[12]
[12] Exhibit 1, T Documents T2, pages 15 – 25, Decision record dated 31 January 2018.
On 14 July 2009 Simon Djuraj departed Australia.[13]
[13] Exhibit 1, T Documents, T11, page 118, Movement records.
On 17 September 2009 Edmond Gjura applied for an offshore prospective spouse Visa.[14] Mr Edmond Gjura was first granted a visa to enter Australia on 25 November 2009 and he entered Australia on 3 December 2009.[15]
[14] Exhibit 1, T Documents, T20, pages 1510
[15] Exhibit 1, T Documents, T11, page 119, Movements of Edmund Gjura
Edmond Gjura departed Australia on 26 July 2011 and returned on 2 September 2011.[16]
[16] Exhibit 1, T Documents, T11, page 119, Movements of Edmund Gjura.
On 14 October 2013, Edmond Gjura became a permanent resident of Australia.[17]
[17] Exhibit 1, T Documents, T21, pages 1514-1515, Approval of Partner (Residence) Visa dated 14 October 2013.
On 20 April 2016, the Applicant applied for Australian citizenship by conferral under section 21(2) of the Australian Citizenship Act 2007 (“the Act”).[18] In his citizenship application, the Applicant declared that:[19]
(a)his full name was “Edmond Gjura”;
(b)he was born on 29 March 1982;
(c)he was born in Shkoder, Albania;
(d)he is a citizen of Albania;
(e)he had previously used the alias, “Simon Djuraj” with a date of birth of 18 April 1981;
(f)his partner’s name is “Kristjana Gjura”;
(g)his parents’ names are “Vitor Gjura” and “Vide Gjura”; and
(h)his parents were born in Albania.
[18]Exhibit 1, T Documents, T4, pages 59-75, Application for Australian Citizenship dated 20 April 2016.
[19] Exhibit 1, T Documents, T4, pages 59-61, Application for Australian Citizenship dated 20 April 2016.
To prove his identity, Mr Gjura supplied the DHA with the following documents:[20]
(a)an Albanian passport;
(b)a residential rates notice; and
(c)a family certificate;
which contained the same identity details he had provided in his Citizenship Application.
[20] Exhibit 1, T Documents, T4, pages 75-76, Application for Australian Citizenship dated 20 April 2016
On 6 November 2017 the DHA wrote to the Applicant, inviting him to comment on the fact that he appeared to have two sets of documents that showed two distinctly different sets of personal information and that he had used both sets of information in his dealings with the DHA.[21]
[21] Exhibit 1, T Documents, T8, pages 91 – 99, Letter from the Department to Mr Gjura dated 6 November 2017.
The Applicant provided the DHA with a statutory declaration stating that he understood it was confusing that he has used two different names. The Applicant declared that:[22]
(a)his real name is Edmond Gjura;
(b)he travelled to Australia with his father in 1996; and
(c)he decided to apply for a Visa with a fake Kosovar identity because he was advised that it would be easier to get an Australian protection Visa if he said he came from Kosovo.
[22] Exhibit 1, T Documents, T9, pages 102 – 106, Statutory declaration of Mr Gjura declared 23 November 2017.
MATTERS RELEVANT TO AN IDENTY ASSESSMENT
The Explanatory Memorandum to the Australian Citizenship Bill 2005 states (at 41):
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
The Minister referred the Tribunal to the Citizenship Policy (2016) which provides guidance on the interpretation of, and the exercise of powers under, the Act. The Tribunal is not bound to apply the Citizenship Policy, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[23]
[23]Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 (“Drake (No 2)”):
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
The Full Federal Court in Hneidi And Others v Minister for Immigration and Citizenship (2010) 265 ALR 292 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:
[41] …The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.
In Drake (No 2), Brennan J (as President of the AAT) noted that:[24]
“… an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application”[25]
“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[26]
Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy.”
[24]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 635.
[25]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642
[26]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Tribunal is not aware of any “cogent reason” why it should not take the Citizenship Policy into consideration.[27]
[27] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 643.
Chapter 13 of the Citizenship Policy provides guidance on the administration of the identity provisions under the Act. In summary, the Citizenship Policy advises that “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”.[28]
[28] Citizenship Policy (2016) Chapter 13, page 158.
The Citizenship Policy provides (at 158-161)-
ln 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.
…
Concept of identity
The concept of identity is as described in the Attorney-General's Department's National Identity Proofing Guidelines (2004).
Identity Assessment
On 10 June 2015, the ANAO tabled in Parliament the performance audit "Verifying Identity in the Citizenship Programme" (the identity audit). The identity audit made five recommendations covering development of guidance on establishing identity, programme management and notification tools for use in tracking how the programme manages its cases where there are questions about an Applicant's identity. The department agreed to these recommendations. To this end the department is developing an Identity Assessment Framework for Citizenship which will apply to an Applicants Name to be used.
Name to be used
The application must be made in the most recent name that the applicant has been known by according to acceptable identity documents, the applicant's 'current full name'. ...
For citizenship purposes, the applicant's current full name would be the most recent name that appears on acceptable official forms of identifying documents.
The allowable identity documents relating to the Applicant's name for the purposes of a citizenship application would include officially issued documentation such as:
·           birth and adoption certificates
·           official change of name documentation
·           marriage, divorce or other relationship status certificates or entry records
·           official passports.
...
Changes to name or other identity information
If the applicant has changed their name, date of birth, sex or gender they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use....
In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name or a change of name after marriage.
However, a change to personal/biographical data is a serious matter if the change leads to a different identity.(emphasis added)
A change of identity (changes to component(s) of the person's identity) diminishes the usefulness of the results of the security and criminal checks.
...
In reaching a finding of fact about the person's identity, decision makers are expected to consider issues such as:
·the reason that the person provided the original personal information relating to their identity when they applied for citizenship
·the reason for changing their personal information
·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes
·the documentation that was provided to support the change of personal information.
The Minister also referred the Tribunal to the Attorney General's Department's National Identity Proofing Guidelines (AGD Identity Guidelines) (referred to in the Citizenship Policy) which were published for the purpose of strengthening identity proofing processes and increasing trust through a standardised and transparent national approach. They relevantly provide as follows:
1.1 Background
1.1.1 Establishing confidence in a person's identify is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
The AGD Identity Guidelines also establish that where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken, including:[29]
(a)'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).
(b)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.
(c)Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
(d)A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.
[29] Attorney General’s Department, National Identity Proofing Guidelines (2014), 5.1.3.
The Tribunal stated in Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (“Beyan”) that (at [37])-
"... 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. "

Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.
CONTENTIONS
Minister’s Contentions
The MHA contends that the Tribunal cannot be satisfied of the Applicant's identity because:[30]
(a)the Applicant has presented himself to the DHA under at least two different unrelated identities in his various visa applications and his citizenship application;
(b)it is unclear whether the applicant is Edmond Gjura, Simon Djuraj, or someone else entirely.
[30] Exhibit 5. Respondent’s Statement of Facts, Issues and Contentions dated 25 July 2018, para 16.
The Applicant’s Contentions
The Applicant contends that:
(a)he is Edmond Gjura; and
(b)he only used the name Simon Djuraj with a fake Kosovar identity in order to obtain a protection visa (because he had remained in the country illegally after initially entering with his father in 1996).[31]
[31] Statutory declaration of the Applicant dated 23 November 2017.
EVIDENCE/CONSIDERATION
The Applicant said he first arrived in Australia in 1996 as “Edmond” and then, over two years later, he changed his identity to Simon Djuraj. He says the story about Simon Djuraj was a total fabrication.
Based on this story, Australian authorities gave Simon Djuraj a temporary bridging visa and he was advised to apply for either permanent residency or a protection Visa.
DHA records indicate that Simon Djuraj entered Australia for the first time on 13 April 1999. The exact port of entry and the logistics of Simon Djuraj’s arrival in Australia are not confirmed. When Simon Djuraj arrived, he provided the DHA with documents which indicated that his parents were from Yugoslavia. Simon Djuraj was provided entry into Australia because Australian authorities believed that he was from Kosovo and that his family had to flee to Albania due to their ethnicity.
Simon Djuraj
Documents
Djuraj Birth Certificate
For the protection Visa application, lodged in 1999, Simon Djuraj was required to provide certain documents. One of the documents provided by Simon Djuraj was a Yugoslavian birth certificate issued in January 1998.[32] The birth certificate provides that Simon Djuraj was born on 15 April 1981 and that his parents’ names are Mikai and Lule Djuraj from Decan in Yugoslavia. The Applicant told the Tribunal he obtained this document from Albania and that in Albania in those days, you could have quite easily obtained a lot of false documents. He said he does not know whether the Djuraj Birth Certificate was a real document from Yugoslavia but was “pretty sure” that it was fake. The MHA pointed out that the document has an official seal and that this casts doubt as to whether the document is in fact fake. The Applicant said he asked his brother, Albert Gjura, if he could get some Kosovar identity documents for him but that he did not know how his brother obtained them and did not ask him.
[32] Exhibit 1, T Documents, T15 at page 667, Department records regarding Mr Simon Djuraj’s Bridging Visa applications.
It is unusual that the Applicant would ask his brother to obtain false identity documents and not discuss with him whether he could obtain them and from where they would be obtained. The Applicant clearly believed his brother could obtain false identity documents. The Applicant said he telephoned his brother from Australia in 1998 or 1999. The Applicant was unable to confirm whether his brother had paid for the documents. He stated that his brother and some family members were involved in obtaining the documents but was not able to provide any detail and said he did not know “to be honest”. The Applicant was unable to provide sufficient detail about how the document came into his possession and called no witnesses, in particular his brother, to explain how the document had been obtained. The Applicant said he made up the names of the parents on the Yugoslavian birth certificate and used the names of his uncle and aunt. If this is true he surely must know how the documents were prepared and should have been able to tell the Tribunal that the document was counterfeit. He did not do that.
Letter from Albanian Director of Police
Another document presented to the DHA by Simon Djuraj for the purposes of the protection Visa application is a letter purportedly written by the Director of Police from Shkoder, Albania, dated 20 December 1999. The letter states that Mr Simon Djuraj was from Decan, Kosovo and was a refugee in Albania.[33] The Applicant said he obtained this document from his brother and family members who obtained it in Albania. When asked how the official seal for the document was able to be obtained and applied to the document, the Applicant said he was not quite sure. He says all the documents he submitted as Simon Djuraj to Australian authorities would have been paid for, but he was unable to give any details about how much was paid and to whom. The Applicant said that what is contained in that letter is not true as it relates to himself in particular the section regarding his father being wounded.
[33] Exhibit 1, T Documents, T15, pages 746-747, Departmental Records regarding Mr Simon Djuraj’s Bridging Visa applications.
Letter from Chief of Albanian Red Cross
Another document submitted by Simon Djuraj was a letter purportedly written by the chief of the branch of the Albanian Red Cross on 21 December 1999. This letter was an attempt to verify that Simon Djuraj’s father had been registered with their organisation after being displaced in Kosovo.[34] Again the Applicant said the document came from Albania but from where, from whom and how much was paid for it he did not know. He also could not say whether the signature of the Red Cross official on the document was genuine and how the signature was obtained.
[34] Exhibit 1, T Documents, T15, pages 749-750, Departmental Records regarding Mr Simon Djuraj’s Bridging Visa applications.
Letter from Head of Albanian Association of Queensland
Simon Djuraj also provided the DHA with a copy of a letter from the head of the Albanian Association of Queensland. This letter establishes that the head of the Albanian Association knew a Simon Djuraj. However, this document does not establish that the head of the Albanian Association knew the Applicant as Simon Djuraj.
Other documents
Further documents were submitted to the Department by Simon Djuraj, and the Applicant’s evidence was that they were obtained in the same way as the birth certificate and other documents, explored above.[35]
[35] see Exhibit 1, T Documents, T15, pages 752-753, 754, Departmental Records regarding Mr Simon Djuraj’s Bridging Visa applications.
At Hearing, the Applicant said he was very young at the time he requested the Simon Djuraj documents from his brother and that he had no money left in his bank account to pay for them. He says he was just aware that money would have been required to obtain the documents. Despite repeated questioning, the Applicant was unable to elaborate further on either how the documents had been obtained or how much money had been paid to generate the false documents. The Applicant told the Tribunal that he had “nothing to hide now” and that he was “trying to be upfront and honest now”. He said he simply does not have that information.
None of the documents submitted by Simon Djuraj establish that Simon Djuraj was the Applicant purporting to be Simon Djuraj.
The Tribunal notes that these documents are all dated after the date the protection visa was refused and were obtained for the Refugee Review Tribunal appeal.
Knowledge of the Community
The Applicant told the Tribunal that at that time of applying for the protection Visa in the name of Simon Djuraj, he was known in the community, by his soccer club, and by his church as Simon Djuraj. The Tribunal notes Simon Djuraj submitted tax returns for the 2005 – 2006 financial year, at which time he was working as a painter for BBC painting proprietary limited.[36]
[36] Exhibit 1, T Documents, T16, pages 822 – 827 Departmental Records regarding Mr Simon Djuraj’s Application for Ministerial Intervention.
The Applicant says he went to his church leader and asked for a letter to assist with his appeal. It was put to the Applicant that the church assisted with the provision of a petition to the government to support his application for a protection visa. The Applicant said he did not know anything about it. He was asked if he remembered a petition being prepared. The Applicant seemed hesitant about how to answer the question and eventually responded that someone at his work organised it and waited for the representative for the Respondent to confirm. Ultimately, he said he was “not sure to be honest”. The Tribunal finds it implausible that the Applicant could not remember how he arranged for a petition to be signed by community members to support his application given that:
(a)he says he had created a false identity to obtain a protection Visa; and
(b)he had gone to the lengths of obtaining allegedly falsified material to do so.
It begs the question whether the story regarding the adoption of the name Simon Djuraj is true at all.
The Applicant was shown a letter dated 23 October 2002 from St Mark’s Catholic Church addressed to the then Attorney General, requesting that Simon Djuraj be allowed to remain permanently in the country and attached a petition.[37] The Applicant again said the petition was not from the church and was from his workplace, a biscuit factory. Yet the letter, signed by Reverend F.J Moynihan and on the Church letterhead says, “enclosed here is a petition from several of our parishioners supporting the application of Simon Djuraj for permanent residence in Australia”.
[37] Exhibit 1, T documents, T13, pages 133-145, Departmental Record regarding Mr Simon Djuraj’s Protection Visa applications.
There is no evidence whatsoever from the biscuit factory or anyone having worked in the biscuit factory that a petition was organised there. The Applicant persisted in saying that the petition had not been organised by the church and continued to assert that it would have been from his workplace. At Hearing, he was asked whether all the signatures on the petition were of people who had worked with him at the biscuit factory, to which he replied in the affirmative. If the petition was organised by his workplace and signed by colleagues, why was Elsa Kalaja (purportedly the Applicant’s sister) and Martin Kalaja two of the signatories? I also note that tax returns submitted by Simon Djuraj in 2002, around the time of the letter from the St Mark’s Catholic Church, provides that he lives at Woodridge which is also within the electoral division of Oxley.
When I asked the Applicant who at work organised the petition his answer was “I just asked the workers”. The Applicant was quite vague in his answers on most areas of questioning on this issue. He said he told his fellow employees that he is just a young person who arrived here and is now trying to stay in Australia. The Applicant said he was lying to his fellow workers because he was not the person he said he was.
Martin Kalaja, a person who shares the same name as one of the two women who gave evidence before the Tribunal (purportedly the Applicant’s sisters), wrote a letter to the Attorney General on 30 October 2002. In that letter, in support of Simon Djuraj’s permanent residence visa application, Mr Kalaja wrote that Simon arrived in Australia at the age of 15 years and had no parents or family members in Australia.[38] It was not explained how or if Martin Kalaja is related to Rita Kalaja, a witness and purported sister of the Applicant. At the time of Simon Djuraj’s medical examination on 13 April 1999, he recorded his address as the same address as appeared on Martin Kalaja’s letterhead.[39]
[38] Exhibit 1, T Documents, T13, pages 130 and 153, Letter from Martin Kalaja to Attorney General dated 30 October 2002.
[39] Exhibit 1, T Documents, T13, pages 130 and 153, Letter from Martin Kalaja to Attorney General dated 30 October 2002; Medical examination form completed by Simon Djuraj dated 13 April 1999.
The Applicant was asked if he organised for the local federal member to lobby on his behalf in his protection visa appeal. The Applicant appeared as if he either did not know the answer to the question, or was not sure what answer to give. He asked to be taken to the material. Having looked at the material, the Applicant said he probably would have done that if the document says he did. In the Departmental file for the protection Visa application, the DHA had a letter from the then Federal Member for Ryan, Michael Johnson MP dated 31 October 2002 writing to the Attorney General, advising that persons headed by a resident of Middle Park had signed a petition requesting ministerial discretion to allow Mr Simon Djuraj, a Kosovo refugee, to stay in Australia. The letter also states that a copy of the original petition was enclosed for Mr Johnson’s information.[40]
[40] Exhibit 1, T13, 128-129, Departmental Record regarding Mr Simon Djuraj’s Protection Visa applications.
The Applicant was asked whether anyone had ever questioned his identity and he said no. However, there is a record of the DHA that on 2 September 2011 the Applicant was questioned at the airport by a DHA officer regarding his identity and specifically whether he had previously entered Australia under the name Simon Djuraj.[41]
[41] Exhibit 1, T Documents, T21, page 1551, Departmental records.
In 2003 Simon Djuraj married a person called Kirsty Lee Williams. The Applicant said she used to work at the biscuit factory with him. He says he was not in a relationship with Ms Williams but spoke to her about his Visa application and requested her help. Given that the Applicant said that the petition he was shown earlier had been signed by people from the biscuit factory, one would have expected to see the name of Kirsty Lee Williams, however no one by that name signed the petition. A marriage certificate indicates that Simon Djuraj married Kirsty Lee Williams on 26 April 2003.[42] This document was used as part of Simon Djuraj’s application for Ministerial Intervention. The Applicant says he married Ms Williams at a house with a couple of friends and some family members. He was unable to confirm the address of the house in which the marriage took place and said he was not 100% sure where it was. He said that Ms Williams agreed to help him but not for any money. Kirsty Williams did not give evidence at the hearing.
[42] Exhibit 1, T Documents, T16, page 911, Departmental Records concerning Simon Djuraj’s application for Ministerial Intervention dated 14 December 2005 – 14 September 2007.
Simon Djuraj then made several further applications under section 417 for Ministerial Intervention to try to prolong his time in Australia.
At the Hearing the Applicant said he did not speak, understand or read Yugoslavian. In the application for a protection visa in May 1999 Simon Djuraj indicated that he could read, write and speak Albanian and Yugoslavian.[43]
[43] Exhibit 1, T Documents, T13, page 296, Department record concerning Simon Djuraj’s application for Protection Visa and related documents. .
Edmond Gjura
At Hearing, the Applicant said he met his current wife (the subject of the Prospective Marriage Visa Application), Kristjana Gjura, well after the marriage to Ms Williams, in around 2006 to 2007. At that time, he says he was still in Australia. He said at that time he lived with his sister, Elsa Pemaj, and her husband who was his wife’s uncle. The Applicant says he knew the family of his future wife because they are from a village near where he is from in Albania. He said his future wife met him as Edmond Gjura but knew that he changed his name to Simon Djuraj. Mrs Gjura did not give evidence at the hearing.
The Applicant says he left Australia as Simon Djuraj and went to Albania in 2009. He says he told Kristjana he was tired of operating under a false name and told her that he was not going to lie to authorities anymore. The Applicant applied for Australian residency pursuant to a spousal Visa under the name Edmond Gjura.
In September 2009 the Applicant provided the DHA with written statements[44] where he stated that he met his wife for the first time over the Internet. The Applicant was asked if he lied in that statement and he said yes. He said they did not meet for the first time over the Internet. The Applicant said that they started speaking on the Internet by Hotmail, but it was not how they met. He says he lied in the statement about whether he was in Australia because he was known by another name and if he had told the DHA he had been living in Australia under a false name it would have made everything complicated.
[44] Exhibit 1, T Documents, T20, pages 1447-1449, Department Records concerning Edmond Gjura’s application for UK-820 and UK-801 visas dated 24 August 2010 – 14 October 2013.
In October 2009, the DHA conducted an identity interview with Kristjana. An officer from the DHA telephoned her while she was in Albania on 22 October 2009. Kristjana told the DHA that she met Edmond Gjura through the Applicant’s sister, Elsa Pemaj, who connected them via the Internet in March 2007. Kristjana told the DHA officer that they had communicated often through the Internet and the telephone and kept in touch for a couple of years before she decided to visit him in Albania.[45] Kristjana indicated to the DHA that the Applicant had always lived in Albania. The Applicant says this was false and that he asked Kristjana to lie for him. As noted above, Kristjana did not give evidence at the hearing.
[45] Exhibit 1, T Documents, T20, pages 1397-1398 Department Records concerning Edmond Gjura’s application for UK-820 and UK-801 visas dated 24 August 2010 – 14 October 2013.
The Applicant, as Edmond Gjura, was granted a Prospective Marriage Visa,[46] and entered the country on 3 December 2009.[47] Edmond Gjura was granted a temporary spousal visa on 3 September 2010,[48] and on 14 October 2013 was granted a permanent spousal visa.[49]
[46]         Exhibit 1, T Documents, T20, page 1390, Approval of Prospective Marriage Visa dated 25 November           2009.
[47]         Exhibit 1, T Documents, T12, page 119, Edmond Gjura’s Movement Records as at 29 March 2018.
[48]         Exhibit 1, T Documents, T21, pages 1595-1597, Grant of Partner (Temporary) Visa dated 3 September 2010.
[49]         Exhibit 1, T Documents, T21, pages 1514-1515, Approval of Partner (Residence) Visa dated 14 October 2013.
For the prospective marriage visa application, Edmond Gjura provided the DHA with, among other things:
(a)a statement dated 4 September 2009 from Mr Cesk Doci;[50]
(b)a statement dated 30 August 2009 from Elsa Pemaj;[51]
[50] Exhibit 1, T Documents, T20, page 1464, Statement from Cesk Doci dated 4 September 2009.
[51] Exhibit 1, T Documents, T20, pages 1466-1467, Departmental Records concerning Mr Edmond Gjura’s TO-300 Application.
Mr Doci stated that Edmond Gjura was a professional painter in Albania. The Applicant says that that was not true as he was in a painter in Australia. When the Applicant was asked whether he had asked Mr. Doci to put that in his statement to paint a picture that he was in Albania the Applicant responded “like I said that’s what he said other professional painter that’s what it looks like, sounds like. I’m not sure… I’m not sure mate to be honest but I think I asked him”. I asked him why he submitted a statement to the DHA given that it contained false information and he said he asked Mr Doci to provide that statement for him.

Elsa Pemaj states that she is the Applicant’s sister and that the Applicant and his wife first saw each other over the Internet and that Kristjana later decided to travel to Albania to meet her brother face-to-face.[52] The Applicant says that his sister lied in this statement by stating that he was living in Albania when he was in Australia and that he asked his sister to lie for him in the statement. Ms Pemaj provided a further statement for this hearing and gave evidence. Ms Pemaj said Kristjana, the Applicant’s wife, helped her type her statement. When Ms Pemaj was asked about the statement she had provided in 2009 for the spousal visa application, she said she could not remember if she had previously provided a statement for her brother. This earlier statement was provided by Ms Pemaj “to attest to the legitimacy of my brother Edmond Gjura’s and his fiancée Kristjana’s relationship”.[53] In her 2009 statement, Ms Pemaj said that her brother met his wife over the Internet and that she decided to travel to Albania to meet him face-to-face.
[52] Exhibit 1, T Documents, T20, pages 1466-1467, Statement of 30 August 2009.
[53] Exhibit 1, T Documents, T20, pages 1466-1467, Statement of 30 August 2009.
At the Hearing, Ms Pemaj said she does not remember writing that statement. When asked if everything in that statement was true and correct Ms Pemaj said, “what you mean is that true?” Ms Pemaj was asked to confirm several times the accuracy of her statement and she finally said it was true that Kristjana was in a relationship with him. At the Hearing Ms Pemaj said the Applicant met Kristjana for the first time in Australia, yet in her statement it says they met the first time face-to-face in Albania.
Ms Pemaj repeatedly did not answer questions and at times seemed very confused about what answer would be the “right” one for the Applicant. Her credibility is such that the Tribunal cannot even be satisfied that this person is the Applicant’s sister. She was asked repeatedly to acknowledge that the statement she had provided 2009 was incorrect and her answer repeatedly was that she was under a lot of stress. To ensure that Ms Pemaj understood the questions she was being asked, an interpreter was then arranged to be present for the remainder of the hearing. Ms Pemaj was then asked the same questions again. She said she had written the letter and that her brother was in Australia at that time. She says the document is the truth except for saying that he was in Australia not Albania, a somewhat critical difference. She said her brother did not ask her to lie. Despite the interpreter being available and interpreting each question she still did not answer questions directly. When asked whether the Applicant was her brother she replied he is “my brother, my best friend, my mum, my dad. He helped me through lots of good times and bad times and I wish and I’m not saying this now my English is coming but Australia I’m proud to have him as a brother and Australia would be proud to have him in this beautiful country”. The Tribunal asked Ms Pemaj why she wrote in her statement that he was in Albania if he was in Australia? She said because he had a different name. After being asked numerous times she continued to refuse to answer that question clearly. She finally admitted that she lied in her statement because the authorities did not know that Edmond Gjura was here in Australia. She then said the Applicant is Edmond Gjura “in every way”.
The Tribunal is concerned about the role Ms Pemaj has been asked to play in the Applicant’s spousal and citizenship applications.
Given Ms Pemaj attempted to ignore questions being asked of her and given that she has provided inconsistent evidence regarding Edmond Gjura’s whereabouts, the Tribunal gives Ms Pemaj’s evidence little weight.
The Applicant also submitted to the Tribunal an undated statement of Rita Kalaja, received by the Tribunal on 17 August 2018.[54] Ms Kalaja is Ms Pemaj’s sister and says that the Applicant is her brother, Edmond Gjura. Ms Kalaja told the Tribunal that she was with the Applicant’s wife when she prepared her statement and that Kristjana typed it for her, but that it reflects what she wanted to say. Ms Kalaja was asked if she attended the Applicant’s wedding to Miss Kirsty Williams and she said no. Ms Kalaja referred to birthday cards that she had given the Applicant for his birthday and two photographs showing pictures of the Applicant with her and Ms Pemaj.[55] There is no way for the Tribunal to know when these cards were completed. The photos appear to show the Applicant with Ms Pemaj and Ms Kalaja, but this does not mean they are related to each other. The Applicant said one of the cakes had the name Edmond on it, but it was not entirely clear to the Tribunal and there is no way of verifying when, where or by whom this photograph was taken.
[54] Exhibit 2, Statement of Rita Kalaja, received 17 August 2018.
[55] Exhibit 1, T Documents, T10, pages 113-117, collection of cards and photos of the Applicant provided to DHA as identity documents.
The Applicant provided the Tribunal with the following documents, not provided to the DHA previously, in support of his claim that he is Edmond Gjura:[56]
(a)a birth certificate;
(b)a baptism confirmation certificate; and
(c)a copy of a primary school certificate in the name of Edmond Gjura for years 1 to 8.
[56] Exhibit 4, Evidence to support the Applicant’s Identity.
The difficulty, as identified by the Minister’s representative, is that there is no way for the Tribunal to determine whether these documents are genuine or fake, especially given the number of other fake documents acknowledged by the Applicant. The Applicant says he obtained these documents himself whilst in Albania from official sources. There is nothing to corroborate that he obtained this material himself; there is no receipt for example from the registry offices.
The Applicant told the Tribunal that he has always paid his taxes, albeit under two different names according to his evidence. The Applicant’s past history of dishonest behaviour creates difficulty in believing he is telling the truth now.
CONCLUSION
The Applicant’s evidence regarding the manner in which the Yugoslavian/Kosovan birth certificate in the name of Simon Djuraj was obtained was vague and opaque. While he testified that many of his documents were false, he also was unable to confirm whether other documents were genuine or fake, nor was he able to give specific, transparent details of how they were obtained. The Applicant did not call his “brother”, the only likely witness, to give evidence to explain how the documents were obtained, nor to verify the Applicant’s purported adoption of the Simon Djuraj identity.
The names, dates of birth, places of birth and citizenship information in the documents for Simon Djuraj all differ from those he claims pertain to him as Edmond Gjura.
Most of the information relied upon by the Applicant to establish his current claimed identity was issued and gathered for:
(a)the purposes of obtaining the grant of his spousal visa; or
(b)gathered after the grant of his spousal visa for the purposes of his Citizenship application.
The Respondent contends that the Tribunal should give little weight to the Edmond Gjura documents. In Beyan, the Tribunal considered it relevant that (at [471]):
The Applicant has provided no documentary evidence to establish his identity, other than documents which have been obtained subsequent to the grant of his Class XB visa. This casts doubt on the identity of the Applicant
As with the Simon Djuraj documents, there is nothing to confirm the authenticity of the Edmond Gjura documents. There is also no corroborating evidence, such as a receipt, that the Applicant obtained these documents from official Albanian departments while he was in Albania as he testified. The Edmond Gjura birth certificate was purportedly issued on 8 March 2018, the Edmond Gjura baptism certificate was purportedly issued on 13 February 2018 and the school records were verified on 16 April 2018. Yet, there is no record of Edmond Gjura leaving Australia after 2011 to have been present in Albania to collect these documents in early 2018 as he says he was.[57]
[57] Exhibit 1, T Documents, T12, page 119, Movement records.
In CDNB and Minister for Immigration and Border Protection [2018] MTA 757, the Tribunal considered it relevant to the assessment of identity to examine whether the applicant had portrayed a consistent life story. In that case, the Tribunal found it relevant that (at [92]):
"...there was a level of consistency in relation to names, date of birth and ... ethnicity, but there was inconsistent evidence as to place of birth, schooling, medical care, the raising of funds, and an admission of travelling on a false passport ..."
The Minister has identified the following inconsistent details from the Applicant’s statements, statements of family members, and purported official documentation:[58]
[58] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 25 July 2018, para 34.
(a)his name and his name at the time he met his now wife;
(b)his date of birth;
(c)his place of birth and his ethnicity;
(d)his schooling and education;
(e)how many times he has been married;
(f)how he met his now wife;
(g)the allegations as to the level he was persecuted in Kosovo; and
(h)travel information.
The Tribunal is unable to make any findings as to whether the documents used to establish an identity as Simon Djuraj or the documents used to establish an identity as Edmond Gjura are genuine or fake.
The Applicant has consistently lied to DHA officials and to the public. It is not clear to the Tribunal whether he is continuing to lie now. The Applicant said he withheld the truth in the past but that he was telling the truth now. The Applicant has repeatedly lied to obtain visas and benefits for himself.
The Applicant said he did not lie in order to do anything wrong to anyone, just to obtain a better life for himself. The Applicant submitted that he was young and only 17 at the time he made the decision to deceive people into believing he was Simon Djuraj, a Kosovan refugee. If the Applicant’s story is to be believed, he kept up the lie about his identity for well over 10 years. The Applicant deceived his employers, his church, his workmates and friends. This conduct did not involve one lie but a continual series of lies to many people.
According to the Applicant’s evidence, he assumed a false identity for personal gain. He also took advantage of the system that was in place to assist the plight of Kosovan refugees who were fleeing into Albania in 1999.
The Applicant said he has attempted to remain in Australia using two totally different identities and life histories. Given the Applicant admits he has extensively lied to the DHA and the unsuspecting public, together with the inconsistent identity documents and the lack of any independent verification evidence, the Tribunal does not have any confidence in the Applicant’s evidence.
In these circumstances, and with the available evidence, the Tribunal cannot be satisfied that the Applicant is Simon Djuraj, Edmond Gjura, or someone else.
DECISION
The Tribunal finds that Mr Gjura is not eligible for citizenship under section 24(3) of the Act.
The decision under review is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

................................[sgd]...................................
Associate
Dated: 13 November 2018

Date of hearing: 27 August 2018

Applicant: In person

Advocate for the Respondent: Chris Brinley

Solicitors for the Respondent: Clayton Utz

Date of hearing:	27 August 2018
Applicant:	In person
Advocate for the Respondent:	Chris Brinley
Solicitors for the Respondent:	Clayton Utz