Molla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 2700

Molla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2700 (4 August 2021)
Division:GENERAL DIVISION
File Number: 2020/1803
Re:Avdi Molla
APPLICANT

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

DECISION
Tribunal:Member K. Parker
Date:4 August 2021
Place:Melbourne

The Tribunal sets aside the Decision Under Review and remits this matter for reconsideration with a direction that no prohibition applies to Mr Molla under s 24(3) of the Australian Citizenship Act 2007 (Cth), in respect of his application for Australian citizenship by conferral.
...........[sgd]..............
Member K. Parker
Catchwords
CITIZENSHIP – refusal of application for citizenship by conferral – whether Tribunal satisfied as to Applicant’s identity – identity documents contained inconsistent information about Applicant’s year and place of birth and first and middle names – whether adequate explanation for discrepancies – consideration of applicant’s life story – whether official documents obtained by Applicant from Albania were authentic – Tribunal satisfied as to Applicant’s identity – reviewable decision set aside and remitted for reconsideration with direction that no prohibition applies under s 24(3) of the Australian Citizenship Act 2007
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Secondary Materials
Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016)
Attorney-General’s Department, ‘National Identity Proofing Guidelines’ (2016)
Explanatory Memorandum, the Australian Citizenship Bill 2007 (Cth)
REASONS FOR DECISION
Member K. Parker
4 August 2021
INTRODUCTION

The Applicant, Mr Avdi Molla, seeks review of a decision made on 20 March 2020 to refuse his application for Australian citizenship by conferral (Decision Under Review). This decision was made on the basis that the relevant delegate was not satisfied as to Mr Molla’s identity and that approval of his citizenship application was prohibited by reason of s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act).
Since the Decision Under Review was made, both parties have lodged further evidence in relation to the Applicant’s identity which the Tribunal has now reviewed. For the reasons set out in these Reasons for Decision, the Tribunal is satisfied as to the identity of Mr Molla for the purposes of s 24(3) of the Act.
Accordingly, the Tribunal sets aside the Decision Under Review and remits this matter for reconsideration with a direction that no prohibition applies to Mr Molla under s 24(3) of the Act, in respect of his application for Australian citizenship by conferral.
BACKGROUND
Mr Molla asserts that:
(a)he was born in Albania on 27 July 1986;
(b)he arrived in the United Kingdom in 2002;
(c)he became a citizen of the United Kingdom in May 2009;
(d)he first arrived in Australia on 13 July 2011 on a Visitor (subclass 976) visa;
(e)he was granted a Working Holiday Maker (subclass 147) visa on 5 April 2012;
(f)he married an Albanian citizen, Carcia (also known as Matilda) Molla (nee Carcia), on 29 July 2013 and remains married to her;[1] and
(g)he and his wife have two children.
[1] Refer ST-Documents (referred to in paragraph [15(b)]) ST2/35.
Mr Molla and Mrs Molla, as his dependent, applied for and were granted an Employer Nominated Scheme (subclass 186) visa on 13 November 2015.[2]
[2] Refer T-Docs T2/9.
On 21 December 2016, Mr Molla first applied for Australian citizenship by conferral under the name “Avdi Molla”. He later reapplied for citizenship on 3 February 2017, because his initial application was considered invalid (Citizenship Application).[3]
[3] Refer T-Documents (referred to in paragraph [15(a)]) T3.
When processing the Citizenship Application, the Department of Home Affairs (Department) obtained records from Albanian governmental authorities showing that:
(a)Mr Molla’s date of birth was 27 July 1985 (this matter is disputed by Mr Molla);
(b)he had previously been known as “Ardi Molla” and had reportedly changed his name to “Avdi Molla” on 5 April 2010 (both of those matters are disputed by Mr Molla); and
(c)his place of birth on his birth certificate was recorded as “Sutaj Librazhd” and did not match his place of birth of “Bushtrica” as recorded on his United Kingdom passport.[4]
[4] Refer T-Documents T8/420
Putting aside whether Mr Molla was aware of those discrepancies (Mr Molla asserts he was not), they were not disclosed by Mr Molla in his Citizenship Application.[5]
[5] Refer T-Documents T8.
Mr Molla was invited by the Department to respond to the inconsistent information regarding those aspects of his identity. He did so on 18 September 2018.[6]
[6] Refer Mr Molla’s letter dated 11 September 2018 at T-Documents T9.
On 9 April 2019, the Department asked Mr Molla to provide overseas penal certificates in respect of both of his two known dates of birth.[7] He provided a statement and letters in relation to his criminal records.[8] The criminal records produced referred to the 1985 date of birth only and certified that he did not have a history of any criminal convictions in Albania.[9]
[7] Refer T-Documents T12.
[8] Refer T-Documents T13.
[9] Refer T-Documents T13.
On 20 March 2020, the delegate notified Mr Molla that he or she was prohibited from approving his application for Australian citizenship by conferral on the basis that he or she was not satisfied as to Mr Molla’s identity (Decision Under Review).[10]
[10] Refer T-Documents T2.
By application lodged on 24 March 2020, Mr Molla sought review of the Decision Under Review by the General Division of the Administrative Appeals Tribunal (this Tribunal). Mr Molla was assisted, at different times, by a registered migration agent, Mr Arthur Vasilopoulos. Otherwise, he was self-represented, including at the final hearing before the Tribunal.
The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) lodged the following documents with the Tribunal:
(a)a set of documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on 5 May 2020, comprising 161 pages (T -Documents);
(b)a supplementary set of documents under s 38AA of the AAT Act on 7 August 2020, comprising 118 pages (ST-Documents);
(c)a set of further supplementary documents under s 38AA of the AAT Act on 25 September 2020, comprising 114 pages (FST-Documents); and
(d)a further bundle of documents tabulated and lodged by the Respondent on 9 February 2021, comprising 198 pages (Bundle of Documents).
The Bundle of Documents contained, among other things:
(a)the Minister’s statement of facts, issues and contentions dated 28 September 2020 (Minister’s SFIC); and
(b)Mr Molla’s statement of facts, issues and contentions dated 10 January 2021 (Mr Molla’s SFIC).
ISSUES
The issue arising for determination by this Tribunal is whether the prohibition under s 24(3) of the Act applies to Mr Molla in respect of his Citizenship Application. This will require the Tribunal to decide whether it is satisfied as to Mr Molla’s identity.
LEGISLATIVE FRAMEWORK
A person may apply for conferral of Australian citizenship under s 21 of the Act. Upon making such application, s 24(1) of the Act requires the Minister to approve or refuse the person becoming a citizen. Section 24(3) of the Act provides:
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
CITIZENSHIP POLICY
On 1 June 2016, the then Department of Border Protection (now the Department of Home Affairs) issued a policy entitled Citizenship Policy providing guidance on the interpretation of and the exercise of powers under the Act and its regulations (Policy). The introduction to the Policy states that the Policy cannot constrain the exercise of delegated powers under the Act or its regulations.[11]
[11] Refer T-Documents T19/141.
Policy guidance on the issue of identity
Chapter 13 of the Policy deals with “Identity”. The Policy states:
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.[12]
[12] Refer Citizenship Policy, Chapter 13.
The Policy also provides that the concept of identity is as described in the Attorney-General’s “National Identity Proofing Guidelines” (NIPG). The Policy refers to the NIPG issued in 2004. The Tribunal notes the NIPG was updated in 2016.
The Policy provides that an application must be made in the most recent name that the applicant has been known by, according to acceptable identity documents.[13] The Policy provides that if the applicant has changed their name, date of birth, sex or gender, they will need to provide evidence that explains each change and shows a clear link between their original identity details and the identity details they are currently using or seeking to use.[14]
[13] Ibid; Minister’s SFIC at [15].
[14] Refer Citizenship Policy, Chapter 13.
The Minister’s legal representative referred the Tribunal to an extract from the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 stating as follows in respect of s 24(3):[15]
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.
MR MOLLA’S EVIDENCE AND CONTENTIONS
[15] Refer Minister’s SFIC at [18].
Explanation given by Mr Molla when his Citizenship Application was under consideration
When Mr Molla first responded to the Department by his letter dated 11 September 2018 about the discrepancies regarding his identity, he gave the following explanation:[16]
Let me start by stating that as far as I was aware the details I have given on all of my applications for Australian visas and citizenship applications in respect to my date of birth and place of birth were correct. I have never changed my name and in fact I was in the UK when the application was supposedly made in April 2010 to change my name. Do you actually have a copy of such an application, I think not and in the interests of natural justice you should have asked for such a document and showed it to me because if such a document exists it would not have been signed by me.
After much effort since receiving your letter I have obtained several declarations from my parents, uncle and elder brother confirming my birth details.
I have also obtained a declaration from the Registry Office in Albania confirming that it was an administrative error on their part when transcribing my details to the National Registrars office that the mistake was made by them. At present I can only provide you with a printed scanned copy the original is being posted and I can send that to you when I receive it or if you have an email address I can send you the scanned copy in the meantime.
Finally like any child that is born we rely on our parents and the respective authorities to correctly register our birth details over which we have no control at that time.
These allegations have come as a complete shock to me and have caused me a great deal of stress due to the inefficiency of the Albanian authorities.
I am requesting an additional 28 days to provide you with further proof of what I am stating in this letter to you.
I am attaching the statements from my family and also the Albanian authorities and my birth certificate for your attention and trust that this should be sufficient, however if you do not agree I submit it would be reasonable to allow me to make comment on any other alleged wrong doing on my part especially given the documents I have provided you for now.
[16] Refer T-Documents T9/49, 50.
The declaration, described on the face of the document as a “Certificate” numbered 177, referred to in Mr Molla’s letter, was issued on 7 September 2018 by the Republic of Albania, Municipality of Prrenjas, Administrative Unit Rrajce (Municipality Certificate).[17] A certified English translation of the Municipality Certificate was also provided.[18] It was signed and sealed by Erind Malo, Administrator and states as follows:
We hereby certified that Mr Avdi Molla born on 27.07.1985 son of Shaban and Emliha, born in Sutaj, Librazhd is registered in National Register of Civil Status with the name Avdi Molla from the moment of birth until 20.09.2009.
Clarify that when registering the names in the system (in National Register of Civil Status) on the year 2009, the name Avdi Molla is transcribed incorrectly from Avdi in Ardi.
Correcting this error in National Register of Civil Status from the name of Ardi in Avdi is done on 05.04.2010 employee of Civil Status himself.
We also note that Avdi Molla born on 27.07.1986 but was mistakenly registered in the National Register of Civil Status with date of birth on 27.07.1985.
This certificate is issue for document effect.
[17] Refer T-Documents T9/51 & 52 and FST1/51.
[18] Refer FST-Documents FST1/52.
Mr Molla also gave a signed and sealed birth certificate to the Department numbered XXX265, which on the face of the document, records that it was issued on 28 January 2017 by Marjeta Hoxha of the Civil Registry Office of the Republic of Albania in the name of “Avdi Molla” (2017 Birth Certificate).[19] It shows Mr Molla’s date of birth as “27-07-1986” and place of birth as “Sutaj, Librazhd, ALB”. It shows the place of residence as “Rrajce 108 3405 Rrajce”, his civil status as married and states that he is an Albanian citizen.
[19] Refer T-Documents T9/53.
Mr Molla also provided the following declarations signed before a public notary, Thomas Bice:
(a)declaration by Mr Molla’s brother stating as follows:[20]
[20] Refer T-Documents T9/56 & 57.
In Pogradec, on 03.09.2018, before me a notary Thoma Bice, appeared personally the declarant:
·Agim Shaban Molla, born on 05.10.1964 and resident in Rrajce, Librazhd, adult and capable of performing legal actions, identified with ID with personal no. G41005011G, who asked me that notarial declaration as below:
I declare that I’m the brother of the citizen Avdi Shaban Molla and I know that my brother Avdi Shaban Molla was born on 27.07.1986 in Bushtrice villagge(sic), Librazhd, since at the time my mom Emlida Molla worked in agricultural cooperatives and moved to many villages according to the needs of cooperatives. I remember very well the year of my brother’s birth since a year ago, in 1985 I was married.
I declare with full conviction that the exact birthday of my brother is the date 27.07.1986 and not that recorded in the civil registry system as it was born on 27.07.1985.
(b)declaration by Mr Molla’s parents stating as follows:[21]
[21] Refer T-Documents T9/58 & 59.
In Pogradec, on 03.09.2018, before me a notary Thoma Bic, appeared personally the declarant:
·Shaban Shyqyri Molla, born on 04.09.1941 and Emliha Selim Molla born on 18.05.1940 and resident in Rrajce, adults and capable of performing legal actions, identified with ID and personal no. [number omitted] and [number omitted], who asked me this notariel(sic) declaration as below:
We declare that we are the parent of Avdi Shaban Molla, who was born on 27.07.1986 in Bushtrice village, Librazhd. In that period we lived in the village Rrajce Fushe (Sutaj) Librazhd. The birth of the child was premature and at that time we were engaged in working in agriculture in joint ventures called co-operatives such as the organization of the communist system of time. Because of the type of work in agriculture we moved to different villages and we were in the village of Bushtrica when the birth of the child Avdi Molla occurred.
After the birth of the child about two weeks or more we were presented to the Registry Office of Rrajce, Librazhd to register the child. We are presented before the registrar declaring the birth.
For the registration of the child we have not completed any form or document finding, we just made a declaration before the employee indicating the name, surname, date and year of birth while the registrar has made the registration.
We declare with full conviction that the exact birthday of our son is the date 27.07.1986 and not that recorded in the civil registry system as it was born on 27.07.1985.
(c)declaration by Mr Molla’s uncle stating as follows:[22]
In Pogradec, on 03.09.2018, before me a notary Thoma Bic, appeared personally the declarant:
·Ferim Selim Bogdani, born on 25.07.1945 and resident in Prrenjas, adult and capable of performing legal actions, identified with ID and personal no. [number omitted], who asked me this notariel(sic) declaration as below:
I declare that I’m the uncle of the citizen Avdi Shaban Molla and I know that my nephew Avdi Shaban Molla has born on 27.07.1986 in Bushtrice villagge(sic), Librazhd. Currently resides in the state of Australia where in passports results born 27.07.1986. Incorrectly recorded in the system as being born 27.7.1985 was marked wrong year of birth as born in date 27/07/1985.
I declare with full conviction that the exact birthday of my nephew is the date 27.07.1986 and not that recorded in the civil registry as it was born on 27.07.1985.
[22] Refer T-Documents T9/59 & 60.
On 1 February 2019, Mr Molla followed up with the Department urging that a decision be made in relation to his Citizenship Application.[23] On 9 April 2019, the Department requested that he provide overseas penal clearance certificates from Albania in both dates of birth known to the Department, being 27 July 1985 and 27 July 1986. The Department also asked Mr Molla to provide any identity cards for passports including those used by him when immigrating to the United Kingdom.[24]
[23] Refer T11/62.
[24] Refer T12/63 & 64.
On 1 May 2019, Mr Molla replied to the Department stating as follows:[25]
I have previously obtained and submitted a declaration from the Registry Office in Albania confirming that it was an administrative error on their part when transcribing my details to the National Registrars office that the mistake was made by them.
My parents appointed a lawyer in Albania to apply to rectify the error about my year of birth and he has written to advise that he has been informed by the authorities in Albania that their records cannot be amended to show my year of birth as 1986.I have attached a copy of his advice with the translation. It is for this reason that the Penal certificate from the Ministry of Justice which shows I have no conviction can only be issued in the date of birth currently held in the updated records of the authorities in Albania. The Ministry of Justice cannot issue a Penal certificate with the year of birth as 1986 but I previously submitted a Penal certificate from the Ministry of Justice when I applied for my 186 visa showing my year of birth as 1986 and I have not been back to Albania since that time.
All previous evidentiary documents I submitted with past applications such as my family certificate and birth certificate were all issued by the relevant authorities in Albania showing my year of birth as 1986. I am submitting the original documents and translations that were obtained in Albania for your examination and wish to state again that I was always told I was born in 1986 and all previous identity documents issued to me in the past by the relevant authorities in Albania showed my year of birth as 1986 as that is the year I was born according to my parents and the year that they originally registered my birth with the local authorities.
…
[25] Refer T-Documents T13/65 & 66. Mr Molla’s letter was dated 11 April 2019 but date stamped as having been received by the Department on 1 May 2019. This is consistent with Mr Molla’s email to the Department dated 29 April 2019 explaining that he had posted the documents on that day using a “next day delivery” service – see T-Documents T14/75.

Mr Molla attached the following documents (and translations) to his letter:
(a)certificate issued on 10 April 2019 by Director of Attorney’s Office of Judicial District of Elbasan, Republic of Albania, certifying that “Avdi Molla son of Shaban and of Emliha born on 27.07.1985 in Sutaj, Librazhd with personal no: [number omitted] there is no actual criminal prosecution under its responsibility which can be at the stage of investigation”;[26]
(b)certificate issued on 10 April 2019 by Head of Court, Republic of Albania, certifying that “Mr. Avdi Molla, son of Shaban and Emliha, born on 27/07/1985 in Sutaj, Librazhd with no of ID: [number omitted] and personal number [number omitted] is not in prosecution by the Court of Elbasan District until today 10/04/2019”;[27]
(c)“testimony of judicial state” issued on 18 April 2019 by the General Directory of Prisons, Ministry of Justice, Republic of Albania, verifying that “Avdi Molla son of Shaban and of Emliha born on 27/07/1985 in Sutaj, Librazhd, ALB” is “uncondemned”;[28]
(d)letter by Av. Gezim Kovaci, Chamber of Advocate Elbasan to Mr Molla’s parents dated 18 April 2019 stating as follows:[29]
After I got acquainted with your request to equip your son with “Testimony of Judicial(sic) State” from General Directory of Prisons to the Ministry of Justice with identity of Avdi Shaban MOLLA and with date of birth on 27.07.1986 with place of birthday Sutaj, Librazhd to let you know that:
The citizen Avdi Shaban MOLLA can be provided with “Testimony of Judicial(sic) State” but with the date of birth 27.07.1985 and can’t be provided with “Testimony of Judicial(sic) State” with date of birth 27.07.1986 despite the claims raised by you, regarding the birthday of your son Avdi Molla, to whom you claim it is of the birthday 1986, but such a thing can not be realized, as in the respective registers of these institutions does not result with date of birth 27.07.1986…
[26] Refer T-Documents T13/67 & 68.
[27] Refer T-Documents T13/69 & 70.
[28] Refer T-Documents T13/71 & 72.
[29] Refer T-Documents T13/73 & 74.
Mr Molla followed up with the Department by email on 27 May 2019 to enquire when he could expect an outcome in relation to his Citizenship Application.[30] Mr Molla appointed Mr Vasilopoulos as his migration agent on 15 July 2019. On 25 July 2019, the Department advised Mr Vasilopoulos was in writing that it was unable to provide a timeframe to Mr Molla with respect to the finalisation of his Citizenship Application.[31]
[30] Refer T-Documents T15/77.
[31] Refer T-Documents T16/86.
The ST-Documents before the Tribunal contain documents from Mr Molla’s previous visa applications submitted to the Department made in the name “Avdi Molla” and using the date of birth of 27 July 1986. The ST-Documents also included:
(a)Mr Molla’s British passport submitted in support of his visa application made in 2013. This passport was issued on 6 April 2009 in the name of “Avdi Molla” stated to be born in “Bustrica”, and his date of birth was recorded as 27 July 1986;[32]
(b)student certificate dated 30 April 2013 from Moulton College, Northampton, UK, certifying that “Avdi Molla” with the date of birth 27 July 1986, had completed a bricklaying course at the college in 2009;[33]
(c)certificate for a level II national vocational qualification in trowel occupations awarded by Construction Awards Alliance to “Avdi Molla” on 20 July 2009;[34] and
(d)college certificate in the safe use of ladders issued to “Avdi Molla” in September 2007.[35]
[32] Refer ST-Documents ST1/22.
[33] Refer ST-Documents ST1/28.
[34] Refer ST-Documents ST1/29.
[35] Refer ST-Documents ST1/32.
Mr Molla’s employment history over the past ten years was described in his visa application made in April 2015 as having worked for John Wright Builders in England from January 2009 to November 2011 and for Roblat Constructions Pty Ltd in Australia from April 2013 to April 2015.[36] On 31 October 2014, Mr Molla was awarded the qualification of CPC30111 Certificate III in Bricklaying/Blocklaying in the name of Avdi Molla by Vocational Education Training and Assessment Services (VETASSESS).[37]
[36] Refer ST-Documents ST2.
[37] Refer ST-Documents ST2/51.
This employment history and other aspects of Mr Molla’s life story was not challenged by the Minister. The Tribunal considers that Mr Molla’s life history in terms of where he said he lived, his education, and his employment, were all consistently presented by Mr Molla or as described in the documents before the Tribunal.
On 26 November 2014 the UK Association of Chief Police Officers issued a Police Certificate for immigration purposes in the name “Avdi Molla” with the date of birth 27 July 1986, indicating that he had no criminal convictions or warnings.[38] An Australian Police Certificate was issued by the Australia Federal Police on 2 December 2014 certifying that there was no disclosable court outcomes against “Matilda Molla” as at 18 November 2014, or against “Avdi Molla” with the date of birth 27 July 1986.[39]
[38] Refer ST-Documents ST2/50.
[39] Refer ST-Documents ST2/55 & 56.
Explanation given by Mr Molla while this review application was on foot
Mr Molla lodged a letter dated 20 May 2020 with the Tribunal submitting as follows:[40]
I am writing in response to your invitation to attend a conference by telephone on 22 May 2020 at 2p.m. In support of my appeal I have recently sent you some certificates of my schooling in Albania confirming that I was registered as Avdi Molla born 27-7-1986 along with a letter from one of my teachers at that time confirming I was known to him as Avdi Molla. I also sent you a copy of my current UK passport in the name of Avdi Molla born 27-7-1986.
I have previously obtained and submitted a declaration from the Registry Office in Albania to Home Affairs, Citizenship Section confirming that it was an administrative error on their part when transcribing my details to the National Registrars office that the mistake was made by them in registering my name as Ardi Molla born 27-7-1985 when they updated their records from hard copy to online. In the decision record to refuse my application this document and its contents appears to have been ignored.
Also all previous evidentiary documents I submitted to Home Affairs with past applications such as my family certificate and birth certificate were all issued by the relevant authorities in Albania showing my year of birth as 1986. The originals of those documents were submitted and translations that were obtained in Albania for examination and wish to state again that I was always told I was born in 1986 and all previous identity documents issued to me in the past by the relevant authorities in Albania showed my year of birth as 1986 as that is the year I was born according to my parents and the year that they originally registered my birth with the local authorities. What does not make sense to me is that in the delegates decision to refuse my citizenship application there is no findings that the documents I submitted were not genuine or false; how can that be the case. Also they did not appear to give any credit to my being a citizen of the UK and my UK passport and the identity it was issued in.
As I have previously stated I have always been known as Avdi Molla born 27-7-1986 and the first I knew of an alternative identity was after applying for Australian citizenship which came as a complete surprise. My parents, brother and uncle have since submitted affidavits confirming my identity as Avdi Molla born 27-7-1986.
I trust that the Tribunal can consider my circumstances and accept that throughout my life I have always been known as Avdi Molla born 27-7-1986 from the time of my birth and the period I lived in the UK and also for the whole of the time I have lived in Australia.
I am now in this position due to an error by the Albanian authorities error when registering my original recorded birth details through a digital processing error which has been acknowledged by the Albanian authorities. Surely my parents are aware of when I was born and correctly registered my birth at that time with the local authorities.
I am writing to you now in the hope that this will assist to resolve this issue.
I would also like to make a final comment about the processing of my application by the Citizenship section who throughout the processing kept giving me different reasons for the delay and at times I was told on the phone that all they wanted to ensure was that I had no convictions and that they were also making inquiries overseas but it appears that they only made one inquiry that is recorded in their decision record and that was years ago with the Albanian authorities. It appears that no inquiries were made with the UK authorities in relation to the documentation they had about my identity which to the best of my recollection would have only been my Albanian ID card. I also presume that the UK authorities would have conducted their normal checks with the Albanian authorities at that time to ensure they had my correct identity prior to granting me UK citizenship.
[40] Refer Bundle of Documents on pages 10 & 11.
Mr Molla provided a set of photographs described by Mr Vasilopoulos as showing the images of Mr Molla at different ages between the ages of 5 and 29. The Tribunal did not find this evidence probative and it has been disregarded. However, Mr Molla also provided an official educational document numbered 1774/1 confirming the completion of his secondary school studies in Albania with a head shot photograph of Mr Molla in the top right-hand corner which has been stamped.[41] The Tribunal considered this evidence as being probative because no evidence was introduced by the Minister to challenge the authenticity of this school document. The image in the photograph was an image of Mr Molla based on the Tribunal’s facial recognition of Mr Molla at the video hearing of this application. The Tribunal will refer to this evidence again at paragraph [87] of these Reasons for Decision.
[41] Refer Bundle of Documents on page 9.
On behalf of Mr Molla, Mr Vasilopoulos wrote to the Tribunal on 2 September 2020 stating that the Department should make available to Mr Molla the outcome of its integrity checks that it had undertaken to carry out in respect of his Albanian school certificates.[42] There has been no evidence introduced by the Minister to challenge the authenticity of this evidence and the Tribunal accepts it. Importantly, it demonstrates the operation of Mr Molla’s claimed identity before he moved to the UK, and before living in Australia.
[42] Refer Bundle of Documents on pages 12 & 13.
Minister’s contentions
The Minister contends that Mr Molla has not established his claim that he has only ever been known as “Avdi Molla” with a date of birth “27 July 1986”. It was highlighted in the Minister’s SFIC dated 28 September 2020, as follows:
26. First, the applicant’s birth certificate appears to have been produced on 28 January 2017, and is not an original (T9/53). The applicant claims that the Albanian registry incorrectly changed his date of birth to 1985 on 20 September 2009, and that this mistake remains recorded in the system to now, however his birth certificate (T9/53) generated on 28 January 2017 (presumably from Albanian official records) states his year of birth as 1986 which is contrary to what the applicant claims is actually (albeit incorrectly) recorded on the Albanian registry. In April 2018, the Albanian Civil Authorities provided directly to the department the applicant’s birth certificate, which has a year of birth of “1985”. That birth certificate was issued on 6 April 2018 (FST1/45). The birth certificate provided by the applicant was provided on 28 January 2017 (FST1/46). The department found there was no plausible explanation for the applicant’s ability to provide a birth certificate with a year of birth of 1986, and for the Albanian authorities to directly issue a birth certificate with a year of birth of 1985, and on that basis found the birth certificate provided by the applicant was fraudulent (FST1/41). The applicant has provided a fraudulent document to the department, with his year of birth as 1986, and this seriously undermines his credibility as a witness and his claimed identity.
27. The complex case officer with the department noted this inconsistency, and on that basis found the applicant’s year of birth could not be confirmed (FST1/17).
28. In addition, the Albanian authorities provided directly to the department the applicant’s Family Registry Certificate which listed the applicant’s year of birth as 1985 (FST1/23). The applicant’s provision of an alternate family certificate with his year of birth as 1986 led to a finding by Post that “ we can definitely assume/conclude that the family certificate presented on part of Molla's parents "Molla family composition" has been fraudulently issued/tempered with in terms of their son's Avdi aka Ardi Molla DOB" (FST1/98).
29. Second, all of the applicant’s documents regarding his penal clearances, state the applicant’s year of birth as 1985, which contradicts the applicant’s claims that he has “always” been known as Avdi Molla born in 1986. The Minister also notes that the certificates are not centralised Albanian certificates (which is the acceptable format – FST1/17), but rather relate to local registries and do not seek to address the applicant’s other names. In any event, the Albanian Civil Registry has confirmed the applicant’s date of birth as 1985 and that the birth certificate provided by the applicant contained incorrect biodata details. To the extent these regional registries may claim the applicant’s date of birth is 1986, they are at odds with the Albanian Civil Registry, and it has not been explained by the applicant how or why that would or could occur.
30. Third, the letter from the applicant’s parents’ lawyer (the advocate’s letter) asserts that there are no records of “Avdi Shaban Molla” with a year of birth of 1986, but that there are records for “Avdi Molla” born in 1985, again contradicting the applicant’s claims that he has always been known as Avdi Molla born in 1986. The letter also uses the applicant’s full name of “Avdi Shaban Molla” with a date of birth of “1985”, to confirm that he can be provided with a “Testimony of Judicial State”. The letter does not outline or specify whether similar checks were also run for “Avdi Molla” with a date of birth of 1985 or 1986, or “Ardi Shaban Molla” with a date of birth of either 1985 or 1986. The Minster also notes the letters purporting to be penal clearance certificates, all use the name “Avdi Molla”. The letter does not explain what a “Testimony of Judicial State” is or how it is generated.
31. Fourth, while the applicant has held forth to the department that he has always been known as Avdi Molla date of birth 1986, it is improbable that the applicant would not have come to realise in the eight years since it occurred, that he had been recorded in his country of birth as having a different name and date of birth to that he claimed. This is especially so, in circumstances where he appears to claim that he had his name changed back to his proper name “Avdi Molla” in April 2010 after discovering that it was incorrectly listed as “Ardi Molla” with the Albanian Civil Registry, but did not seek to change his date of birth back (and now claims he was totally unaware he had ever been listed with an alternative date of birth) (see T9/52 and FST1/17).
In response, in Mr Molla’s SFIC he contends, on 10 January 2021, as follows:
…I remain shocked that I am accused of providing fraudulent or tampered documents in regard to my identity. I have sought legal advice but have been unable to appoint a lawyer to represent me. I was told to read CPI 16 – Assessing Identity under the Citizenship Act and to note the National Identity Guidelines before writing this statement and have done so. Both documents indicate that a person’s identity is not a fixed concept and is highly dependent on context. In my case this has been ignored.
My birth name is Avdi Molla born 27 July 1986. My birth was not planned and I was premature when my then 46-year-old Mother gave birth when she was working in the area of the Bushtrica railway bridge near her home and village of Sutaj, Librazhd, now municipality of Prrenjas and county of Elbasan. I was born eight years after my sister, Desantila.
It should be noted that local government areas have been in a constant state of change since the end of communism and were last reformed in 2015. A fact that seems to have escaped the respondent or not considered.
I was smuggled into England in 2002 to join my older sister’s refugee application; she was already there with her husband. I did not have an Albanian passport. When I left Albania there was no centralized or secure registers for government documents. I was granted UK citizenship in 2009 and my first UK passport on 6 April 2009. My place of birth in that passport is the same as my current passport, Bushtrica. It was never a problem with the UK government before or after I was granted citizenship and passports.
In the respondents statement at paragraph 19, I am accused of having, “multiple identities” which is simply not true. At paragraph 23, they list these identities as:
a.    Avdi Molla, born 27 July 1985;
b.    Avdi Molla, born 27 July 1986;
c.     Avdi Shaban Molla, born 1986; and
d.    Ardi Molla, born 27 July 1985
Both ‘c’ and ‘d’ should discarded as I have never held official documents in those names and the middle name in ‘c’ is my Father’s name. It is claimed that “Albanian authorities” have a record that my name was changed from Ardi to Avdi in Albania on April 2010. If they mean that the Central Registry changed by name it was done without my or my family’s knowledge and leaves open the possibility that the “Albanian authorities” picked up the error in their records during the digitalization of the records. Please see the attached report on the Norwegian Governments description of this process. I believe that the digitalization process picked up the mistake about my name but not my date of birth. That the fact I left Albania without a passport or ID card meant that the error of my date of birth was not known and I only become aware of the error in the Central Registry after applying for Australian Citizenship. What I do not understand is why the Respondent has not shown me any evidence, and makes reference to documents they claim exist but have not been presented to me in the original decision record or the T-Documents?
The birth certificates I have provided are locally issues and not fraudulent. If any documents I provided are fraudulent then why hasn’t the Respondent provide reports they are fraudulently issued or tampered with? At paragraph 29 it states that, “The Minister also notes that the certificates are not centralizing Albanian certificates (which is the acceptable format – FST1/17)…”. I was never asked to provide “centralized certificates”.
I have attached a copy of, Canada: Immigration and Refugee Board of Canada document on Albanian Birth Certificates dated 2014 and it states that:
“According to the Canadian official, when a person applies for a birth certificate, he or she is issued a new birth certificate based on the original information in the data base, instead of a copy of the first certificate issued. The official noted that an Albanian can, “theoretically hold 10 birth certificates if he has applied to 10 different registry offices or ten different times”. However, the official explained that in all cases “the information presented on the birth certificate will be identical given that all information comes from the main central registry.”
If this is the case then the discrepancy between local and central registries should not exist but my presented documents indicate that the system is not accurate and that the digitalized records are not accurate in my case and that this probably due to the fact that I left Albania in 2002 undocumented and have never applied for a Biometric Albanian Identity card. Please see attached information on Albanian Identity Cards.
At paragraph 33, the Respondent rejects my parents and other family statements about my identity in contravention of PCI-16 and has totally ignored my education documents that have also been presented as evidence of my identity. I have attached a copy of those documents for the Tribunal’s reference.
In the Respondent’s submission under the heading, “Departments Internal Investigation”, paragraphs 36 to 38 claim that, “it was ‘highly likely’ that the applicant’s name and date of birth change was affected by fraudulent means and that it held ‘serious concerns’ about his identity. Those concerns remain”. If I had changed my name then why didn’t I change my date of birth?
In addition I have noted that in the Further Supplementary T-Documents (redacted) that at folios 88 – 90 issues were raised with the Australian Embassy in Belgrade but not conclusively determined, as the Albanian authorities have not provided any documents that are individualized to me. In affect raising more questions that answers. I ask the Tribunal to have the Respondent provide me with the necessary information in their response that is required before 29 January 2021.
Finally, I have also attached a UK Government document that clearly states a minor in England is someone under 18 years of age to demonstrate that the assertion that I somehow had to lie about my date of birth was necessary to qualify as a minor to be added to my sister’s application. Yet another example of assertions not based in fact by the Australian Embassy in Belgrade.
Explanation provided by Mr Molla at the hearing

At the hearing of this application on 15 February 2021, Mr Molla maintained that he did not provide fraudulent documents to the Department, that he has always represented that his name is “Avdi” (and not “Ardi”) “Molla”, and that he was born on 27 July 1986 (and not 1985). Mr Molla said that the suggestion that he had applied to change his name from “Ardi” to “Avdi” is incorrect, highlighting that no documents evidencing an application by him to change his name had been produced by the Minister. This is correct and Mr Molla’s contention about this is compelling.
Mr Molla contended that the Tribunal should accept, as authentic, the 2017 Birth Certificate he had provided to the Department, because it was signed, sealed and issued with a certificate number,[43] whereas the 2018 Birth Certificate obtained by the Department directly from the Albanian authorities, was not. The Tribunal considers it is appropriate to place greater weight on the 2017 Birth Certificate, over the 2018 Birth Certificate, as it was sealed, numbered and signed by a government official, and capable of being identified and verified.
[43] Refer T-Documents T9/53.
Tribunal’s request for further information
The Minister alleges in this application that the official documents Mr Molla obtained from Albania, upon which he sought to establish his identity and explain why there were discrepancies in relation to the spelling of his name and his year and place of birth, were inauthentic and fraudulently obtained. However, the Tribunal considers that there is no probative evidence before the Tribunal upon which to make such findings.
After the hearing was concluded, the Tribunal considered in detail the information it had been presented about the Albanian registration system. This led the Tribunal to make a direction on 28 May 2021 (Direction) that the Minister seek to obtain from the relevant Albanian authorities and provide to the Tribunal, the following information, and documents on or before 18 June 2021, in the hope that it might provide clarification:
(a)a complete copy of the entry held for Mr Molla in the “fundamental register” (as referred to in the Albanian Civil Status Law) including:
(i)any rectifications made to that entry at any time, to correct any errors in the “civil status” data recorded in respect of Mr Molla; and
(ii)showing any comments made in the remarks’ column of the “fundamental register” at any time, to record any changes to the name or surname of the Mr Molla and the reason for any such changes;
(b)copies of any other documentation, held by the local or national civil status registry offices, evidencing any application made at any time by Mr Molla or any other person on his behalf, such as a member of his family, for the spelling of his name to be changed from “Ardi” to “Avdi”, or, alternatively, any paperwork recording a change to the spelling of Mr Molla’s first name, made at the initiative of either the national or municipal office(s) of the civil status registry.
The Direction also required that the Minister seek definitive answers from the national or municipal office(s) of the civil status registry to the following questions and lodge those answers and any relevant documentation with the Tribunal and give a copy to the Applicant on or before 18 June 2021:
(a)as at 7 September 2018, was an Administrator by the name of Mr Erind Malo appointed to represent the Civil Registry Office of the Municipality of Prrenjas?
(b)if so, did Mr Malo sign, seal and allocate a number to the Municipality Certificate? The Minister was directed to request a copy of the original of this Municipality Certificate held at the Civil Registry Office of the Municipality of Prrenjas, for production to the Tribunal.
(c)as at 28 January 2017, was an official by the name of Ms Marjeta Hoxha appointed to represent the Civil Registry Office of the Municipality of Prrenjas?
(d)if so, did Mr Hoxha sign, seal and allocate a number to the 2017 Birth Certificate? The Respondent was directed to request a copy of the original of the 2017 Birth Certificate held at the Civil Registry Office of the Municipality of Prrenjas, for production to the Tribunal.
On 17 June 2021, the Minister’s representative responded to the Tribunal as follows (emphasis added):
We refer to the Tribunal’s directions dated 28 May 2021, directing the respondent to provide certain information to the Tribunal by 18 May(sic) 2021.
We are instructed that the department would be in a position to comply with the Tribunal’s directions, if it is possible to comply with them, in approximately four to six months. We are instructed that the process for complying with the Tribunal’s directions will be complicated and resource intensive, in circumstances where the department will be required to liaise with colleagues in other departments and foreign posts, and foreign governments. Additionally, there are complex logistical issues in having Australian officers in Serbia travel to Albania, where Australia does not have a diplomatic presence, and access historical records (by request) of that government, in addition to the multiple other requests for information directed by the Tribunal. These complexities are compounded by the current pandemic, which has put a strain on the capacity of all Australian offshore services.
The Minister is therefore unable to comply with the Tribunal’s directions dated 28 May 2021 by 18 June 2021, and requests an extension of time to comply with the directions of six months.
The Tribunal refused the Minister’s request for six-month extension of time to comply with the Direction, given that:
(a)no evidence had been produced, at that stage, in support of such request;
(b)the proceeding before this Tribunal had already been on foot for approximately 16 months;
(c)Mr Molla’s Citizenship Application had applied for citizenship over four years ago; and
(d)because there was no assurance given that it was possible for the Minister to obtain the information and documents as sought by the Tribunal in its directions.
The Minister’s representative made a further request to be granted a six-month extension of time. The Tribunal called for production by the Minister of all correspondence with any third party, in its original unaltered form, relating to the Tribunal’s Direction, evidencing the Minister’s representative’s attempts to comply with it, including but not limited to the email received from the Australian Embassy in Belgrade (Belgrade Post) the Minister’s representative had referred, but not attached, to his email to the Tribunal.
On 2 July 2021, the Minister’s representative wrote to the Tribunal and submitted as follows:
The respondent attaches an email chain from an Australian based officer of the department to an officer who we are instructed is posted at the Belgrade post as an immigration liaison officer. The email sets out the preliminary steps required to attempt to comply with the Tribunal’s directions and what would be required after that initial approach. Once an official approach to the Belgrade post is made (the time for which is set out in the email), the second step of the process of compliance is to obtain and provide the requisite documents from Mr Molla (and his personal consent to seek his records) and to then liaise with the government of Albania, to the extent it can in compliance with the Tribunal’s directions. The third step would be to then prepare the results for the Tribunal and provide them (with submissions, as was originally directed).
We are instructed that the time estimate provided to complete this process, and time requested to do so, is based on the department’s experience in similar matters throughout the pandemic and across the world. It is not based on, for example, direct communication with the Albanian government about possible timeframes, as such communication (we are instructed) is required to be undertaken by way of established diplomatic processes (over which the department has no direct control) or other third parties with whom the department may be required to liaise with if further time is granted to comply, and with the exception of the attached email from the departmental officer out posted in Belgrade, we are instructed no third parties have been communicated with (for example, the Albanian government) because further time is required to undertake that process, which was requested. As previously submitted, the extension of time request and the time requested, is based on a reasonable estimate provided under instruction by the department in the context of the direction as provided. It may be that compliance takes less or more time than the requested, in the circumstances, but the department requires more time to comply with the Tribunal’s directions, and that is why the extension is requested.
The email chain referred to in this email comprised two emails. The first was an email dated 8 June 2021, sent 10 days after the Tribunal’s Direction, by a Departmental staff member to the Belgrade Post. The information and documents specified in the Direction were not requested from the Belgrade Post in this email. Instead, the Departmental staff member requested as follows:
This is a citizenship application refused under identity where the applicant is an Albanian national who has differences in his personal details.
We have been asked by our Panel Firm of lawyers for your advice on whether (or not) the actions set out by the AAT Member Parker in the attachment titled “Directions of Member Parker” are possible and if so, what timeframe would be likely.
We aren’t clear on what capability you have due to covid and whether relevant authorities are open or contactable.
Once we receive your view on this question, we will provide the relevant documents from Mr Molla to support inquiries.
Happy to put in a stream 2 if required.
The following day, on 9 June 2021, the Belgrade Post responded to the Department as follows:
Happy to try and help here, just a couple of points to note.
We don’t have any Australian representation in Albania so we will make a formal request through the Albanian embassy in Belgrade for information. This may take about 3-4 weeks to receive a response, although we will obviously seek to get one faster.
We have no signed MOU with the Albanian authorities. For this reason they are unlikely to just give us copies of documents or personal information they hold without a persons consent. What they are likely to be ok with is to verify documents that have been submitted to us. In this case, we can seek confirmation from them as to whether the birth certificate and note from the registry office are exact copies of the original documents held by the Albanian authorities, and the persons signing them worked for those offices at that time, as Member Parker has requested.
On the back of that request, I will ask if there are any other birth certificates or identity documents for this person, they may oblige and share information with us but they may not.
Hope this will be helpful, I’ll keep you updated,
This correspondence revealed that the position as stated to the Tribunal by the Minister’s representative on 17 June 2021, specifically, the time estimate of four to six months, appeared to be at odds with the time estimates given by the Belgrade Post to the Department on 9 June 2021. Further, the Belgrade Post indicated that the Albanian authorities were likely to “be ok with” verifying documents submitted to them and offered to seek confirmation as to whether the birth certificate and note from Registry were exact copies of the originals held by the Albanians authorities and that the persons signatory to those documents worked at the offices at that time. Another six weeks have now passed since the Minister’s representative’s letter dated 17 June 2021, and the Tribunal has not been presented with any further correspondence or verifying documents which indicate that the Department or the Minister’s representative took up the Belgrade Post’s offer in its 9 June 2021 email, to check the information and documents in the manner proposed.
The Tribunal considers that it has made reasonable attempts at eliciting probative information seeking clarification about the Minister’s representative’s serious allegations that Mr Molla had provided fraudulently obtained official Albanian government documents to the Department and the Tribunal in order to secure Australian citizenship. Those attempts by the Tribunal have caused a further delay to the finalisation of this already protracted proceeding. Unfortunately, those efforts have yielded no results.
In the Tribunal’s opinion, the correspondence between the Department and the Belgrade Post, called upon to be produced to the Tribunal, ultimately revealed that the Tribunal’s directions were not acted upon until 10 days after they were first issued. There was no explanation provided for this delay. There was also no satisfactory explanation given as to why the request was not made for Belgrade Post to commence making requests and enquiries immediately upon the Direction being made, and why the Minister’s representative did not provide the Belgrade Post with the necessary supporting documents to enable it to do so. No request was made by the Minister’s representative to Mr Molla to seek his consent to obtain such information if this was considered as presenting as an obstacle to obtaining information or documents from the Albanian authorities.
When an offer was made to the Department representative by the Belgrade Post on 9 June 2021 to seek verification, this offer was neither accepted, nor proceeded with. The Tribunal acknowledges the difficulties the Minister and the Belgrade Post might face in obtaining information from the Albanian authorities. Specially, there is no Memorandum of Understanding (MOU) between Albania and Australia which may hamper the level of cooperation (or the pace of cooperation) between the Belgrade Post and the relevant Albanian authorities. However, the Tribunal considers that immediately after its Direction was made on 28 May 2021, the Minister’s representatives should have made a request to the Belgrade Post to comply with this Direction, as best as it was able, and all supporting documents should have been given to the Belgrade Post to enable it to follow up with the Albanian authorities to obtain verification of the official documents provided by Mr Molla seeking to establish his identity and why there were discrepancies in relation to some of the biodata. This follows a long history of such verification not having been actively or effectively pursued by the Minister’s representatives at a much earlier point in time, in the context of those official documents as provided by Mr Molla containing clear identifying information such as a date, certificate number and the printed name of the official who signed them. The Tribunal finds that this detracts from the Minister’s primary argument in this case is that Mr Molla’s has produced fraudulent or inauthentic official documents. The Tribunal considers there is insufficient evidence upon which to make such a finding that the official documents Mr Molla were fraudulently obtained or were inauthentic.
There comes a point in time when a decision must be made about whether Mr Molla should be granted citizenship by conferral and in Mr Molla’s case, whether any prohibition applies to him. The Tribunal considers that it is appropriate to do so now. The Tribunal also has an obligation to deal with applications before it in a timely manner. It is not appropriate for a citizenship application assessment, and subsequent review processes, to roll on for years with no end in sight. This is not a case where it could be said that a citizen applicant has not presented enough evidence to establish his identity. He has done so. This is a case whether the Minister seeks to challenge the authenticity of the evidence that has been produced by Mr Molla. It is expected that Minister should present evidence which supports such serious allegations. The Tribunal notes that on 1 June 2020, the Minister’s representative sought and was granted, an earlier (lengthy) six-month postponement of the proceeding before the Tribunal stating that the reason for the request postponement was to allow for verification checks to be done:
We refer to the applicant’s emails to the Tribunal on 18 May 2020 attaching submissions and further material, namely photographs of letters purportedly from educational institutions in Albania. That material was provided to the Minister on 19 and 21 May 2020.
We are instructed by the Minister that the documents provided by the applicant will need to be verified. Their verification is of particular importance in this matter, in circumstances where the genuineness of other documents provided by the applicant to the department (and to the Tribunal by way of s 37 documents), may come into question before the Tribunal.
We are also instructed that due to the ongoing COVID-19 pandemic, the Australian consulates which would usually undertake verification checks of this sort, are closed. Given the unique circumstances, we are instructed to request that this matter be postponed for six months, to allow the Minister to determine when the relevant consulates will again be open to allow the applicant’s documents to be verified, and to inform the Tribunal and applicant of same.
Noting the above, we request that the directions of Conference Registrar … dated 22 May 2020, requiring the Minster to file his SOFIC by 3 July 2020, be vacated, and the matter be listed for a further teleconference in four to six months’ time. We note the matter has not yet been listed for hearing.
The Tribunal does not consider that it is appropriate to wait another six months, as has been requested by the Minister’s representative, to see if the Minister is able to comply with the Tribunal’s Direction dated 28 May 2021. In particular, the Tribunal notes the Minister’s representative was careful to indicate that it may not be possible for the Minister to do so. The Belgrade Post also stated at the end of its email on 9 June 2021 that (emphasis added), “On the back of that request, I will ask if there are any other birth certificates or identity documents for this person, they may oblige and share information with us but they may not”.
In these circumstances, the Tribunal will not press for compliance with its Direction dated 28 May 2021 and considers it appropriate to decide this application based on the evidence that has been put before it by each of the parties to this application.
MR MOLLA’S IDENTITY
The identity documents before the Tribunal contained inconsistencies in respect of:
(a)the spelling of Mr Molla’s first name and, whether he had a middle name, “Shaban”;
(b)the year of birth of Mr Molla; and
(c)the place of birth of Mr Molla.
The Tribunal will consider whether those discrepancies are able to be explained.
Discrepancies as to Mr Molla’s name
In most of the identity documents before the Tribunal, Mr Molla’s full name is given as “Avdi Molla”, and without reference to there being a middle name. In some of the identity documents, Mr Molla’s first name is spelt as “Ardi Molla” and in one of the identity documents, there is a further reference to Mr Molla having a second name “Shaban”. The Tribunal will consider first whether there was there an explanation for those discrepancies in relation to Mr Molla’s first and middle names.
Mr Molla explained that the middle name “Shaban” recorded on one of the documents was his father’s name. The Tribunal is satisfied that Mr Molla’s father’s name is “Shaban” as evidenced in the signed, sealed and numbered (i.e. No.XXX177), Family Certificate, issued on 6 November 2017 by the local registry, stating that Mr Molla’s father is “Shaban Molla” (Family Certificate).[44] The Family Certificate was provided by Mr Molla to the Department. Otherwise, there was no further explanation provided as to why Mr Molla’s second name of “Shaban” was, in most cases, not referenced on his identity documents. While this certainly constitutes a discrepancy, the Tribunal does not consider that it raises any significant doubt as to Mr Molla’s identity. In other words, the Tribunal’s decision in this application does not turn on the presence, or not, of this minor discrepancy.
[44] Refer FST-Documents FST1/32.

Mr Molla’s name was spelt “Ardi” on some earlier identification documents, while others recorded his name with a different spelling, as “Avdi”. Mr Molla sought to explain this discrepancy by asserting that it was a transcription error that occurred when Albanian records were digitised in the 1990’s. In a Departmental case note, Mr Molla was recorded as stating that before 2010, all registrations of births in the villages were done by hand, explaining why mistakes were (sometimes) made and that when the Albanian government changed to entering the information into the computer, Mr Molla’s parents were unaware that his details had been entered incorrectly, such that his name was transcribed (incorrectly) from “Avdi” to “Ardi”. Mr Molla highlighted that by 2010, he had immigrated to and was living in the UK.
The Tribunal notes that in the Municipality Certificate (see paragraph [23]), clarification was provided by the signatory to this certificate that “when registering the names in the system (in National Register of Civil Status) on the year 2009, the name Avdi Molla is transcribed incorrectly from Avdi in Ardi” and when “Correcting this error in National Register of Civil Status from the name Ardi in Avdi is done on 05.04.2010 employee of Civil Status himself”.[45]
[45] Refer FST-Documents FST 1/51.
Subsequently, the Department sought advice from the Belgrade Post about the authenticity of the Municipality Certificate. The Belgrade Post stated it was unable to provide any advice as to whether the Municipality Certificate was authentic or as to its relevance or standing. There was no explanation provided as to why the Belgrade Post was unable to provide any conclusive advice in this regard. The Tribunal is satisfied on the balance of probabilities and in the absence of any evidence submitted by the Minister to challenge the authenticity of the Municipality Certificate, that it stands as compelling evidence in support Mr Molla’s assertion that there was a transcription error made with respect to the spelling of his first name.
Based on the Municipality Certificate, which the Tribunal accepts as an authentic document, the Tribunal finds that a transcription error was made in respect of the spelling of Mr Molla’s first name, which was subsequently corrected on 5 April 2010. The Tribunal is satisfied that this explains the inconsistent spelling of Mr Molla’s first name in some of the identity documents and does not form a sufficient basis upon which to doubt the identity of Mr Molla.
Discrepancy as to Mr Molla’s year of birth
On the basis of the Municipality Certificate, the Tribunal finds that the local registry has acknowledged that there was a mistake made in the registration of Mr Molla’s year of birth on the National Register of Civil Status, in that it was recorded as 1985, when in fact, he was born in 1986. What is not clear from the Municipality Certificate is whether the local registry have taken steps to have this error rectified on the National Registry of Civil Status by altering the year of Mr Molla’s birth from 1985 to 1986, and if so, when such alteration took place. Even so, Mr Molla produced the sealed 2017 Birth Certificate and it was duly signed by a named government official.[46] The 2017 Birth Certificate records Mr Molla’s date of birth as 27 July 1986.
[46] Refer FST-Documents FST1/75 & 76.
The Albanian authorities provided a further birth certificate, unsigned, unsealed and unnumbered, directly to the Department which, on the face of it, was issued on 6 April 2018 (2018 Birth Certificate).[47] The 2018 Birth Certificate recorded Mr Molla’s name as “Avdi Molla” with the date of birth 27 July 1985, and marked his civil status as married.
[47] Refer FST-Documents FST1/101.
The year of birth on the 2017 Birth Certificate is different from the year of birth as recorded on the 2018 Birth Certificate. This raised a concern about whether the 2017 Birth Certificate was a “bogus” document or had been “tampered with” by Mr Molla or alternatively, whether a “wrong doing was done” on the part of the Registrar.[48]
[48] Refer FST-Documents FST1/11.
In November 2018, the Belgrade Post reportedly made official checks with Albanian authorities to confirm whether the 2017 Birth Certificate was genuinely issued by the Rrajce Registry office on 28 January 2017 and to ascertain the biodata, i.e. date of birth, that was recorded on it.[49] The Belgrade Post provided the following advice to the Department:[50]
The submitted birth certificate for use in a foreign country for the subject, Avdi Molla, issued on 28/01/2017 based on the National Civil Status Register of the year 2010 from the civil registry office at the Rrajce Administrative Unit, Prrenjas Municipality, does not contain correct biodata details. The date of birth for the subject should have been 27/07/1985, and not 27/07/1986.
[49] Ibid.
[50] Ibid.
The Belgrade Post does not assert that the 2017 Birth Certificate was not authentic. Nor was any suggestion made by the Belgrade Post, when it had been specifically asked this question, that the 2017 Birth Certificate had been tampered with. The Belgrade Post states that the 2017 Birth Certificate “does not contain correct biodata details”, but it does not explain why. The Belgrade Post states the date of birth should have been 27 July 1985, instead of 27 July 1986, but does not proceed to explain why it should have been recorded as the earlier date.
The 2017 Birth Certificate provided by Mr Molla was numbered and the signatory was also named on the face of the 2017 Birth Certificate. With such identifying information, the Belgrade Post could have sought from the Albanian authorities the original version of this birth certificate (i.e. the original of the 2017 Birth Certificate as held in the relevant registry) or better still, a copy of the “fundamental register” for Mr Molla, and could have provided a copy to the Department, but did not do so. Further, evidence could have been produced to suggest that the Albanian government official who is named and who signed the 2017 Birth Certificate, either does not exist or if she does exist, declares that she did not sign and issue that birth certificate. In the absence of such evidence, the signed, sealed and numbered 2017 Birth Certificate provided to the Department (and this Tribunal) by Mr Molla, is compelling evidence. There is no evidence before the Tribunal to support a finding that those official documents were inauthentic or fraudulently obtained.
In a publication issued by the Immigration and Refugee Board of Canada on 7 February 2014, the Tribunal notes the following information was provided about the Albanian system for issuing birth certificates in Albania:[51]
…
According to the US Reciprocity Schedule, the Office of Civil Status is the issuing authority of the birth certificate, and the person can obtain the certificate by going in person to the Office of Civil Status, presenting an ID and paying the fee (US n.d.). Both sample formats of the birth certificate that are attached to this Response have a place to show the name of the Civil Registry Office [also translated as Office of Civil Status| (Albania 9 Nov. 2011; ibid. 17 May 2012).
In a report on the modernization of Albania's Civil Registration, Statistics Norway reports that, with their assistance, Albania has developed a National Civil Register Database, where the civil status components of Albania's residents are collected and maintained digitally (Norway Apr. 2012, 18). Prior to the establishment of the database, Albania's records were kept in hand written books at over 400 registration offices (ibid.). By the end of 2010, Statistics Norway, with support from the Organization for Security and Cooperation in Europe (OSCE) and the General Directorate of Civil Status, completed an historical digital archive of the registration books, which is accessible by the Civil Status Offices (ibid., 8). The Canadian official noted that:
|a|ll documents can be verified with the central registry in Tirana for authenticity. Birth certificates are issued by Vital Statistics Offices throughout Albania. The network of these offices is connected to the main center server in Tirana, called the National Registrar office which is managed by the General Directorate of Civil Office and falls under Ministry of Interior. (Canada 29 Jan. 2014)
According to the Canadian official, when a person applies for a birth certificate, he or she is issued a new birth certificate based on the original information in the database, instead of a copy of the first birth certificate issued (ibid.). The official noted that an Albanian can "theoretically hold 10 birth certificates if he has applied to 10 different registry offices or ten different times" (ibid.). However, the official explained that in all cases "the information presented on the birth certificates will be identical given that all information comes from the main central registry" (ibid.).
According to the official, a birth certificate costs 100 Lek [approximately C $1.07 (XE7 Feb. 2014)| and is "very easy" to obtain (ibid.). This information could not be corroborated among the sources consulted by the Research Directorate within the lime constraints of this Response.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
[51] This article is entitled “Albania: Birth certificates, including appearance, details of information included; whether the certificate is a standard form used nationally or whether it varies depending on region or city; whether the certificate is used for other official documents; authorities responsible for issuing birth certificates, including any identifying codes that would appear on the certificate”.
This would seem to confirm that it was possible for the 2017 Birth Certificate to have been verified (see section in the above paragraph highlighted in bold). But it was not apparent from the report by the Belgrade Post, that this had occurred or if it did, that this certificate was found to have been tampered with. As mentioned above, the only conclusive statement made by the Belgrade Post was that biodata (year of birth) was incorrect. It is possible that this information may been have been incorrect for a different reason, namely, that the Albanian official from the Municipality of Prrenjas who issued the 2017 Birth Certificate, Ms Hoxta, was satisfied that a transcription error had been made in respect of Mr Molla’s year of birth (as she has stated in the Municipality Certificate) and when she issued the 2017 Birth Certificate, she has recorded the year of birth as 1986, instead of the previously recorded erroneously recorded year of birth of 1985.
From the above article referred to in paragraph [71], Albanian birth certificates are normally expected to contain the same biodata as registered in the central registry. However, the Tribunal is satisfied that the local registry at the Municipality of Prrenjas has, in Mr Molla’s case, recorded a different year of birth for Mr Molla, than that recorded in the central registry, so that the information on the 2017 Birth Certificate aligned with this same official’s subsequent finding that a mistake had been made at the time of transcription of the record in 2010.
On 29 June 2020, the Tribunal granted a lengthy adjournment of the hearing of this application to provide time for the Minister’s representatives to verify those records and to establish whether the purportedly official documents produced by Mr Molla were inauthentic or tampered with. In the absence of any clear evidence to place into doubt the veracity of the signed, numbered and sealed Municipality Certificate and the signed, sealed and numbered 2017 Birth Certificate produced by Mr Molla, the Tribunal accepts those documents and finds that those documents are authentic and have not been tampered with.
In conclusion, the Tribunal is satisfied as to the authenticity of the 2017 Birth Certificate and the Municipality Certificate. The Tribunal has placed less weight on the 2018 Birth Certificate obtained directly by the Department, because it is unnumbered, unsealed and unsigned. The Tribunal does not consider that the discrepancy as to Mr Molla’s year of birth on the different identification documents raises any significant doubt about Mr Molla’s identity. The Tribunal is satisfied that Mr Molla was born in 1986 and the references in some of the documents to a year of birth being 1985 came about due to a transcription error that took place in 2010.
Did Mr Molla, or his family, falsify Mr Molla’s year of birth when immigrating to the UK so he would be treated as a “minor”?
There was a suggestion referred to in email correspondence between the Department and the Belgrade Post, which was produced by the Minister to the Tribunal, that Mr Molla may have fraudulently represented that his year of birth was 1986, instead of 1985, when he immigrated from Albania to the UK, so that he could be added to his sister’s immigration application as a “minor”. Mr Molla adamantly refuted this allegation.
The Tribunal was unable to identify any immigration paperwork before the Tribunal recording the date upon which Mr Molla first arrived in the UK (or any visa applications made permitting such entry). In a Departmental case note dated 9 April 2019 (produced by the Minister), Mr Molla was recorded as having advised the Department that he had immigrated to the UK in September 2002 when he was 16 years old. It was also recorded that Mr Molla said he no longer had a copy of the Albanian identification or passport used to enter the UK, because he “didn’t know where it went” and “didn’t have it anymore”.[52]
[52] Refer FST-Documents FST1/1.
As referred to in paragraph [30], an extract of Mr Molla’s British passport is before the Tribunal, issued in 6 April 2009 and it records his date of birth as being 27 July 1986.
The Minister did not challenge Mr Molla’s assertion that he had immigrated to the UK in September 2002. Mr Molla asserts that the suggestion that he had misrepresented his year of birth, when immigrating to the UK, could not be true because at the time he immigrated to the UK, i.e. in September 2002, UK law provided that a “minor” was a person under the age of 18 years. Mr Molla contended that as at September 2002, even if he applied for entry with his date of birth being 27 July 1985, that would make him 17 years old at time and therefore, still a “minor”. Mr Molla claimed this meant there was no reason why he would have needed to misrepresent his year of birth. The Minister’s representative did not challenge this contention, for instance, by referring to another reason why Mr Molla may have needed to misrepresent his year of birth or by questioning the accuracy of the assertions made by Mr Molla about the relevant UK laws defining who is considered to be a “minor”.
Based on the evidence before it, the Tribunal is not satisfied that Mr Molla, or any of his family members on his behalf, had falsified Mr Molla’s year of birth by changing it from 1985 to 1986 when he immigrated to the UK for the reason of being treated as a “minor”. As Mr Molla pointed out, the information before the Tribunal indicates that even if Mr Molla applied for immigration with the date of birth, 27 July 1985, he would have been 17 years old as at September 2002 and according to UK law, still a “minor”.
Further evidence produced as to Mr Molla’s identity in the form of schooling certificates from Albania and a declaration from his former teacher
Mr Molla produced a “Certificate” and “Grades Certificate” issued on 7 May 2020 by the Unit High School, “Sali Halili” Rrajce, Local Office Education Prrenjas, Regional Directorate of Pre-University Education Korce, Ministry of Education, Sport and of Youth, Republic of Albania, numbered 1174/1 (School Certificates).[53] This School Certificates both certify as follows:
We hereby certify that AVDI SHABAN MOLLA, with the matriculate no.39/17, born on 27.07.1986 in Rrajce-Sutaj, Municipality of Prrenjas, has finished the eighth(sic) grade school in the year school 2000-2001, part time.
The first, sixth and seventh grade had finished full time, the eight(sic) grade has finished part time.
Number of particular register: 118/2.
We issued this certificate for document effect.
…
[53] Refer Bundle of Documents on page 51 for original version of the Grades Certificate attaching sealed and stamped photograph of a person whose image resembles Mr Molla’s at a younger age and page 54 which is the certified English translation of this certificate.
On the “Grades Certificates”, a table detailing the individual grades is recorded for sixteen subjects. The School Certificates are numbered, sealed and signed by Secretary, Flutura Torra, V/Director, Sonila Tarushi, and Director, Vait Allidri.
Further, Mr Molla also produced to the Tribunal an individual statement dated 8 May 2020 declared and signed by Teacher, Vait Allidri (Allidri Statement).[54] In the Allidri Statement, Mr Allidri declares that he is a resident of the village Rrajce of Librazhd district and a teacher of the high school Mr Molla attended from 1986 onwards. Mr Allidri declares that Mr Molla was his student in the school year 1995-1996 and 1999-2000 and from the school documentation, he was registered with the name, “Avdi Shaban Molla”.
[54] Refer Bundle of Documents on pages 53 (copy of original declaration) and 56 (certified English translation).
Discrepancy as to Mr Molla’s place of birth
Mr Molla’s place of birth has been described in different ways as referred to above.
Mr Molla has consistently asserted that he was born “in the area of the Bushtrica railway bridge near her home and village of Sutaj, Librazhd, now municipality of Prrenjas and county of Elbasan“.[55] Mr Molla provided a map to the Tribunal, which was not challenged by the Minister, showing that the “Ura e Bushtrices” is located on the border of the Librazhd and Prrenjas Provinces which is consistent with Mr Molla’s assertion above. The place of birth of Mr Molla was also confirmed in the witness statement provided by his family members. Those witness statements were not challenged by the Minister.
[55] Refer paragraph [38] of these Reasons for Decision.
Despite some documents being more specific about the exact place of birth of Mr Molla than others, the Tribunal finds that the recorded information about Mr Molla’s place of birth was consistent. The differences in specificity about the exact place of Mr Molla’s birth does not give rise to a doubt, in the opinion of the Tribunal, as to Mr Molla’s identity.
Is the Tribunal satisfied as to Mr Molla’s identity?
The Tribunal is satisfied as to Mr Molla’s identity based on the following evidence:
(a)the consistent and undisputed accounts given of Mr Molla’s life story including where he lived at different stages of his life, his education, and his employment history;
(b)the School Certificates referred to in paragraph [81] constituting undisputed evidence of the operation of the Applicant under the identity of “Avdi Molla”, importantly, before the date of his arrival in Australia;
(c)the Allidri Statement referred to in paragraph [83] constituting undisputed declarations given by one of Mr Molla’s Albanian school teachers that Mr Molla was one of his students in the school years 1995-1996 and 1999-2000, albeit under his name which incorporated his father’s name as a middle name, “Avdi Shaban Molla”;
(d)the witness statements provided by four of Mr Molla’s family members, namely, his father, mother, uncle and brother, as set out in paragraph [25]. This evidence was not challenged in any substantive way by the Minister and further supports the identity of Mr Molla and confirms Mr Molla’s claims in relation to where and when he was born;
(e)the Municipality Certificate and 2017 Birth Certificate. The Minister’s position is that the Tribunal should not accept the authenticity of those documents. However, as mentioned above, the evidence presented by the Minister to the Tribunal about this did not, in the opinion of the Tribunal, raise any proper basis upon which the Minister could objectively and fairly challenge the authenticity of those documents. The Minister made some initial inquiries with the Belgrade Post as outlined in paragraph [68] and was informed that the biodata was incorrect but was not told why it was incorrect. There was no indication made that the documents were not authentic, despite that question having been asked of the Belgrade Post. Those checks could have been made over the lengthy period that had passed since Mr Molla submitted those official documents to the Department. A check could have been made, at the very least, as to whether the officials who were signatories to the official documents produced by Mr Molla existed and signed off on those documents or to obtain the “fundamental register” if further clarification was required by the Department;
(f)other documents evidencing a history after the date of his arrival in Australia of the Applicant operating under the identity of “Avdi Molla” with the date of birth of 27 July 1986 including his Australian driver’s licence, marriage certificate, and the trade or vocational certificates issued to Mr Molla during his residence in Australia;[56]
(g)the absence of any evidence indicating that other persons in Australia or elsewhere, have also claimed an identity under the name “Avdi Molla” with the date of birth 27 July 1986 or 27 July 1985;
(h)the comparisons that were able to be made of the photographs of facial images of Mr Molla in his UK passport and the earlier school documents referred to in paragraph [35];[57] and
(i)while there are inconsistencies in the information provided to the Department about Mr Molla’s name and his year and place of birth, the Tribunal considers that there are explanations for those discrepancies for the reasons outlined above at paragraphs [59] to [75]. In the case of the discrepancies regarding his first and middle name and the exact place of birth, the Tribunal considers that these are minor inconsistencies that are not enough to prevent the Tribunal being satisfied as to Mr Molla’s identity.
[56] Refer ST-Documents ST1/18.
[57] Refer Bundle of Documents on pages 1 and 2 to 9.
CONCLUSION

The Tribunal is satisfied as to Mr Molla’s identity. Accordingly, the Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that no prohibition applies to Mr Molla under s 24(3) of the Act in respect of his application for Australian citizenship by conferral.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

....[sgd]......................
Associate
Dated: 4 August 2021

Date of hearing:

15 February 2021

Advocate for the Applicant:

Advocate for the Respondent:

Self-represented

Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers