Mkhwananzi and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 67

Mkhwananzi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 67 (25 January 2019)

Division:GENERAL DIVISION

File Number(s):      2016/5114

Re:Vezokuhle Mkhwananzi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:25 January 2019

Place:Perth

The decision under review is affirmed.

...........(Sgd).......................................................

Member C Edwardes

Catchwords

IMMIGRATION AND CITIZENSHIP - application for citizenship refused – production of documents – length of delay - prohibition to approve a person becoming an Australian citizen unless the Minister is satisfied of the identity and character of the person - whether Tribunal satisfied of identity and character of Applicant – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 21(5), 24(1), 24(3), 52(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 42(2), 43(1)(a)

Cases
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660; FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AAT 64

Secondary Materials

Citizenship Policy - Chapter 11

Australian Citizenship Instructions - Chapter 5

REASONS FOR DECISION

Member C Edwardes

25 January 2019

THE APPLICATION

1. Pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act), the Tribunal is asked to determine whether the Applicant is prohibited from becoming an Australian citizen.  The Tribunal must not approve the Applicant becoming an Australian citizen unless the Tribunal is satisfied of the identity of the Applicant. 

2. In addition to identity, the Minister’s delegate was not satisfied with the Applicant’s character in the case before the Tribunal.

   BACKGROUND

3. The Applicant is challenging the decision of a delegate dated 25 August 2016 that refused his application for citizenship on the basis that the delegate was not satisfied of the Applicant’s identity and character (T2, 8-16).

4. The Applicant is a citizen of South Africa arrived in Australia on a skilled (subclass 175) visa in 2011 (R2).

5. The Applicant filed an application for citizenship dated 5 October 2015 (T8, 91-106).

6. The Applicant produced a West Australian driver’s licence, a copy of his South African Passport, particulars of birth from the South African population register, and a National Police Certificate (T11, 112-115).

7. The Applicant was advised at an interview on 21 October 2015 that further information was required in the form of a full birth certificate and a South African police clearance (T12, 118).

8. The Respondent claims no documents were produced by the Applicant and on 25 August 2016 the Minister’s delegate refused citizenship on the basis of not being satisfied as to identity and character (T2, 8-16).

9. In the Department’s decision record of 25 August 2016 the Minister’s delegate stated (T2, 11):

   On 21/10/2015 you attended the Perth citizenship branch for an interview and to sit your Australian citizenship test.  During the interview you were requested to provide the Department with originals of the following documents:

   Original unabridged Birth Certificate

   South African Police Clearance

   On 25/08/2016 the Department had not yet received the requested documents.  It has now been over 10 months since the documentation was requested from you, and you have made no further attempts to contact the Department, nor to provide the required documents.

   The time provided to submit the requested documentation has elapsed.

10. The Applicant sought review to the General Division of the Administrative Appeals Tribunal on 27 September 2016 (T1, 1-2).

11. The Applicant stated in his reasons for this application (T1, 2):

    I was not given an opportunity to provide a status update.  So decision was made based on inaccurate information.  I have received my clearance certificate (Police) and awaiting unabridged birth certificate which RSA embassy has advised can take up to 9 months due to their internal processes.  Attaching copy of Police clearance and proof of application for unabridged birth certificate.

12. The jurisdiction to hear this matter is derived from s 52(1)(b) of the Citizenship Act.

13. The matter was heard in Perth on 10 September 2018.  The Applicant appeared in person.  The Respondent was represented by Mr Gerrard from the Australian Government Solicitor.

    RELEVANT LEGISLATION AND PRINCIPLES

14. Section 24(3) of the Citizenship Act provides that the Minister must not approve an Applicant becoming an Australian citizen “unless the Minister is satisfied of the identity of the person.”

15. The Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth), (which was ultimately enacted as the Citizenship Act) states that “[t]here 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.”

16. Chapter 5 of the Department’s Australian Citizenship Instructions (ACIs) sets out the relevant legislative requirements and policy guidelines for Australian citizenship by conferral.  The ACIs state that “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.”

17. Further, the ACIs state (at 5.27.1), under the heading “Minister’s decision (s24) – summary,” that “[t]here are a number of circumstances where an application for citizenship by conferral must not be approved.  These relate to: identity…”

18. The Tribunal is also aware of the Attorney-General’s Department’s National Identity Proofing guidelines which are reflected in chapter 13 of the Department’s Citizenship Policy.  The Guidelines observe that “a person’s identity is not a fixed concept; it is highly dependent on context.”

19. In addition, s 21(2) of the Citizenship Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, s 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that a person is of good character at the time of the Minister’s decision on the application. Whether the Applicant is of “good character” is an important consideration in these proceedings.

20. The term “good character” is not defined in the Citizenship Act. There is, however, guidance on the application of the “good character” requirement in the Citizenship Policy (Policy).  The Tribunal will generally apply policy such as that contained in the Citizenship Policy unless there are cogent reasons not to do so (See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    THE MEANING OF GOOD CHARACTER

21. Chapter 11 of the Policy provides guidance for assessing an applicant under the “good character” test prescribed by s 21(2)(h) of the Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660; FCR 422 at 431-432, in which the Full Court of the Federal Court noted:

    Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she is reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

22. Chapter 11 of the Policy further states that “enduring moral qualities” encompasses the following concepts:

    ·characteristics which have been demonstrated over a very long period of time

    ·distinguishing right from wrong

    ·behaving in an ethical manner, conforming to the rules and values of the Australian society.

23. Chapter 11 of the Policy states this broad definition of “good character” means that:

    … a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes… (Citizenship Policy, 145 – 146).

24. Chapter 11 of the Policy further provides that an applicant of good character would, among other things:

    ·     respect and abide by the law in Australia and other countries

    …

    ·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example, … concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

    ·    … not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance) (Citizenship Policy, 147). 

25. The Policy also provides that in weighing up whether an applicant is of good character, decision makers are required to apply community standards, not their own personal standards, and question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question.  Decision makers are to consider factors including:

    ·would a person of good character have behaved the way the applicant did;

    ·what is there to demonstrate that the applicant has upheld and obeyed the law;

    ·has the applicant behaved in accordance with Australia’s community standards;

    ·does the applicant share Australia’s democratic beliefs and respect its rights; and liberties.  (Citizenship Policy, 149-150). 

26. The Policy states that “[a] decision maker needs to look holistically at an applicant’s behaviour over a lasting and enduring period of time.  The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application” (Citizenship Policy, 150).

27. The Policy states that referee reports “…can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.  Decision makers should give very little weight to references which do not acknowledge the offence or incident.  However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application” (Citizenship Policy, 155).

28. When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 stated [at 14]:

    When criminal offences have been committed by an applicant they will obviously be taken into account.  The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.

    ISSUE

29. The issue for review by this Tribunal is whether the Applicant was, as at 25 August 2016, of good character for the purpose of satisfying s 21(2)(h) of the Citizenship Act and whether the Applicant satisfies the requirements relating to identity.

30. The Tribunal accepts that in circumstances where proof of identity cannot be satisfactorily produced or a decision maker is not satisfied as to the Applicant’s identity, the Citizenship Act prohibits the approval of a person becoming an Australian citizen.

31. The Tribunal also accepts that in circumstances where a person’s character cannot be determined because required documents have not been produced, the Minister’s delegate can refuse the application for citizenship pursuant to s 21(2)(h) of the Citizenship Act.

    EVIDENCE

32. The Tribunal received the following:

    ·Statement of Facts, Issues and Contentions (SOFIC) (Exhibit A1);

    ·Emails dated 15 February 2018 and 19 March 2018 (Exhibit A2);

    ·T documents (T1-T12, 1-119) (Exhibit R1);

    ·Statement of Facts, Issues and Contentions (SOFIC) dated 15 May 2018 (Exhibit R2);

    ·Hearing Certificate (Exhibit R3); and

    ·Application for Citizenship (Exhibit R4).

33. Having reviewed all the evidence before it, the Tribunal is satisfied both parties were provided an opportunity to address the evidence.  Relevant aspects of the evidence are referred to below.

34. The Applicant contends (A1):

    1.        That the conclusion reached by the Respondent rests upon a misconception of my circumstances due to relying on information which doesn’t relate to me to assess my application against subsection 24(3) of the Act.

    2.        That the Respondent has denied me an opportunity to respond to an adverse conclusion about my application before making a decision to refuse my application.

    3.        That the requirement that the Minister should be ‘satisfied’ that my citizenship application should be refused have [sic] not been attained under subsection 21.2 of the Act.

    4.        That in order to advance procedural fairness/natural justice under the Act, I should be given an opportunity to collect and submit the documents I intend to rely on namely, my unabridged birth certificate and Australian Police certificate, to enable a fair and complete assessment of my Citizenship application.

35. The Respondent contends (R2):

    Character

    20.      The Minister acknowledges that no concerns about the applicant's character are raised by the applicant's Australian National Police Certificate dated 29 April 2015 (T11, p115) or his South African Police Clearance Certificate dated 12 May 2016 (T1, p3).

    21.      However, the requirement in s 21(2)(h) of the Act is a time of decision requirement.  In circumstances where over 3 years have passed since the date of the applicant's Australian police clearance, the Minister contends that an up to date police clearance certificate is required to demonstrate that the applicant has not been the subject of any criminal charges in the years since the last police clearance was issued.  The Tribunal cannot be satisfied that the applicant is of good character at the time of the decision if the only information it has available to it is over 3 years old.

    Identity

    22.      The information of the applicant's birth contained at T11, p112 is not a full birth certificate, as required by the application form for citizenship by conferral.  Accordingly, the applicant has not provided the information required by the approved form, as required by s 46(1) of the Act.

    23.      The document at T11, p112 does not contain all the detail that a full birth certificate would ordinarily contain, including the names of the applicant's parents, and even the 'details as they appear in the applicant's full birth certificate' completed by the applicant (see T8, p102) go beyond the details that appear on the face of the document at T11, p112.

    24.      The Minister contends that the applicant's identity cannot be satisfactorily ascertained in the absence of a full birth certificate.

    25.      The applicant has indicated that he has sought a birth certificate from the South African authorities, and that this has not yet been provided.  It has now been over 2½ years since the interview at which the applicant was requested to provide a full birth certificate, and just short of 2 years since the date of the money order that the applicant relies on to suggest that he has requested the birth certificate.  The Minister contends that this proceeding should not be further delayed to give the applicant further time to provide the unabridged birth certificate.  However, in circumstances where the applicant has repeatedly represented, and continues to represent, that a full birth certificate can and will be provided, it cannot be said that the applicant has exhausted his avenues of search for such documentation: Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [27].

    26.      Sufficient documentation has not been provided by the applicant to enable the Tribunal to be satisfied of the applicant's identity to the requisite degree.

36. The Applicant raised further issues in his SOFIC (A1):

    1.        The Respondent referred to documents that do not relate to my case as one of the reasons that my application was refused (see Doc T2).  I was requested to provide an original unabridged birth certificate and South African Police Clearance, however, Doc T2 states that I was unable to provide a marriage certificate as evidence of my identity and change of name from birth.  Both these last two documents are not relevant to my application.  Has the Respondent relied on information which doesn’t relate to me to make the assessment regarding the application of the prohibition of approval based on subsection 24(3) of the Australian Citizenship Act 2007 (the Act)?

    2.        I was denied an opportunity to respond to the Respondent’s adverse conclusion at the time when the decision to refuse my citizenship application was made.  Had I been given the opportunity I would have provided the South African Police clearance dated 12 May 2016.  This would have enabled an assessment about my good character as per subsection 21(2)(h) of the Act to be made, and given me an opportunity to clarify the status of my unabridged birth certificate application.  In denying me the opportunity to clarify my circumstances did the Respondent act in a way which was procedurally unfair?

    3.        My application was assessed against a timeline which had not been communicated to me.  Doc T2 states that the time that was provided to submit the required documents had elapsed.  At no point was that timeline communicated to me.  In assessing me against a deadline which was not communicated to me, did the Respondent act in a way which was procedurally unfair?

37. The Applicant further outlined a number of facts for the Tribunal to note (A1):

    1.        I lodged my Citizenship application on 5 October 2015 and attended an interview at the Perth Immigration offices on 21 October 2015.  On that occasion I submitted originals of my documents for verification and scanning into the immigration system including my abridged birth certificate.  An immigration officer advised that I would need a South African Police clearance as well as a copy of the unabridged certificate.  On that same day I also sat and passed the Citizenship test.  On 29 August 2016 I received a notification of refusal from the Respondent.

    2.        The notice of refusal stated that the time provided to submit requested documents had elapsed but did not state what the deadline was (Doc T2 – page 11).  One of the reasons provided for the refusal of my application was that I was unable to provide a marriage certificate as evidence of my identity and change of name from birth (Doc T2 – page 13). No responses from me were noted in Doc T2.

    3.        On 27 September 2016 I initiated the AAT review.  Between 27 September 2016 and 9 February 2018 I had several direction hearings either face to face or via telephone with the Respondent and Tribunal to clarify issues.  On 9 February 2018 the South African Home Affairs advised that my unabridged birth certificate is ready for collection and is in the process of being sent to Canberra via the South African department of International Relations.  This information has been shared with the Respondent and the Tribunal.  The South African Home Affairs has not confirmed the timing of the delivery of this document to Perth and the timing is out of my control.  I intend to rely on my unabridged birth certificate for the assessment of my identity as per subsection 24(3) of the Act.  My unabridged birth certificate will be part of the evidence provided on or before the hearing.

    4.        On 22 March 2018 the Respondent has requested a fresh Australian police clearance from me which is relevant to the good character assessment.  At the time of application the AFP has advised that the wait times for this certificate are currently about 25 days.  The timing of the delivery of the document is out of my control.  I intend to rely on the police certificate for the assessment of good character.  My Australian Police certificate will be part of the evidence provided on or before the hearing.

1. The Respondent addressed the Applicant’s concerns accordingly (R2):

   27.      The applicant has expressed some concerns with the delegate's decision, including that the delegate's decision refers to a failure to provide a marriage certificate as evidence of his identity and change of name from birth, that it was procedurally unfair for him not to be given an opportunity to comment at the time of the decision, and that a timeline for providing documents was not communicated to the applicant.

   28.      As the hearing before the Tribunal is a hearing de novo, any deficiencies in the delegate's decision can be cured in the course of this hearing.

   29.      The Minister sees the critical issue in relation to the applicant's identity to be the need for the applicant to satisfactorily establish his identity at birth.  There is no requirement for the applicant to provide evidence of a change of name since birth unless his name has in fact changed since birth.

   30.      There was no requirement for the delegate to contact the applicant prior to making the decision.  The applicant had been requested to provide the documents some 10 months previously and had not provided the documents or contacted the Department to provide an update on when the documents would be provided in the time since.  The documents in the T documents do not confirm whether or not a timeframe was communicated to the applicant, but even if a time frame was not communicated to the applicant, 10 months is more than a reasonable time period.  In any event, in the course of this review, the applicant has had significant further time to provide any documents required.

   31.      There is no explanation from the applicant as to why it took over 7 months from the interview with the delegate before he even requested an unabridged birth certificate.  Even if some of the delay since he has requested the birth certificate has been beyond the applicant's control, it has now been over 2½ years since the request for an unabridged birth certificate was made and the hearing of this application should not now be delayed to enable the applicant to have further time to acquire and provide an unabridged birth certificate.

   32.      For completeness, the Minister notes that even if the decision under review is affirmed, it would be open to the applicant to submit a fresh application for citizenship when all the documents are available.

2. The Respondent opened by stating:

   ·The Respondent relies on the SOFIC.

   ·The Applicant’s identity is the only issue before the Tribunal.

   ·The Respondent needs the Applicant’s full birth certificate.  Especially so from an ordered society, which South Africa is considered to be.

   ·The Respondent acknowledeges that the Applicant has tried to obtain this document and accepts it is very disappointing for the Applicant that it has taken so long.

   ·The Respondent explained that given the length of time of the application, the Applicant has been requested to produce a more relevant police clearance.

   ·The Respondent noted that the Tribunal may wish to reserve judgement for 3 months in order to give the Applicant time to obtain his birth certificate.

3. Under cross examination the Applicant stated:

   ·The lengths he has gone to in order to obtain his birth certificate.

   ·The Applicant came across as truthful as he outlined his frustrations at not being able to satisfy the requirements of s 24(3) of the Citizenship Act.

   ·He has also sought the assistance of his cousin in South Africa to obtain a copy of his birth certificate and post it to him.

4. On the basis of the oral submissions presented to the Tribunal decided to reserve its judgement for a period of 3 months, in order to give the Applicant every opportunity to satisfy the requirements of the Citizenship Act. The Applicant and Respondent supported this course of action.

5. The Applicant was also asked by the Tribunal to ensure the Respondent received a more relevant police clearance certificate in the interim period.

6. A rehearing occurred on 17 January 2019.  The Tribunal was advised on 16 January 2019 at 3.49 pm that the Applicant was seeking an adjournment as he had just lost a family member and was making arrangements to travel to South Africa for the funeral at which point he would obtain his birth certificate from the authorities.

7. The hearing proceeded in the Applicant’s absence on 17 January 2019 with the Respondent represented by Ms Ladhams.

8. The Respondendent submitted that given the hearing of 10 September 2018 had been completed, barring the production of the birth certificate the case should proceed and not be dismissed pursuant to s 42(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

9. The Respondent submitted that the Applicant has had 2 years to produce the birth certificate and has failed to do so, but has been given every opportunity to provide the document.  Since the latest adjournment from 10 September 2018 he has produced no evidence to indicate what steps were taken to procure the birth certificate document.

10. The birth certificate requested is from an ordered society, not from a society in which there is a rudimentary administrative structure.

    CONSIDERATION

11. What is required in this application is for the Tribunal to be satisfied of the identity and character of the Applicant.

12. On the basis of the evidence to date, the Tribunal having considered all the material before it is not persuaded that s 24(3) of the Citizenship Act has been satisfied.

13. The Tribunal finds the identity of the Applicant to be unclear as he has not produced a certified copy of his birth certificate, in spite of the fact that he has been given many opportunities to do so.

    DECISION

14. For the reasons stated above the decision is affirmed.

I certify that the preceding 51 (Fifty One) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.............................(Sgd)......................................

Associate

Dated: 25 January 2019

Date(s) of hearing:	10 September 2018 17 January 2019
Applicant:	In Person
Solicitors for the Respondent:	Australian Government Solicitor
Representative for the Respondent:	Ms Ladhams