Morris and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 2463

Morris and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2463 (3 August 2022)

AppID:  Morris and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType:  Citizenship

Division:GENERAL DIVISION

File Number:          2021/3041

Re:Kweeta Morris

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Barton

Date:3 August 2022

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 14 April 2021 which refused a grant of Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.

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

Member S Barton

CATCHWORDS

CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether Tribunal satisfied of Applicant’s identity – insufficient evidence regarding the identity of the Applicant – lack of documents – inconsistencies in the Applicant’s life story – Reviewable Decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21(1), 24, 24(1), 24(3), 52(1)(b)

CASES

CDNB and Minister for Immigration and Border Protection [2018] AATA 757

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729

SECONDARY MATERIALS

Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2022) – paras 4, 5, 12

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) – Sub cl 19D(4)

REASONS FOR DECISION

Member S Barton

3 August 2022

INTRODUCTION

1. The Applicant seeks review of a decision of a delegate of the Respondent dated 14 April 2021 to refuse the Applicant's application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The delegate refused the application on the basis that the Applicant did not meet the requirement under s 24(3) of the Citizenship Act at the time of the decision.

   BACKGROUND

2. The Applicant was born in Liberia and arrived in Australia on 2 May 2007 as the holder of a Global Special Humanitarian (Subclass 202) visa (T4/36; T9/115).

3. On 15 May 2018, the Applicant applied for Australian citizenship by conferral.

4. On 14 April 2021, the Department of Home Affairs (the Department) refused the conferral of citizenship in accordance with s 24(3) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity. This is the Reviewable Decision before the Tribunal.

5. On 11 May 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.

   JURISDICTION

6. The application for review was made in accordance with s 52(1)(b) of the Citizenship Act which allows the Tribunal to review decisions made under s 24 of the Citizenship Act. The Tribunal is satisfied that it has jurisdiction to hear this application.

   ISSUE

7. The issue to be determined is whether the Tribunal is satisfied of the Applicant's identity for the purposes of s 24(3) of the Citizenship Act.

   MATERIAL BEFORE THE TRIBUNAL

8. The hearing took place on Monday 27 June 2022. The Applicant was self-represented and the Respondent was represented by Mr Chris West of Sparke Helmore Lawyers.

9. The Applicant gave oral evidence and was cross-examined. The Respondent made oral submissions.

10. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Copy of the Applicant’s birth certificate, issued by the Republic of Liberia’s Ministry of Health and Social Welfare, filed 27 October 2021, date of issue unknown (Exhibit A1);  

    (b)Section 37 T-Documents, labelled T1-T22, consisting of pages 1-152, filed 16 June 2021 (Exhibit R1);

    (c)Supplementary T-Documents, labelled ST1, consisting of pages 1-26, filed 17 January 2022 (Exhibit R2); and

    (d)Respondent’s Statement of Facts, Issues and Contentions, dated 17 January 2022 (Exhibit R3).

    RELEVANT LEGAL PRINCIPLES

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

    Identity

12. Section 24(3) of the Citizenship Act states that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”.

13. As indicated by the wording of s 24(3) of the Citizenship Act, there is no discretion available to either the Minister, or any other decision-maker, to grant citizenship unless that decision-maker is satisfied of the identity of the Applicant. In the absence of that satisfaction, the application must be refused.

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

    There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.

    (Emphasis added.)

15. The issue of identity is also addressed by the Citizenship Procedural Instructions (CPIs). ‘CPI 16 – Assessing Identity under the Citizenship Act’ (CPI16). At [4], CPI16 states:

    A person’s identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.

    The Department is moving from transaction-centred to person-centred processes using biometrics (for example, using a facial image to identify a person rather than requiring them to provide a range of documents at each interaction)…

    Identities need to be trusted and secure. The Department establishes identity records that are relied upon by Commonwealth, state and territory agencies, the judicial system, across international borders and in the private sector. Trusted and secure identities create opportunities for innovation, productivity and economic stimulation. Robust identity confirmation is the basis of a trusted and secured identity.

    In the context of the Department’s functions, identity integrity is essential in maintaining Australia’s national security, law enforcement, and economic and social interests.  

16. CPI16 at [5] identifies three pillars of identity: biometric, documents and life story. It states:  

    Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.

    The level of risk associated with the service being applied for determines the type of evidence required to assess a person’s life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person’s identity.

17. CPI16 provides some guidance as to the meaning of being “satisfied of a person’s identity” at [12]:

    Reaching the point where a delegate is satisfied, or not satisfied, of a person’s identity as required by the identity provisions is a process of exercising informed judgement. It must reflect a process of reasoning where the delegate has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.

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

    Delegates must not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.

    Evidence is used to satisfy delegates that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.

18. As established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal will ordinarily apply a relevant ministerial policy, unless there are cogent reasons not to do so. In Drake, Brennan J explained the importance of applying policy to guide decision making at page 640:

    Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

19. Identity cannot be taken lightly, each case must be considered on its individual merits, with due regard to the relevant factors and impediments to obtaining documents related to identity in each individual case.

20. In determining whether the Tribunal is satisfied of the Applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not or are not, to use Deputy President Nicholson’s words in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 (Dhayakpa) at [117], “established or undisturbed”. In such places, the issuing of official documentation may be hampered by conflict, civil strife, or weak bureaucratic and administrative structures.

21. CPI16 [4.1] states:

    While most citizenship applicants are likely to be well documented, some humanitarian entrant citizenship applicants may not be. Humanitarian and protection visa holders may have fled their homeland as a result of persecution or substantial discrimination, and/or have been displaced long-term in third countries prior to arrival in Australia…

    It is still appropriate to rely on the three pillars in assessing identity for these applicants. Under the document pillar, however, it may be appropriate to take the permanent visa grant as the starting point of the identity assessment and consider Australian issued primary identify documents (for example PLO56, Document for Travel to Australia (DFTTA) or ImmiCards) giving significant weight, in the absence of contrary evidence, to these documents and continuity of identity from the point of issuance until the present.

22. While having due regard for CPI16 [4.1], the Tribunal is also guided by the approach taken by Member Kennedy in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 (CDNB) at [9], who states:

    [p]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants.

23. A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker may refuse a grant of citizenship where they are not satisfied of the applicant’s identity.

    EVIDENCE

24. In her application for the conferral of Australian citizenship lodged on 15 May 2018, the Applicant provided the following supporting documents to address proof of identity requirements (T4/36-39):

    (a)Document for travel to Australia, with an arrival date of 2 May 2007;

    (b)Western Australian birth certificate of the Applicant’s daughter, listing the Applicant’s place of birth as Flehla, Liberia;

    (c)Western Australian birth certificate of the Applicant’s son, listing the Applicant’s place of birth as Flehla, Liberia;

    (d)Western Australian driver’s licence; and

    (e)Working with Children Check card.

25. The Applicant has also provided the Tribunal with a birth certificate, purporting to be issued by the Republic of Liberia’s Ministry of Health and Social Welfare (A1). There is no date on the document and the document includes a passport sized photo of the Applicant as an adult. The place of birth is listed as Yekepa, Nimba County, rather than Flehla as detailed in her daughter’s and son’s birth certificates above, or ‘Felelah’, as it is spelt in her application for an Offshore Humanitarian visa, dated 4 August 2005 (R2/1).

    CONSIDERATION

26. Of the three pillars used when assessing identity (biometric, documents and life story), only documents and life story are before the Tribunal.

27. The Applicant has provided her Document for travel to Australia, dated 2 May 2007 (T4/36). She has also provided a birth certificate, reportedly issued by the Republic of Liberia’s Ministry of Health and Social Welfare (A1). This certificate lists her town of birth as Yekepa, which is also the town of birth identified in her Form 80 (T7/57). Elsewhere, she identified her town of birth as Flehla (T4, 37-38 & R2/1). During the hearing the Applicant stated she was born in Flehla.

28. This introduces a degree of confusion as to the veracity of her birth certificate and the other information provided.

29. CPI16 [4.1] as detailed above at [21], states that it may be appropriate to assess identity from the point of a permanent visa grant and consider Australian issued primary identity documents.

30. However, the Tribunal contends it would be inappropriate to do so in this matter given the inconsistencies identified. 

31. The Applicant has provided a number of documents that she has acquired since her arrival in Australia, they include a Western Australian birth certificate for her son and daughter (T4/37-38), a Western Australian driver’s licence (T4/39) and a Working with Children Check card (T4/39).

32. Limited weight can be placed on the documents that the Applicant has been issued since her arrival in Australia. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into her identity. As Deputy President Boyle noted in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [48], such documents are of little value in the exercise of ascertaining an individual’s identity as they, “are simply evidence of who the Applicant says [he or she] is, not of who [he or she] is”.

33. The documentary record for the Applicant is silent from the point of her birth until 2 May 2007, save a ‘carte d’assistance pour refugies’ issued by the United Nations High Commissioner for Refugees (UNHCR) on 7 December 1998. There is no evidence before the Tribunal of any efforts or inquiries that the Applicant has made to source documents, such as baptismal or school certificates and additional refugee documentation, that may assist in establishing her identity.

34. The Tribunal accepts that given the civil disruption and war that occurred in Liberia and surrounding areas, it may prove challenging to find a coherent and comprehensive documentary record of her life, typical for someone of her age born in an "established or undisturbed" society such as Australia. While the Tribunal is mindful of the policy in CPI16 [4.1] detailed above, inquiries could be made to the relevant authorities (be they Liberian, Guinea or refugee agencies) for documents and records, noting the Applicant has family in Liberia that may reasonably assist with these endeavours.

35. In terms of the Applicant’s life story, there is very little information before the Tribunal. There is her account provided in her application for a humanitarian visa. However, this is uncorroborated, and the Applicant has not provided any additional information regarding her life before her arrival in Australia.

36. Additionally, there are several inconsistencies, beyond the confusion regarding her place of birth. In her application for an Offshore Humanitarian visa, the Applicant lists her mother’s and her father’s name, and some 15 siblings (R2/6). In her Form 80, the Applicant does not record her father and lists a sister that was not included in her visa application, and does not mention her other brothers and sisters (T7/67-68).

37. During the hearing, the Applicant did not appear to appreciate the importance of completing official documents accurately and with all the necessary detail.

38. There is a paucity of information regarding the Applicant’s life story and in these circumstances, the Tribunal cannot be satisfied of the Applicant’s identity.        

    CONCLUSION

39. It is clear that the Applicant’s identity cannot be ascertained satisfactorily. There is a significant lack of documents, or evidence of efforts to obtain them, and her life story, that which is known, is marked by several inconsistencies.

40. The Tribunal notes that the circumstances of the Applicant’s childhood create significant challenges in establishing an unbroken chain to primary identity documents. However, there are avenues open to the Applicant that have not yet been pursued should she apply for Australian citizenship again, which she is free to do.

    DECISION

41. The Reviewable Decision, being the decision of a delegate of the Respondent dated 14 April 2021 which refused a grant of Australian citizenship under s 24(1) of the Citizenship Act, is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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

Associate

Dated: 3 August 2022

Date of hearing:	27 June 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Chris West, Sparke Helmore Lawyers