Jaber and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3812 (14 November 2023)
Division:GENERAL DIVISION
File Numbers:2020/5675; 2020/5676; 2020/5744; 2020/5794; 2020/5916; 2020/6732; 2020/7763; 2020/7764
Re:Fatna Osman Jaber
Huda Saeed Abdo
Abrar Saeed Abdo
Maymoona Abdo
Mahfouza Abdo
Asma Abdo
Saeed Abdo Esmael
Ibrahim Abdo
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:14 November 2023
Place:Perth
1. The Reviewable Decisions in applications 2020/5675; 2020/5676; 2020/5744; 2020/5916; 2020/6732; and 2020/7764 are set aside, and the matters are remitted to the Respondent for reconsideration with the direction that I am positively satisfied of each of the Applicants’ identities.
2. The Reviewable Decision in application 2020/7763 is set aside, and the matter is remitted to the Respondent for reconsideration with the direction that I am positively satisfied:
(a) of Mr Esmael’s identity; and
(b) that he meets the close and continuing ties criterion in s 21(2)(g) of the Citizenship Act.
3.The Reviewable Decision in application 2020/5794 is set aside, and the matter is remitted to the Respondent for reconsideration with the direction that I am positively satisfied:
(a) of Maymoona’s identity; and
(b) based on the material before me, that she is of good character.
............[Sgd]................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
CITIZENSHIP – applications for citizenship by conferral by members of a family (mother, father and four adult children and two minor children) – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicants’ identity – whether Tribunal satisfied of good character of one of the Applicants – two of the Applicants were children when the Reviewable Decisions were made but were adults at the time of the Tribunal hearing – whether the statutory question before the Tribunal different to the decision-maker – Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 considered – three pillars of identity – Applicants found to be honest and credible witnesses – evidence corroborated by the evidence of other witnesses and available documentation – Tribunal is satisfied of Applicants’ identity and good character – Reviewable Decisions set aside and remitted with a direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Australian Citizenship Act 2007 (Cth) ss 10(1), 21, 21(1), 21(2), 21(2)(g), 21(2)(h), 21(5), 24, 24(3), 40
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Emanuel Exports Pty Ltd; EMS Rural Exports Pty Ltd and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 4393
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Shafari and Minister for Home Affairs [2019] AATA 808
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Department of Home Affairs, Revised Citizenship Procedural Instructions – CPI 15 – Assessing Good Character Under the Citizenship Act
Department of Home Affairs, Revised Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act
Department of Foreign Affairs and Trade Country Information Report Eritrea (8 February 2017)
Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
14 November 2023
OVERVIEW
In these applications I am reviewing eight decisions of the Respondent concerning members of a family who are seeking to become Australian citizens.
These proceedings were somewhat unique because there were eight joined applications from a mother, a father and their six children. This meant that the evidence in one application was relevant in all other applications, and it meant that each application was supported by a broader range of corroborating and circumstantial evidence than a single application would be.
The family members were called one by one and, as is the usual procedure, they were not able to hear the evidence of the previous witnesses. This was helpful to me in reaching a state of satisfaction because I found them to be honest witnesses who each gave consistent evidence.
As I will explain below, my positive findings about Mrs Jaber and Mr Esmael’s identities provided a foundation for the state of satisfaction that I reached about each of their children. The documentation (including biometrics) and life stories of the children, which may not have been sufficient without their parents’ applications being successful, further added to my state of satisfaction about their identities.
Although some further efforts could have been made by individual Applicants to seek further identity documents, I find that substantial and reasonable efforts were made in the circumstances. These efforts included Mr Esmael travelling to Sudan to attempt to obtain birth certificates for Asma and Ibrahim, asking two aunties in Eritrea to search for identity documents and to contact the registry of births and deaths in Eritrea, and contacting the Eritrean and Sudanese Embassies or Consulate in Australia to attempt to obtain identity documents. Mahfouza and Huda also signed a consent form authorising the UNHCR to provide documents, including identity documents, to the Australian Government. The DFAT Report concerning Eritrea supports the family’s concerns about the safety of family members in Eritrea who were attempting to seek documents for them and that the Eritrean authorities are likely to be less than cooperative in assisting a family who had fled the country without permission.
I will now provide an overview of the family members and the reviewable decisions that they seek review of, starting with the parents’ applications. I will refer to the parents by their surnames, but to the children by their first names because they share the same surname.
Mrs Jaber’s application (2020/5675)
The first application is from Mrs Jaber, who is the mother in the family. She was born in Eritrea. She is married to Mr Esmael, the father in the family.
She travelled to Australia from Sudan where the family was staying in a refugee camp in Khartoum. She arrived in Australia on 26 May 2008 with her husband, Mr Esmael, and their six children (the youngest had not yet been born), having been granted an offshore Refugee (subclass XB 200) visa on 17 March 2008 (T4/42). To clarify, Mrs Jaber and Mr Esmael have seven children, but the youngest child is not an Applicant in these proceedings because he was born in Australia and is an Australian citizen.
Mrs Jaber lodged an application for Australian citizenship by conferral on 5 November 2017 with several supporting identity documents including a Form 1195 – Identity Declaration (Form 1195) (T4/11).
On 22 October 2018 and 6 January 2020, the Department of Home Affairs (Department) requested further information about Mrs Jaber’s identity (T5/48-49; T9/58-59).
Mrs Jaber provided more documents to the Department on 8 November 2018 (T6). On 29 November 2018 Mrs Jaber’s daughter Mahfouza requested more time to submit a Form 1399 – Declaration of Service (Form 1399) (T7/54). On 3 February 2020, Mrs Jaber provided three more identity documents to the Department (T10). On 3 February 2020, she provided a completed Form 80 – Personal particulars for assessment including character assessment (Form 80) and a completed Form 1399 (T11).
On 3 February 2020, she emailed the Respondent, stating that she had sent all forms and documents that she was able to. She stated that she did not have a birth certificate, marriage certificate and other documents that the Respondent was requesting because they were lost and that she had fled Eritrea from persecution. She said that her husband was in Sudan and was trying to obtain birth certificates for her and for her children who were born in Sudan but that he was not having success (T12/95).
On 5 March 2020, the Department requested that Mrs Jaber provide another Form 80 and Form 1399 (T13/96-97). Mrs Jaber emailed the Department on 6 March 2020 to advise that she had already provided these forms (T14/99).
On 31 August 2020, a delegate of the Respondent decided to refuse Mrs Jaber’s application for Australian citizenship by conferral (T15/102-109) (2020/5675 Reviewable Decision). She was advised of the decision in a letter of the same date (T15/100-101).
The 2020/5675 Reviewable Decision refused Mrs Jaber’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of her identity as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).
On 18 September 2020, Mrs Jaber applied to this Tribunal seeking review of the 2020/5675 Reviewable Decision (T2/4).
Mr Esmael’s application (2020/7763)
The next application I will discuss, is from Mr Esmael, who is the father in the family. He is married to Mrs Jaber. He was also born in Eritrea.
Mr Esmael travelled to Australia with his wife and children on 26 May 2008 as the holder of an Offshore Humanitarian (subclass 200) visa. He currently has a Resident Return (subclass 155) visa, which was granted on 8 February 2017 (T11/64; T12).
Mr Esmael lodged an application for Australian citizenship by conferral on 25 February 2017 with several supporting identity documents including a Form 1195 (T4/13).
The issue with Mr Esmael’s citizenship application initially arose because he contacted the Department to reschedule his citizenship tests on 31 July 2017 and 1 November 2017 because he was overseas (T5; T6; T12).
The Department wrote to Mr Esmael on 8 February 2019 to invite him to attend another interview on 26 February 2019 (T7). The Department telephoned Mr Esmael on 18 February 2019 because he had not responded to the interview invitation. Mr Esmael advised that he was planning to travel but he would try to attend the interview if it was related to sitting an interview test (T8). Mr Esmael left Australia on 6 April 2019 (T12).
The Department requested further documents from Mr Esmael on 8 August 2019 (T9), and on 6 September 2019 Mr Esmael requested an extension of time. He stated that he had been so busy that he had not checked his emails (T10).
However, on 10 September 2019, a delegate of the Respondent decided to refuse Mr Esmael’s application for Australian citizenship by conferral (T11/64-69) (2020/7763 Reviewable Decision). He was advised of the decision in a letter of the same date (T11/62-63).
The 2020/7763 Reviewable Decision refused Mr Esmael’s application for Australian citizenship by conferral. This was because the delegate was not satisfied that Mr Esmael was maintaining a close and continuing association with Australia or that he intended to reside in Australia at any time in the near future, as required by s 21(2)(g) of the Citizenship Act (T11/66).
That is probably unsurprising because Mr Esmael continued to be overseas from the time of his departure on 6 April 2019 (and did not return until 10 February 2020) (T12/71).
On 25 November 2020, Mr Esmael applied to this Tribunal seeking review of the 2020/7763 Reviewable Decision (T2/6).
Mr Esmael was outside of the 28-day statutory time limit for seeking review in this Tribunal, but the Respondent consented to an extension of time being granted. The Tribunal made an order to extend the time for Mr Esmael to seek review on 17 December 2020.
Abrar’s application (2020/5744)
Abrar is the 33-year-old son of Mrs Jaber and Mr Esmael. He was also born in Eritrea and travelled to Australia with his parents and siblings from Sudan on 26 May 2008, having been granted an offshore Refugee (subclass XB 200) visa as a dependent (T4/35).
Abrar lodged an application for Australian citizenship by conferral on 5 November 2017 with several supporting identity documents including a Form 1195 (T4).
The Department wrote to Abrar on 4 July 2019 to ask him to provide identity documents and a completed Form 80 and Form 1399 (T7). They also wrote to him on 22 October 2019 requesting further identity documents (T9).
After receiving these requests, Abrar provided further identity documents to the Department on 2 August 2019 (T8), translations of school exam reports on 27 November 2019 (T10) and a statutory declaration dated 19 November 2019 explaining why he did not have a birth certificate (T11/65-66).
On 4 September 2020, a delegate of the Respondent decided to refuse Abrar’s application for Australian citizenship by conferral (T12/70-77) (2020/5744 Reviewable Decision). He was advised of the decision in a letter of the same date (T12/67-69).
As with his mother, Mrs Jaber, the 2020/5744 Reviewable Decision refused Abrar’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of his identity as required by s 24(3) of the Citizenship Act.
On 21 September 2020, Abrar applied to this Tribunal seeking review of the 2020/5744 Reviewable Decision (T2/6).
Maymoona’s application (2020/5794)
Maymoona is the 24-year-old daughter of Mrs Jaber and Mr Esmael. She was also born in Eritrea. She travelled to Australia with her parents and siblings on 26 May 2008, having been granted an offshore Refugee (subclass XB 200) visa as a dependent (T4/33).
Maymoona also lodged an application for Australian citizenship by conferral on 5 November 2017 with several supporting identity documents including a Form 1195 (T4).
On 30 August 2019, the Department wrote to Maymoona asking her to provide further documents to confirm her identity (T9/59-61).
On 24 July 2020, the Department wrote to Maymoona to ask her to comment on three spent convictions for stealing on 15 July 2019 (offence date of 11 June 2019), for which she received fines of $800 (T10). In response, she provided a statutory declaration dated 24 August 2020, character references, and a letter confirming she had attended counselling and had an appointment to attend another counselling session (T11).
However, on 11 September 2020, a delegate of the Respondent decided to refuse Maymoona’s application for Australian citizenship by conferral (T12/79-84) (2020/5794 Reviewable Decision). She was advised of the decision in a letter of the same date (T12/77-78).
The 2020/5794 Reviewable Decision refused Maymoona’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied that she was of good character, as required by s 21(2)(h) of the Citizenship Act (T12/81).
On 21 September 2020, Maymoona applied to this Tribunal seeking review of the 2020/5744 Reviewable Decision (T2/4).
Mahfouza’a application (2020/5916)
Mahfouza is the 28-year-old daughter of Mrs Jaber and Mr Esmael. She was also born in Eritrea. She was also granted an offshore Refugee (subclass XB 200) visa as a dependent and travelled to Australia with her parents and siblings from Sudan on 26 May 2008 (T4/35).
Mahfouza lodged an application for Australian citizenship by conferral on 5 November 2017 with several supporting identity documents including a Form 1195 (T4).
The Department requested further identity documents on 4 July 2019 and 22 October 2019 (T6; T9). Mahfouza provided further documents on 2 August 2019 (T8) and emailed the Department and stated that she did not have a birth certificate or “reports of education from overseas” (T7/49) which they had requested. On 16 November 2019 she provided a statutory declaration dated 15 November 2019 to the Department confirming that she did not have a birth certificate because she fled Eritrea to escape persecution and that she was required to be in Eritrea in person to obtain one. She also provided some Australian academic documents (T10).
In an email to the Department dated 17 November 2019, Mahfouza stated that “after a long search we have found some papers” and that they had been sent for a NAATI (National Accreditation Authority for Translators and Interpreters) translation. She requested an extension of time to provide the information because she was not sure if the documents would be translated in time (T11/118).
On 26 November 2019, Mahfouza provided NAATI accredited translations of an enrolment certificate and two exam results reports (T12). In an email dated 6 March 2020, Mahfouza provided the untranslated documents after the Department requested them (T13; T15-16).
On 28 February 2020 and 11 March 2020 the Department requested Mahfouza provide further information about the address of her school and how she obtained the school records (T14; T17).
In the email dated 6 March 2020 Mahfouza also explained that the address of the school was on the top left-hand corner of the original document and that she attended school from 2002 to 2008 (T15).
In an email dated 31 March 2020, she explained that the school records were found in boxes of papers kept in a shed by her father which he had brought to Australia when they first arrived on 26 May 2008. She also provided more information about the location of her school (T18/134).
The Department wrote to Mahfouza again in an email dated 23 June 2020 asking for more identity documents, as well as evidence to support her claim (from her statutory declaration – T10/117) that she would have to be present in Eritrea to obtain her birth certificate (T20/137).
In an email to the Department dated 11 August 2020 she provided further information about why she could not obtain some of the original documents requested by the Department. She also provided two documents relevant to her father and a letter from the Australian Embassy in Cairo advising her that her refugee visa had been granted (T23/141).
On 3 September 2020, a delegate of the Respondent decided to refuse Mahfouza’a application for Australian citizenship by conferral (T24/151-159) (2020/5916 Reviewable Decision). She was advised of the decision in a letter of the same date (T24/148-150).
The 2020/5916 Reviewable Decision refused Mahfouza’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of her identity as required by s 24(3) of the Citizenship Act (T24/153).
On 26 September 2020, Mahfouza applied to this Tribunal seeking review of the 2020/5916 Reviewable Decision (T2/6).
Asma’s application (2020/6732)
Asma is the 19-year-old daughter of Mrs Jaber and Mr Esmael. She was born in Sudan and came to Australia with her parents and siblings on 26 May 2008. Like her siblings, Asma came to Australia after she was granted an offshore Refugee (subclass XB 200) visa as a dependent.
On 5 November 2017, Mrs Jaber lodged an application for citizenship by conferral and included Asma, who was then aged 14, in her application (T4).
On 31 August 2020, the delegate decided to exercise discretion under s 24(2) of the Citizenship Act to refuse to approve Asma becoming an Australian citizen (T15/115-119) (2020/6732 Reviewable Decision).
A letter of the same date was sent to Mrs Jaber to advise her of the 2020/6732 Reviewable Decision concerning Asma (T15/111-113).
The 2020/6732 Reviewable Decision was made on the basis that Asma did not meet one or more of the policy guidelines regarding applicants under the age of 18 (T15/117).
On 18 September 2020, Mrs Jaber applied to this Tribunal on behalf of Asma seeking review of the 2020/6732 Reviewable Decision (T2).
Huda’s application (2020/5676)
Huda is the 30-year-old daughter of Mrs Jaber and Mr Esmael. She was born in Eritrea and came to Australia with her parents and siblings on 26 May 2008 on an offshore Refugee (subclass XB 200) visa as a dependent.
On 5 November 2017, Huda lodged an application for Australian citizenship by conferral with her Document for Travel to Australia, Western Australia learner driver’s permit and a copy of an Australian bank statement (T4).
In a letter dated 4 July 2019, the Department requested that Huda provide further documents in support of her identity (T6). On 2 August 2019, Huda provided a completed Form 80 and Form 1399 and provided other documents in support of her identity (T7).
On 6 August 2019 Huda emailed the Department and stated that she did not have a birth certificate or education reports from overseas (T8).
On 22 October 2019, the Department requested Huda provide further identity documents including a birth certificate or a statutory declaration explaining why she did not have one (T9).
Huda provided further documents to the Department including the requested statutory declaration and Australian academic documents on 16 November 2019 (T10).
Huda emailed the Department on 17 November 2019 and stated, amongst other things, that some papers had been located that had been sent to NAATI for translation. She said she would provide them as soon as they were available and requested an extension of time in case the translated documents were delayed (T11).
On 26 November 2019 she provided exam results reports and an enrolment certificate to the Department (T12). In an email dated 28 February 2020, the Department requested that Huda provide the original, untranslated copies of these documents and further information about her schooling, the address of her school and whether she had been able to obtain further identity documents (T13). She provided the untranslated documents on 5 March 2020 (T14).
The Department sent emails to Huda on 12 March 2020 and 24 March 2020 asking her to explain how she obtained her school records and asking for the address of the school which was not included in the translated documents (T16; T17).
On 31 March 2020, Huda submitted her flight details from when she came to Australia in 2008 and Google Maps searches showing the location of her school. She also explained that the school documents were located “in my fathers paper boxes” which he had since coming to Australia but that they were not previously aware they had the documents (T18).
On 22 June 2020, the Department sent Huda a further email asking her to provide further information and identity documents (T21).
Huda sent an email to the Department dated 11 August 2020. It contained the same wording as Mahfouza’s email of the same date, (see para [51] above) and she also provided the same documents (T24).
On 1 September 2020, a delegate of the Respondent decided to refuse Huda’s application for Australian citizenship by conferral (T25/137-146) (2020/5676 Reviewable Decision). She was advised of the decision in a letter of the same date (T25/134-136).
The 2020/5676 Reviewable Decision refused Huda’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of her identity as required by s 24(3) of the Citizenship Act (T24/139).
On 18 September 2020, Huda applied to this Tribunal seeking review of the 2020/5676 Reviewable Decision (T2/6).
Ibrahim’s application (2020/7764)
Ibrahim is the 22-year-old son of Mrs Jaber and Mr Esmael. He was born in Sudan and came to Australia with his parents and siblings on 26 May 2008 on an Offshore Humanitarian (subclass 200) visa as a dependent. He currently holds a Resident Return (subclass 155) visa which was granted on 9 February 2017.
Ibrahim’s situation is like his sister Asma’s.
On 25 February 2017 Mr Esmael, lodged an application for citizenship by conferral and included Ibrahim, who was then aged 15 (and was about to turn 16 in a matter of days), in his application (T4).
On 10 September 2019, the delegate decided to exercise discretion under s 24(2) of the Citizenship Act to refuse to approve Ibrahim becoming an Australian citizen (T5/48-51) (2020/7764 Reviewable Decision).
A letter of the same date was sent to Mr Esmael to advise him of the 2020/7764 Reviewable Decision concerning Ibrahim (T5/46-47).
As for Asma, the 2020/7764 Reviewable Decision was made on the basis that Ibrahim did not meet one or more of the policy guidelines regarding applicants under the age of 18 (T5/50).
On 25 November 2020, Mr Esmael applied to this Tribunal on behalf of Ibrahim seeking review of the 2020/7764 Reviewable Decision (T2).
ISSUES
The issue that I must determine for each application is whether I am satisfied of the identity of the Applicants, as required by s 24(3) of the Citizenship Act.
At the hearing I had a discussion with the parties about whether I could make a finding about the identity of Asma and Ibrahim because they had been assessed by the decision-maker as children and they were now adults, and their identities had not been considered by the decision-maker.
My concern was that if I considered identity in Asma and Ibrahim’s applications, I may be asking a different statutory question to the original decision-maker, contrary to the guidance provided by the High Court in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 (Frugniet).
Deputy President Britten-Jones and I discussed Frugniet in Emanuel Exports Pty Ltd; EMS Rural Exports Pty Ltd and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 4393 (Emanuel Exports), as well as another relevant authority, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi).
The following passages from our reasons in Emanuel Exports, at [133]-[136], are helpful in resolving the statutory question concerning Asma and Ibrahim:
In the more recent decision of Frugtniet, Bell, Gageler, Gordon and Edelman JJ considered what standing in the shoes of the decision-maker required the Tribunal to do. Their Honours clarified that the Tribunal has the same powers and constraints as the decision-maker, and that the statutory question before the decision-maker marks the boundary of the Tribunal’s review powers:
51. ... the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.
(Emphasis added.)
In a separate judgment in Frugtniet, Kiefel CJ, Keane and Nettle JJ explained that, subject to the statute in question, the Tribunal can consider new evidence that was not before the original decision-maker, including evidence of subsequent events, provided that they are relevant to decide the same statutory question that was before the original decision-maker:
15. Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
(Emphasis added.)
At this point, we note that s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides some guidance about the Tribunal’s role in undertaking merits review of a decision:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(Emphasis added.)
Section 43(1) of the AAT Act was discussed by Kiefel J (now Kiefel CJ) in Shi. Her Honour stated that:
134. Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is ‘merely to do over again ... what the Commissioner did in making the assessment’, within the limits of the taxpayer’s objection.
(Footnotes omitted, emphasis added.)
Mr Burgess, the Respondent’s representative, helpfully submitted that the identity requirement in s 24(3) of the Citizenship Act applies to any application made under s 21 of the Citizenship Act, which includes an application by a child under s 21(5). It was therefore open to the original decision-maker (the delegate) to consider identity, and it follows that it is therefore open to me, standing in the shoes of the original decision-maker, to consider it.
I agree with this submission, which is consistent with Frugniet, Shi and s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That is, it was within the statutory power and discretion of the decision-maker to consider the question of identity for Asma and Ibrahim, and so if I were to make findings as to their identities, I would not be asking a different statutory question to that which was before the original decision-maker.
With respect to Mr Esmael, the Respondent no longer makes the submission that he does not have a close and continuing association to Australia, and so the sole issue concerning Mr Esmael is that of identity. For the avoidance of any doubt, I have briefly addressed, and have made a finding about, whether Mr Esmael is likely to reside in Australia or to maintain a close and continuing association with Australia below. Also, as I concluded for Asma and Ibrahim, even though the original decision-maker did not assess Mr Esmael’s identity, it was open to them to consider the question of identity, and therefore I can consider it. In other words, it was part of the statutory question that was before the original decision-maker.
In addition to identity, there is a further issue regarding Maymoona, which is whether I am satisfied that she meets the good character requirement under s 21(2)(h) of the Citizenship Act.
THE HEARING AND THE EVIDENCE
I heard this application over three days comprising an in person hearing on 4 and 5 April 2023 at the Perth Registry of the Tribunal and closing submissions via Microsoft Teams on 6 June 2023.
The Applicants were represented by Dr B Ahmed, who was assisted by Mr Esmael. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
Mr Esmael gave evidence on the first day of the hearing and was cross-examined. Mrs Jaber, Maymoona, Mahfouza, Abrar, Huda, Ibrahim and Asma gave evidence and were cross-examined on the second day of the hearing. Mrs Jaber was assisted by a Sudanese Arabic interpreter.
Prior to the hearing, the Respondent filed a Statement of Facts, Issues and Contentions (SFIC) dated 21 February 2022. The Applicants also filed a document titled, “Replies to statement of facts, issues and contentions” dated 30 September 2022 which was filed on 11 October 2022. That document contained evidence as well as submissions, and so I exhibited it as Exhibit A1.
I now turn to the material before me, which was extensive. I admitted the following documents into evidence as follows:
·“Replies to statement of facts, issues and contentions” dated 30 September 2022 which was filed on 11 October 2022 with nine attachments (Exhibit A1).
·Statutory declaration of Mr Esmael dated 23 February 2021 with identity documents and flight details (Exhibit A2).
·Various translated documents (Certificate of service in the National Independence Struggle, Tenancy Agreement) (Exhibit A3).
·Residence Identification Card of Mr Esmael (Exhibit A4).
·Further various identity documents of Mr Esmael (Exhibit A5).
·Statutory declaration of Mrs Jaber dated 19 December 2020 with identity documents attached (Exhibit A6).
·Two statutory declarations of Maymoona dated 17 December 2020 with identity documents attached (Exhibit A7).
·Character reference for Maymoona from SE dated 23 November 2020 (Exhibit A8).
·Statutory declaration of LM dated 23 November 2020 (Exhibit A9).
·Statutory declaration of SE dated 11 September 2022, two statutory declarations of AN dated 3 April 2023 and statutory declarations of YM dated 3 April 2023 (Exhibit A10).
·Statutory declaration of Mahfouza dated 23 November 2020 with identity documents attached (Exhibit A11).
·Statutory declaration of Abrar dated 23 November 2020 with identity documents attached (Exhibit A12).
·Statutory declaration of Huda dated 23 November 2020 with identity documents attached (Exhibit A13).
·Family composition documents filed by Huda dated 28 January 2021 (Exhibit A14).
·Statutory declaration of Ibrahim dated 4 January 2021 with identity documents attached (Exhibit A15).
·Statutory declaration of Asma dated 19 December 2020 with identity documents attached (Exhibit A16).
·Statutory declaration of SM dated 18 December 2020 with identity documents attached and statutory declaration of SA dated 19 December 2020 with identity documents attached (Exhibit A17).
·Statutory declaration of ZM dated 2 April 2023 (Exhibit A18).
·Statutory declaration of AO dated 3 April 2023 (Exhibit A19).
·Statutory declaration of HK dated 10 April 2023 with four attachments (Exhibit A20).
·2020/5675 - Mrs Jaber’s s 37 T-Documents, labelled T1-T17, comprising pages 1-131 (Exhibit R1).
·2020/5676 – Huda’s s 37 T-Documents, labelled T1-T27, comprising pages 1-168 (Exhibit R2).
·2020/5744 – Abrar’s s 37 T-Documents, labelled T1-T14, comprising pages 1-99 (Exhibit R3).
·2020/5794 – Maymoona’s s 37 T-Documents, labelled T1-T14, comprising pages 1-122 (Exhibit R4).
·2020/5916 – Mahfouza’s s 37 T-Documents, labelled T1-T26, comprising pages 1-181 (Exhibit R5).
·2020/6732 – Asma’s s 37 T-Documents, labelled T1-T19, comprising pages 1-154 (Exhibit R6).
·2020/7763 - Mr Esmael’s s 37 T-Documents, labelled T1-T14, comprising pages 1-88 (Exhibit R7).
·2020/7764 – Ibrahim’s s 37 T-Documents, labelled T1-T10, comprising pages 1-91 (Exhibit R8).
·Department of Foreign Affairs and Trade (DFAT) Country Information Report Eritrea - 8 February 2017 (Exhibit R9) (DFAT Report).
·Pages 6-9 and 15 of the documents produced under summons by WA Police (Exhibit R10).
SUBMISSIONS
The Minister’s representative, Mr Burgess, submitted that the materials raised doubts about the Applicants’ identities which meant that I could not be positively satisfied of the Applicants’ identities. In summary, concerns were expressed about:
·A lack of documentation showing identity from birth.
·Key identity documents being lost before the family’s arrival in Australia.
·A lack of corroborating evidence as to how further documents were obtained.
·Inconsistencies in some of the documentation (for example, different birth years being stated for Mrs Jaber).
·The Applicants’ not having undertaken all possible enquiries to obtain identity documents from sources other than the Eritrean government (such as from the United Nations High Commissioner for Refugees (UNHCR) or birth records from hospitals).
In summary, my understanding of the submissions made by the Applicant’s representative, Dr Ahmed, was that the family were not in possession of all the documents requested by the Department because they were refugees, having fled Eritrea to escape persecution. They were not able to get family members in Eritrea to obtain further identity documents for them without placing those family members at risk. The family had endeavoured to obtain further identity documents, but the provision of those documents had disadvantaged them because in some instances there were conflicting details with other documents (such as different spelling of names), which Dr Ahmed submitted was due to translation issues and the differences between the Ethiopian and European calendar. Dr Ahmed submitted that the Applicants were effectively being punished for being refugees by being asked for documents they do not have.
Mr Burgess helpfully submitted, and I agree, that the identities of Mr Esmael and Mrs Jaber were central to the applications because the Tribunal’s findings about the identity of the children would be dependent, to some extent, on the Tribunal being satisfied about their parents’ identities. I have therefore considered Mrs Jaber and Mr Esmael first because my findings about their identities will inform my consideration of their children’s identities.
Before I consider each application, I will briefly outline the relevant legislation and policy.
LEGISLATIVE AND POLICY FRAMEWORK
Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.
Section 21(2) of the Citizenship Act is the general eligibility provision. The relevant parts provide:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(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.
Further, s 24 of the Citizenship Act provides:
(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).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7). …
(Notes omitted.)
Section 24(3) of the Citizenship Act states that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”.
Character and identity are not defined in the Act. Some guidance with respect to these concepts can be found in the Revised Citizenship Procedural Instructions (CPIs) which have been produced by the Department to help guide decision-makers.
Identity
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (which became the Citizenship Act) provides that there is no discretion available to either the Minister, or any other decision-maker, to grant citizenship unless that decision-maker is satisfied of the identity of the applicant. In the absence of that satisfaction, the application must be refused:
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 importance of establishing a person’s identity in applications for citizenship by conferral has been discussed by the Tribunal in decisions such as Beyan and Minister for Immigration and Border Protection [2015] AATA 256 (Beyan) and Shafari and Minister for Home Affairs [2019] AATA 808 (Shafari).
In Beyan, Senior Member Walsh stated at [38]:
... 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.
Relevantly to Dr Ahmed’s submissions about the Applicants being refugees, in Shafari Senior Member Morris stated at [55]:
The steps taken to establish identity under the Migration Act 1958 (Cth) for visas are not the same as those under the Act and set out in the Citizenship Policy. This is necessarily a ‘higher bar’ to meet because of the privileges and responsibilities that flow from the grant of Australian citizenship.
CPI 16 – Assessing Identity under the Citizenship Act (CPI 16) explains, at [4], that, “[a] person’s identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context”.
The CPI 16 provides at [11]:
It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered holistically.
The CPI 16, at [5], identifies three pillars of identity to be used when assessing identity. They are biometrics, documents and life story:
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
· Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.
· Documents – reliable and secure identity documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
· Life Story – an account of the events that happened to a person during their lifetime.
The CPI 16 at [5] emphasises the importance of decision-makers having regard to each pillar of identity to comprehensively evaluate an applicant’s identity claims:
Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.
The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.
In other words, it may be inadequate to rely on a single pillar to establish a person’s identity and a decision-maker should consider each pillar of identity to comprehensively test and evaluate a person’s claims about their identity. Indeed, the CPI 16 states at [11] that, “[w]hen assessing a person’s identity, the objective is to determine whether the information pursuant to the three pillars is consistent.” However, as the excerpt from the CPI 16 at [5] indicates, it may be possible for the decision-maker to be satisfied of a person’s identity based on less than three pillars being satisfied. For example, two pillars may be satisfactory to establish identity depending on the strength of the evidence before the decision-maker.
Biometrics
Section 40 of the Citizenship Act provides that the Minister may request the person provide one or more “specified personal identifiers” for the purpose of the Minister being satisfied of the identity of a person. Section 10(1) of the Citizenship Act defines a “personal identifier” to include, fingerprints, a measurement of a person’s height and weight, a photograph or other image of a person’s face and shoulders, an iris scan and a person’s signature.
The CPI 16, at [5.1] states that biometrics include facial images and fingerprints. That is, they are “personal identifiers” or in other words, a recorded measurement of a person’s unique, physical, identifiable attributes that can be used for identification.
Documents
With respect to the “documents” pillar of identity, the CPI 16 explains, at paragraph [11.1], that:
Documents are an important element of the process in establishing a person’s identity. … While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).
When assessing pillar two, delegates must consider and assess whether the documents and information they contain is consistent and support a person’s claimed identity.
The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.
…
Documentation alone is generally not enough to establish identity, although an applicant will be expected to make efforts to obtain relevant identity documents which might reasonably exist. In Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 at 175 [117] (Dhayakpa), Deputy President the Hon R 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.
Dhayakpa was followed in YMPL and Minister for Immigration and Border Protection [2017] AATA 1458, where Member Warner said at [34]-[35]:
Relevantly, the test for establishing identity is outlined in [Dhayakpa] where the Honourable R Nicholson, Deputy President was satisfied that the applicant in that matter had established his identity to the best of his ability. The Deputy President stated at [117]: “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”.
Having carefully considered the evidence and the relevant circumstances, the Tribunal is reasonably satisfied that YMPL’s identity is that which he claims it to be.
Life Story
With respect to the “Life story” pillar of identity, the CPI 16 states, at [11.2]:
When assessing a person’s life story in the context of a citizenship application, delegates should seek to create a complete identity ‘picture’ of the person from birth. This is not done by asking the 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.
Good Character
The Citizenship Act does not include a definition of “good character”. However, CPI 15 – Assessing Good Character under the Citizenship Act (CPI 15) provides guidance on the application of the “good character” requirement with reference to Tribunal decisions and judicial authority.
The CPI 15, at [3.3], observes that “good character” is not defined in the Citizenship Act, and that the Federal Court and the Tribunal have “used the ordinary meaning of the words, and made reference to dictionary definitions” to define the term. It observes that most cases have adopted the following definition from Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431–432 (Irving):
Unless the terms of the Act and Regulations require some other meaning be applied, 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 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 whilst 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.
After citing the above passage from Irving, the CPI 15 explains:
The phrase ‘enduring moral qualities’ encompasses the following concepts:
· characteristics which have endured over a long period of time;
· distinguishing right from wrong; and
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
The CPI 15 then refers to the decision of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, at [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 does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s [sic] time when he can demonstrate a longer period of positive contribution to the Australian community.
The CPI 15, at [4], provides a non-exhaustive list of characteristics that an applicant of good character would have. These characteristics are to be considered against the facts of the individual case and are not to be applied rigidly or inflexibly. The CPI 15 states:
As a general proposition, a person who is of good character would:
· respect and abide by the law in Australia and other countries;
…
· … not cause harm to others through their conduct …
· not associate with persons who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia …
…
At [14], the CPI 15 provides guidance to decision-makers that are relevant when an applicant has committed an offence:
… officers assessing whether an applicant is of good character should as a general proposition:
· characterise the nature of any offence or behaviour
· is the offence serious or minor?
· did the offence harm other people?
· who were victims?
· is there a pattern of behaviour?
· was it a one off incident?
· were there extenuating circumstances?
…
Consider any mitigating circumstances:
· length of time since the offence was committed
· age at time of offence
· behaviour since completing prison sentence or obligations to court
· remorse regarding their offending behaviour
· community support (referee reports etc)
· changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s [sic] behaviour over time and reach a conclusion about the person’s enduring moral qualities.
Thus, after weighing the factors set out at [14], it may be possible for an applicant to be found to be of good character despite the adverse information.
In a section titled “[w]eighing up the evidence” (at [14.2]), the CPI 15 states:
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
· Would a person of good character behave the way the applicant did?
· What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
· Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
· Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
· Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
· Are there any other factors that are relevant to an assessment of the applicant’s character?
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
“a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
…
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 at [82]–[83], Senior Member Puplick emphasised the importance of applicants being truthful:
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
(Footnotes omitted.)
Further, in Fang and Minister for Immigration and Border Protection [2018] AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an applicant to be truthful about their identity:
… those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike.
MRS JABER
The Respondent raised several concerns about Mrs Jaber’s documentation, and based on those concerns, they submit that I cannot be positively satisfied of her identity. These concerns included that despite having lived in Eritrea for the first 28 years of her life, she did not provide any Eritrean documents as part of her visa application in 2007. The Respondent also submitted that despite living in Sudan for eight years she has not provided any Sudanese identity documents either. The Respondent also says that there are discrepancies in the documentation regarding her birth year (stated as 1970 or 1972) which are an inconsistency in Mrs Jaber’s life story, as well as inconsistencies with the spelling of her name. The Respondent submits that there is a lack of documentation confirming Mrs Jaber’s identity from birth and that she has not exhausted all possible avenues to obtain identity documents.
Dr Ahmed submitted that Mrs Jaber was not educated, could not write in English, and that she did not have the skills to write to the UNHCR to obtain documents (6 June transcript/20). He submitted that the discrepancies in Mrs Jaber’s birth years could be explained by the differences in the Ethiopian and European calendars, and that the family had done their best to find and produce identity documents when asked by the Department. He submitted that they could not ask the Eritrean authorities for further documents because to do so would place their remaining family members in Eritrea at risk (6 June transcript/6).
I will address the three pillars of identity, which will assist me to address the submissions.
Biometrics
Mrs Jaber has provided several documents and identity cards containing personal identifiers such as her photograph and her signature.
Some of these documents and identity cards originated after her arrival in Australia. These include a Western Australia photo card (attached to A6), a Western Australia proof of age card (T4/43), and a TAFE student card (T6/52). Her photograph and signature were also provided with her Form 1195 (T4/38-41). She also submitted a health care card containing her name and signature (A1/3).
Australian identity documents are evidence of Mrs Jaber’s identity from the time she came to Australia. However, they do not assist in ascertaining her identity prior to her arrival in Australia.
I now turn to documents issued prior to Mrs Jaber’s arrival in Australia.
Mrs Jaber’s Titre de Voyage document for travel to Australia issued on 15 April 2015 shows her photograph and signature (attached to A6). A passport sized photograph and a separate signature were also provided with her Form 1195 (T4/38-41). Mrs Jaber’s Document for Travel to Australia also shows her photograph and signature (T4/42).
Her photograph also appears on a Departure List printed on 20 May 2008 which also has photographs of the other members of the family. The Departure list contains Mrs Jaber’s photograph, her year of birth as 1972, and that she entered Sudan in 2000 (T4/45).
An attestation letter from the UNHCR in Khartoum dated 5 February 2008, which certified that Mrs Jaber is an asylum seeker from Eritrea and that the UNHCR was currently assessing her case, contains her photograph in the top right-hand corner (T10/65) (Attestation Letter).
The earliest document containing Mrs Jaber’s photograph was issued on 25 October 1993. The translation of that document states that it is an Eritrean Identification Card (Eritrean ID Card) issued by the Provisional Government of Eritrea to Fatna Osman Jaber, with the date of birth stated as 1970 (attached to A1).
There is another document that contains Mrs Jaber’s photograph that was issued prior to her arrival in Australia. The translation of that document states that it was issued to Fatna Osman Jaber by the Defence Minister of the State of Eritrea on 30 June 1994 “for her service and devotion in the Military struggle for the independence of Eritrea from colonisation with the Eritrean People Liberation Front from 01 January 1982 until 1994”. The document is titled, “A certificate of service in the National Independence Struggle” (attached to A1) (Service Certificate).
I am satisfied that these biometrics support a finding that Mrs Jaber is the person in those biometric documents.
Documents
The Respondent submitted that the documents provide an incomplete picture of Mrs Jaber’s identity, and together with inconsistencies in her date of birth, the Tribunal should be left in a state of doubt about Mrs Jaber’s identity over time.
In addition to the identity documents containing her photograph that I discussed above, Mrs Jaber has also submitted other Australian identity documents. I note two utility bills in Mrs Jaber’s name from August 2020 and December 2020 (in A6). She also submitted a Medicare card and debit card containing her name (A1/3). There is also a residential tenancy agreement for Mrs Jaber and Mr Esmael to rent a property in Western Australia from 12 February 2016 (A1/6) (WA Residential Tenancy Agreement). These documents support her identity after her arrival in Australia.
In her evidence at the hearing Mrs Jaber stated that she did not have a birth certificate or any other record of her birth. She stated that her correct birth year was 1970 (transcript/79). She does not know the day or month she was born in, nor was she able to estimate the season that she was born in.
At the hearing Mrs Jaber was asked about her Service Certificate which I discussed above. Mrs Jaber stated that she received the certificate in 1994 in recognition of her service as a singer and actor (see also T11/71). Mrs Jaber did not take the Service Certificate to Sudan with her, and recalls that in Eritrea, the Service Certificate had been hanging on the wall in a frame. She did not know how her husband obtained the document for her, but thought he obtained it from his brothers and mother (transcript/93-94).
As I mentioned above, the earliest document which Mrs Jaber has produced is her Eritrean ID Card. The card states that Mrs Jaber’s date of birth is 1970, that she was born in Aftta and that her occupation is a housewife, which are consistent with Mrs Jaber’s life story. Mrs Jaber’s evidence at the hearing was that she took the Eritrean ID Card with her when she travelled to Sudan in 2000. She thought the Eritrean ID Card had been lost following an incident at the airport in Khartoum in 2008. The family were travelling to the airport in two cars and a bag containing identity documents was in the other car. There was a coup attempt in Sudan and fighting broke out which resulted in the cars going in different directions and the luggage being lost. Relevantly, I note that this evidence was consistent with evidence given by Mr Esmael about this incident.
Mrs Jaber did not think that she had any other identity documents in the bag that was lost. Mrs Jaber was asked numerous questions under cross examination about what identity documents were in the bag and how they were stored (transcript/91). She had very little knowledge of which documents were in the bag, other than that it contained some documents belonging to her husband. I interpreted her evidence to mean that she could not read the documents, or had difficulty reading them, due to literacy issues. Relevantly, she also explained later in her evidence that it was her responsibility to look after the house and raise the children and that her husband was expected to deal with all other matters (transcript/94). Mrs Jaber had little to no involvement with any documentation which was the responsibility of her husband (transcript/94). I doubt whether Mrs Jaber knew which of her identity documents were in the bag. It is therefore a possibility that her Eritrean ID Card was not in the bag at all.
Mrs Jaber was unable to explain why her husband was able to find her Eritrean ID Card when he travelled to Sudan in 2019 and 2020 but thought that he obtained it from family members there. She was unable to explain where the document had been between it being lost in 2008 (presumably due to the airport incident) and being found again in 2020. I do note, however, that although the Respondent questioned where this document was between 2008 and 2020, there is no evidence, nor have any submissions been made by the Respondent, that the Eritrean ID Card is not authentic.
The next document in time concerning Mrs Jaber is a tenancy agreement dated 1 May 1999 (attachment 8 to A1; A3) (Eritrean Tenancy Agreement). The translated copy shows that Mr Esmael and Mrs Jaber entered into the Eritrean Tenancy Agreement to rent a property in Asmara (the capital of Eritrea) from 1 May 1999 to 30 July 1999. The Eritrean Tenancy Agreement was also stamped by the Tenancy Board. It was also signed by Mr Esmael and two witnesses. The Respondent submitted that I should give this document little weight because there is no evidence that the landlord required any form of primary identification. Mr Esmael signed a document titled, “Replies to statement of facts, issues and contentions” (A1). In this document he explained that “due to the tight security practices in Eritrea, you cannot hold a lease agreement or a rental agreement unless it is certified and approved by the tenancy board of the dictator regime, unlike any democratic society. It is a compulsory requirement to write the landlord’s ID and the Tenants ID”. As indicated by Mr Esmael, his ID number and the landlord’s ID number are stated on the Eritrean Tenancy Agreement. Although there is no direct country information on this point, I found this evidence to be credible. Additionally, there is no suggestion that the Eritrean Tenancy Agreement is not authentic, and it supports the life story given by Mrs Jaber and Mr Esmael.
The next documents in time are UNHCR documents. In both documents, Mrs Jaber’s surname is spelt as “Jabir”. The first of these documents is a letter to Mr Esmael and Mrs Jaber dated 31 March 2023. The letter is signed by a UNHCR Representative, Sudan and the Commissioner for Refugees, Khartoum (T10/64). The letter confirms that Mr Esmael and Mrs Jaber had been subject to legal screening to assess their claims for continued refugee status. The letter informs them that after first instance screening, they “will continue to enjoy refugee status in Sudan”. The letter advises them to approach their nearest UNHCR Commissioner for Refugees office for registration. As I have mentioned, Mrs Jaber’s surname is misspelt in this letter as “Jabir”.
The second of these UNHCR documents is the Attestation Letter from the UNHCR dated 5 February 2008 (T10/65), discussed above, which certified that Mrs Jaber is an asylum seeker from Eritrea and that the UNHCR was currently assessing her case. It further stated that she should not be forcibly returned to Eritrea or any third country where she fears for her life. The letter was signed with the seal of the UNHCR Branch office in Khartoum. It also misspells Mrs Jaber’s surname as “Jabir”.
However, in Mrs Jaber’s Document for Travel to Australia, issued on 17 March 2008, her name was spelt, “Jaber” and her date of birth was 1 January 1972 (T4/42). Similarly, on a Departure List printed on 20 May 2008, her name was spelt “Jaber”, and her date of birth was stated as 1972. I note that it was at this point that Mrs Jaber’s birth year changed in the documentation from 1970 to 1972.
In subsequent documents, Mrs Jaber stated her date of birth as 1 January 1972. These included her application for citizenship by conferral submitted on 5 November 2017 (T4/12), her Form 1195 dated 29 October 2017 (T4/38), and her application to this Tribunal dated 18 September 2020 (T2/5). In a statutory declaration dated 19 December 2020, Mrs Jaber stated that her date of birth was 1 January 1972 (A6). However, in a subsequent statutory declaration dated 30 September 2022, she stated that she was born on [redacted] 1970 (attachment 4 to A1).
Mrs Jaber was asked about the inconsistencies in her citizenship application and Form 1195 at the hearing. Mrs Jaber said she feared getting into trouble if she wrote something different to what was in the documents. That is, Mrs Jaber thought she had to be consistent with the documents issued by Australian authorities, namely her Document for Travel to Australia, otherwise the discrepancy would cause her trouble. She did not fill out the forms herself. A neighbour assisted with the Form 1195 and her husband and daughter Mahfouza filled out her citizenship application for her while she sat nearby and listened (transcript/80-83, 88). This version of events is consistent with the evidence given by Mahfouza at the hearing. Mahfouza stated that she helped her mother with her citizenship application and that she did not ask her mother about her date of birth, but instead relied on the visa documentation in front of her. She stated that her mother and aunties were “not very familiar with their date or the year they were born” and “they do guesswork” (transcript/116-117). Mahfouza said that she did her best to explain the form to her mother by translating it from English to Arabic because she does not speak her mother’s first language of Tigrinya Her evidence was that it was difficult for her mother to understand most of the questions, let alone the declarations at the end of the form that the information had to be true and correct (transcript/120-121 and 123).
Given her lack of English, poor literacy and the fact that she needed others to help her, I am not satisfied that Mrs Jaber was aware of, or understood the stern warnings on the documentation that “the information they have supplied in this form is complete, truthful and correct in every detail” and that “it is an offence … to deliberately make, or cause to make, a false or misleading statement” (T4/36). I also think the inclusion of her birth year as 1972 instead of 1970 was based on a misunderstanding that her documentation had to be consistent with her Australian travel documents and that Mahfouza had innocently copied the details from those documents. I am not of the view that Mrs Jaber (or indeed, Mahfouza) was deliberately trying to conceal another identity or otherwise do anything wrong. Instead, she kept using the incorrect 1972 date of birth (for example in her Australian issued identity documents such as her passport and Western Australia photo card – attached to A6) to be consistent (see transcript/79-83).
Mrs Jaber lived in Sudan for eight years but did not have any documentation from her time in Sudan. She stated that she had a “refugee card” but that “They took it from us when we were getting ready to leave” (transcript/95). I infer that “they” was a reference to the UNHCR or the Sudanese authorities.
Mrs Jaber also gave evidence in her statutory declarations about her attempts to obtain further identity documents. In both of her statutory declarations Mrs Jaber stated the following (attachment 4 to A1; A6):
Made contact to the Eritrean consulate in Melbourne, Victoria, asking to assist with my Eritrean birth certificate. They, asked me to produce all my family details, and family particulars which would in danger the safety of my families in Eritrea with the current security situation (see Human Right Watch reports 2019, pages 203 – 211). The Eritrean government security agents/apparatus known for their inhumane treatment of citizens in Eritrea.
Made contact with my sister-in-law [name omitted] and also with my sister [name omitted] in Eritrea (home country) to search for my birth certificate and other documents from our previous home address and/or from the Eritrean birth and death registery. My sister-in-law said “the documents from our house was confiscate by the government, when our family fled the country”; and the Eritrean birth and death certificate regisstery authority. Thus, given my circumstance of leaving the country, if I was to apply myself in person visiting Eritrea puts me in danger and they don’t accept proxy application. This request puts me and my family in danger due to the current political situation and the history circumstance my family fled from Eritrea. (Telephone calls to Eritrea with date and time are available on request).
(As original.)
Although it is unclear whether it was Mrs Jaber who contacted the Consulate, her sister, sister-in-law, or another member of the family, I accept the evidence as being truthful. It is also consistent with the evidence of Mr Esmael about attempts to obtain further identity documents (A1), which I discuss in detail under his application below.
That finding is further supported by the DFAT Report. Mr Esmael was a political journalist in Sudan who was radio broadcasting into Eritrea. As Mr Esmael stated in his evidence (discussed in more detail below), this was the reason that the family obtained UNHCR assistance to relocate to Australia. The DFAT Report contains a substantial section on the lack of a free media in Eritrea which is controlled by the government. It explains, at [3.39] that, “DFAT assesses that journalists working in state media face a risk of arrest and imprisonment should they publish reports perceived as being critical of the government or president”. The DFAT Report also notes that, at [4.5]:
… an unknown number of persons disappeared during 2015, and were believed to be in government detention or to have died in custody. Disappeared persons included those detained for political or religious beliefs, journalists, individuals suspected of evading national service and militia duties, and persons with no known charge against them. Freedom House reported that arbitrary arrest and disappearances were common.
(My emphasis.)
The DFAT Report also states, at [4.14], that “arbitrary arrest and detention are routine and indiscriminate in Eritrea”. With respect to conditions for returnees, the DFAT Report states that “leaving Eritrea without a valid exit visa is illegal and punishable by a prison sentence and/or fine” and that “with a few exceptions, those forced to return to Eritrea were arrested, detained and subjected to ill-treatment and torture” (at [5.25]).
The DFAT Report suggests that national identity cards must be applied for in person (at [5.31]):
The Department of Immigration and Nationality issues ID cards. Applicants must submit a supporting letter from their local administration, a birth certificate and proof of Eritrean citizenship (either a parent’s ID card or three witnesses) to one of 12 branch offices located throughout Eritrea. The applications are then forwarded to the national office in Asmara, which makes a decision on authorisation. Applications for an ID card can also be submitted to Eritrean diplomatic missions. According to the May 2015 EASO [European Asylum Support Organisation] report, applicants are reportedly often asked to prove that they have paid the RRT [Recovery and Reconstruction Tax] or to pay any arrears, while deserters and draft evaders are reportedly asked to sign a letter of repentance.
The DFAT Report also states that “Sub-region administrations are responsible for issuing official civil status documents, including birth … certificates” ([3.12]). However, this appears to be the current situation in Eritrea and there is no information about whether birth certificates were commonly issued, including prior to independence in 1993.
Overall, the country information that I have just outlined lends support to the veracity of Mrs Jaber’s evidence. This includes the difficulty obtaining documents through the Consulate and her fears about placing family members in Eritrea at risk if they were to make further enquiries to obtain documents on her behalf, given that the family fled Eritrea (which I infer was without a valid exit visa) and Mr Esmael’s occupation in Sudan as a political journalist.
There are some issues for Mrs Jaber with this pillar of identity. The documents Mrs Jaber has been able to produce do not establish an unbroken link to her identity since birth, and she has no documentation from her time in Sudan. On the other hand, I found her to be a credible witness and I accept her evidence about her date of birth being incorrectly recorded in her Australian travel documents onwards. I accept that although Mrs Jaber could have submitted further confirmation of enquiries to obtain any Sudanese identity documents (if there indeed were any), that her attempts to obtain documents through the Consulate and family members were reasonable considering the country information. The documentation that Mrs Jaber has been able to provide is consistent with her life story, which I will now outline. It is also consistent with the evidence of Mr Esmael and other family members.
Life story
In both of her statutory declarations, Mrs Jaber outlined her life story as follows. The only difference is that in the first statutory declaration dated 19 December 2020 (A6), she stated her birth year as 1972. In her later statutory declaration dated 30 September 2022 (attachment 4 to A1) she stated her birth year as 1970:
I was born (on 1 January 1970) and raised in a town called, Afra in the Northern Red Sea region; a district known as Samhar until 1981. It is a small town with infrastructure (such as hospital and government service) in my childhood, I joined Eritrean People’s Liberation Front (EPLF) in 1982 as a child in the cultural and music group as a singer and an actor in the Sahil region (Northern region of Eritrea). While serving in the Eritrean Cultural and music group, in 1989 married to my husband Mr Saeed Abdo Ismael in 1989 in Sahil. I gave birth to my first child … Abrar… by the grace of god on [day and month omitted] 1990 in a town called Nakfar in the Northern region of Red Sea in Eritrea (around 200km from the capital city of Eritrea Asmara) in the EPLF Tsabra maternity hospital.
We moved from Nakfa as a family in August 1991 to one of the largest cities of Eritrea, called Keren (North west of the capital city of Eritrea); lived in Keren until 1992. Then moved to Massawa (The Eritrean port, on the Red Sea) and gave birth to my 2nd child … Huda … in Massawa on [day and month omitted] 1993. It was time to terminate my role with the EPLF and became a full-time house wife and mother to raise my children. I was issued and Eritrean photo ID card No: ER [number omitted] on 25 October 1993 and a certificate of service in the national independence struggle military ID No [number omitted] issued on 30 June 1994 (see attached original and translated document)
Then, we moved to a town called Tessanye (West of the Capital city Asmara, with about 300km distance) in 1994 due to my husband work. I gave birth to my 3rd child … Mahfouza … on [day and month omitted] 1995. After settling in Tessanaye until 1996, then moved to Keren in 1997 and lived in Kerren until 1998 and then moved to Asmara, the capital city of Eritrea in 1999 up to April 2000. I gave birth to my 4th child … Maymoona … on [day and month omitted] 1999 in Asmara. I was living in a house with Tenancy agreement signed and stamped by the official tenancy board … on 29 January 1999 under No. [number omitted] (lease agreement); the original and translated Tenency agreement is attached. It is unfortunate in all the small towns and cities the residential lease was not provided.
In May 2000 fled from Eritrea to the neighbouring countries Sudan, and lived until May 2008; where I gave birth to my 5th and 6th children, … Ibrahim … on [day and month omitted] 2001 and … Asma … on [day and month omitted] 2003. Arrived in May 2008 and I became a permanent resident in Australia since arrival. I gave birth to my 7th child … Muhammad … on [day and month omitted] 2010 in Perth, Australia.
(As original.)
Mr Esmael’s movement records show that he has been continuously present in Australia since 10 February 2020 (T12/71).
I note that the Respondent accepts that Mr Esmael is likely to is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if his application were to be approved. I agree.
I am therefore also satisfied that Mr Esmael satisfies s 21(2)(g) of the Citizenship Act.
ABRAR
The Respondent submitted that I cannot be positively satisfied of Abrar’s identity because there is insufficient evidence of his identity from birth, in circumstances where his parents’ identities are unclear. Specifically, the Respondent submitted that there are no documents concerning Abrar’s identity until he was 11 years old and there is no evidence of any steps being taken to obtain earlier documents, such as a birth certificate.
However, as I outlined above, I am positively satisfied of the identities of Mrs Jaber and Mr Esmael. This supports a finding that Abrar is the 33-year-old son of Mrs Jaber and Mr Esmael. The biometrics and documentation before me, although limited, also supports a finding that Abrar is who he says he is.
Biometrics
Abrar submitted Australian identity documents to the Tribunal. He submitted two expired Australian Driver’s Licences showing his photograph and signature (T4/37; attached to A12). He also submitted a current student card which contain his photograph (attached to A12).
Abrar’s full name, photograph and date of birth are on Mr Esmael’s Document for Travel to Australia, issued on 17 March 2008, where he is included as a dependent (T4/35). His Titre De Voyage issued on 15 April 2015 also contains his photograph, name, signature, and date of birth (T4/36). Abrar’s photograph, name, year of birth and that he entered Sudan in 2000 are also on a Departure List printed on 20 May 2008 (T8/53).
As I have stated above, Australian identity documents are not sufficient because they only show a person’s identity after arrival in Australia and do not show their identity from birth.
Documents
The earliest document submitted by Abrar is a translation of a document issued by the Ministry of Education in Khartoum State, Sudan on 28 February 2002 (T10/59). The document is a type of school report for Abrar for the 2002/2003 academic year. The school’s name is stated as “Ajareef Garab (1) Boys”. At that time Abrar would have been 11 years old. There are similar translated school reports for Abrar for the 2003/2004, 2004/2005, 2005/2006 and 2006/2007 academic years (T10/60-63). There is another translated certificate for the 2007/2008 academic year which does not contain any results (T10/64). The documents are stamped as being translated by a certified translator, but only the translations and not the original documents have been provided. It is unclear why. At the hearing Abrar stated that he thought the family had brought the school documents with them to Australia and that the school documents had been stored in a shed in the family’s Australian house (transcript/126). This is consistent with the evidence of Mahfouza about her school documents being located in the shed, which I discuss below (transcript/113).
There is an undated Republic of Sudan, Federal Ministry of Health “International Certificate of Vaccination or Prophylaxis” which states Abrar’s name as “Abrar Saeed” and his birth year as 1990 (T8/52).
A letter from the Australian Embassy Cairo dated 3 July 2007 addressed to Mr Esmael lists the family members, including Abrar, as being required to undergo medical examinations to determine if they meet the prescribed health criteria to enter Australia as part of Australia’s Refugee and Humanitarian Program (T8/54).
Abrar has submitted some other Australian identity documents including a letter dated 27 October 2017 from his bank (T4/42) and a Medicare card in his name (attached to A12).
In a statutory declaration dated 19 November 2019, Abrar explained that he did not have a birth certificate because “we fled the country and left everything due to war” (T11/66). In a subsequent statutory declaration dated 23 November 2020 (A12), Abrar stated that he contacted the Eritrean Consulate in Melbourne asking them to assist him to obtain his birth certificate. He stated that he was asked to produce all his “family details, and family particulars” which he was concerned would jeopardise the safety of his family members in Eritrea. As I have outlined above, that evidence is consistent with country information about Eritrea.
He also stated in this statutory declaration that he asked two aunties to search for his birth certificate at his previous home address and/or the Eritrean birth and death registry. He stated that he was told by an aunt that old documents from the family’s house were confiscated by the government when the family fled the country and that he had been told he needed to visit Eritrea to apply for the birth certificate in person. The DFAT Report does not directly state that a person must attend in person, although the following information, at [3.12], suggests that an in-person application may be necessary. That is because, as stated in the DFAT Report, an identity card must be presented before a civil status document is issued:
Sub-region administrations are responsible for issuing official civil status documents, including birth, marriage, divorce and death certificates. These all include reference numbers for the civil registry office archive and the electronic population register. Civil status documents are A4-sized computer printouts that have no security features apart from stamps and signatures. A printout, identity card (or copies thereof) and an application form must normally be presented before an official civil status document is issued. DFAT understands that different procedures are followed throughout the country when issuing official civil status documents, and documents may vary in their physical appearance.
(My emphasis.)
The lack of documents during the first 11 years of Abrar’s life, such as a birth certificate, and the absence of the original school documents that were translated, suggests that this pillar of identity is problematic for Abrar. However, the foundations of my being positively satisfied of Abrar’s identity are my state of satisfaction about his parents’ identities, and his identity is further supported by his biometrics, documents, and his life story, which I will now outline.
Life story
Abrar gave some brief evidence about his life story in his statutory declaration (A12) and in his evidence at the hearing (transcript/124-127).
Abrar’s life story commences with his birth in Nakfa, Eritrea on [redacted] 1990. Abrar described having a basic elementary education in Eritrea.
He arrived in Sudan in May 2000 with his mother and siblings when he was nine years old. He recalled that at that time his father Mr Esmael, had already fled to Sudan.
He recalls attending school in Khartoum. None of his siblings went to the same school because it was a boys’ only school and his younger brother Ibrahim was too young.
Abrar recalled that the family’s travel to Australia was delayed because there was “tension” in Sudan.
Abrar’s life story, although brief, is supported by and is consistent with that of his other Applicant siblings and his parents, Mr Esmael and Mrs Jaber. I also note that SM (A17) and SA (A17 also) specifically mentioned that they knew Abrar (and the other Applicants), in their statutory declarations and their evidence lends further support to Abrar’s life story.
I have accepted the evidence of Mrs Jaber and Mr Esmael, and I have found that I am positively satisfied of their identities. With respect to their son Abrar, although there are problems raised by his documentation, building on these findings, together with the evidence in the other applications before me, and considering the biometrics and documents that Abrar has been able to provide, and his life story, I am positively satisfied of Abrar’s identity.
MAYMOONA
Although the delegate was satisfied of Maymoona’s identity, in these proceedings the Respondent submitted that I cannot be positively satisfied of her identity due to a lack of identity documents prior to her arrival in Australia.
The Respondent also submitted that I cannot be satisfied of Maymoona’s character.
I will first turn to the issue of identity with respect to Maymoona.
Biometrics
Maymoona’s full name, photograph and date of birth are on Mrs Jaber’s Document for Travel to Australia, issued on 17 March 2008, where she is included as a dependent (T4/33). Maymoona’s photograph, name, year of birth and that she entered Sudan in 2000 are also on a Departure List printed on 20 May 2008 (T4/45).
Maymoona has also produced Australian identity documents which contain her photograph and signature including a learners’ permit, Driver’s Licence and Working with Children card (attached to A7; T4/35; T8/58), but as I have stated above, these do not assist in ascertaining her identity prior to her arrival in Australia.
Maymoona’s biometric documents prior to her arrival in Australia lend support to a positive finding about her identity.
Documents
Maymoona has submitted a bank statement for an Australian bank account dated 27 October 2017 (T4/34) and a Medicare card in her name (T8/58).
Maymoona does not have any documents from Eritrea, such as a birth certificate. Other than the Document for Travel to Australia, and Departure List, there are no other documents relevant to her identity from when she was in Sudan either. Maymoona’s young age at those times goes some way to explain her lack of documentation. Specifically, in May 2000, when the family fled Eritrea to Sudan, Maymoona was 16 months old. When Maymoona arrived in Australia on 26 May 2008, she was nine years old. Maymoona recalled attending a local school in Sudan, but she does not have any school documents (transcript/100). She stated in a statutory declaration dated 17 December 2020 that the school had poor resources and a lack of proper paperwork (A7).
Maymoona understood that her parents had contacted the Eritrean Consulate in Melbourne to ask for her birth certificate and that two aunts in Eritrea had attempted to search the family’s previous home address and make enquiries at the birth and death registry to obtain her birth certificate. At the hearing she confirmed that she had not personally attempted to obtain identity documents, including from the UNHCR, and that her parents had tried to obtain them on her behalf (transcript/101).
In summary, Maymoona has no Eritrean or Sudanese documents that support her identity, other than the Document for Travel to Australia, and Departure List.
Life story
Maymoona gave some brief evidence relevant to her life story in her statutory declaration dated 17 December 2020 (A7) and at the hearing (transcript/100-101).
She was born in Asmara, Eritrea on [redacted] 1999 and is the fourth eldest of seven children. In 2000, when she was 16 months old, her family fled Eritrea to Sudan. She recalls going to a local school in Khartoum, Sudan but cannot remember when she first went to school. She remembered attending the school until she was eight years old. She stated that she did not have very much memory of her years in Sudan and does not recall the name of the school she went to. She arrived in Australia on 26 May 2008 when she was nine years old.
Like Abrar, family friend SM stated in her statutory declaration that has known Mr Esmael and Mrs Jaber and their children since 2003 in Khartoum and listed Maymoona as one of their children (A17). SA also described first meeting Mrs Jaber and Maymoona when she was a baby in April 2000 in Keren when she visited Mr Esmael’s mother in Keren (A17). This evidence supports Maymoona’s life story.
If Maymoona’s biometrics, documentation, and life story were considered in isolation, her three pillars of identity could not be regarded as strong. However, as for Abrar, I am positively satisfied of Mrs Jaber and Mr Esmael’s identity. That finding, and the totality of the evidence before me, including the family’s biometrics, documents, and life story, collectively, enables me to be positively satisfied of her identity.
I now turn to the issue of Maymoona’s character.
Character
On 15 July 2019, the Joondalup Magistrates Court convicted Maymoona of three counts of stealing, for which she received an $800 global fine and spent convictions (T10/66-67 and 75). The offences were committed on 11 June 2019 and involved the stealing of makeup items and two handbags from three stores in a shopping centre (R10/8-9).
Maymoona gave evidence about these offences at the hearing and in her statutory declaration. At the time of the offending, she described being under mental stress, being very self-conscious about her appearance, and as having no real friends. She was associating with a group of negative peers who had engaged in shop lifting previously and felt pressured by them (T11/71; A7). In her evidence at the hearing, Maymoona accepted responsibility for her offending behaviour and described how she had used her experiences to help the children she works with in an early childhood role to obey the rules and to be good to the people around them. Maymoona appeared genuinely remorseful and very ashamed of her offending which she described as having had a negative impact on her mental health. I note a letter from a counsellor dated 4 July 2019 which states that Maymoona had attended a counselling appointment (T11/68).
There are two character references written in anticipation of Maymoona’s court appearance. One is from AE and is dated 2 July 2019. AE writes that he has known Maymoona for nine years and that she has assisted him with fund raising for children with autism, a community radio project, and helping refugees with their homework in a homework club in a centre run by AE. He is aware that Maymoona was charged with one stealing offence which he states is out of character for Maymoona (T11/69).
There is another character reference dated 3 July 2019 addressed to the presiding Magistrate from SE, a family friend, who is also aware of one stealing offence. SE wrote that Maymoona was regretful and embarrassed to tell her about the stealing offence and that she had assisted Maymoona to apply for volunteering positions to help “with her guilty conscience”. She stated that Maymoona assisted with charity and fundraising events. Further, SE described Maymoona’s offence as being out of character and that Maymoona was seeking counselling and trying to make amends for her offending (T11/70).
SE also wrote another reference dated 23 November 2020 in support of Maymoona. She stated that Maymoona had worked as a support worker to her Indigenous foster brother who has autism. SE described Maymoona as still being very ashamed of what she did (A8). There is also a statutory declaration from SE dated 11 September 2022 which similarly attests to Maymoona’s good character (in A10).
There is another statutory declaration dated 23 November 2020 from a friend, LM, who has known Maymoona for more than eight years. This letter refers to a stealing offence on 11 June 2019. LM also described Maymoona as being regretful and embarrassed to tell her about the offending and that she thought Maymoona was under mental and emotional pressure at the time of the offending. LM also attested that Maymoona had been working hard to make amends for her actions, that Maymoona had improved herself through engaging in counselling and that she had learnt from her mistakes (A9).
There is another statutory declaration from another friend, YE, dated 3 April 2023 (A10). YE states that she is aware of Maymoona’s offence on 11 July 2019, although does not state what the offence was. She describes Maymoona as volunteering a lot in the community, as working full-time as an early childhood educator, and as having a “big heart”. YE described Maymoona as regretting her offending and the offence as being out of character.
Maymoona’s stealing offences are of a minor nature, as evidenced by the spent conviction imposed by the Magistrate. The offences occurred on the same day approximately four years ago and have not been repeated. Maymoona was 20 years old at the time of the offending and was experiencing insecurity, mental stress and was associating with negative peers. Maymoona is genuinely remorseful and embarrassed by her offending, so much so that she has sought counselling and has sought to compensate for her offending by engaging in community work. This shows enduring moral qualities and an ability to distinguish right from wrong. She is now employed full-time in a caring profession as an early childhood educator where she has drawn inspiration from her own mistakes to teach the children under her care to obey rules and respect others. Accordingly, I am satisfied that Maymoona is of good character.
MAHFOUZA
The issues identified by the Respondent concerning Mahfouza are like her siblings above. The Respondent submitted that there is insufficient evidence upon which I can be positively satisfied of her identity from birth and that she has made insufficient enquiries to obtain identity documents. The Respondent submits that I should not be satisfied of Mahfouza’s parents’ identities, which should further add to any doubts that I should have about her identity.
Biometrics
Mahfouza’s full name, photograph and date of birth are on Mrs Jaber’s Document for Travel to Australia, issued on 17 March 2008, where she is included as a dependent (T4/35). Mahfouza’s photograph, name, year of birth and that she entered Sudan in 2000 are also on a Departure List printed on 20 May 2008 (T8/51).
Mahfouza has also produced Australian identity documents which contain her photograph and signature including a learners’ permit, Driver’s Licence and Working with Children card (T4/37-38; attached to A11), but they do not assist in ascertaining her identity prior to her arrival in Australia.
Mahfouza’s biometric documents prior to her arrival in Australia lend some support to a positive finding about her identity.
Documents
Mahfouza does not have a birth certificate or any documents from Eritrea relevant to her identity. In a statutory declaration dated 15 November 2019 she stated that she did not have a birth certificate because her family had fled Eritrea to escape persecution. She also referred to the family contacting aunties in Eritrea to make enquiries for the family. She stated that she was told she would have to attend Eritrea in person which was not possible because the family had fled to escape persecution (T10/117).
In another statutory declaration dated 23 November 2020 (A11), Mahfouza similarly stated that contact had been made (although she does not state who made the contact) with the Eritrean Consulate in Melbourne to assist to obtain her birth certificate. As was stated in various other statutory declarations from her other family members, she stated that she was asked to produce all her family particulars which would jeopardise the safety of her family members in Eritrea. Similarly, Mahfouza also gave the same evidence as her other family members about two aunties in Eritrea searching for her birth certificate at the family’s old home and at the birth and death registry, but that she needed to apply in person. I accept this evidence which is consistent with country information.
Mahfouza did in fact sign a Consent to Disclose Information form on 26 May 2020 (T19/136) authorising the Australian Government to disclose her personal information to the UNHCR, and in turn, authorising the UNHCR to disclose her personal information to the Australian Government. The authorisation expressly states that the information Mahfouza has authorised the UNHCR to disclose to the Australian Government includes “identity information and details of [her] travel”. I regard this as a valid and reasonable attempt by Mahfouza to obtain any identity documents that the UNHCR may have for her, for example a refugee ID card.
I find that the family’s attempts to contact the Consulate and relatives in Eritrea to obtain Mahfouza’s birth certificate were reasonable considering the country information. The Consent to Disclose Information form is, in my view, a reasonable attempt to have the UNHCR provide any relevant identity documents directly to the Australian Government.
The earliest document for Mahfouza is a translation of a document issued by the Ministry of Education in Khartoum State, Sudan on 28 November 2002 (T12/119). The document is a type of school report for Mahfouza’s results for the 2002/2003 academic year for Grade 1. The school’s name is stated as “Alkalaa Aljadeda Girls”. At that time Mahfouza would have been seven years old. There is another similar translated school report for Mahfouza for the 2007/2008 academic year (T12/121) and an enrolment certificate for Grade 4 which is dated 3 February 2005. The original, untranslated copies of these documents are at T16/128-130. Mahfouza’s evidence was that she found these school records in a box in the shed in the garage of the family’s house here in Australia. She recalled that her father was in Africa at the time and the Department was asking for documents. She had a long telephone call with her father, and he “guided” her to search for the documents in the shed where she located her school records (transcript/112). This evidence is consistent with Abrar’s evidence at the hearing about his school documents being found in a shed at the family’s Australian house (transcript/124).
The letter from the Australian Embassy Cairo dated 3 July 2007 (which I mentioned above) addressed to Mr Esmael lists the family members’, including Mahfouza, as being required to undergo medical examinations to determine if they meet the prescribed health criteria to enter Australia as part of Australia’s Refugee and Humanitarian Program (T8/50).
Another letter dated 17 March 2008 from the Migration Office of the Australian Embassy Cairo, addressed to Mr Esmael, lists all the children, including Mahfouza and advises that each of the listed family members have been granted a Refugee and Humanitarian (Class XB) visa (T23/144).
As for Abrar, Mahfouza has submitted an undated Republic of Sudan, Federal Ministry of Health “International Certificate of Vaccination or Prophylaxis” which states her name as “Mahfouza Saeed” and her birth year as 1995 (T8/52).
Mahfouza has also submitted some Australian documents relevant to her identity since her arrival in Australia. She has submitted a letter dated 23 October 2017 confirming details of her Australian bank account (T4/36). She has submitted numerous educational transcripts and certificates which show she attended high school and undertook vocational training in Australia (T10/85-116).
Although Mahfouza does not have any Eritrean documents, such as a birth certificate, she has made reasonable attempts to obtain it, and other identity documents that may have been held by the UNHCR. It should also be noted that when the family fled Eritrea to Sudan, Mahfouza was four years old. The documents she has produced, such as her school records which start from when she was seven years of age also lend support to her identity, when considered with my findings about her parents above, and her life story which I will now outline.
Life story
Mahfouza provided some brief information about her life story in her statutory declaration dated 23 November 2020 (A11) and in her evidence at the hearing.
Mahfouza was born in Tessenay, Eritrea, on [redacted] 1995. She said that she comes from a family of seven children, including herself, where she is the third eldest.
She does not recall going to school in Eritrea. When she was four years old her family fled to Sudan.
She remembers everything being new in Sudan, “everything was new; new culture, new language” (transcript/110). She remembers attending school in Khartoum from when she was seven or eight years old until just before the family left for Australia. It was a girls’ only school and her sisters Huda and Maymoona also attended. She was 12 years old when she and her family arrived in Australia.
When Mahfouza’s biometrics, documentation, and life story are considered with my positive finding about her parents’ identities, together with the family’s biometrics, documents, and life story collectively, I can be positively satisfied of her identity.
ASMA
There is minimal information before me about Asma. The Respondent’s concerns about Asma are that they say I cannot be satisfied of Asma’s parents’ identities, there is insufficient evidence to establish her identity from birth, and that insufficient efforts have been made to obtain relevant identity documents.
Biometrics
The only document containing Asma’s photograph is contained in Mrs Jaber’s Document for Travel to Australia, issued on 17 March 2008, where Asma is included as a dependent (T4/42). At that time Asma was only four years old. As with her other family members, Asma’s photograph, name, and year of birth also appear on the Departure List printed on 20 May 2008. Below her photograph is the statement “Born in Sudan” (T4/45.
Asma has also submitted Australian identity documents including a learner’s permit which shows her name, photograph and signature and a student card which contains her name and photograph (A16), but these do not assist in establishing her identity from birth.
Documents
There is a translated and original document from the Gireif West Health Centre which shows Asma’s vaccination history in Khartoum (in A3). It states Asma’s date of birth as [redacted] 2003, and lists her vaccinations from the date of her birth through to 1 February 2004. “Fatna Osman” and “Saeed Abdo” are listed on the document as Asma’s mother and father. Therefore, this document is relevant to establishing Asma’s identity from birth.
Asma does not have a copy of her birth certificate. In a statutory declaration dated 19 December 2020 Asma stated that when her father had travelled back to Sudan, he had asked the authorities for a copy of her birth certificate, but they had refused to issue one (A16). Asma also stated in this statutory declaration that contact had been made with the Sudanese embassy in Canberra (it was not stated who made this contact) to try to obtain her birth certificate but was told they did not have the facilities in Canberra and that the birth certificate would have to be obtained in Sudan.
Asma is also listed in the letter from the Australian Embassy Cairo dated 3 July 2007 which stated that the family members listed were required to undergo medical examinations to determine if they meet the prescribed health criteria to enter Australia.
There is an undated Republic of Sudan, Federal Ministry of Health “International Certificate of Vaccination or Prophylaxis” which states Asma’s name as “Asma Saeed” and her birth year as 2003 (T11/99).
Asma has also submitted an Australian bank debit card in her name. A health care card in the primary name of Mrs Jaber also lists Mr Esmael’s name, Ibrahim’s name, and another younger brother’s name (who is not an applicant in these proceedings) (A16; A1 attachment 3).
Life story
There is some information about Asma’s life story in her statutory declaration and in her evidence at the hearing (transcript/137). She was born in Khartoum, Sudan on [redacted] 2003. She is the sixth eldest of seven siblings. She has not been to Eritrea, but her understanding is that her family fled Eritrea in 2000 to seek political asylum in Sudan.
Asma was only four years old when she came to Australia and completed her primary and secondary education in Western Australia.
I am positively satisfied of Asma’s identity based on the totality of the evidence before me, including my state of positive satisfaction about Mr Esmael and Mrs Jaber’s identities, her documentation, including biometrics, and the documentation and evidence of her siblings.
HUDA
Again, the Respondent’s concerns are similar for Huda as for the other Applicants. The Respondent says there are insufficient identity documents from prior to Huda’s arrival in Australia regarding her identity from birth and that insufficient attempts have been made to locate her identity documents.
Biometrics
Huda’s name, date of birth and photograph appear on her father, Mr Esmael’s, Document for Travel to Australia, issued on 17 March 2008, where Huda is included as a dependent (T4/37). Huda’s photograph, name, year of birth and that she entered Sudan in 2000 are also on a Departure List printed on 20 May 2008 (T7/50).
Huda produced Australian identity documents, namely a Working with Children card which contains her name, photograph, and signature, and similarly a learner’s permit (A13).
Huda’s biometric documents above concerning her travel to Australia assist to support her identity.
Documents
Huda does not have a birth certificate or any documents from Eritrea relevant to her identity. In a statutory declaration dated 15 November 2019, like Mahfouza’s, she stated that she did not have a birth certificate because her family had fled Eritrea to escape persecution. She also referred to the family contacting aunties in Eritrea to make enquiries to obtain her birth certificate. She stated that she was told she would have to attend Eritrea in person which was not possible because the family had fled to escape persecution (T10/98).
The earliest document for Huda is a translation of a document issued by the Ministry of Education in Khartoum State, Sudan on 3 March 2003 (T12/102). The document is a type of school report for Huda’s results for the 2002/2003 academic year for Grade 3. The school’s name is stated as “Alkalaa Aljadeda”. At that time Huda would have been nearly 10 years old. There is another similar translated school report for Huda for the 2006/2007 academic year (T12/100) and an enrolment certificate for Grade 5 which is dated 3 February 2005 (T12/101). The original, untranslated copies of these documents are at T14/105-107. In an email dated 17 November 2019 to the Department, Huda referred to finding school reports and certificates, and her father being overseas at the time of the email (T11/99). At the hearing she referred to the school documents being “in the shed” (transcript/128) and “in my fathers [sic] papers boxes” that he bought to Australia which she was not previously aware of (T18/114). This is consistent with the evidence given by Abrar and Mahfouza.
There is an undated Republic of Sudan, Federal Ministry of Health “International Certificate of Vaccination or Prophylaxis” which states Huda’s name as “Huda Saeed” and her birth year as 1993 (T7/81).
Like her siblings, Huda is also listed in the letter from the Australian Embassy Cairo dated 3 July 2007 which stated that the family members listed were required to undergo medical examinations to determine if they meet the prescribed health criteria to enter Australia (T7/82).
Like her sister Mahfouza, Huda signed a Consent to Disclose Information form on 26 May 2020 (T20/122) authorising the Australian Government to disclose her personal information to the UNHCR and authorising the UNHCR to disclose her personal information to the Australian Government, including “identity information and details of [her] travel”. As I concluded for Mahfouza, I regard this as a valid and reasonable attempt to obtain identity documents held by the UNHCR.
Huda has also produced Australian documents including a certificate dated 1 July 2009 stating that she completed six months of English language instruction (T10/88), high school reports (T10/89-94), and two certificates for vocational study (T10/95-97).
Although Huda does not have a birth certificate, her documents provide some assistance in supporting her identity.
Life story
Huda’s statutory declaration (A13), evidence at the hearing (transcript/127-134) and some of the other correspondence she provided to the Department (in R2) describe her life story.
Huda was born in Massawa, Eritrea on [redacted] 1993. She is the second eldest of seven children. When her family travelled to Sudan in 2000 Huda was seven years old. Her understanding was that they were seeking political asylum in Sudan.
She recalls attending an all-girls’ school in Sudan from 2002 until 2007 (T15/108) and that her sisters attended the school too. She does not remember the grade of school she finished up to in Sudan. In response to a request from the Department concerning the location of the school, Huda produced a google-map print out showing the location of the school was in Al-Jerif West Al-Galaa (T18/116). The Department also asked about Huda’s travel route to Australia, and she produced travel documents showing that the family travelled from Khartoum to Cairo to Singapore (T18/119), her itinerary and electronic ticket from Singapore to Perth (T18/117).
When Huda arrived in Australia, she was a 15-year-old teenager. Huda said that all the memories she holds dear are from Australia and that she did not like to discuss her time in Sudan.
Overall, I am positively satisfied of Huda’s identity based on the totality of the evidence before me. This includes my state of positive satisfaction about Mr Esmael and Mrs Jaber’s identities, Huda’s documentation and biometrics, and the documentation and evidence of her siblings.
IBRAHIM
Ibrahim’s circumstances are like Asma’s because he was also under the age of 18 years when his citizenship application was refused. The information before me concerning Ibrahim is similarly minimal. The Respondent’s concerns about Ibrahim are the same as for Asma, namely that I cannot be satisfied of Ibrahim’s parents’ identities, there is insufficient evidence to establish his identity from birth, and that insufficient efforts have been made to obtain relevant identity documents.
Biometrics
Ibrahim was also listed as a dependent on Mrs Jaber’s Document for Travel to Australia, issued on 17 March 2008, which shows his name, photograph, and date of birth (T4/41). At that time, he was seven years old. Ibrahim’s photograph, name, and year of birth also appear on the Departure List printed on 20 May 2008 which also has photographs of the other members of the family. Like his sister Asma, the statement “Born in Sudan” appears below his photograph.
Ibrahim also submitted a Titre de Voyage document for travel to Australia issued on 17 January 2017 which shows his photograph and signature (T4/45) from when he travelled back to Sudan in 2017 with Mr Esmael to see his grandfather (transcript/135).
Ibrahim has also submitted other Australian identity documents including a Driver’s Licence which shows his name, photograph and signature and a student card which contains his name and photograph (T6/54 and attached to A15), but these do not assist in establishing his identity from birth.
Documents
Ibrahim does not have a copy of his birth certificate. In a statutory declaration dated 4 January 2021 (A15) Ibrahim stated that when his father had travelled back to Sudan, he made several attempts to obtain his birth certificate from the Sudanese authorities, but they had refused to issue one. Ibrahim also stated in this statutory declaration that contact had been made with the Sudanese embassy in Canberra (like Asma’s statutory declaration, Ibrahim did not state who contacted the embassy) to obtain his birth certificate but was told he would have to travel to Sudan to obtain it.
Ibrahim is also listed in the letter from the Australian Embassy Cairo dated 3 July 2007. As I explained above, the letter stated that the family members listed were required to undergo medical examinations to determine if they meet the prescribed health criteria to enter Australia.
Ibrahim’s name also appears on his mother’s Medicare card (A1, attachment 3), which is an Australian identity document.
Life story
There is minimal information about Ibrahim’s life story in his statutory declaration and his evidence at the hearing (transcript/134-136). He was born in Khartoum, Sudan, on [redacted] 2001. He is the fifth eldest of seven siblings and has not been to Eritrea. In his statutory declaration Ibrahim stated that he attended school in Khartoum. This is likely to be incorrect. The statutory declaration appears to have been the same as his other siblings in many respects and similar parts of it were likely copied from one of them. His evidence at the hearing was that he did not go to school in Sudan (transcript/136).
Ibrahim was seven years old when he came to Australia.
Although there are minimal biometric and other documents for Ibrahim, I am positively satisfied of his identity based on the totality of the evidence before me, including my state of positive satisfaction about Mr Esmael and Mrs Jaber’s identities, SA’s statutory declaration (discussed above) which names Ibrahim and his siblings, and the documentation and evidence of his siblings.
CONCLUSION
Based on the evidence discussed above and following my analysis of the three pillars of identity, I am satisfied of each of the Applicant’s identities for the purposes of s 24(3) of the Citizenship Act; that Mr Esmael meets the close and continuing ties criterion in s 21(2)(g) of the Citizenship Act; and of Maymoona’s good character, as required by s 21(2)(h) of the Citizenship Act.
DECISION
The Reviewable Decisions in applications 2020/5675; 2020/5676; 2020/5744; 2020/5916; 2020/6732; and 2020/7764 are set aside, and the matters are remitted to the Respondent for reconsideration with the direction that I am positively satisfied of each of the Applicants’ identities.
The Reviewable Decision in application 2020/7763 is set aside, and the matter is remitted to the Respondent for reconsideration with the direction that I am positively satisfied:
(a) of Mr Esmael’s identity; and
(b) that he meets the close and continuing ties criterion in s 21(2)(g) of the Citizenship Act.
The Reviewable Decision in application 2020/5794 is set aside, and the matter is remitted to the Respondent for reconsideration with the direction that I am positively satisfied:
(a) of Maymoona’s identity; and
(b) based on the material before me, that she is of good character.
I certify that the preceding 314 (three hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.........[Sgd]....................................................
Associate
Dated: 14 November 2023
Date of hearing:
Date final submissions received:
4-5 April and 6 June 2023
6 June 2023
Representative for the Applicant: Dr B Ahmed
Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers
- AGLC
- Jaber and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3812
- Case
- [2023] AATA 3812
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether it was satisfied of the applicants' identity, and whether it was satisfied of the good character of one of the applicants, Maymoona. A further question arose concerning two applicants who were minors at the time of the original decisions but had reached adulthood by the time of the Tribunal hearing, specifically whether the statutory question before the Tribunal differed from that faced by the initial decision-maker.
The Tribunal applied the principles established in *Frugtniet v Australian Securities and Investments Commission* [2019] HCA 16, which clarified that the Administrative Appeals Tribunal (AAT) stands in the shoes of the original decision-maker, possessing the same powers and constraints. The statutory question before the primary decision-maker defines the boundaries of the AAT's review. The Tribunal considered new evidence, including subsequent events, provided it was relevant to the original statutory question. The Tribunal found the applicants to be honest and credible witnesses, with their evidence corroborated by other witnesses and documentation.
Ultimately, the Tribunal was satisfied of the applicants' identity and Maymoona's good character. Consequently, the Reviewable Decisions were set aside and remitted with a direction for the grant of citizenship.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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