Mohamed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2420
•21 July 2020
Mohamed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2420 (21 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1768, 2019/1833 and 2019/1835
Re:Farhia Ahmed Mohamed, Jalale Omar and Gamachis Omar
APPLICANTS
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:21 July 2020
Place:Perth
Application 2019/1768 – Farhia Ahmed Mohamed
The decision under review is affirmed.
Application 2019/1833 – Jalale Omar
The matter is remitted for reconsideration in accordance with the Policy after proper enquiry is made of the Applicant to determine whether the Applicant satisfies requirements of the Policy.
Application 2019/1835 – Gamachis Omar
The matter is remitted for reconsideration in accordance with the Policy after proper enquiry is made of the Applicant to determine whether the Applicant satisfies requirements of the Policy.
...................................[SGD]..................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – citizenship by conferral – Citizenship Policy – identity – prohibition on approval of citizenship application unless Minister satisfied of applicant’s identity – children under the age of 16 applying in their own right – applicant turning 18 years of age after making application – children applying on the same form and at the same time as responsible parent – effect of responsible parent’s application being refused – First-named applicant’s reviewable decision affirmed – Second and Third-named applicants’ reviewable decisions remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 37(1)(b)
Australian Citizenship Act 2007 (Cth) – ss 5, 21, 21(2), 21(5), 22, 22A, 22B, 23, 24(2), 24(3)
Migration Act 1958 (Cth) – ss 5, 30(1)
CASES
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654
Teng and Minister for Immigration and Citizenship [2012] AATA 388YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
National Identity Proofing Guidelines, Attorney-General’s Department’s – Chapter 2.1
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – Chapter 7, Chapter 13Revised Citizenship Procedural Instructions – Chapter 16 – Identity – 4.12
REASONS FOR DECISION
Deputy President Boyle
21 July 2020
THE APPLICATIONS
There are three applications before the Tribunal arising out of three decisions by the delegate of the Respondent to refuse to approve citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act). The application for citizenship made by the First-named Applicant (Farhia)[1] included applications for citizenship by her two children, the Second-named Applicant (Jalale), born in October 2005,[2] and the Third-named Applicant (Gamachis), born in January 2002.[3] Each of those children is a separate applicant in these proceedings.
[1] R2, T4.
[2] R2, T4/17.
[3] R2, T4/16.
BACKGROUND
The facts set out below are taken primarily from the Respondent’s statement of facts, issues and contentions dated 14 February 2020 (RSFIC),[4] the Respondent’s supplementary statement of facts, issues and contentions dated 27 May 2020 (Supplementary SFIC) and, where identified, from the T documents and supplementary T documents filed by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).[5] The facts as set out are not disputed. The need for supplementary submissions is explained below at [15].
[4] R1.
[5] R2-4.
Farhia is a 45 year-old woman born in Ethiopia. Jalale and Gamachis are her children. The Applicants arrived together in Australia on 12 April 2007 as holders of Global Special Humanitarian (subclass 202) visas.[6] Farhia was subsequently granted a Resident Return (subclass 155) visa (the visa).[7]
[6] R2, T10/62.
[7] R2, T10/62.
On 27 April 2017 Farhia made an application for Australian citizenship by conferral.[8] The application included, amongst others, Jalale and Gamachis as children under the age of 16 years applying for citizenship in that application.[9] The following identity documents were provided in support of the application:
(a)A travel document issued by Australia for Farhia and three children including Jalale and Gamachis.[10]
(b)A Western Australian driver’s licence issued in the name of Farhia.[11]
(c)Birth certificates of Farhia’s children born in Australia.[12]
(d)Letter from Centrelink addressed to Farhia.[13]
[8] R2, T4/11-39.
[9] R2, T4/16-17, R3, T4/18 and R4, T4/17.
[10] R2, T4/40.
[11] R2, T4/41.
[12] R2, T4/43-44.
[13] R2, T4/45.
By letter dated 16 March 2018 and, apparently, a conversation on 11 April 2018, the Department of Home Affairs requested Farhia to provide further information relating to her identity.[14] In response Farhia provided a further copy of her driver’s licence, a copy of her medicare card and a copy of her healthcare card.[15]
[14] R2, T7/50; T8/55-56.
[15] R2, T9/57.
By letter dated 13 March 2019 a delegate of the Respondent refused Farhia’s application for citizenship.[16] That letter advised that the delegate was not satisfied as to Farhia’s identity and found that the prohibition in s 24(3) of the Act applied. In making this finding, the delegate considered that Farhia had provided no evidence (either primary or secondary) to establish her identity prior to her arrival in Australia.
[16] R2, T10/59-67.
By letter also dated 13 March 2019[17] the same delegate refused Jalale’s application for citizenship. That letter advised that Jalale’s application for citizenship had been assessed as a person under 18 years of age under s 21(5) of the Act and the policy guidelines relating to applications by children under the age of 16 years of age applying for citizenship in their own right.[18]
[17] R3, T9.
[18] R3, T9/64.
By letter also dated 13 March 2019[19] the same delegate refused Gamachis’s application for citizenship on the same basis that Jalale’s application for citizenship was refused applying the same policy guidelines.[20]
[19] R4, T9.
[20] R4, T9/64.
In the delegate’s decisions in the cases of both Jalale and Gamachis, the following reason was given:[21]
I am satisfied that your child meets the requirement set out in subsection 21(5) of the Act. However, I have decided to use my discretion to refuse to approve [Gamachis’s/Jalale’s] application to become an Australian citizen by conferral because having considered the relevant policy guidelines and [Gamachis’s/Jalale’s] circumstances, I am of the view that despite your child satisfying subsection 21(5) your child is not:
·Living with a responsible parent, who is an Australian citizen and who consents to the application or [sic]
[21] R3, T9/65 for Jalale and R4, T9/65 for Gamachis.
By application lodged with the Tribunal on 29 March 2019 Farhia sought review of the delegate’s decisions.[22] This is application 2019/1768.
[22] R2, T2.
By application lodged on 4 April 2019, Jalale sought review of the decision referred to in [7] above.[23] This is application 2019/1833.
[23] R3, T2.
By application also lodged on 4 April 2019, Gamachis sought review of the decision referred to in [8] above.[24] This is application 2019/1835.
[24] R4, T2.
THE HEARING AND THE EVIDENCE
The three applications were heard together on 5 May 2020. Ms E Tattersall appeared for the Respondent in the three applications. Fariah represented herself and her two children, Jalale and Gamachis. All parties appeared by telephone due to the COVID-19 restrictions. Farhia and her husband, Mohammed Omar, the only other witness, spoke through an interpreter, who also appeared by telephone from Melbourne.
The following documents were admitted into evidence:
(a)
Document sent by Farhia to the Tribunal registry on 14 February 2020 which appears to be some form of officially issued document bearing the flag of the
Federal Democratic Republic of Ethiopia. It has a photograph attached to it.
The document is in a language other than English. No translation was provided
(Exhibit A1).
(b)Further document sent by Farhia to the Tribunal registry on 14 February 2020 which has in its heading “Afeteisa Elementary and secondary school”. Other than those words, that document is in a language other than English. No translation was provided (Exhibit A2).
(c)
Document sent by Farhia to the Tribunal registry on 22 June 2019 which has a photograph attached to it. The document is in a language other than English.
No translation was provided (Exhibit A3).
(d)Letter dated 20 November 2003 from the Australian High Commission Nairobi advising of approval for medical examination of Mohamed Omar Ousman, Fariah, Gamichas and Tujji Mohamed Omar (Exhibit A4).
(e)Respondent’s statement of facts, issues and contentions dated 14 February 2020 (RSFIC) (Exhibit R1).
(f)Section 37 T documents and supplementary T documents in respect of application 2019/1768 (Exhibit R2).
(g)Section 37 T documents in respect of application 2019/1833 (Exhibit R3).
(h)Section 37 T documents in respect of application 2019/1835 (Exhibit R4).
As noted above, supplementary submissions were provided by the Respondent after the hearing. During the hearing it emerged that the fact that Gamachis had turned 18 since the application for citizenship was made may affect the reviewable decision made in relation to him and the correct or preferable decision to be made. Counsel for the Respondent advised the Tribunal that she would need to take instructions on that issue. As a result, the Respondent provided the Supplementary SFIC on 27 May 2020.
THE LEGISLATIVE FRAMEWORK
The Preamble to the Act states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act deals with the application for citizenship and eligibility. Section 21(2) sets out the general eligibility criteria for persons aged 18 or over at the time of making the application. The criteria are detailed and include that the person: is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application; satisfies either the general residence requirement (which is dealt with in s 22), the special residence requirement (see s 22A or 22B) or the defence service requirement (see s 23) at the time of making the application; and is of good character at the time of the Minister’s decision on the application. Other parts of s 21 deal with circumstances that are not relevant to the present applications.
Section 21(5) of the Act provides:
(5)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.
“Permanent resident” is defined in s 5 of the Act. The relevant limb of the definition for present purposes is that a person is a permanent resident at a particular time if, and only if, that person is both present in Australia at that time and holds a permanent visa at that time. “Permanent visa” has the same meaning as in the Migration Act 1958 (Cth) (Migration Act) and means a visa which permits the holder to remain indefinitely in Australia (see s 3 of the Act and ss 5 and 30(1) of the Migration Act). It is not disputed by the Respondent that the Applicants are permanent residents.
Section 24 of the Act confers a general power on the Minister to approve or refuse to approve a person becoming an Australian citizen. Relevantly, it is as follows:
Minister’s decision
(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.
Note: The Minister may cancel an approval: see section 25.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
Section 24(3) of the Act relevantly provides that:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Australian Citizenship Policy (the Policy) states, at chapter 13:
The Identity provisions prohibit the approval of a citizenship application 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.
(As to the status of the Policy see RRML and XJFZ and Minister for Home Affairs[25] (RRML) at [105]. The Tribunal adopts the reasoning set out in RRML).
[25] [2020] AATA 1654.
The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (Guidelines).[26] Chapter 2.1 of the Guidelines provides as follows:
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.
A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM 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 DIBP Australian immigration documents or records.
[26] See >
The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some, or all, of the five identity proofing objectives. Those objectives are:
1.To confirm the uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another.
2.To confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created 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.
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.
The Revised Citizenship Procedural Instructions (RCPI) – Chapter 16 – Identity – 4.12) provide that:
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.
The Respondent also refers to the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 which explained in relation to s 24(3) that:
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.
Chapter 7 of the Policy deals with citizenship by conferral. Under the heading “Persons aged under 18 years (s 21(5))” on pages 75-76 of 237, the following appears:
Person aged under 18 years (s21(5))
…
For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa by entering Australia or by being granted the permanent visa while onshore) at the time of application and at the time of decision to be eligible for Australian citizenship.
The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out in this chapter.
...
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be under 18 at the time of decision on the application and the child is living in Australia. Refer to Chapter 22 - Best interests of the child.
Applicants under the age of 16 (s21(5))
A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).
In the case of an applicant who does not meet the policy guidelines in this chapter, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
If an applicant is under 16 a responsible parent is to sign the application form.
Children under 16 applying individually in their own right
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and under policy also are:
·under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
·usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or
·under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (refer to Significant hardship or disadvantage / detriment) or
·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application (refer to IGOC minors (s21(5))) or
·an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application (refer to Non-IGOC minors (s21(5))).
Consideration must also be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s24).
Children under 16 applying on the same form and at the same time as a responsible parent
Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:
·be living in Australia with the relevant responsible parent and
·the relevant responsible parent consented to the inclusion of the child in their application.
Consideration also must be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s24).
Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.
Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.
Applicants aged 16 or 17 (s21(5))
Applicants aged 16 or 17 at time of application must make an application on a form that contains no other application.
Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also:
·satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). Refer to Residence requirement and Significant hardship or disadvantage / detriment
·understands the nature of an application
·possesses a basic knowledge of the English language
·has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision and
·is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
Applicants aged 16 or 17 at time of application should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship, and that they possess a basic knowledge of the English language. It is important that an applicant’s ability to understand and respond to questions is not hampered by the use of complex words or sentences.
Applicants aged 16 or 17 do not need the consent of a responsible parent for the purposes of making their application. However, a responsible parent must sign the application form to provide consent for the department to provide the applicant’s personal information to the National Police Checking Service (NPCS) for the purposes of the NPCS conducting a National Police check in relation to the applicant as part of their application for the purposes of assessing whether an offence provision (s24(6) of the Act) applies to the applicant.
Consideration also must be given to whether there is a prohibition to approval. Refer to Prohibitions -
Minister’s decision (s24).
Following consideration of the circumstances of the case, including the best interests of the child (refer to Chapter 22 - Best interests of the child), some applicants may warrant approval despite their case not aligning with information contained in this chapter.
Chapter 3 of the Policy defines “significant hardship or disadvantage/detriment” as follows:[27]
[27] Page 33 of 237.
Significant hardship or disadvantage / detriment
A number of provisions in the Act require an assessment of whether a person would suffer significant hardship or disadvantage / detriment. In addition, the policy guidelines relating to applications for conferral from persons aged under 18 years (those conferral applicants seeking to acquire citizenship through s21(5) of the Act), ask that an assessment be made as to whether the applicant would suffer significant hardship or disadvantage if they were not to acquire citizenship.
...
In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
·significant – important; of consequence
·hardship – a condition that bears hard upon one; severe toil, trial, oppression, or need
·disadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition.
…
Citizenship Procedural Instruction 4 – Australian Citizenship by Conferral – Person under 18, confirms that a decision-maker may refuse to approve an application for citizenship even though the person satisfies the eligibility criteria and due consideration should be given to the policy (at [4.9]).
CONSIDERATION
The issues
Farhia
The RSFIC identified the issue for determination as whether the Tribunal is satisfied of Farhia’s identity for the purposes of s 24(3) of the Act. As is set out in [6] above, Fariah’s application for citizenship was refused on the basis that the delegate was not satisfied as to Farhia’s identity and found that the prohibition in s 24(3) of the Act applied. The Tribunal agrees that that is the relevant issue in the case of Farhia’s application, that is application 2019/1768.
Jalale and Gamachis
Paragraph 5 of the RSFIC is as follows:
The applications of the applicant’s children, Jalale Omar (the second applicant) and Gamachis Omar (the third applicant) are also before the Tribunal. It appears to be accepted that the applications relating to the second and third applicants are dependent upon the disposition of the applicant’s application. Accordingly, the respondent does not propose to address their applications separately other than to note that the delegate correctly applied the relevant policy to their matters: G v Minister for Immigration and Border Protection [2019] FCAFC 79.
(Footnotes omitted.)
The above is the only reference in the RSFIC to the applications for citizenship made by Jalale and Gamachis or the applications made by them to the Tribunal. The only issue addressed in the RSFIC is Farhia’s identity and the conclusion at paragraph 27 of the RSFIC is that:
The respondent contends that the correct and preferable decision is to affirm the decision under review.
Separate statements of facts, issues and contentions were not filed by the Respondent in the applications by Jalale and Gamachis notwithstanding that two separate decisions were made in respect of those Applicants on different grounds to the decision made in respect of Farhia (see [6] to [8] above). As noted earlier, following the hearing, the Respondent did file the Supplementary SFIC which related to the consequence of Gamachis turning 18.
The Supplementary SFIC identified the issue in relation to Gamachis’s application to the Tribunal as:a.whether the third applicant is eligible for the grant of Australian citizenship pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act) and; if so
b.the policy that should be applied to the third applicant’s circumstances being the policy relating to children under 16 applying individually in their own right or applicant’s aged 16 or 17.
At paragraph 10 of the Supplementary SFIC the Respondent refers to the Policy “in relation to applicants applying under the criteria at s 21(5) of the Act at pages 75-77” and, in particular, the Policy relating to “applicants under 16 applying individually in their own right” and also to the Policy relating to applicants aged 16 or 17 at the time of the application for citizenship.
The Respondent contends that it is appropriate for Gamachis’s application for citizenship to be assessed under the Policy applying to 16 and 17 year-olds notwithstanding that he is 18 years old. The Respondent notes that:[28]
The Policy also provides that an applicant aged 16 or 17 at time of application should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship, and that they possess a basic knowledge of the English language.
[28] Supplementary SFIC para. 11.
The Respondent says[29] that “[i]t is the Minister’s contention that the policy relating to applicants aged 16 or 17 should be applied and that the matter, insofar as it relates only to the third applicant, should be remitted to the Department so that the third applicant’s application may be considered against such policy”. The Respondent contends that that approach is consistent with the decision in Teng and Minister for Immigration and Citizenship.[30] The Respondent also points to a number of decisions of the Tribunal in which the Policy applying to an applicant who was 16 or 17 years at the time of applying for citizenship continues to be applied by the Tribunal notwithstanding that the applicant has in the meantime turned 18.
[29] Supplementary SFIC para. 16.
[30] [2012] AATA 388.
The cases to which the Respondent refers, however, do not, in the Tribunal’s view, support the contention that, in the case of Gamachis, the Policy applicable to “[a]pplicants aged 16 or 17 at the time of application” should apply. It is easy to see why the policy relating to applicants aged 16 or 17 at the time of the application should continue to apply even though the applicant has turned 18 because the Policy states that it is a policy that applies to “[a]pplicants aged 16 or 17 at the time of application” (emphasis added) (see [27] above).
Gamachis, however, was 15 at the time that the application for citizenship was made on
27 April 2017. It is therefore not apparent to the Tribunal why the Policy that relates to applicants who were 16 or 17 at the time of the application should apply.The Respondent identifies the issues for determination in relation to Farhia’s application (see [30] above) and Gamachis’s application (see [33] above). The Respondent, however, does not identify the issue for determination by the Tribunal in Jalale’s application other than the comment in the RSFIC that:
It appears to be accepted that the applications relating to the second and third applicants are dependent upon the disposition of the applicant’s application.
(See [31] above.)
The Applicants were not represented in the proceedings and it is not clear, at least to the Tribunal, on what basis the Respondent says that it is accepted that the disposition of Gamachis’s and Jalale’s applications are dependent on the disposition of Farhia’s application. As set out above, although their applications for citizenship were made on the same form and at the same time as the application for citizenship by Farhia, separate decisions were made in relation to Gamachis’s and Jalale’s applications for citizenship. Those decisions were made on bases totally different to the decision made in respect of Farhia (see [6]-[8] above). There are separate applications from Gamachis and Jalale before the Tribunal in relation to those separate decisions.
It might be that the applications of the children for citizenship were affected by the decision made in respect of Farhia’s application for citizenship because of the second note to the Policy set out in [27] above (which appears on page 76 of 273 of the Policy) relating to children under 16 making application for citizenship on the same form and at the same time as the parent. That note provides that:
Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.
(the Second Note)
It is, presumably, in compliance with the Second Note, that, when the delegate made the decision to refuse Farhia’s application, he was then obliged to make separate assessments of the applications of Jalale and Gamachis. The assessments of the two children’s applications, of course, had to be made under the Policy applicable to children.
The applicable Policy
What is the applicable part of the Policy? The delegate’s decisions relating to Gamachis and Jalale[31] set out the part of the Policy that he considered applied to their cases.
[31] R3, T9 and R4, T9.
Although the specific part of the Policy is not identified by number (probably because of the inexplicable deletion of paragraph numbering by the drafter of the Policy – see RRML at [41]), the terms of what the delegate describes in his decisions as “the policy guidelines for children under 16 applying individually in their own right”[32] are set out in the decisions as follows:
[32] R3, T9/64 and R4, T9/64.
Relevant considerations for children under the age of 16 applying in their own right
Children under the age of 16 applying individually in their own right would usually be approved under subsection 24 if they are permanent residents at the time of application and decision and also meets one of the following policy guidelines:
·The child is living with a responsible parent, who is an Australian citizen and who consents to the application; or
·The child is usually resident in Australia with a responsible parent who is a permanent resident and consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or
·The child is living with a responsible parent who is not an Australian citizen and consents to the application and the child would otherwise suffer significant hardship or disadvantage; or
·The child is an unaccompanied humanitarian minor who falls under the Minister's guardianship and a delegated guardian has consented to the application; or
·The child is an unaccompanied humanitarian minor who does not fall under the Minister's guardianship and their responsible carer has consented to the application.
In each of the decisions relating to the children the delegate then stated the basis of his decision as being:
I am of the view that your child is not covered by any of the policy guidelines set out above and that it may be appropriate for me to use the discretion provided in subsection 24(2) of the Act to refuse to approve your child’s application for citizenship.
While expressed slightly differently to that part of the Policy which appears under the heading “Children under 16 applying individually in their own right” (see [27] above), it is fair to assume that the “policy guideline” to which the delegate is referring in each of those decisions is the Policy, as he identifies, that applies to children under 16 applying individually in their own right.
The first question is whether that is the applicable Policy. The applications for citizenship by Gamachis and Jalale were made on the same form and at the same time as the responsible parent, Farhia, made her application.[33] The T documents in respect of the three applications before the Tribunal[34] indicate that there was only one application for citizenship made, namely, the application completed by Farhia which identified Gamachis and Jalale as children under 16 who were also applying for citizenship (see [4] above).
[33] R3, T4 and R4, T4.
[34] R2, T4, R3, T4 and R4, T4.
The decisions made in relation to Gamachis and Jalale, however, make it clear that the Policy applied by the delegate was that part of the Policy relating to children under 16 applying individually in their own right. Gamachis and Jalale, however, were not children under 16 applying individually in their own right. They were clearly children under 16 applying on the same form and at the same time as a responsible parent. There is a separate Policy covering that circumstance, namely the Policy headed “Children under 16 applying on the same form and at the same time as a responsible parent” that appears immediately after the Policy headed “Children under 16 applying individually in their own right” (see [27] above).
It may be that, in light of the Second Note (see [40] above), the delegate thought that he had to treat the applications made by Gamachis and Jalale as being applications made individually in their own right. If that was the case, and there is no explanation in the decisions as to why the delegate applied the Policy relating to children applying individually and in their own right when clearly the applications were not made on that basis, the requirement of the Second Note that the applications by the children to be “assessed in their own right” does not have the effect of changing the Policy to be applied. It is not a direction, or at least a clear direction, that when the responsible parent’s application made on the same form is refused, the children’s applications are to be dealt with under a different Policy, namely the Policy relating to children under 16 applying individually in their own right. The refusal of the responsible parent’s application does not, by operation of the Second Note, shift the children’s applications into a different Policy category with different considerations. Albeit somewhat cryptically, the Second Note requires that children’s applications be “assessed in their own right” if the responsible parent’s application is refused. It is not clear what that means. At the least, what it does mean is that the result of their applications are not determined simply by the refusal of the responsible parent’s application.
Have proper assessments been made?
On the face of the decisions, it would therefore appear that the wrong Policy may have been applied to the applications of Gamachis and Jalale. Even if that is incorrect and the effect of that Second Note is to shift the applications of Gamachis and Jalale into the Policy relating to children under 16 applying individually in their own right, it is the Tribunal’s view that the delegate has not correctly or adequately applied that Policy. From the material in the T documents, and the Tribunal is entitled to assume that the material lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) contain
“every …document… relevant to the review of the decision[s]” (s 37 (1)(b)), there appears to have been no enquiry made or information sought by the delegate or the Department relating to the circumstances of Gamachis and Jalale, or the applicability of any of the criteria in the Policy, including the criterion apparently applied by the delegate.The delegate’s decision in each case was made on the basis that, although the Applicants satisfied the requirements of s 21(5) of the Act, the delegate was exercising his discretion under s 24(2) to refuse the applications for citizenship on the basis that they were not “[l]iving with a responsible parent, who is an Australian citizen and who consents to the application” (see [9] above). In other words, neither Gamachis nor Jalale met the first policy guideline identified by the delegate (see [42] above).
Based on the T documents, there appears to have been no attempt by the delegate or the Department to make any enquiry or obtain information relevant to any of the policy guidelines applicable to Gamachis or Jalale. Effectively, the only information sought by the Department from the Applicants, through the letter to Farhia dated 16 March 2018,[35] was information relating to Farhia’s identity. While the Request Checklist and Details document sent with the Department’s letter made reference to Gamachis’s and Jalale’s applications and asked for “[a]pplicant’s full birth certificate and parents’ details”,[36] which were provided, there appears to have been no effort made by the Department to obtain any other information about Gamachis or Jalale which would be relevant to the exercise of the discretion under s 24(2) or the policy guidelines identified by the delegate in his decisions, not even the policy guideline on which the delegate supposedly based his decision.
[35] R2, T7.
[36] R2, T7/53.
As noted above, the delegate’s decisions in relation to Gamachis and Jalale, while identifying the relevant guidelines as being those set out in the five bullet points on page
6 of the decisions[37] (see [42] above) and stating that in his view none of those guidelines applied to Gamachis and Jalale, in the penultimate paragraph of each of the decisions the delegate refers only to the policy guideline in the first of the bullet points.On the face of the decision, except for the statement referred to above, there is no obvious assessment of whether any of the other policy guidelines identified applied to Gamachis or Jalale. There appears to have been no attempt by the Department to obtain information which would have been relevant to the policy guidelines identified by the delegate in his decisions, not even the one identified in the first bullet point on which the Delegate relied to refuse the applications. Apart from the bald statement that none of the policy guidelines applied, the delegate in his decisions does not explain why they did not apply. Perhaps this is not surprising given that the Department did not seek any information from the Applicants which would have enabled the delegate to make an assessment as to whether any of the policy guidelines applied.[37] R3 and R4, T9/64.
Having noted that, the delegate did in fact have some information before him which, if correct, was relevant to the applicability of at least one of the policies that he identified in his decision, namely, the one referred to in the first bullet point, the one which the delegate specifically identified as not applying. As noted at [9] above, the delegate said that he was exercising the discretion to refuse citizenship because each of Gamachis and Jalale was not a child living with a responsible parent, who is an Australian citizen and who consents to the application. That, however, may not be correct. In the application for citizenship, Farhia identified her husband, Gamachis’s and Jalale’s, father as an Australian citizen.[38]
It is not clear on the material before the Tribunal whether Gamachis and Jalale’s father lives with them, however, if he does, then it may be that the policy identified by the delegate as not applying, does apply.[38] R2, T4/24.
Whether or not that policy or the policies identified in the second and third bullet points on page 6 of the decisions (see [42] above) apply, is difficult for the Tribunal to assess, primarily because, in the Tribunal’s view, the Department failed to make any or any adequate enquiries of Farhia which would have allowed that assessment to be made. It may be that that Gamachis’s and Jalale’s father does live with them and is an Australian citizen as asserted in the application for citizenship. It may also be that either or both of Gamachis and Jalale may suffer significant hardship or disadvantage if citizenship is refused which would enliven the policy identified in the third bullet point. We do not know because no information was sought by the Department upon which those assessments could be made.
While the Department may be under no specific obligation to seek information from applicants to support their applications, in the case where a delegate is exercising a discretion not to grant citizenship where the applicant would otherwise be entitled to citizenship, that discretion must be exercised on some basis. In the cases of Gamachis and Jalale there seems to have been no enquiries made to ascertain information on which, according to the Policy, that discretion was to be exercised.
In the end it is the Tribunal’s view that while separate decisions were made by the delegate in respect of Gamachis and Jalale, albeit in the same terms as each other, the lack of any enquiry and information on which the discretion under s 24(2), applying the Policy, could be exercised in any informed way, indicates that the correct or preferable decision in the case of both Gamachis and Jalale is to set aside the decisions under review relating to them and remit those matters for reconsideration. This should not cause any great prejudice to the Respondent given that the Respondent submits that the correct or preferable decision in respect of Gamachis is for his application to be remitted for reconsideration. It is likely that the issues and circumstances applying to reconsideration of Gamachis’s application will also apply to reconsideration of Jalale’s application.
Farhia
As noted above, other than asserting that the applications of Gamachis and Jalale
“are dependent upon the disposition of [Farriah’s] application”,[39] the only issue addressed in the RSFIC is Farhia’s identity.[39] RSFIC papa. 5.
The RSFIC refers to section 24(3) of the Act and the prohibition on approving citizenship unless the Minister is satisfied of the identity of the person seeking citizenship, to Chapter 13 of the Policy, to Guidelines and to the RCPIs (see [22]-[26] above).
The RSFIC then refers to various cases including Dhayakpa and Minister for Immigration and Border Protection[40] (Dhayakpa) and Beyan v Minister for Immigration and Border Protection[41] (Beyan) and contends as follows:
[40] [2015] AATA 310.
[41] [2015] AATA 256.
Documentation
20.The respondent does not dispute that the applicant’s Australian IDs record a consistent identity since arrival in Australia.
21.The respondent’s position is however that there remains insufficient evidence for the Tribunal to be satisfied of the applicant’s identity – particularly so in circumstances where she arrived in Australia without documentation.
22.In the course of these proceedings the applicant has filed:
a. A letter from the Australian High Commission Nairobi dated 20 November 2003 in relation to medical examination; and
b. An untranslated document.
23. These documents do not assist the applicant in circumstances where there remains no official, translated documentary evidence of the applicant’s identity from her birth in 1975 to 2003.
24. Having regard to country information (ST7), it is reasonable to expect the applicant to produce official documents relating to her identity or at the very least evidence of attempts to obtain such documentation including evidence of communication with relevant authorities.
Life story
25. The applicant has provided no evidence of any personal relationships or references prior to her arrival or in Australia. The respondent contends that the applicant’s has not established any clear “picture” of her life story prior to her arrival or since arriving in Australia.
26. In the circumstances, the evidence does not establish that the applicant has exhausted all avenues of enquiry to find identification documentation: Confidential v Minister for Immigration and Citizenship [2013] AATA 144 at [29]. Accordingly, the respondent contends that there is simply insufficient information to enable the Tribunal to be satisfied as to the applicant’s identity. The respondent does not invite the Tribunal to draw a negative inference regarding the applicant’s identity from the difficulties she might face in procuring reliable identity documentation. However, a certificate of citizenship would become the foundational document of the applicant’s identity. Verification of her identity is a matter of considerable import. The respondent submits that where the Tribunal is required to reach a state of satisfaction as to the applicant’s identity, any sympathy which the applicant’s position might attract is not a relevant consideration. The respondent submits that there is an insufficient basis to support the applicant’s identity and that this is one of those “cases where identity is unclear or cannot be satisfactorily ascertained”
(Footnotes omitted.)
It is the case, as the Respondent says, that there is a paucity of documentary evidence from the period before Farhia’s arrival in Australia to establish her identity. The single letter from the Australian High Commission Nairobi[42] is of little probative value. It is a request for medical examinations to be undertaken addressed to “Dear Doctor” which refers to Farhia, Gamachis, one of Farhia’s other children and Farhia’s husband. While the letter is consistent with Farhia’s narrative, it is of only minimal value in establishing Farhia’s identity. It is a document which reflects what she would have told the High Commission in Nairobi.
[42] A4.
Similarly, the untranslated documents A1-A3 are of little probative value. At the hearing the Tribunal asked a number of questions about these documents.[43] The answers provided were to the effect that one of the documents was a birth certificate and one related to Farhia’s school attendance. The document which Farhia identified in her evidence as a birth certificate was a document which, when she provided it to the Tribunal registry in February 2020, she had identified in a covering email as a marriage certificate.
[43] Transcript at 14-16.
While Farhia has provided a number of documents created since her arrival in Australia (see [5] above) these documents were produced by the relevant authorities on the basis of what she told the authorities. In the end, Faria has not produced any documents which the Tribunal can rely on to establish her identity to any reasonable degree of satisfaction. It may be that if translations of the non-English language documents were provided the Respondent, and the Tribunal, would be in a better position to form the requisite level of satisfaction of Farhia’s identity, but that it not the case at this time. The Tribunal also notes that the Department’s letter dated 16 March 2018[44] which sought additional information and documentation, had a section setting out the need to provide “official translations” of documents which were not in English and how an official translation could be obtained.
[44] R2, T7/50.
The law
Senior Member CR Walsh in Beyan at [38] noted:
..As submitted by the Minister, 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.
(see also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[45] at [30]-[31])
[45] [2020] AATA 1267.
In Confidential and Minister for Immigration and Citizenship[46] (Confidential) the Tribunal found:
[34]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.
[46] [2013] AATA 144.
Deputy President Nicholson in Dhayakpa, commenting on Confidential, observed:
[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. 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.
[118]I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
The approach taken in Dhayakpa has been followed by Tribunals in a number of cases (see YMPL and Minister for Immigration and Border Protection[47]; Al Temimi and Minister for Immigration and Border Protection[48]).
[47] [2017] AATA 1458.
[48] [2014] AATA 97.
The Tribunal understands the difficulty that applicants who have come to Australia in circumstances similar to those in which Farhia did, have in producing documents establishing their identity. However, the Tribunal does have to be satisfied that an applicant has made reasonable efforts to obtain documents from their country of origin (or in some cases a third country through which the applicant passed) which would support their identity claim. Farhia did in her evidence[49] refer to her sister having obtained one or two of the documents produced,[50] however, there was no evidence as to what other efforts Farhia has made to procure other documents from Ethiopia.
[49] Transcript at 13.
[50] A1 and A2.
The Tribunal is not satisfied, on the evidence that has been presented, that Farhia has exhausted all reasonable efforts to obtain such documentation.
The Tribunal is mindful of the statement of Deputy President Nicholson in Dhayakpa cited at [65] above and the cases that have followed that approach. In the present case, there is a paucity of documentary evidence (or at least evidence that can be understood) prior to Farhia’s arrival in Australia and a lack of any other evidence, such as third party statements, to evidence the Applicant’s identity. In the case of Dhayakpa, while there was a lack of documentary evidence, there was at least one witness other than the applicant
(the applicant’s daughter) who gave a written declaration and oral evidence at the hearing.[51] That evidence was relied on by the Deputy President in making his finding on identity.[52]
No such evidence was provided by Farhia in this case.
[51] Dhayakpa [54]-[63].
[52] Dhayapka [113], [115] and [121].
Based on the evidence before the Tribunal, the Tribunal is not satisfied of Farhia’s identity. Accordingly, the prohibition under s 24(3) of the Act applies and Farhia’s application for citizenship by conferral must not be approved. The decision under review must therefore be affirmed.
DECISIONS
Application 2019/1768 – Farhia Ahmed Mohamed
For the reasons set out in [59] to [70] above, the Tribunal is not satisfied of the Applicant’s identity. Accordingly, the decision under review is affirmed.
Application 2019/1833 – Jalale Omar
For the reasons set out in [38] to [55] above, the matter be remitted for reconsideration in accordance with the Policy after proper enquiry is made of the Applicant to determine whether the Applicant satisfies requirements of the Policy.
Application 2019/1835 – Gamachis Omar
For the reasons set out in [38] to [55] above, the matter be remitted for reconsideration in accordance with the Policy after proper enquiry is made of the Applicant to determine whether the Applicant satisfies requirements of the Policy.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
..................................[SGD]...................................
Associate
Dated: 21 July 2020
Date(s) of hearing: 5 May 2020 Date final submissions received: 27 May 2020 Applicant: In person Counsel for the Respondent: Ms E Tattersall Solicitors for the Respondent: Sparke Helmore Lawyers
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