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

[2021] AATA 1635

Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635 (9 June 2021)

Division:GENERAL DIVISION

File Number:          2019/7383

Re:Abdifatah Mahamud

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner
Member Dr J Henderson

Date:9 June 2021

Place:Perth

The Tribunal sets aside the Reviewable Decision and remits the matter to the Respondent for reconsideration in accordance with the direction that the Tribunal is satisfied of the Applicant's identity and therefore the prohibition in s 24(3) of the Australian Citizenship Act 2007 (Cth) does not apply.

.....................[Sgd]...................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity – three pillars of identity – inconsistencies in Applicant’s name and date of birth in documentation submitted to the Department – Applicant made honest and reasonable attempts to obtain official documentation – Applicant promptly corrected discrepancies in Australian government documents – Applicant found to be an honest and credible witness – Tribunal is satisfied of Applicant’s identity – Reviewable Decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 10(1), 10(1)(a), 10(1)(c), 10(1)(e), 21(1), 24, 24(3), 40

Freedom of Information Act 1982 (Cth) – 48

CASES

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39

Confidential and Minister for Immigration and Citizenship [2013] AATA 144

Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162

Mohsin and Minister for Home Affairs [2019] AATA 1999

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, 645

Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145

Shafari and Minister for Home Affairs [2019] AATA 808

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

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2014) – ch 2.1

Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)

Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – ch 13

Oxford English Dictionary (online at 9 June 2021) ‘identity’ (defs 2a and 2b)

Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner
Member Dr J Henderson

9 June 2021

OVERVIEW

1. By an application to the Tribunal filed on 11 November 2019 (T1/2–4), the Applicant seeks review of a decision by a delegate of the Minister made on 9 October 2019 (T2/6–12) (Reviewable Decision). The Reviewable Decision rejected the Applicant’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied of the Applicant’s identity, as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).

   Arrival in Australia

2. The Applicant is a Somalian national (T2/6). He first arrived in Australia on 1 December 2011 pursuant to a Class XB Subclass 204 Woman at Risk (permanent) visa (Visa) (T33/303) granted on 7 September 2011 (T34/304; T2/6) as a dependent of his older cousin. 

3. The Applicant’s cousin did not include the Applicant in her application for a Class XB visa when it was initially made (T8/97–100). 

4. On 4 August 2010, the Applicant’s cousin identified the Applicant as her dependent during an interview with a Migration Officer from the Australian High Commission in Kenya (Nairobi Post), which took place at Emkulu Refugee Camp in Eritrea. The interview was conducted with the aid of a United Nations High Commissioner for Refugees (UNHCR) supplied interpreter. The Applicant is recorded in the case notes of the interview as “Abdifitah Mohammed Abdi”, with his date of birth as “1991 (end of year)” (T13/139–41).

5. The Applicant’s details were subsequently recorded on a “Form 80: Personal particulars for character assessment” dated 4 November 2010. The Form 80 recorded the Applicant’s name as “Mohamed Abdi Abdifatah” and his date of birth as “01/01/1991” (T9/112).

6. On 7 September 2011, Nairobi Post issued the Applicant with a document for travel to Australia (DFTTA) and the Visa. The DFTTA included a photograph of the Applicant and recorded his name as “ABDI ABDIFITAH MOHAMMED” and his date of birth as “01 January 1991” (T10/122; T16/175).

7. The Applicant travelled to Australia on the DFTTA, and as noted above, he arrived in Australia on 1 December 2011 (T33/303; T10/122).

   Amendment to personal records

8. On 18 May 2012, the Applicant requested an amendment to his personal records pursuant to s 48 of the Freedom of Information Act 1982 (Cth) (T10). The change sought by the Applicant was that his name be recorded as “Abdifatah MAHAMUD” and his date of birth be recorded as “18/06/1994” (T14/150). The Applicant provided the following documents in support of the application for an amendment to his records:

   (a)the DFTTA;

   (b)an Eritrean exit visa in the name of “ABDI ABDIFITAH MOHAMMED” (T10/123) (Exit Visa); and

   (c)an Eritrean Ministry of Education Grade 8 National Examinations 2010 Exam Year school certificate in the name of “Abdifatah Mohamud Abdi” (T10/124; T16/174) (School Certificate).

9. The amendment to the Applicant’s personal records was approved on 27 July 2012 (T14/150–59).

   Citizenship application

10. On 2 December 2015, the Applicant applied for Australian citizenship by conferral pursuant to s 21(1) of the Citizenship Act (T16/160–70). In support, the Applicant provided, among other documents, a copy of his Grade 9 Secondary School Student Report Card for the 2010–2011 academic year in the name of “ABDIFATAH MOHAMUD ABDI”, age 16 (T16/172–73) (School Report Card), his School Certificate (T16/174) and his Exit Visa (T17/179).

11. On 11 January 2016 and on 15 February 2016, the Department wrote to the Applicant requesting further documents to confirm his identity (T18, T19). On 17 February 2016, the Applicant provided copies of his DFTTA (T20/218), Australian visa (T20/223), student card (T20/226), health care card (T20/226) and vehicle license and third party insurance policy account (T20/227), as well as the following documents to the Respondent:

    (a)completed Form 80 “Personal particulars for assessment including character assessment”, dated 17 February 2016 (T20/190–207);

    (b)completed Form 1399 “Declaration of service” (T20/208–17);

    (c)further copies of his School Report Card (T20/221–2), his School Certificate (T20/220) and his Exit Visa (T20/219); and

    (d)further Australian identity documents, including his Australian driver’s licence, learner’s permit, Medicare card and debit card (T20/224–6).

12. [Paragraph redacted.]

13. [Paragraph redacted.]

14. On 19 May 2017, the Department sent the Applicant a natural justice letter seeking further information from him and asking him to clarify the inconsistencies in the spelling of his name and his date of birth (T22/230–1).

15. [Paragraph redacted.]

16. On 20 June 2017, the Applicant provided the Department with a certified copy of his “Students’ transcript” for the 2010–2011 school year (grade 9) issued by his secondary school (T23/237) among other documents.

17. [Paragraph redacted.]   

18. On 29 November 2018, the Department requested the original school records and further identity documents from the Applicant (T26/259–63). The Applicant sent the Respondent certified copies of the relevant school records (T27/264–73).

19. On 3 April 2019, the Respondent sent the Applicant a further natural justice letter, inviting him to comment on the inconsistencies in respect of his name and date of birth within 35 working days after receipt of the request (T28/274–82). On 1 May 2019, the Applicant’s migration agent sought an extension of time to respond to that natural justice letter (T29/283–286). On 9 May 2019, the Applicant’s migration agent provided the Department with the following documents (T30/287):

    (a)character reference from the Vice-President of the Ogaden Community Association of WA Inc, dated 2 May 2019 (T30/288);

    (b)character reference from a friend of the Applicant’s, dated 6 May 2019, stating that he had known the Applicant since 2008 when they were in Africa and that they attended the same school between years seven and nine (T30/289);

    (c)Form 1023 “Notification of incorrect answer(s)”, where the Applicant clarified that he accidentally included his father’s name on his Form 80, dated 17 February 2016, because he “did not understand the question well” (T30/290–1); and

    (d)statutory declaration, declared by the Applicant on 8 May 2019 in the name of “Abdifatah MAHAMUD”, where he states that he is “known as Abdifatah MAHAMUD” and that his “date of birth as far as [he knows] is June 18^th 1994” (T30/292). However, in Annexure A of the statutory declaration, the Applicant repeatedly refers to his name as “Abdifatah Mahamud Abdi”. In the statutory declaration the Applicant also confirmed that he had re-affixed a photograph to his school records after it fell off (T30/292–6).

20. On 10 May 2019, the Applicant’s migration agent emailed the Department a copy of a further character reference from another friend of the Applicant’s, who indicated that he had known the Applicant since 2012 (T31/297–8).

21. On 9 October 2019, the delegate refused to approve the Applicant’s application for citizenship by conferral pursuant to s 24(3) of the Citizenship Act (T32/299–302; T2/6–12).

    THE PARTIES’ SUBMISSIONS AND THE ISSUE

22. The documents provided by the Applicant in support of his application for citizenship contained, what the Respondent submits, are “significant differences” (transcript/6) in his dates of birth as well as different spellings of his name. The Respondent submitted that the Tribunal should not be satisfied of the Applicant’s identity for the purpose of his application for citizenship by conferral, given the nature of the documents where the discrepancies appear and given the fundamental nature of a person’s name and a person’s date of birth in establishing their identity (transcript/7).

23. The Applicant’s case was stated in the first paragraph of his Statement of Facts, Issues and Contentions (SFIC) as follows:

    Mr. Mahamud has provided all documents he possibly can to demonstrate his name and age given that as a young orphan arriving at a Refugee Camp in Eritrea, he had no documents at all. Mr. Mahamud has provide[d] references and statements from those who know him, attesting to his identity and date of birth. His date of birth is to the best of his knowledge.

    There is no more evidence that Mr. Mahamud has.

24. Thus, the only issue for determination before the Tribunal is whether it is satisfied of the Applicant’s identity pursuant to s 24(3) of the Citizenship Act.

    THE EVIDENCE AND THE HEARING

25. The Application was heard by the Tribunal on 15 April 2021. The Applicant was represented by Mr P Rozsy, a registered migration agent. The Respondent was legally represented by Mr A Gerrard. The Applicant gave evidence and was cross-examined.

26. The Tribunal admitted the following documents into evidence:

    (a)Applicant’s SFIC, dated 15 November 2020, containing a statement from the Applicant and attaching copies of identity documents (Exhibit A1);

    (b)Letter from the Applicant’s representative, Mr Rozsy, dated 17 January 2020, with attached certified copy of the Applicant’s birth certificate and statutory declaration from the Applicant, dated 17 January 2020 (Exhibit A2);

    (c)section 37 T-Documents, numbered T1–T34 (Exhibit R1);

    (d)redacted s 37 T-Documents, numbered T21, T24 and T25 (Exhibit R2); and

    (e)excerpt of a 2017 document titled “Somalia – The Identity Guide” (Somalia Identity Guide), dated 11 August 2020 (Exhibit R3).

27. The Tribunal has also had regard to the Respondent’s SFIC, dated 11 August 2020.

    LEGISLATIVE FRAMEWORK

28. Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.

29. 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).

    (Notes omitted.)

30. 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”.

31. As indicated by the wording of s 24(3) of the Citizenship Act, 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.

32. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (which became the Citizenship Act) makes it clear that the lack of discretion is intended to be absolute:

    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.

33. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 further provides:

    Subclause 19D(4) states that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. 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.

34. The issue of identity is also addressed by chapter 13 of the Australian Citizenship Policy

    
    

    (1 June 2016) at page 148:

    The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.

    In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.

35. “Chapter 13 – Identity” of the Citizenship Policy provides that “the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016)” (Guidelines).

36. Paragraph 2.1 of the Guidelines provides:

    2.1.1A 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.

    2.1.2A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a [Registry of Births, Deaths and Marriages] birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on [the Department as it was then known] Australian immigration documents or records.

37. Paragraph 2.2 of the Guidelines sets out five identity proofing objectives:

    2.2.1The veracity of claims about a person’s identity is established through evidence provided to meet some or all of the following five identity proofing objectives (depending on confidence in the claimed identity required):

    1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another and that the right service is delivered to the right individual. …

    2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created (i.e. the identity is that of a real person) through evidence of commencement of identity in Australia. …

    3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community (including online where appropriate). …

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

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

    (Original emphasis.)

38. The Tribunal will look to and apply Ministerial policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, 645).

39. On 1 January 2019, the Department of Home Affairs published the Revised Citizenship Procedural Instructions (CPIs). “CPI 16 – Assessing Identity under the Citizenship Act”
    (CPI16) provides at [4.12]:  

    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 historically.

40. CPI16 identifies three pillars of identity to be used when assessing identity, being biometrics, documents and life story, at [4.4]:

    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. …

Three pillars of identity

Individual characteristics

Biometrics

Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

Documents

Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life story

A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

1. CPI16 at [4.4] further states that relying on a single pillar to establish a person’s identity is inadequate and that to comprehensively test and evaluate a person’s identity claim, a decision maker should consider each pillar of identity.

2. The Guidelines and CPIs may assist in determination of an individual’s identity, but they do not insert, change or modify a definition to the word “identity” contained within s 24(3) of the Citizenship Act. It is the task of the decision-maker to ascertain the meaning of the word used in the Citizenship Act in the context in which it appears. The author of a policy document cannot amend an Act of Parliament by adding or modifying a definition of a word used in the Act.

3. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 384 McHugh, Gummow, Kirby and Hayne JJ said:

   However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction … may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

   (Footnotes omitted.)

1. The Oxford English Dictionary Online relevantly defines “identity” as follows:

   a.The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality. …

   b.Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.

2. The three pillars of identity set out in CPI16 are consistent with this definition. Identity is what makes a person themself and not someone else. It is also a set of characteristics that distinguishes a person from others.

3. The issue of establishing a person’s identity in applications for citizenship by conferral has been considered by the Tribunal in several decisions. Those decisions have consistently recognised the significance of identity in citizenship applications.

4. In Beyan and Minister for Immigration and Border Protection [2015] AATA 256 the 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.

5. In Shafari and Minister for Home Affairs [2019] AATA 808 Senior Member Morris wrote 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.

6. In Confidential and Minister for Immigration and Citizenship [2013] AATA 144, Senior Member McDermott at [34] had found that, with reference to requirements related to the completion of forms on behalf of an applicant for citizenship under the age of 16 years:

   I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.

7. That emphasis on documentary evidence of identity was subsequently modified in Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 at 175 [117] (Dhayakpa):

   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.

8. Dhayakpa was followed in YMPL and Minister for Immigration and Border Protection [2017] AATA 1458, where Member Warner said:

   34.Relevantly, the test for establishing identity is outlined in [Dhayakpa] and Minister for Immigration and Border Protection [2015] AATA 310 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”.

   35.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.

9. Each case concerning identity must be dealt with on its individual merits with appropriate weight given to individual factors (Mohsin and Minister for Home Affairs [2019] AATA 1999, [40]–[41]). The process of a decision-maker being satisfied of identity is an evaluative one, and is not “amenable to the application of an evidentiary burden of proof, such as the balance of probabilities” (BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39, [54] (BOY19)). Rather, the Tribunal must reach an affirmative belief as to an applicant’s identity (Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145, [16]).

   CONSIDERATION

   Biometrics

10. Section 40 of the Citizenship Act provides that for the purpose of the Minister being satisfied of the identity of a person, the Minister may request the person provide one or more “specified personal identifiers”. Section 10(1) of the Citizenship Act defines a “personal identifier”. It relevantly includes fingerprints, a photograph or other image of a person’s face and shoulders, and a person’s signature (ss 10(1)(a), 10(1)(c) and 10(1)(e) of the Citizenship Act).

11. Similarly, CPI16, at para [4.4] refers to “personal identifiers” when explaining the individual characteristics of the “biometrics” pillar of identity:

    Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

12. There is no challenge to the Applicant’s biometrics by the Respondent (transcript/62).

13. The photographs of the Applicant on the various documents provided to the Tribunal match and are consistent and in accordance with his appearance at the hearing. The Tribunal accepts that the Applicant’s identity is consistent in photographs, which supports a finding that the Applicant is the person in those documents.

14. Similarly, the Applicant’s signature appears on several of his documents. The Tribunal also accepts that the Applicant’s signature supports a finding that the Applicant is the person in those documents.

15. The Applicant recalled signing a document with his thumb print as part of the registration process when he arrived in the camp in Eritrea (transcript/20 and 26). However, the relevant registration document, being the UNHCR “Individual Summary” form, with a registration date of 25 August 2008 (UNHCR Record) (T24/251) does not contain a thumb print and there is no evidence that any documents containing the Applicant’s thumb prints came into the possession of the Department, which may have provided the opportunity for verification.

16. The Tribunal is satisfied that the Applicant’s biometrics, specifically, his photograph and signature, support a finding that the Applicant is the person in those documents.

17. Unfortunately, the biometric evidence for the Applicant does not extend back to his date of birth. The earliest biometric record for the Applicant before the Tribunal is the UNHCR Record (T24/251). That is as far back as the biometrics can support a finding that the Applicant is the person referred to in the documents before the Tribunal. 

    Documents

18. With respect to the “documents” pillar of identity, CPI16 explains, at paragraph [4.4], that:

    Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

19. The earliest dated document that is available to assist the Tribunal in establishing the Applicant’s identity is UNHCR Record (T24/251). That document indicates that the Applicant’s name is “Abdi-Fetah MAHMUD ABDI” and that his date of birth is 1 January 1988. There are several problems with this record, which are as follows:

    (a)The UNHCR Record was created in 2008 but modified in 2012, and it is unclear to the Tribunal specifically what was modified at this time. There is also a significant discrepancy in the UNHCR Record with respect to the Applicant’s date of birth, which is stated as 1 January 1988. However, at the top of the record, the Applicant’s age is stated as “28 years”. The Respondent suggested that the discrepancy may have resulted from “incorrect arithmetic” (transcript/51) on the part of the author, who may have estimated the Applicant’s age during the registration process, but noted (and the Tribunal agrees) that to make such an inference is speculative. This eight-year gap between the Applicant’s purported date of birth and age as stated on the UNHCR Record is a significant discrepancy which, together with the lack of clarity regarding the modifications to the form in 2012, raises doubt about the accuracy of the document.

    (b)Despite the assertion that the Applicant was born in 1991 at the end of the year (T13/139), it is unlikely that the Applicant was either 19 or 28 years old in 2008. The migration officer who conducted the interview in 2011, after meeting with and talking to the Applicant, referred to him as “the boy” and noted that “he goes to school … and is in grade 9” (T13/139). The record of that interview is described by the Respondent as a “critically important document” (transcript/55). The Tribunal agrees that it is likely to be more reliable than the UNHCR Record because it is a contemporaneous record and because of the inconsistencies contained within the UNHCR Record.

    (c)The Tribunal, who found the Applicant to be a credible witness, accepts his evidence that in 2008 he was 14 years old (A2, statutory declaration dated 17 January 2020).  Accepting the Applicant’s evidence, and after considering the inconsistencies in the UNHCR Record regarding the Applicant’s age and birthdate and the UNHCR interviewer referring to him as a “boy” at school, the Tribunal is satisfied that it is appropriate to give little weight to the information recorded in the UNHCR Record. 

20. The next in time documents available to the Tribunal are the Eritrean school records dated 2010 and 2011, being his School Certificate and his School Report Card (T20/220–2). Both of these documents indicate that the Applicant’s name is “Abdifatah Mohamud Abdi” and the School Certificate states his date of birth as 18 June 1994. Neither of these documents have any reliable security features, and the information in them was provided either by the Applicant or on behalf of the Applicant by a family friend (transcript/45) and was not verified against any official record.

21. Next is the Applicant’s visa for travel to Australia issued on 7 September 2011, which states his name as “MAHAMUD ABDIFATAH” and his date of birth as 18 June 1994 (T27/270). However, the visa stamped upon his arrival in Australia on 1 December 2011 and his DFFTA both state the Applicant’s name as “ABDI ABDIFITAH MOHAMMED” and his date of birth as 1 January 1991 (T27/271). These documents were based on the reporting of the Applicant and on behalf of the Applicant by his cousin (transcript/16–17) and were not verified against any official record.

22. There is no allegation by either party that the person described in each of these documents is not the Applicant. Indeed, the Respondent conceded, and the Tribunal finds, that there was no doubt that the person described in each of these documents is the Applicant. Specifically, the documentation evidences that the Applicant was registered with the UNHCR in 2008, that he joined his cousin at a camp in Eritrea, that he attended Emkulu School in Massawa, that he was included in his cousin’s visa application and travelled to Australia pursuant to the DFTTA. Indeed, the Respondent’s representative stated that, “there is a line through each of those documents and that leads to the Applicant” (transcript/62). However, according to the Respondent’s representative, it is the inconsistencies in the Applicant’s name and date of birth in those documents, and a lack of documentation between his birth and the 2008 UNHCR Record, that raises concerns about the Applicant’s identity.  

23. The only documents that can reasonably be described as a “reliable identity document” for the purpose of CPI16 are those issued in Australia, including the Applicant’s drivers’ licence (T17/184; T23; T27). The name and date of birth that appear in the Australian documents are a result of the FOI name change to “Abdifatah MAHAMUD” and the FOI date of birth change to 18 June 1994 and therefore do not assist the Tribunal to establish the identity of the Applicant prior to his arrival in Australia.

24. The Applicant obtained a copy of his birth certificate from the Consulate-General of the Federal Republic of Somalia in Australia dated 7 November 2019 (A2). The Respondent submitted that the personal information recorded in it is not based on any contemporaneous Somali government record (transcript/8). The Tribunal accepts that this submission is most likely accurate, based on the Somalia Identity Guide (R3), which includes the following information:

    Somalia does not have a consolidated identity management system. It lacks any type of population register or national ID system, has a limited and poorly functioning civil registry, and at 3 per cent, has the lowest under-5 birth registration rate in Sub-Saharan Africa. In addition to low coverage, most of the identity systems in Somalia have a range of issues, including a lack of trust in the system by citizens, a concerning lack of data protection and privacy rights and the exceedingly high costs of identity credentials makes them unaffordable for the majority of the population. In a recent publication, many members of the Federal Government of Somalia raised significant concerns regarding trust in existing identification systems in Somalia, suggesting they were, for the most part, open to fraud and did not adequately verify identity. Weak institutions, low pay for civil servants, and a prevailing culture of corruption remain current concerns. …

    Without a functioning government and institutions during the two decades of civil war, many Somalis had to acquire counterfeit identity cards and passports to travel as they sought refugee status in neighbouring countries.

    Consequently, there are very logical and plausible reasons why Somalian nationals would lack, or at least have diminished access to government issued identity documentation, and anything they do have is unreliable. However, this scenario also provides cover for those seeking to fraudulently pose as Somali nationals.

    The department does not officially recognise any Somali document as a reliable source of identity verification.

    (Footnotes omitted.)

25. The information provided in the Somalia Identity Guide gives context to the difficulties that the Applicant has had in obtaining and producing reliable and consistent identity documents and lends credibility to his application. In any event, even if the Applicant had produced a birth certificate issued at or around the date of his birth showing his preferred name and date of birth, it would not have been officially recognised by the Respondent as a reliable documentary record.

26. There is no suggestion that the Applicant is not the person described in the documents before the Tribunal.  There is no allegation that the Applicant has adopted another person’s identity for the purpose of securing a migration outcome or otherwise. There is no allegation of fraud. 

27. The Tribunal finds that the Applicant is the person described in each of the documents before the Tribunal. 

28. A crucial element of any document is the life story that accompanies it (CPI16, paragraph [4.15]). The Tribunal accepts that the life story of the Applicant must be at least broadly consistent with the documentary record and must explain discrepancies in the documentary record for the Tribunal to be satisfied of the Applicant’s identity.

    Life story

29. With respect to the “Life story” pillar of identity, the CPI16 explains, at paragraph [4.4], that:

    A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happen to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

30. The Applicant’s life story with respect to the documentary records is helpfully set out in his SFIC in the following terms:

    1)My name Abdifatah can be spelt in different way. When people are writing it, they sometimes write it differently. I believe my name is the same but it is only written with different spelling of it. I am not sure why my date of birth is different version but I always informed people my correct date of birth. I only realised the mistake of my date of birth when I arrived in Australia. I can prove who I am by proving a birth certificate reissued to me by the Somali Consulate in Melbourne.

    2)In 2010/2011 school year I was in year 9 and I was 16 years old. The school year at the camp runs from September 2010 to June 2011. I am not sure why the report says year 8 but I was definitely in year 9.

    3)I was not the person who was filling the form. All I remember is telling the interpreter my correct details. I did not have access to my PR application and did not see the mistakes. The only time I saw my documents was when I arrived in Australia and I saw the mistakes on my document for travel.

    4)In 2008, I was 14 years old. At the time of my interview at the Refugee Camp I did not attend school yet. In 2010 the first half of the year I was in year 8 since the school runs form Sep of the current year to June of the following. So, I was in year 8 from September 2009 to June 2010.

    5)All I can say is that I noticed the mistake on my document for travel when I arrived in Australia. I took action when I realised this. As a child who was an orphan who has been through a lot I never paid much attention to my personal details on record.

    6)My name is Abdifatah Mahamud Abdi born on 18.06.1994 and for some reason my details were written wrong on my documents since I didn’t speak proper English and someone else was filling the forms for me. I am who I am and I can proof this with my birth certificate and the DNA you the Department has on record.

    7)When I was at the Emikulu Refugee Camp I did not speak English and relied on interpreters to fill in forms. I was not shown any documents or forms.

    8)Before Eritrea I never attended school and was always on the move from a young age, so I don’t have any documents from the time before me arriving in the UN camp in Eritrea.

    9)When the visa was granted to us in 2011 I did not look at my Travel Document since the International Organization for Migration (IOM) was looking after us and organised all of the papers, therefore I did not see that my details were wrong, with my date of birth shown as 1/1/1991.

    10)It is common to refer someone named Abdirahman, Abdifatah, Abdirizak etc as just Abdi so I did not see any issue with people calling me Abdi during my travel to Australia.

    11)I first became aware of the errors with my personal details few weeks after arriving in Australia and it took me few months to take action because it took sometime to settle into the new country.

    12)In May 2012 I applied to correct my name and date of birth to the Department.

    13)I am not sure why my personal details were written incorrectly but I have always stated my name as Abdifatah Mohamud Abdi and born in 1994.

    14)All the school reports I provided are the original documents that were provided to me in Eritrea.

    15)The school reports have my photos attached and on the photos you can see me holding up my student number, which is unique and shows this is clearly me.

    16)Also the Department of Home Affairs says that there is someone with the name of Abdi-fetah Mahmud Abdi born 1/1/1988 and whilst there were many Abdifatahs in the camp but I do not know the person with these details.

    17)I asked my name to be changed as Mohamud but it came out as Mahamud and whilst both spellings are common, this goes to show that details can be written wrongly.

    18)The Department have advised that I wrote that Mohamud Abdi Guleed was a Name I have been known by, but I misunderstood the question as Mohamud Abdi Guleed is my father’s name, so I have completed a form 1023 to correct this.

    19)The photo on my Travel Document to Australia came off since I did not laminate it, so I reattached it and it looks like the stamp is not lined up, but I can confirm that this is the original picture and stamp that was attached to the document.

    20)I asked someone to laminate his Eritraen Ministry of Education Grade 8 National Examinations 2010 Certificate just before I left for Australia. During this process, the original picture was moved. The picture is the original picture of me and the document is genuine.

    21)I have provided statutory declarations and references about my identity and age. Given my circumstances no other documents exist from my time in Somalia.

    22)The name I am known as is Abdifatah Mahamud Abdi and I was born on 18 of June 1994 in Somalia. I do not not have a birth certificate and the exact date of birth is unknown. People who knew my mother, father, and other family and me knew I was born in 1994 and knew I was born in June. They estimated the actual date.

    (Without alteration.)

1. The broader life story of the Applicant was elicited during the hearing. His evidence was that he was born in Somalia, travelled to Ethiopia with his family when he was about six years old, and then to Djibouti (transcript/18). He grew up “an orphan” but has limited knowledge of where and when he lost his parents. He stated that his father died in Ethiopia and his mother in Somalia (transcript/23). He has no clear recollection of his mother, but he remembers his father being sick with what he now thinks was severe asthma and then he moved in with his mother’s sister (transcript/42). He did not see his father again. He lived with an aunt in Ethiopia and travelled with her to Djibouti, where they lived “in the street” (transcript/19–20, 38). His evidence was that his aunt was hit by a bus, and died after about seven days, during which time they had no access to medical assistance. His aunt’s baby also died. He had no concept of birthdays at that time (transcript/38).

2. The Applicant was about fifteen when he left Djibouti with a friend of his father, MOA, and he recalls the journey to Eritrea taking about a day and half. It was MOA who told the Applicant that his father had died (transcript/19, 44).  He cannot recall the date on which he arrived in Eritrea but does not challenge the date provided in the UNHCR record of 4 August 2009 (transcript/19; T19). He did not, at that date, have any formal education whatsoever. He was accompanied by MOA at that time.

3. In Eritrea, the Applicant lived with his cousin in the camp and attended school at Massawa. He stayed in contact with MOA, who passed away in the camp at Eritrea in 2011 (transcript/22–3).

4. The Applicant was specifically asked about arriving in the camp at Eritrea and his registration process with the UN and he admitted to limited recall about that time in his life (transcript/19). He recalled giving his thumb print in blue ink, and otherwise said (transcript/21):

   They never give me, like, they never show me my name, even they never asked us, 'Write down your name', the spelling. They never asked us. The first time I hear the spelling of my name was in Australia for my life.

5. With respect to his cousin’s application for the Visa and the interview that he is said to have been directly questioned in, the Applicant said that he could not recall being asked questions. He was confident, however, that he had not told anyone that his birthday was in 1991 at the end of the year. He said:

   No, I didn't say that.  They never asked me.  They asked me my name but they never asked me my birth date. … That's why a lot of people have 1  January, 1 January.  They never ask - even if you are born in hospital the UN they will just write 1st of the 1st.

6. When pressed for an explanation as to the discrepancies in the information that the Applicant allegedly provided, he said (transcript/28):

   I don't have the explanation for that because (indistinct words) when I see the evidence or like when I'm right on something, yes, I can talk about it but if (indistinct words) write down on my hand or some people they fill it out, (indistinct words) explanation. … What do you think, if I just fill out the paper and say to you 'Put your thumb', in that situation when the person has the freedom you can't discuss something. Coming there you can't imagine the life there at that time.

7. The Applicant was subsequently asked about the Form 80 dated 4 November 2010, which he admitted had his signature on it, despite stating his date of birth as 1 January 1991. He confirmed that he had not filled in the form and that it was not his cousin who filled in the form but “two assistants” who were “[o]ther Somalis”. He was unable to identify the two Somali assistants who had written the answers for him (transcript/30–1). When asked if he could explain why his birthday had been entered as 1 January 1991, the Applicant stated (transcript/31–2):

   I don't have a clue why this put this one? (Indistinct words). I think the reason why the Somali guy put this one, 01/01/91, it is easier for them the date the Somali puts down - Somali government put the day they're destroyed - so the guy always put 01/01/91 or 01/01 - that's why always the Somali uses 01/01 but I just sign but I didn't fill it out, they didn't ask me date of birth there. …

   At that time I didn't have the authorisation to fill out the form. They never asked us to fill the form out ourself because we don't know that much English and I can't read through every question, I wasn't understanding. Not anyone will fill out the form. Not anyone who arrives, (Indistinct words) or where they arrive, they never fill it out. The rule is in Eritrea just sign with the thumb. So I wished to fill the form but I wasn't knowing the English that much and also I don't have the experience, I've never filled out a form.

8. The Respondent’s submission at the hearing was that (transcript/12):

   … when you look at the documentation to try and reinforce the life story it raises more questions than it does answers. And I think when you look at the life story to prop up the documentation it also raises more questions than it has answers. And ultimately that’s the position that the Minister keeps coming back to is that it cannot sort of get to that level of comfort, if you will, identity given what happened.

9. The use of the term “level of comfort” is inconsistent with the Federal Court’s findings in BOY19 at [56] to [76]. It is not for the Tribunal to be comfortably satisfied of the Applicant’s identity. Notwithstanding the gravity of conferring citizenship on an applicant, the Tribunal is only required to be “satisfied” of that person’s identity.

10. The Tribunal found the Applicant to be an honest and credible witness. He struggled to recall his life story in detailed chronological order, however this is not surprising given the lack of structure that his life has had and the upheaval he has experienced. The loss of his mother followed by a transition to a foreign country, the subsequent loss of his father, the relocation to another country with his aunt and young cousin who were then lost in tragic circumstances, and his residence “in the streets” cleaning shoes at a young age explain to the Tribunal’s satisfaction why the Applicant is unable to recall his history by reference to particular dates or ages. 

11. The discrepancies in the spelling of the Applicant’s name when taken down by a variety of “assistants” does not cause the Tribunal to doubt the Applicant’s identity. The Applicant’s evidence that he was never given the opportunity to see and correct the spelling of his name is credible and consistent with the speed with which he took action to correct his name when he first arrived in Australia and realised that the documentation contained incorrect spelling.

12. The Tribunal is satisfied that the Applicant believes his date of birth to be 18 June 1994.  The Tribunal finds that the Applicant was told this date of birth by MOA in or before 2010, and that the Applicant has adhered to this date ever since he was made aware of it to the extent that the Applicant took prompt steps to correct the Australian government record to this date when he first became aware that a different date was recorded.

13. The Tribunal accepts the Applicant’s evidence about his life story and finds that it supports a finding that the Applicant is who he says he is. Given that the Tribunal has found that the discrepancies within the 2008 UNHCR Record are sufficient to disregard the 1988 date of birth contained in that document (which is in any event an improbable date of birth for the Applicant), the other discrepancies in the spelling and dates of birth of the Applicant are sufficiently accounted for by his life story. 

    CONCLUSION

14. Based on the evidence discussed above and following the Tribunal’s analysis of the three pillars of identity, the Tribunal is satisfied of the Applicant’s identity.

15. Given his refugee status and the lack of a consolidated identity management system in Somalia, the Applicant understandably has had difficulty in obtaining identity documents. It is to his credit that the Applicant has made reasonable and honest attempts to obtain documents through official means. The Applicant’s personal identifiers are consistent, and although the earliest reliable biometric record is the UNHCR Record, his personal identifiers are supported by his life story, with the Tribunal finding the Applicant to be an honest and credible witness. Although there are discrepancies in the Applicant’s name and date of birth in his documentation, those discrepancies were able to be satisfactorily explained and are further supported by the Applicant’s life story and his resolve to correct his name and date of birth as soon as he realised that they were incorrect when he arrived in Australia.

16. In summary, for the purposes of, s 24(3) of the Act, the Tribunal is satisfied of the Applicant’s identity.

    DECISION

17. The Tribunal sets aside the Reviewable Decision and remits the matter to the Respondent for reconsideration in accordance with the direction that the Tribunal is satisfied of the Applicant's identity and therefore the prohibition in s 24(3) of the Australian Citizenship Act 2007 (Cth) does not apply.

91.     I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner and Member Dr J Henderson

...[Sgd]....................................................................

Associate

Dated: 9 June 2021

Date of hearing:	15 April 2021
Representative for the Applicant:	Mr P Rozsy, Australian Visa and Migration Specialists
Representative for the Respondent:	Mr A Gerrard, The Australian Government Solicitor