Machar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 1615

Machar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1615 (8 June 2021)
Division:GENERAL DIVISION
File Number: 2020/0262
Re:Rachel Machar
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:8 June 2021
Place:Perth

The reviewable decision, being the decision of a delegate of the Respondent dated 19 November 2019 which refused a grant of Australian citizenship under s 24(3) of the Australian Citizenship Act 2007 (Cth), is affirmed.
.........[Sgd]...............................................................
Member S Barton
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – satisfaction of identity – insufficient evidence regarding identity of the Applicant – limited primary documentation ––reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Australian Citizenship Act 2007 (Cth) – ss 24, 24(3) 52(1)(b)
CASES
Ahamod and Minister for Immigration and Border Protection [2019] AATA 7
Briginshaw v Briginshaw (1938) 60 CLR 336
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gjura and Minister for Home Affairs [2018] AATA 4222
John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 77
Mohsin and Minister for Home Affairs [2019] AATA 1999
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
Shafari and Minister for Home Affairs [2019] AATA 808
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
SECONDARY MATERIALS
Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016) – para 2.1.1
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report South Sudan’ (5 October 2016) – para 5.29
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sudan’ (27 April 2016) – paras 5.40, 5.41, 5.51
Department of Home Affairs, ‘Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act’ (2019) – paras 4.4, 4.16
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) – cl 19D(4)
REASONS FOR DECISION
Member S Barton
8 June 2021

This is an application for the review of a decision made by a delegate of the Respondent
on 18 December 2019 (the Reviewable Decision). The delegate refused Ms Racheal Ajok Akau Machar’s (the Applicant) application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused because the delegate was not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
FACTS
The Applicant states that she was born in South Sudan on 25 April 1984.
The Applicant arrived in Australia on 11 October 2010 as the holder of a Partner (Provisional) (Subclass 309) visa. On 5 April 2012 the Applicant was granted a Partner (Migrant) (Subclass 100) visa, by which she became a permanent resident.
On 27 July 2017 the Applicant applied for Australian citizenship by conferral.
On 18 December 2019 the Department of Home Affairs (the Department) refused the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity.
On 8 January 2020 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of this decision.
JURISDICTION
The application for review was made in accordance with s 52(1)(b) of the Citizenship Act which allows the Tribunal to review decisions made under s 24 of the Citizenship Act. The Tribunal is satisfied that it has jurisdiction to hear this application.
THE ISSUE
The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Wednesday 17 March 2021. The Applicant was self-represented and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
The Applicant gave oral evidence through an interpreter, being an interpreter in the English and Dinka languages, and was cross-examined. The Respondent made oral submissions.
The Applicant called her cousin, David Makor Agot and her sister Deborah Ayen Akau as witnesses. Both gave evidence by telephone and were assisted by the same interpreter as the Applicant.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s statutory declaration declared on 17 September 2020 (Exhibit A1);
(b)Applicant’s statement regarding her Kenyan driver’s licence dated 14 September 2020 (Exhibit A2);
(c)Email from William Agany dated 17 September 2020 confirming the Applicant’s date of birth (Exhibit A3);
(d)Applicant’s Kenya Secondary School Leaving Certificate, dated 26 January 2007 (Exhibit A4);
(e)Witness statement of David Makor Agot, filed with the Tribunal 7 March 2021 (Exhibit A5);
(f)Witness statement of Deborah Ayen Akau, filed with the Tribunal 7 March 2021 (Exhibit A6);
(g)Respondent’s Statement of Facts, Issues and Contentions, dated 27 November 2020 (Exhibit R1);
(h)Section 37 documents, filed with the Tribunal 12 February 2020 (Exhibit R2); and
(i)Supplementary s 37 documents, filed with the Tribunal 15 July 2020 (Exhibit R3).
RELEVANT LEGAL PRINCIPLES
Section 24 of the Citizenship Act prohibits the conferral of Australian citizenship in certain circumstances. Section 24(3) of the Citizenship Act states:
24Minister’s decision
…
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
…
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) cl 19D(4) states:
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.
(Emphasis added.)
The Attorney-General’s Department has published a ‘National Identity Proofing Guidelines’ (the Guidelines). The Guidelines serve to strengthen the process of identity proofing and create a standardised and transparent approach in doing so. The Guidelines also describe the concept of identity.
The Guidelines at p 7 [2.1.1] state that:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
The Department of Home Affairs, ‘Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act’ (2019) (the Citizenship Instructions) (at [4.4]) set out three pillars of identity: biometrics, documents and life story. It also states:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
The Citizenship Instructions provide some guidance as to the meaning of being “satisfied of a person’s identity” at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.

Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
As established by Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal will ordinarily apply a relevant ministerial policy, unless there are cogent reasons not to do so. In Drake, Brennan J explained the importance of applying policy to guide decision making at 640:
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
The Tribunal has had regard to three relatively recent decisions, Mohsin and Minister for Home Affairs [2019] AATA 1999, Shafari and Minister for Home Affairs [2019] AATA 808 and John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 77, that have some broad similarities to the current matter before the Tribunal, particularly with respect to the veracity of documentation.
The issue of identity has also been considered in: Gjura and Minister for Home Affairs [2018] AATA 4222 (Gjura); CDNB and Minister for Immigration and Border Protection [2018] AATA 757 (CDNB); Beyan and Minister for Immigration and Border Protection [2015] AATA 256; and Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa).
The above decisions all recognise that the issue of identity is of considerable importance, given the very significant benefits conferred by Australian citizenship. As Member Grigg stated in Gjura at [32]:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.
Identity cannot be taken lightly and, as in the above decisions, each case must be considered on its individual merits, with due regard to the relevant factors and impediments to obtaining documents related to identity in each individual case.
In the matter of Ahamod and Minister for Immigration and Border Protection [2019] AATA 7 at [30] (Ahamod), the Tribunal considered the standard of proof contemplated in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). In doing so, the Tribunal considered the significance attached to a grant of citizenship and the consequences that flow from it. The Tribunal further noted that a higher level of satisfaction of an applicant’s identity is required in such cases:
A certificate of Australian Citizenship is a legal document of considerable significance. Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless it is very clear that the grant of Australian Citizenship by conferral is a matter in respect of which the Australian Community expects the decision maker, and here the Tribunal, will approve only if the pre-requisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.
The Tribunal in Ahamod also noted the decision in the matter of Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579, where Senior Member Morris (with reference to Briginshaw) considered the meaning of the statutory term “satisfied” in relation to Australian citizenship applications, at [56]:
Essentially … the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges. …
Accordingly, the Tribunal must be persuaded to a degree of reasonable satisfaction as to the Applicant’s identity, having regard to their particular circumstances, and given the significance of the consequences that flow from the grant of citizenship.
In determining whether the Tribunal is satisfied of the Applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not or are not, to use Deputy President Nicholson’s words in Dhayakpa at [117], “established or undisturbed”. In such places, the issuing of official documentation may be hampered by conflict, civil strife, under-developed bureaucratic and administrative structures or, for some groups, by the specific design of Government policy.
As such, the Tribunal recognises that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either 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”.
In considering the issues that arise in this application, the Tribunal is guided by the approach taken by Member Kennedy in CDNB at [9], who states:
[P]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants. …
In Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (Confidential) at [34], the Tribunal found that where the Minister had not been provided with any documentation to enable him to form an opinion regarding the identity of an applicant, the application is properly rejected. The Tribunal also found that evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of a person (at [35]).
In Dhayakpa (at [117]) the Tribunal noted that the decision in Confidential was not authority for the proposition that a document is a requirement for the Minister to be satisfied as to identity, but rather that it:
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. …
A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker refuse a grant of citizenship where they are not satisfied of the applicant’s identity.
EVIDENCE
In her application for the conferral of Australian citizenship lodged on 27 July 2017, the Applicant provided the following supporting documents to address proof of identity requirements:
(a)a copy of the Applicant’s concession card recording her name as Rachael A Akau Machar, certified 22 June 2017;
(b)a copy of a portion of the Applicant’s Western Australian driver’s licence with her date of birth and photograph omitted, recording her name as Racheal Ajok Akau Machar, certified 22 June 2017;
(c)an untranslated copy of an age assessment certificate issued by the Republic of Sudan’s Federal Ministry of Health to the Applicant recording her name as Rachel Ajok Akau Machar, certified 22 June 2017;
(d)an untranslated copy of the Applicant’s Republic of Sudan passport recording her name as Racheal Ajok Akau Machar, certified 22 June 2017; and
(e)a copy of a birth certificate issued in the Republic of Uganda recording the birth of one of the Applicant’s children born 30 August 2009, issued 28 July 2010, recording her name as Racheal Ajok Akau Mbiko, certified 22 June 2017.
(Exhibit R2, pp 20–6.)
On 3 October 2018, the Department requested the Applicant provide a Form 1399 Declaration of Service and other documents to confirm her identity (Exhibit R2, p 29), being documents that would evidence her identity from birth, up until the time of her application (Exhibit R2, pp 27–32). These requested documents included, among other items, birth certificate, marriage certificate, baptismal certificates, education records, employment records and overseas identity records. The Department also requested statutory declarations where the Applicant was unable to provide further identity or supporting documents.
On Thursday 8 November 2018, the Applicant responded to the Department, providing the following additional documents:
(a)a certified copy of a letter from the Government of South Sudan, dated 2 August 2010, referencing Racheal Ajok Akau Machar, stating that she had no criminal records that the office was aware of;
(b)a certified copy of a Kenyan driver’s licence dated 2 April 2012 in the name of Racheal Ajok Akau Machar, stating “over 18” next to the date of birth;
(c)a copy of the document described above at [33(c)] previously provided to the Department, certified 8 November 2018;
(d)a student identification card for Racheal Machar;
(e)Working with Children Check for Racheal Ajok Akau Machar with a date of birth of 25 April 1984;
(f)a copy of the Applicant’s passport as described in [33(d)] above, previously provided to the Department, certified 8 November 2018;
(g)a marriage certificate from the Namirembe diocese in Uganda, recording the marriage of Racheal Ajok Akau to Moses Achiek Wella Jok on 12 December 2008;
(h)a certificate issued by the International Rescue Committee to Ajok R Akau for completing a medical assistant course, offered by the International Red Cross at the Kakuma Refugee Camp in Kenya, dated 9 April 2008; and
(i)a certificate of good conduct issued by the Kenyan Police on 24 October 2010 to Racheal Ajok Akau Machar.
(Exhibit R2, pp 34–45).
On 9 November 2018 the Applicant provided the Department with a Form 1399 Declaration of Service and copies of her Western Australian driver’s licence, Medicare card, concession card and bank debit card (Exhibit R2, pp 49–59).

On 18 March 2019, the Department wrote to the Applicant requesting that she submit a Form 80 Personal particulars for assessment including character assessment (Exhibit R2, p 63).
In the letter dated 18 March 2019, the Department identified some areas of concern relating to the information that the Applicant had provided (Exhibit R2, p 67). The Department noted that she had not provided any documents that were issued outside Australia between the claimed year of her birth (being 1984) and 2008. The Department further noted that in order to obtain a Sudanese passport, the Applicant would have been required to present a birth certificate, nationality card and a guarantor confirming her identity evidence. As a result, the Department requested that the Applicant provide it with the documents she submitted to obtain that passport.
The Department also requested an explanation for discrepancies in the Applicant’s name amongst the documents provided, noting she had variously declared her name to be:
(a)MACHAR, Racheal Ajok Akau;
(b)AKOU, Rachael Lith:
(c)AJOK AKUA, Rachael; and
(d)AKAU MACHAR, Rachael Ajok.
The Department also requested that, given the Applicant had provided education certificates from the Kakuma refugee camp, she provide her refugee camp ration card or any other documents from that time.
The Department also noted that in her Form 1399 she declared three siblings:
(a)AKAU, Deborah Ayen;
(b)MACHAR, Aman Akau; and
(c)MACHAR, Thok-Bor Akau
In her Form 80, she declared five siblings:
(a)Deborah Ayen;
(b)Mary Yar;
(c)Jacob Ayn Akau;
(d)Yar Akau; and
(e)Thok Akau.
The Department requested the Applicant provide an explanation for these discrepancies in the advice she provided about her siblings.
Should the Applicant be unable to provide any of the documents requested in that letter of 18 March 2019, the Department requested that she provide a statutory declaration as to why she was unable to do so, what happened to any documents issued to her, what attempts she has made to obtain further documents and any relevant information regarding her life story.
The Applicant responded on 19 April 2019 and provided additional information on 17 May 2019 (Exhibit R2, pp 72–78).
In her explanation for the discrepancies, the Applicant stated that she was born on 25 April 1984 in a remote village in what is now Jonglei State in South Sudan, a year after the civil war began. The village, where the Applicant remained for eight years, also contained a makeshift camp for internally displaced people. She further stated there were no birth certificates or birth registrations (Exhibit R2, p 72).
The Applicant stated that after her birth she was given the Christian name of Racheal; the name Ajok in honour of a woman who cared for her mother during labour; Lith, after a light coloured cow, reflecting the cultural practice of naming children after the colour of cows paid as dowries. She also explained that the names Akau and Machar were the names of her father and grandfather respectively (Exhibit R2, p 72).
According to the Applicant, in 1994 they fled to Kenya and were transferred to the Kakuma refugee camp. With no form of identification, the Applicant says they were registered by locally employed Kenyans working for the United Nations. According to the Applicant, the Kenyans, unfamiliar with the Dinka language and Sudanese cultural practices, struggled to pronounce names. Akau, the Applicant states, was misspelt as Akou (Exhibit R2, p 72).
Following the end of the civil war, Sudanese refugees were progressively repatriated back to Sudan. During this process the Applicant states that she registered her birth, supported by a guarantor who confirmed the circumstances of her birth, listing her name as Racheal Ajok Akau Machar. She later used this registration to secure a national identify card and passport (Exhibit R2, p 73).
In respect of the differences between the details of her siblings, the Applicant did not recall filling out the Form 80 and submitted that the information in the Form 1399 was correct: that her sister Deborah would have had used the surname Machar, which she omitted because, culturally, she uses only her Christian or first name (Exhibit R2, p 73).
The Applicant also provided a statutory declaration where she stated that in the refugee camp, she was issued with a ration identity card and a primary school leaving document, however, she had misplaced them. She contacted the United Nations in Nairobi to source identity documents but was advised that it was 10 years since she had left and the database had been updated (Exhibit R2, p 75).
The Applicant also provided a Form 80, dated 17 May 2019.
On 6 November 2019, the Department wrote to the Applicant again, inviting her to comment on adverse information (Exhibit R2 pp 97–106). The Department again noted that a number of names used by the Applicant had been provided in her interactions with the Department:
(a)Racheal Lith Akau;
(b)Racheal Lith Akou;
(c)Ajok Akau Racheal Ajokk Akau Machar;
(d)Lith;
(e)Rachel Lith Akau (date of birth 7 May 1985); and
(f)Rachael Ajok.
The Department referred three passport photos of the Applicant to the Facial Comparison Unit, which confirmed they were the same person. One of those images was used in a refused visa application for Australia in 2005, sponsored by her sister Deborah, where the Applicant was listed as a dependent under the name Rachel Lith Akau born on 7 May 1985 (Exhibit R2, p 100). That name and date of birth are inconsistent with the details provided by the Applicant in her application for Australian citizenship, moreover in her application to migrate to Australia, she did not declare that she had been refused a visa application.
The Department noted that the United Nations High Commissioner for Refugees (UNHCR) register lists a date of birth of 1983. The Department also points to inconsistencies with the sibling details in the various forms provided to the Department.
In response, the Applicant, reiterating previous explanations she had provided, added that she was not aware that her sister had sponsored the previous visa application, and had she been aware of it, she would have declared it.
On 18 December 2018, the Department advised that her application for Australian citizenship had been refused.
CONSIDERATION
As detailed above, the Citizenship Instructions identify three pillars of identity: biometric, documents and life story. Of note in this matter is the relationship between the Applicant’s life story and the relevant documents before the Tribunal.
By its very nature, civil war disrupts the established practices and normal administrative functions of a state. In matters such as these, the Tribunal is mindful that the recording of deaths, marriages, births and the like, in times of strife and war, particularly in developing countries with immature governance arrangements, will fall short of that expected in ‘an established or undisturbed society’ like Australia. Additionally, the Tribunal recognises that the centuries old Western naming conventions cannot be templated on other societies and cultures: surnames, as we use them, are far from universal. As such, it is perfectly conceivable that in the midst of the Sudanese civil war, a child will be born in a place of refuge without a birth certificate. It is also conceivable that the child will be known, in accordance with local custom and tradition, by a number of different names. It is not a stretch to see how imperfectly this will satisfy the documentary demands of a highly sophisticated, modern state such as Australia.
Whilst mindful of these facts, the Citizenship Act and the relevant guidelines do not allow for the benefit of the doubt, nor do they impose a burden of proof such as the balance of probabilities when it comes to establishing identity: it must be satisfactorily ascertained. Identity cannot be satisfactorily ascertained in circumstances where unanswered questions or uncertainty exist regarding a person’s life story or arising out of the documents they hold. It should also be noted, there are many thousands of Australia citizens who came originally from places of civil war and strife, whose identities have been satisfactorily ascertained.
Names and dates of birth
The Applicant has provided a plausible explanation for the various names she has used and how they may have been misspelt. However, uncertainty invariably arises when different names are used with different dates of birth: the Applicant is Rachel Lith Akau, born 7 May 1985 in the 2005 Application for an Offshore Humanitarian Visa (Exhibit R3, p 159) and she is Rachael Ajok Akau Machar, born 24 April 1984 in her husband’s Application for migration to Australia by a partner in 2009 (Exhibit R3, p 197).
The Applicant provided an email from Mr William Agany, confirming her date of birth as 25 April 1984 (Exhibit A3). He writes:
I am writing this confirmation letter to affirm that my younger step sister Racheal Ajok Akau Machar was born on 25th April 1984. I’m so much familiar with her birth date because that was the date I returned when I was at a military training Camp. In addition, after I joined my family in Kakuma refugees’ camp we been also celebrating her birthday date on 25ths of every April in a year.
(Without alteration.)
If her birthday was celebrated every year on the 25 April, why would her sister record her date of birth as 7 May 1985 in the 2005 visa application? Why would her date of birth be recorded by the UNHRC as 1983?
The Applicant’s cousin, Mr David Makor Agot, provided further evidence at the hearing in relation to the Applicant’s date of birth:
So, her date of birth is 25 April 1984, but the other one is the time she came there, that way, they give her the date of birth. But the time we went back and, that her people, like to get citizenship or passport, there where the brother to give her the real date of birth in her certificate. Because the government say anyone coming back from refugee camp, they need to have like, certificate, birth certificate. So, that’s where she got different name, and all this.
(transcript, p 18 at [40].)
Mr Agot provided further context when reflecting on his own date of birth:
… people like me, they put me 01/01/1979, even my - I’m not sure - even my mum don’t know, actually. If you go deeply, I don’t know my date of birth.
Because at the time I processed mine, they put date of birth 01/01/1979 - maybe mine is more or not, I don’t know, because they just guess, you know what I mean?
So, from the date of birth is somebody like my child - brother is the one actually, he know the date of birth because he know something, is somewhat educated, but we - the time where mother, you don’t know anything, even A B C D, don’t know, letter A you don’t know.
So, we just put the date in - put it, and when they say, yes, your daughter is this age, we say yes, because we don’t know.
And we don’t know, actually, we just can’t - you know - like, normally we don’t know the dates at all, it’s Sunday or Monday, we don’t know. If the sun went down we’d say today’s - the day’s finished. We don’t know the - back home we just know that the sun is rise up and set down. So before they don’t know.
So, the date of birth, his brother - you know, that’s why he take it when she was 24 years, because the brother say this is your real date of birth, the one UN give you is not right, in your date of birth. Because they put it high, because of her height, and how tall she is, or how big she is, her body, because some people they are thin, and some people they got big body, so they just assume you maybe you 10 while you’re eight-years-old, or they say you 11 while maybe you 10. They just put it up the way they see the way you are.
(transcript, p 19 at [17].)
It is possible that the Applicant’s sister forgot the Applicant’s date of birth, or, as the Applicant contends, that the Kenyan UNHRC staff assigned an incorrect date (Exhibit R2, p 111), Mr Agot’s submission certainly demonstrates it is possible. However, in the absence of other identity documents, the uncertainty is not easily settled.
Documents
The earliest document the Applicant has provided is a Kenyan Secondary School certificate, dated 27 January 2007 which lists her name as Ajok Racheal, born 25 April 1984 (Exhibit A4). More than twenty years of the Applicant’s life are undocumented.
The Applicant has included a number of documents (see [33] and [35] above) that were issued to her before her arrival in Australia.
In Exhibit R1 the Respondent drew the Tribunal’s attention to the Department of Foreign Affairs and Trade ‘DFAT Country Report on South Sudan’ (5 October 2016) (South Sudan Report), which states:
DFAT understands that there is a high prevalence of fraudulent and fraudulently obtained documentation in South Sudan. Given that legislation does not require the registration of events such as births, deaths and marriages there are limited official procedures for the issuance of documentation. DFAT assesses that there are a number of high-risk documents including age assessments, birth certificates, death certificates, marriage certificates and family composition claims.
(South Sudan Report para 5.29.)
It is worth noting that two of the copies of documents produced by the Applicant being the age assessment certificate and passport (see respectively [33(c)] and [33(d)] above) were issued by the Republic of Sudan, not South Sudan. The Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sudan’ (27 April 2016) 5.40–5.41 and 5.51 states:
Long-term instability in Sudan has had a detrimental impact on reliable identification documentation. In addition, DFAT understands that high levels of corruption have led to fraudulent identification documents being easy to obtain.
Identification documents can be verified by the Ministry of Foreign Affairs or, if outside of Sudan, by the nearest consulate. Identification documentation verified outside of Sudan by Sudanese consulates must have already been verified by the Ministry of Foreign Affairs in Sudan.
…
Ongoing instability means that some individuals do not have birth certificates. Individuals can obtain an age assessment which acts as a birth certificate. An individual must visit their local hospital where an assessment is made based on an individual’s teeth in order to obtain an age assessment. DFAT understands that individuals are often asked how old they wish to be and therefore deems age assessments as unreliable.
Little weight can be placed on the age assessment.
The Applicant states that she registered her birth with the Sudanese authorities after the civil war, supported by a guarantor, and used this registration to secure a national identity card and passport (Exhibit R2, p 73). However, there is no information before the Tribunal in relation to the guarantor. In these circumstances, and in light of the DFAT advice, limited weight can be placed on the passport.
The other documents listed above are not helpful, not least because they show several versions of the Applicant’s name and a lack dates of birth. Furthermore, it is not known what verification checks were used in the creation of these documents.
The Respondent rightly raised concerns regarding the Kenyan licence, noting the licence permits the Applicant to operate heavy vehicles. Issued after her arrival in Australia, the Applicant stated (transcript p 12 at [36]; p 14 at [33])
… I did do driving lessons, and I finished, but due to lack of money I could not get my driving licence. It was after I had arrived here, that’s when I send back money and then my driver’s licence was sent to me. I did sit for the test, driving test, before I left.
…
I used to drive cars, small cars, and maybe they assumed if I could drive a small car I can also drive heavy vehicles or heavy trucks.
As noted above, there is an absence of any documents relating to the Applicant’s life before the 2000s. There is a reasonable expectation that documents relating to her time in the refugee camp would have been created by the UNHRC and records of some description would exist. The following exchange took place at the hearing and is worth noting:
COUNSEL:                In fact, you didn’t contact the refugee camp for any records of   your time in the camp, did you, or contact the UNHCR for   those records?
INTERPRETER:        I did provide an explanation some time back, this is how it   works in the refugee camp, once you are leaving, your name   is deleted in the system, and secondly the ration card for   obtaining food, the ration card is basically destroyed. So   basically, they don’t keep records, they don’t keep records   when you are leaving, they don’t keep records, they delete   your name in the system and they also destroy the ration   card.
COUNSEL:                That’s your evidence, but you haven’t written to the UNHCR   to try and obtain those records, have you?
INTERPRETER:        I didn’t know where to start, and secondly my name was   removed in the system and the ration card was also destroyed   when I left the refugee camp, so in summary I did not know   where to start from and whom to contact for the records.
COUNSEL:                Well, you never attempted to contact the UNHCR, did you?
INTERPRETER:        I did not contact them, and secondly I do not, and did not also   have their contact.
(transcript p 12 at [9].)
The Tribunal points to Deputy President Nicholson observation in In Dhayakpa (at [117])
… 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. …
Although efforts by the Applicant to source information and documents from the UNHRC may ultimately prove unsuccessful, there is no evidence that she has availed herself of the opportunity to do so.
Siblings
As noted above, there are discrepancies in the information relating to the Applicant’s siblings. It is not unreasonable to observe that the uncertainty and confusion surrounding the Applicant’s name is replicated in the name of her siblings. It is also clear that the Applicant has siblings that she did not record in documents that she provided to the Department. By way of example, Mr Agany, listed above, is a half-brother of the Applicant (sharing the same father), but he is not listed anywhere as a sibling. The Applicant provided some insight into this when she observed the following during the hearing:
I thought that I was basically required to write the names of the siblings from the same mother, for example from my mother. I didn’t know that I had to write the names or list the names of my siblings - the rest of my siblings. My father had four wives and if I’m to write the names down they would fill a book. They would fill a book. I was under the assumption that it’s only children from my mother’s side. I thought I was only required to write the names of the children from my mother’s side.
(transcript, p 29 at [11].)
Nevertheless, the uncertainty regarding the Applicant’s family, the family composition and their respective names, makes it hard to be satisfied of the Applicant’s identity.
Australian documents
Limited weight can be placed on the documents the Applicant has been issued since her arrival in Australia, for example her concession card and driver’s licence. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into her identity. As Deputy President Boyle noted in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729, such documents are of little value in the exercise of ascertaining an individual’s identity as they, “are simply evidence of who the Applicant says [he or she] is, not of who [he or she] is.” As the Respondent rightly notes in relation to this matter (Exhibit R1, p 11 at [39]):
those documents are not “feeder documents” with an unbroken chain linking to a primary official identity document, unlike a driver’s licence issued to a person who has provided a birth certificate … [t]he Australian documents go no further than demonstrate what the [A]pplicant has previously told the Australian government.
CONCLUSION

It is clear that the Applicant’s identity cannot be ascertained satisfactorily. There are too many uncertainties, made worse by a significant lack of documents over a period of 20 years. The Tribunal notes that the circumstances of the Applicant’s birth and early years create significant challenges in establishing an unbroken chain to a primary identity document. However, there are avenues open to the Applicant that have not yet been pursued, for example with the UNHRC, should she apply for Australian citizenship again, which she is free to do.
The inability of the Applicant to provide sufficient information to enable the Tribunal to be satisfied of her identity should not be seen as a reflection of character, nor suggest that she was being deceptive in her dealings. The Applicant and her witnesses sought to explain the insufficient information as best they could.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 19 November 2019 which refused a grant of Australian citizenship under s 24(3) of the Citizenship Act, is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

.............[Sgd]...........................................................
Associate
Dated: 8 June 2021

Date of hearing: 17 March 2021

Applicant: In person

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	17 March 2021
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers