Oze-Igiehon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3982

Oze-Igiehon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3982 (27 October 2021)

Division:GENERAL DIVISION

File Number:          2019/8712

Re:Mike Oze-Igiehon

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Barton

Date:27 October 2021

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 December 2019 to refuse the Applicant’s Australian citizenship by conferral 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 – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity and good character – three pillars of identity – inconsistencies in Applicant’s date of birth in documentation submitted to the Department – unlawful non-citizen between 2010 and 2012 – Tribunal satisfied of the Applicant’s identity – Tribunal not satisfied of the Applicant’s good character – Reviewable Decision affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 24(3), 52(1)(b)
Migration Act 1958 (Cth) – s 417

CASES
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Fofana and Minister for Home Affairs [2019] AATA 4082
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR 422
Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3527
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979)2 ALD 634
WZANW v Minister for Immigration & Anor [2009] FMCA 1075

SECONDARY MATERIALS

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

Department of Foreign Affairs and Trade, Country Information Report, Nigeria (3 December 2020)

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

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

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

REASONS FOR DECISION

Member S Barton

27 October 2021

INRODUCTION

1. The Applicant seeks review of a decision of a delegate of the Respondent dated 3 December 2019 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 requirements under s 21(2)(h) and s 24(3) of the Citizenship Act at the time of the decision.

   BACKGROUND

2. The Applicant, a Nigerian citizen, first arrived in Australia on 1 December 2008, as the holder of a Class TR Subclass 676 Tourist visa, which was issued to him in Singapore (T2/5). On 11 December 2008, the Applicant sought a Class XA Subclass 866 Protection (Permanent) visa (protection visa).

3. At that time, the Applicant was married to a Malaysian national, who was a permanent resident of Singapore, and with whom he had a child on 7 October 2008. The Applicant and his family had been living in Singapore.

4. In his application for the protection visa, the Applicant claimed to be at risk due to association with a Nigerian dissident group and that he may be arrested by Nigerian government authorities for his prior activities with said group. It is noted that the Applicant applied for permanent residency in Singapore on the basis of his marriage to a permanent resident of Singapore, at the time. This application was refused, which the Applicant claims was due to his ethnicity and nationality (R4/3).

5. On 24 February 2009, the Applicant’s application for a protection visa was refused on effective state protection grounds, the delegate having found that the Applicant had the ability to reside and enter a safe third country, namely Singapore, on his “Visit Pass” (Long Term) visa. Moreover, the delegate was not satisfied there had been discrimination amounting to persecution on the part of the Singaporean authorities in refusing his application for permanent residency.

6. On 9 March 2009, the Applicant sought a review of this decision in the Refugee Review Tribunal (RRT). On 11 June 2009, the RRT affirmed the decision refusing to grant the protection visa. While the RRT found the Applicant no longer had the right to enter or reside in Singapore, it also found that the Applicant did not have a well-founded fear of being persecuted in Nigeria. 

7. On 9 September 2009, the Applicant sought judicial review of the RRT’s decision in the Federal Magistrates Court, however his application was lodged outside the prescribed time limit and an extension of time was refused.

8. The Applicant twice unsuccessfully sought Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (Migration Act). The Applicant was granted a series of bridging visas in association with his application for a protection visa, the last of which ceased on 19 April 2010. Consequently, on 20 April 2021 the Applicant became an unlawful non-citizen within the meaning of ss 14(1) of the Migration Act. On 28 April 2010, the Applicant was advised that his bridging visa had expired, and he was to leave the country. The same day he was granted a further bridging visa, expiring on 7 May 2010.

9. The Applicant did not leave the country and from 8 May 2010, he was an unlawful non-citizen. The Department sought to contact the Applicant, by calling and sending a text message, directing him to the Perth offices. The Applicant did not respond.

10. On 29 October 2010, the Applicant’s marriage was dissolved, with the divorce made final on 25 February 2011 by the Subordinate Courts of the Republic of Singapore (R3/912).

11. On 21 May 2012, the Applicant wrote to the Minister seeking invention under s 417 of the Migration Act, based on a significant change of circumstances, namely that he was in a relationship with an Australian citizen, with whom he had one child born on 25 April 2012 (R3/908).

12. On 22 May 2012, the Department wrote to the Applicant advising that the Minister did not wish to consider cases where it may be open to the Applicant to make an application for a partner visa and that it was open to him to make such an application (R3/914).

13. On 24 May 2012, the Applicant applied for a Class BS Subclass 801 Partner (permanent) visa (partner visa). The Applicant was granted a series of bridging visas, on the condition that he did not work or study before being granted a partner visa on 8 September 2014.

14. On 2 June 2016, the Applicant applied for conferral of Australian citizenship (T10/134). On 3 December 2019, the application for Australian citizenship by conferral was refused. A delegate of the Minister was not satisfied the Applicant was of good character and could not be satisfied of his identity (T2/4-14). This is the Reviewable Decision before the Tribunal.

    JURISDICTION

15. 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

16. The issues to be determined are whether the Tribunal is satisfied of the Applicant’s identity and that the Applicant is of good character for the purposes of ss 21(2)(h) and s 24(3) of the Citizenship Act.

    THE HEARING AND THE EVIDENCE

17. The hearing was held on 26 August 2021 at the Tribunal Registry in Perth. The Applicant was represented by Mr C Ogbonna, a registered migration agent. The Respondent was represented by Mr J Papalia. The Applicant and Mr Papalia appeared in person, and Mr Ogbonna appeared by videoconference from Ethiopia.

18. At the hearing, the Applicant made submissions via his representative, gave evidence, and was cross-examined.

19. The Tribunal admitted the following documents into evidence:

    ·Applicant's Submissions dated 26 February 2021, with attachments A-F (Exhibit A1):

    (A)  Emails between the Applicant's representative and Respondent's representative dated 30 October 2020;

    (B)  Statutory declaration of Nosasu Von Donald dated 22 February 2021, DNA report, Australian citizenship certificate and passport photograph;

    (C)  National Police Certificate dated 15 December 2020;

    (D)  Letter from Owina Primary School dated 10 July 2020;

    (E)  Email from Department of Immigration and Citizenship dated 3 August 2012;

    (F)  Photograph of Perth Airport staff card;

    ·Email between the Department of Foreign Affairs and Trade and the Applicant dated 3 April 2009, with attachments (Exhibit A2);

    ·Section 37 T-Documents, T1-T72, consisting of pages 1-559 (Exhibit R1);

    ·Unredacted section 37 T-Documents (Exhibit R2);

    ·Supplementary section 37 T-Documents, ST1-ST8, consisting of pages 560-934 (Exhibit R3); and

    ·Respondent's Statement of Facts, Issues and Contentions dated 15 April 2021 (Exhibit R4).

    RELEVANT LEGISLATION AND POLICY

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

    Identity

21. 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”.

22. 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.

23. 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.)

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

    
    

    (1 June 2016) at page 148:

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

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

25. ‘Chapter 13 – Identity’ of the Citizenship Policy provides that ‘the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016)’ (the Guidelines). The Guidelines were published with the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach.

26. Paragraph 2.1.1 of the Guidelines provides:

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.

27. On 1 January 2019, the Department of Home Affairs published the Revised Citizenship Procedural Instructions (CPIs). ‘CPI 16 – Assessing Identity under the Citizenship Act’ (CPI16) at [4.4] identifies three pillars of identity: biometric, documents and life story. It also states:

    Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.

28. CPI16 provides some guidance as to the meaning of being “satisfied of a person’s identity” at [4.16]:

    Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
    
    Put another way, for a decision-maker to be ‘satisfied’ the decision-maker 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 decision-maker 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 decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
    
    Officers should 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 decision-makers 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.

29. 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 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.

30. 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.

31. 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.

32. As such, the Tribunal recognises that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.

33. In considering the issues that arise in this application, the Tribunal is 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.

34. 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.

    Character

35. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act, as follows:

    (2)   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a)is aged 18 or over at the time the person made the application; and

    (b)is a permanent resident:

    (i) at the time the person made the application; and

    (ii) at the time of the Minister’s decision on the application; and

    (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)understands the nature of an application under subsection (1); and

    (e)possesses a basic knowledge of the English language; and

    (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

    (h)is of good character at the time of the Minister’s decision on the application.

    (Emphasis added.)

36. Good character is not defined in the Act. As with the matter of identity discussed above, the Tribunal is guided by the relevant CPIs, namely ‘CPI 15 – Assessing Good Character under the Citizenship Act’ (CPI15).

37. Paragraph 3.1 of CPI15 states:

    Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.

    This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:

    ·consider any character issues that arise on the facts of a case;

    ·consider all relevant information;

    ·guard against bias;

    ·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

    ·be mindful that a person who may not have been of good character can become a person of good character;

    ·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

38. Relevantly, paragraph 3.3 of CPI15 states:

    The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) FCA 663; 68 FCR 422; at 431-432):

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

    The phrase ‘enduring moral qualities’ encompasses the following concepts:

    ·     characteristics which have endured over a long period of time;

    ·     distinguishing right from wrong; and

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

    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

    A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

    Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

    For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

1. Paragraph 4 of CPI15 provides details a list of characteristics that may be expected from someone of good character, it states:

   As a general proposition, a person who is of good character would:

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

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

   ·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

   ·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …

   ointentionally providing false personal information …

   …

   Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

   It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

2. Also of relevance in this matter is paragraph 6, which states:

   The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.

   CONSIDERATION

   Identity

3. On 2 June 2016, the Applicant applied for Australian citizenship. Attached to his application were certified true copies of several documents to establish his identity, they included the following:

   (a)A Nigerian ‘Attestation of Birth’, recording his date of birth as 4 April 1976, dated 30 March 2016 (T10/145);

   (b)A passport issued by the Federal Republic of Nigeria, recording his date of birth as 14 April 1976 (T10/147);

   (c)An ‘Affidavit of Age Declaration’, sworn by the Applicant’s mother in Benin City, Nigeria on 30 March 2016, recording his date of birth as 4 April 1976 (T10/148); and

   (d)A number of Australian documents issued to the Applicant after his arrival in Australia, for example, his driver’s licence and Medicare card. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into his identity (T10/149-151).

4. On 12 December 2016, the Department wrote to the Applicant, requesting a full birth certificate, hospital or maternity clinic record of birth, school certificates or any other proof of identity documents issued in Nigeria (T11/159). In its request, the Department also drew attention to the discrepancy in the dates of birth on the documents he provided.

5. The Applicant responded that day, providing certified true copies of a Nigerian driver’s licence, senior school certificate from the West African Examinations Council and a new ‘Attestation of Birth’ and ‘Statutory Declaration of Age’, recording his date of birth as 14 April 1976 (T13/164-169; T14/172-173).

6. In an accompanying letter, the Applicant explained the discrepancies in his date of birth as follows (T13/164):

   I wish to apologise for the inconviniences, it was my mother that assisted me to prepare the documents in nigeria. It is so unfortunate i did not notice the missing Digit (1) before submitting it to the Department for Application of Citizenship.

   (Original spelling retained.)

7. On 8 May 2017, the Applicant wrote to the Department requesting an “urgent citizenship ceremony”, as he wished to travel to Singapore for an event at his son’s school. His Nigerian passport was due to expire in July 2017, and to enter Singapore his passport could not be due to expire within six months (T16/175). The Applicant also attached a certified copy of a Nigerian Police Character Certificate issued on 10 June 2013 (T16/179).

8. [Paragraph redacted.]

9. The Applicant attended a citizenship interview on 31 May 2018, bringing with him further documents to support his identity (T31).

10. On 6 June 2018, the Department wrote to the Applicant advising that material he provided had been referred to a forensic document examiner (T43/403-404). [Sentenced redacted.]

11. [Sentence redacted.] This document had been provided by the Applicant on 11 December 2008 when he lodged the application for a protection visa (R3/599).

12. The National Population Commission of Nigeria advised an agent of the Commonwealth that (T52/450):

    The said document [birth certificate] had been checked and there was no record of the certificate being issued by the National Population Commission, which implies that it was not issued from any of our registration centres in Ikeja Local Government Area and any of the registration centres in Lagos State.

    This implies that you are a victim of a tout.

13. On 1 October 2019, the Department sent the Applicant a letter inviting him to comment on adverse information (T70). The Department advised the Applicant that the birth certificate was found to be non-genuine and that (T70/498):

    Chapter 11 of Citizenship Policy describes that a person of good character would be honest, be truthful and not practice deception or fraud in their dealings with the Australian Government …

14. The Department also invited the Applicant to provide a comment or explanation as to why he originally provided the Attestation of Birth certificates and not a birth certificate to support his citizenship application (T70/499).

15. On 4 November 2019, the Applicant responded through his migration agent, Mr Ogbonna, rejecting the assertion that the birth certificate was non-genuine (T71/509), stating that:

    The said document [the birth certificate] is not bogus as the Department was advised …

    My client’s name, sex date of birth, place of birth, parents’ names, places of issue are factual and correct and there is no reason he would have falsify the document. (Original spelling retained.)

16. During the hearing, when asked about the birth certificate, the Applicant stated (transcript/ 21):

    This same document is what I used in Malaysia, what I used in Singapore to apply for long-term (indistinct). Singapore Immigration verified this document as of then when I applied. When I applied for permanent residency in Singapore, three times, this same document was used to verify me as well in Nigeria. Now, with regard of it not – you know, saying that it’s a counterfeit document, I do not know. What all I know is that in Nigeria when you apply for documents, you use what they call agents and I’m aware there’s a letter in your file, I don’t know what number it is, from the census office manager that says that touting is a problem in Nigeria. That the tout, they love touts, people pull up agents in front of those type of premises and they say, if you pay them a fee, they will help you process a document to avoid your waiting time. I’m also aware, from vivid memory, that I think that’s where one of my siblings got that document from, probably or maybe. It was that document that I used to get admission into the Polytechnic initially. Yes, so I think they must have got it (indistinct) or something, I don’t know why, maybe they didn’t record it properly or – I think that answers the question why, yes.

17. When his attention was drawn to the correspondence from the National Population Commission of Nigeria, that he may have been victim of a tout, the Applicant stated (transcript/22):

    May have been, yes. Yes. Most likely. It’s a problem in Nigeria, that’s what I’m trying to say. The agents – in Nigeria – when we get those documents we usually use what they call agents, they usually have small offices around the premises, they have typewriters and everything, and then you go to them and then you – my – Mr Celestine [the Applicant’s migration agent] confirmed this happens in Nigeria, agents that usually do these things for you, you pay a fee and then they type all this – it was those agents that did that document for my mum as well, she went to one of those agents as well and paid, and they did it, did everything, she went to swear, signed, and then yes, so that’s how they try to do it in Nigeria.

18. The Tribunal notes that, according to the Applicant’s account, the process involved in receiving the birth certificate and the subsequent Attestation of Birth are the same.

19. In his 4 November 2019 response to the Department, the Applicant’s migration agent, Mr Ogbonna further stated that (T71/511):

    … my client is whom he claims to be and has been consistent in both his oral statement and other evidence presented to the Department. There is nothing to suggest any wrongdoing on his part, in the way of a falsified birth certificate or deliberate misleading statement to the Department in his migration and citizenship application or dealing with agencies or organisations.

20. With respect to the provision of the Attestation of Birth certificates to support his application, with his birth certificate only being provided later, Mr Ogbonna drew the Tribunal’s attention to information produced by the Canadian Immigration and Refugee Board, regarding the process and requirements behind the issuing of the relevant certificates by the Nigerian authorities (T71/513).

21. The information suggested that only individuals under the age of 18 can obtain a birth certificate, those over that age may obtain an attestation letter. Mr Ogbonna stated that this is consistent with the Applicant receiving a birth certificate in 1992 (being around 16 years old at the time), and in response to later requests for documentation, when he was 40 years of age, the Attestation of Birth certificates (T71/513-514).    

22. As stated above, the delegate of the Minister made a decision to refuse the Applicant Australian citizenship, in part, because his identity could not be satisfactorily established. 

23. In February 2021, the Applicant’s brother, an Australian citizen, provided a statutory declaration that the Applicant was his brother, attaching a DNA test supporting that statement (A1/31-35).

24. The Minister contends that (R4/17):

    Whilst the non-genuine birth certificate and the birth attestation “mistake” are of concern, the balance of evidence tends to confirm the applicant’s identity to the requisite standard, particularly the evidence of the applicant’s brother, which is supported by DNA testing.

25. The Tribunal notes the concerns regarding the authenticity of the birth certificate and the original error in the birth attestations. [Sentence redacted.] Indeed, the 2020 Department of Foreign Affairs and Trade Country Information Report on Nigeria records that (p 61):

    In-country sources report numerous business operations exist in Nigeria from which it is neither difficult nor expensive to obtain a fraudulent driver’s licence or other documents that can be used to obtain a genuine passport (such as marriage certificates, birth certificates, age declarations, and letters of identification from local government). Corruption at local NIS [Nigerian Immigration Service] offices may also enable the fraudulent production of genuine passports.

26. Nevertheless, these concerns notwithstanding, the accumulated genuine documentation, the Applicant’s brother’s DNA test and the Applicant’s written and oral submissions enable the Tribunal to be positively satisfied as to his identity.

    Good character

27. The Minister has submitted that there are two concerns with respect to the Applicant’s character, namely the provision of the bogus birth certificate, provided in December 2008, and his unlawful stay in Australia between 2010 and 2012 (R4/17). I will address the two concerns in turn, starting with the birth certificate.

28. As detailed above, Paragraph 4 of the CPI15, details a list of characteristics that may be expected from someone of good character, including to ‘not practise deception or fraud in dealings with the Australian Government, or other organisations, for example… intentionally providing false personal information…’.

29. In relation to the bogus identity document, the Minister drew the Tribunal’s attention to Fofana and Minister for Home Affairs [2019] AATA 4082 (Fofana). In this matter, Senior Member Fairall and Member Evans, conclude at [58]:

    Fundamentally, the applicant is asking the Tribunal to accept that she may provide a false identity document to support her application for Australian citizenship and still meet the “good character” requirement of the Act. Having regard for the totality of the applicant’s circumstances, the Policy and an objective view of the established facts, we are not persuaded this is an appropriate outcome.

30. The Applicant in that matter, Ms Fofana, was a Liberian citizen and engaged a family friend in Liberia to procure a Liberian passport for her, which was subsequently found to be bogus. Ms Fofana did not dispute that the passport was bogus, rather that she was not aware that it was bogus at the time she submitted it to support her application for Australian citizenship (Fofana at [35]).

31. Senior Member Fairall and Member Evans cite Senior Member Puplick in Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 (Nguyen), when he made the following observation at [82-84]:

    Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.

    Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.

    Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.

32. Guided by the authority in Nguyen, Senior Member Fairall and Member Evans found in Fofana at [59-61]:

    … Ms Fofana was imprudent and reckless in seeking to procure a passport in the manner in which she did. The Policy states that the applicant’s “behaviour is a manifestation of their essential characteristics”, and in this instance the essential characteristic manifested was injudiciousness.

    By choosing to secure a passport through a distant contact, without adequate oversight and in breach of established and well accepted expectations in managing these matters, Ms Fofana did not demonstrate an ability to distinguish right from wrong. Taking expedient “short-cuts” when dealing with identity documents is not in keeping with community expectations, particularly when the outcome is a bogus document being presented as proof of identity to the Australian government.

    Consequently, we [the Tribunal] find that Ms Fofana is not of good character for the purposes of s 24(2)(iii) of the Act and for the purposes of this application Ms Fofana has excluded herself from the special privilege of Australian citizenship.

33. Clearly, there are similarities between Fofana and this matter, both involve the provision of a document to the Australian Government that is found to be false, which raise doubts as to their good character, noting the relevant characteristics detailed in Paragraph 4 of CPI15.

34. However, there are differences worth noting. The document in question in this matter is a birth certificate, purportedly issued in 1992, that has been found to be bogus. However, it was, according to the Applicant, sourced in the same manner as the birth attestations, which were found to be genuine. In Fofana the Tribunal noted at [51]:

    … the unconventional way the passport was arranged, the substantial sum of money that was paid to [family friend], the requirement for the applicant to provide few supporting documents, the absence of any forms to sign and the rapid receipt of the passport. In combination these factors would be expected to arouse uncertainty and suspicion of the passport’s authenticity

35. It has not been established that the Applicant sourced his birth certificate in a manner that was imprudent or reckless, nor has it been established that it was sourced in a manner that breached accepted means of sourcing such documents in Nigeria at that time. 

36. With regard to the bogus birth certificate, the Tribunal is not satisfied that it was intentionally sourced and provided as a non-genuine document. It follows that, in of itself, that this does not form a sound basis on which to determine that the Applicant is not of good character.

37. With respect to the Applicant’s unlawful stay in Australia between 2010 and 2012, the Tribunal notes paragraph 6 of CPI15, which states:

    The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.

38. As was detailed above, in 2008 the Applicant sought a protection visa, which was refused. The Applicant sought a review in the RRT which found that the Applicant did not have a well-founded fear of being persecuted in Nigeria. The Applicant unsuccessfully sought Ministerial intervention on two occasions. He was, from 8 May 2010, an unlawful non-citizen. The Applicant “absconded and disappeared into the community without further contact with the Department” (T2/8).

39. During the hearing, the Applicant’s representative suggested it was fear from persecution that prevented the Applicant from returning to Nigeria after his bridging visa had expired. The Tribunal notes that this matter was addressed by the RRT, moreover that the Applicant has returned to Nigeria on four occasions from 2015 to 2019 (transcript/13-14; ST/916).

40. During the hearing, the Applicant was asked in cross-examination by the Respondent’s representative as to why he did not leave Australia (transcript/15-16)

    RESPONDENT:        You did not make arrangements to leave, did you?

    APPLICANT:             I made arrangement to leave.

    RESPONDENT:        What were the arrangements made?

    APPLICANT:             That’s the part that you guys don’t know. I went to IOM, I went to IOM office in …

    RESPONDENT:        By IOM, you mean the International Organisation for Migration?

    APPLICANT:             Yes, yes. I met a lady, what’s her name? I save her phone number. I met a lady and I told her the situation and she told me I was going to have to be on a waiting list. That there’s student who need to leave the country. So, during those process, while I was thinking of other legal avenues which I can use to try and stay in the country because I didn’t want to leave, I really didn’t want to leave because of my situation. I found out my girlfriend was pregnant; I couldn’t leave my child. I discussed this issue with her. I told her that I have a girlfriend who’s pregnant, what do I do? Do I abandon this child and go back to Nigeria? So, the reason why I didn’t leave Australia was because all these things that were happening in my life. I had a pregnant girlfriend, who’s pregnant for me.

1. The Applicant’s partner is an Australian citizen. In his 2012 request for Ministerial intervention, the Applicant’s then representative, stated that the Applicant and his girlfriend met in April 2010 and started a relationship after one week (ST/896). However, during the hearing the Applicant said he was unsure of the date and thought it was 2009 (transcript/16).  

2. The Applicant stated that he was in love and did not wish to abandon his pregnant partner (transcript/16). The Applicant stated that his partner miscarried, one of a series, before a child was born in April 2012. It was following the birth of this child, that the Applicant contacted the Department regarding his citizenship status and was subsequently granted a partner visa on 8 September 2014.

3. There is no evidence before the Tribunal that the Applicant contacted the Department when he first learnt that his girlfriend was pregnant in 2010 (transcript/17). Additionally, while the Tribunal is not disputing the Applicant’s account, there is no evidence before the Tribunal to support his statement that his partner was pregnant in 2010.

4. The Applicant stated that he stayed in Australia because he had no ‘choice’. In his written submission to the Tribunal, the Applicant’s representative notes (A1/19):

   As of 26 August 2021, eight and half years has elapsed since [the Applicant] became an unlawful non-citizen and five years and nine months since the minor traffic infringement occurred. Apart from these two incidents, [the Applicant] have never contravened any Australian law having resided in Australia for the past twelve years and two months. [The Applicant] has never been involved in criminal conduct in a “substantial” and “significant” way that is serious nor is he a habitual offender… [the Applicant] is gainfully employed and a dedicated family man.

5. The Applicant stayed in Australia unlawfully, breaching immigration law. A significant amount of time may have to pass before a decision maker is satisfied a person who has remained unlawfully, is of good character.

6. Deputy President Boyle and Member Dr Huntly made the following observations in Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3527 at [66-67]:

   Neither the Citizenship Act nor the CPIs express a legislative intention to punish an Applicant for past conduct. Rather, the clear intention is that any record of transgressions by an Applicant should be squarely addressed before being weighed rationally, for example, by giving due consideration of any relevant mitigating or aggravating circumstances, including the actual or potential development of good character, or put another way, rehabilitation or reform ...

   … the Applicant’s contention is that he has “reformed” in the sense referred to in the CPIs. Relevantly, when specifically addressing the question of character reformation and rehabilitation, CPI 15 directs a decision-maker to consider:

   (a)whether the applicant has accepted responsibility and shown remorse for their conduct;

   (b)whether the applicant has behaved in accordance with Australia's community standards, such as by obeying the law; and

   (c)whether the applicant has taken steps to rehabilitate or change their lifestyle and become a person of good character.

   …

   Any consideration of an applicant’s expression of contrition or remorse must, as a threshold question, consider whether the applicant has admitted or acknowledged their history of offending. Without a frank and candid accounting of their history of offending by an applicant in the first instance, there can be no certainty regarding their submissions on contrition or remorse.

7. This observation is relevant to this matter. The Applicant unlawfully stayed in Australia for a period of two years. The Applicant’s partner may well have been pregnant, but it does not excuse his failure to contact the Department, and his account of contacting the International Organisation for Migration seems vague and unconvincing. While the Applicant’s transgressions should not necessarily be held against him for all time, he had not provided a frank and candid account of his actions in 2010.

8. The Applicant first arrived in Australia in 2008 and pursued several unsuccessful avenues to remain in Australia. When he was required to leave, he absconded, he did not contact the Department again until his circumstances enabled the granting of a partner visa. Australian citizenship is a special privilege, the decision maker must therefore, be satisfied as to the good character of the applicant. The Applicant’s conduct between 2010 and 2012, and his account of why he did not leave Australia as he was required to do, create doubts as to his character. In these circumstances the Tribunal cannot be satisfied as to his good character for the purposes of s 21 of the Citizenship Act.

9. This is in many respects a challenging matter: the Applicant has lived a blameless life since 2012, he has no criminal record, pays his taxes and is raising his four children with his wife (transcript/31).

10. The Tribunal notes Deputy Breen’s statement in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 where he states at [8]:

    The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

    CONCLUSION

11. The Tribunal is positively satisfied of the Applicant’s identity, which has been established by the various documents, his life story and the DNA test supplied by his brother. However, due to the Applicant’s unlawful stay in Australia from 2010 to 2012, the Tribunal cannot be currently satisfied as to his good character.

    DECISION

12. The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 December 2019 to refuse the Applicant’s Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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

Associate

Dated: 27 October 2021

Date of hearing:	26 August 2021
Advocate for the Applicant:	Mr C Ogbonna, Travel Study Stay Visa
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor