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

Sultan and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 1569 (8 June 2023)
Division:GENERAL DIVISION
File Number: 2022/3908
Re:Hayat Sultan
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:8 June 2023
Place:Melbourne

The decision under review is affirmed.
...............................[SGD].........................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – applicant applied for grant of Australian citizenship by conferral – applicant is citizen of the Federal Democratic Republic of Ethiopia – applicant satisfied certain requirements – delegate of Minister not satisfied of applicant’s identity – application refused – applicant sought review by Tribunal – National Identity Proofing Guidelines – Citizenship Procedural Instructions – state of satisfaction to be reached – applicant’s chain of identity – inconsistencies in life story – lack of any original documents from country of birth and citizenship – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007
Cases
Dhayakpa and Minister for Immigration and Border Protection; Re: [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs; Re: (No.2) (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors (1992) 110 ALR 449
Secondary Materials
Department of Home Affairs – Australian Citizenship (Policy Statement)
Department of Home Affairs – Revised Citizenship Procedural Instructions (CPIs) – CPI 16 – Assessing Identity under the Citizenship Act (1 January 2022)
National Identity Proofing Guidelines, Attorney-General’s Department, 2016
REASONS FOR DECISION
Senior Member D. J. Morris
8 June 2023

Mrs Hayat Sultan is a citizen of the Federal Democratic Republic of Ethiopia. She arrived in Australia in late November 2008 as the holder of a Spouse (Provisional) visa, which had been granted to her earlier that month.
In June 2010 Mrs Sultan applied for a different category of visa, which was granted to her in September of that year. In August 2012 the Applicant sponsored her husband, Mr Abdulrezak Hussen, for a partner visa. Mr Hussen arrived in Australia in 2015.
In February 2015 Mrs Sultan applied for Australian citizenship by conferral. On 12 May 2022 that application was refused by a delegate of the then Minister under s 24(3) of the Australian Citizenship Act 2007 (‘the Act’) , on the ground that the delegate was not satisfied of Mrs Sultan’s identity.
Mrs Sultan has now brought that 12 May 2022 decision to the Tribunal for review, as she is entitled to do under s 52(1)(b) of the Act.
HEARING
A hearing was held on 24 May 2022 in Melbourne. The Applicant represented herself, made submissions and gave evidence. She was cross-examined by Ms Sarah Hardie of HWL Ebsworth Lawyers, representing the Respondent, who appeared by video link by leave of the Tribunal. The Applicant also called the following persons who gave evidence: her husband, Mr Hussen; Mr Seid Ahmed; Mr Ahmed Turab; and Mr Tedla Wanaw. The Tribunal appreciates the assistance given at the hearing by an interpreter in the Amharic language.
At the conclusion of the hearing the Tribunal asked the Respondent to provide a movement record for the Applicant, after which the Tribunal’s decision would be reserved. The movement record was provided later that same day.
The Tribunal admitted into evidence documents provided by the Respondent in compliance with s 37 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) and other documents from the parties listed in the annexure to these reasons. The Tribunal also took into account a Statement of Facts, Issues and Contentions submitted by the Respondent.
LEGISLATIVE AND POLICY FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24 of the Act provides that the Minister must approve or refuse to approve the person becoming an Australian citizen.
The Decision Record shows (TD, pp 16-17) that the Minister’s delegate found that Mrs Sultan satisfied him that she met certain requirements under the Act. It was found that she was aged 18 years or over at the time of the application (s 21(2)(a)). It was found that she was a permanent resident at the time of the application and the decision (s 21(2)(b)). It was further found that she satisfied the general residence requirements (s 21(2)(c)).
In addition, Mrs Sultan had demonstrated that she understood the nature of the application, possessed a basic knowledge of the English language, and had an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship (ss 21(2)(d),(e), and (f)), through her satisfactorily completing a citizenship test approved by the Minister

(s 21(2A)).
Whether the Applicant was likely to continue to reside in Australia or maintain a close and continuing relationship with Australia (s 21(2)(g)) was not assessed because the delegate decided he was not satisfied of Mrs Sultan’s identity and, because of that, under s 24(3) of the Act, was prohibited from approving her application for citizenship.
The requirement that Mrs Sultan be of good character at the time of the decision (s 21(2)(h)) was also not assessed, and there was no evidence in the decision record that the requirements relating to security assessments (s 24(4)); prohibition in relation to a national security offence or other qualifying offence (s 24(4A(a) and (b)) or the prohibitions in ss 24(6) and 24(7) were addressed. That is presumably because the task of assessing Mrs Sultan’s application against the other legislative requirements under the Act was halted when the delegate decided he was not satisfied of her identity.
Section 24(3) of the Act relates to identity:
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Division 5 of the Act sets out in detail the identity provisions. In considering Mrs Sultan’s application for Australian citizenship, the Minister’s delegate consulted Citizenship Procedural Instruction CPI 16 – Assessing Identity under the Citizenship Act (‘CPI 16’) issued by the Department and last updated on 1 January 2022.
CPI 16 aligns with the National Identity Proofing Guidelines issued by the Attorney-General’s Department in 2016 (‘Guidelines’). Chapter 5 of the Guidelines is titled ‘People who are unable to meet minimum proofing requirements’ and says, at paragraph 5.1.1:
Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
CPI 16 relevantly states, under the heading ‘Purpose’:
Establishing a person’s identity before the approval of a citizenship application requires the delegate to be satisfied of the person’s identity. The identity provisions under the Act prohibit the approval of a citizenship application in cases where the delegate is not satisfied of the person’s identity.
Delegates are required to understand and apply the relevant law as set out in the Act. Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for delegates. To the extent that the Act allows for discretion, delegates must give due consideration to the Department’s approved policy and procedures where relevant and appropriate in decision-making. Consideration of policy ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.
However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, officers are to give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.
The Tribunal, unlike Department officers, is not bound to follow policy. However, where a policy has been promulgated and has been applied in making a decision that is under review, it has long been the practice of Tribunal Members to have due regard for that policy unless there are cogent reasons to depart from it. Cogent reasons may include where the policy is inconsistent with the law, or where rigid application of policy would have an unfair or perverse outcome.
This well-accepted general approach was enunciated by the Tribunal’s first President, Sir Gerard Brennan. What he said in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has been endorsed by successive judicial opinion:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The Full Court of the Federal Court of Australia made the status of the CPIs clear in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ) in observing, at [18]:
18. There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.
And at [58]-[62]:
58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...

59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.
60. However, as Brennan J stated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’....
62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations...
It follows that, if the Tribunal makes a decision in favour of Mrs Sultan, the matter would be remitted to the Department with a direction. The Tribunal is not empowered to grant citizenship, it can only decide whether a required provision in the Act is met.
Identity
CPI 16 refers to the ‘three pillars’ of identity. They are set out at paragraph 5:
Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.
Documents – reliable and secure documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Life story – an account of the events that happened to a person during their lifetime.
Therefore, the task of the Tribunal is to make a contemporary assessment as to whether, standing in the shoes of the Minister, it is satisfied (as at the date of this decision) of the identity of the Applicant.
Biometrics
The Tribunal notes that the delegate concluded that the biometric data available was consistent since the Applicant arrived in Australia, but that there was no photographic evidence of her time growing up in Ethiopia.
Documents
When she applied for a partner visa, Mrs Sultan provided an Ethiopian birth certificate issued on 28 September 2005 (TD, p 235) which had the following details: name – Ayelech Challa Tadesse; date of birth: 1 January 1968; place of birth: Addis Ababa; nationality: Ethiopian. On 11 December 2006 the relevant Ethiopian Government authority advised the Department of Home Affairs (‘the Department’) that this birth certificate was fraudulent (TD, p 195).
The delegate said that Department records before him indicated that Mrs Sultan has been issued, over the years, with three passports. During her interview in October 2005 for a partner visa, Mrs Sultan told the interviewer that she travelled to South Africa in 2004 illegally, and said she left her passport behind in Ethiopia. That may be called ‘the first passport’.
The Department had two Ethiopian Certificates of Good Conduct, the first issued in November 2006 and the second in July 2008. They both refer to an Ethiopian passport with a number ending in 186, issued earlier in November 2006. That may be called ‘the second passport’.
When Mrs Sultan applied for a different category visa in 2010, she provided copy of an Ethiopian passport with a serial number ending in 802 (TD, p 159), which stated it was issued in June 2009 by the Ethiopian Embassy at Beijing. That may be called ‘the third passport’.
The Applicant’s details in this third passport were: name – Ayelech Challa Tadesse; date of birth – ‘October 11 1968’; place of birth – ‘Addis Ababa’, and the date of birth was subsequently apparently changed, the Applicant said, to 1 January 1968 by the Honorary Consul-General of Ethiopia in Melbourne. The Tribunal notes that the Honorary Consulate-General in Melbourne is temporarily closed and the position of Consul-General is now vacant.
Mrs Sultan provided the following documents to the Department from when she resided in South Africa, all of which recorded her name as Ayelech Challa Tadesse, with a date of birth of 1 January 1968: Asylum Seeker Temporary Permits; a document formally recognising refugee status in the Republic of South Africa; a Cancellation of Asylum Permit document issued by the Johannesburg Refugee Reception Office (TD, p 142); Clearance Certificates issued by the South African Police Service; two marriage certificates; and a Diploma in Information Technology issued by the Witwatersrand College of Commerce in 2005 (TD, p 147). These documents were all issued between 2004 and 2015.
On 11 July 2021, Mrs Sultan provided a statutory declaration to the Department in which she relevantly said the following. Her first passport was left behind in Ethiopia as she was fleeing persecution and it was common practice for people being smuggled out of the country not to carry travel documents.
Her second passport was obtained through the services of a chauffeur at the Ethiopian Embassy in South Africa after she provided ‘all the required forms and fees’. She said this person played an intermediary role to ‘access’ her birth certificate and passport and had helped other Ethiopian refugees in similar circumstances to obtain travel and supporting documents. Mrs Sultan declared that ‘the assistant facilitated a proxy to obtain this document [i.e. a birth certificate] from the relevant authority in Ethiopia’. She said that as she relied on the proxy, she was never aware of anything untoward until she was told by the Department.
She said she sent her second passport to the Australian High Commission in Pretoria for the purposes of a visa label for her intended travel to Australia but did not receive it back and assumed it was lost in the post. The Department has now advised her it was uncollected. Presumably it remained at the High Commission or was ultimately destroyed; in any event this passport was not in the papers before the Tribunal.
In regard to the third passport, she said, after she arrived in Australia in 2008, she applied for an Ethiopian passport. That passport recorded a date of birth of ‘October 11 1968’. Mrs Sultan said, “That mistake was made by the passport-issuing officer, and they corrected the mistake later.” She said the passport was issued by the Ethiopian Consulate in Melbourne. In respect of what documents she provided to obtain the passport, she said: “I provided my travel document and he recognised I was Ethiopian and speaking Amharic.” She said the Consulate corrected the date on the same day.
Mrs Sultan was asked about a personal particulars form she submitted to the Department in 2017 (TD, p 119) where the date of birth is recorded in typing as ‘01-Jan-1971’. The Applicant said, “I didn’t record that. There’s nothing I did without someone to help me.” When the Tribunal noted that she had signed the form (TD, p 135), Mrs Sultan added, “I was assisted by a social worker to fill out that form.” When asked why the social worker would have filled in a birth year of 1971, Mrs Sultan said she had “no idea”.
Ms Hardie asked the Applicant about her brothers, including half-, step- or adoptive brothers. She responded that she has five brothers and three sisters. She then listed the names of the five brothers. When asked whether any of her brothers were adoptive, Mrs Sultan responded, “Defaru and Alimaychu were adopted. They didn’t stand beside me when I had a difficult time – when I had a fight with my ex-husband.”
When asked if she currently talked to these brothers, the Applicant responded, “Yes, I do – with Defaru. My ex-husband’s sister is married to Alimaychu; I don’t communicate with him. I used the term, fulfilling my revenge. We had the same mother and the same father.”
Ms Hardie asked Mrs Sultan if she accepted that by referring to these two brothers as adoptive it would lead the Australian Government to think that they had different parents. She responded, “I didn’t think that far.”
The Applicant told the Tribunal that she had three sisters, Zhara, Aster and Tsige. Ms Hardie noted that her siblings refer in their visa applications to the Department to another sister called Hellen Challa, and asked if Mrs Sultan knew who this is. She responded, “I don’t know; I have no idea.” When asked if she had inquired of her siblings who this person might be, she said she had not. The Tribunal then asked the Applicant if she had any siblings who died as babies. She responded, “Not that I know of.”
Life story
The Applicant’s evidence

The Applicant told the Tribunal that she was born Ayelech Challa Tadesse but changed her name in 2014 in Victoria to Hayat Mohammed Sultan. When asked the reasons for changing her name, she responded:
Two reasons I would like to say. First reason when I converted to Islam, I had to change my name. Secondly, because of my name the others were able to recognise my ethnicity and background. I didn’t want to be exposed for my ethnicity. Also people couldn’t pronounce Ayelech.
The Applicant said, in order to register her change of name, she went to the relevant Victorian Government office in Melbourne and could not remember what documents she provided, but thinks they asked for her driver licence, Medicare card and maybe her daughter’s birth certificate.
Mrs Sultan told the Tribunal that her date of birth was 1 January 1968, and she was born in Addis Ababa. She told the Tribunal that she attended Keftegna 7 High School which was a ‘shift school’ with morning and afternoon classes. She recalled she used to walk to the school with other students because it was not near where she lived. She said she dropped out in grade 11.
The Applicant said she then started working in textiles but could not remember her employer’s name. She said she left Ethiopia in 1999 and travelled to Sudan with people smugglers, and could not take any legal or identity documents with her. She said she resided in Khartoum for five years. She worked as a maid in a private house, but did not know the name of the houseowners. They provided accommodation for her.
Mrs Sultan said she did not obtain any identity documents in Sudan because the refugee camp was far away and she did not go there because it was hot, and she did not want to go there.
The Applicant said that, after five years, she travelled to South Africa by car and bus, the journey taking about one month. She said she paid money to smugglers and went ‘secret ways’. She believed she arrived in South Africa in 2004.
Initially, the Applicant said she did not work in South Africa and registered as an asylum seeker. Her brother in Australia would send her money for a limited time and then she started work selling blankets and doonas door-to-door.
She said in 2005 she married her first husband, Abdi Ahmed Ali. She said she had known him in Ethiopia, and he had emigrated to Australia. He obtained her phone number and would ring her. He then came to South Africa, and they married there.
Mrs Sultan said she arrived in Australia towards the end of 2008. Her husband had only stayed in South Africa for one or two months and had then returned to Australia. She told the Tribunal, “When I arrived, I found Abdi had a wife and a child. That was the ugliest part. I was distressed and depressed. Even my brothers didn’t stand beside me at that time.”
Mrs Sultan said she divorced Mr Ali in July 2010. She said she did not go to Court but remembered receiving a letter confirming the divorce. (A divorce order from the Federal Magistrates’ Court dated 6 July 2010 was at TD, p 369.) She returned to South Africa in 2011. While in South Africa she met Mr Hussen, her now husband. That meeting was just a social encounter with friends. She returned to Australia, but kept in touch with Mr Hussen, and then later returned to South Africa and married Mr Hussen in October 2011 in Johannesburg. She returned to Australia, pregnant with their first child.
Mr Hussen’s evidence
Mr Hussen gave evidence that he first met the Applicant in 2010 in South Africa and they subsequently married there. He said he first arrived in Australia in 2015.
Mr Hussen said he returned to Ethiopia in August 2022 and was there for over three months. He said while he was there, he went to the local government offices with his marriage certificate to prove the identity of his wife and asked if they could provide any documents from their existing files. He said:
At that time, nobody helped me. I couldn’t speak the local language and didn’t have anyone to help me. I went three or four times. I tried using local elders to help. I tried to inquire. One of the local elders who knew her before was Mr Gadisa. He speaks the local language. Then they started intimidating me and threatening me. So I didn’t go there again.
In response to a direct question from the Tribunal, Mr Hussen said, “I got nothing. They said she must come and inquire in person.”
Ms Hardie took Mr Hussen to a passage in his statutory declaration dated 2 February 2023 where he declared:
I left Ethiopia with a great sore of disappointment and opted not to get any other identification from her school or neighbours with the fear any documents sought from anywhere else in Ethiopia might raise more questions and create further ambiguity for my wife’s identity.
Mr Hussen was asked why he said this. He responded, “I was sorry and regretted because I didn’t find the documentation. Every system has changed so it was very difficult to obtain what I wanted. The administration has changed. They threatened me and I was in fear of my life.”
Ms Hardie asked Mr Hussen if he made any attempts to get documents from the school Mrs Sultan attended, and he said he did not.
Ms Hardie asked Mr Hussen if he had attempted to get statements from neighbours who may have known the Applicant. He responded: “I used Mr Gadisa who knew her from childhood, but he couldn’t do anything. Even if he gave me a statement, the local government would not put its stamp [on it], that’s why I didn’t.”
Mr Hussen asked leave of the Tribunal to make a statement at the conclusion of his evidence. He said:
My family has been in distress in relation to this matter. My father passed away. He was asking us to bring our children over there. My mother is ageing. I would like to finalise this matter. I am an Australian citizen.
Mr Ahmed’s evidence
Mr Seid Ahmed, who is chairperson of the Bilal Ethiopians Association of Melbourne, gave evidence. He said he has known the Applicant since he first met her in 2014 in Australia. A letter of support was in evidence (Exhibit A3).
Mr Ahmed said he knew Mrs Sultan was previously known as Ayelech Challa Tadesse. He did not know her date of birth. He said he understood she had changed her name because of her conversion to Islam, and for ‘political reasons’. In answer to a direct question from the Tribunal, Mr Ahmed said that the name Tadesse was an obviously Oromo name.
Mr Ahmed said:
I have been working with her for six years and know her as a community person. Since I’ve known her, she has been supporting the community. I know this has been a problem, I understand that children must know their grandparents and they could not. One grandpa has been lost already.
Mr Turab’s evidence
Mr Ahmed Turab, who is a member of the executive of the Bilal Ethiopians Association, gave evidence. He said he has known the Applicant since 2012. He said he has worked with the Ethiopian community for 27 years, initially as a refugee settler.
Mr Turab said he knew that the Applicant’s former name was Ayelech Challa Tadesse. He said, “She changed it after marriage. Religious wives change their name, it is a common practice.”
He said the previous name was obviously Oromo. He said that when people leave Ethiopia as refugees, they ‘just flee’. Mr Turab said his understanding is that the Ethiopian Consulate would not allow an Ethiopian citizen to renew a passport, even if the passport they had was issued in Ethiopia, if the person has departed the country as a refugee.
Mr Wanaw’s evidence
Mr Tedla Wanaw, a friend of the Applicant, gave evidence. He said he met Mrs Sultan around 2011 or 2012 through mutual associates. He said, “She was a strong advocate at the time. I was assisting. She approached me for help with a visa application for her now husband. She worked on Covid-19 initiatives to provide emergency help in collaboration with community members.”
Mr Wanaw said he knew the Applicant’s husband, Mr Hussen, when he was in South Africa and since that time, and told the Tribunal that he and his wife are both very supportive of the community association.
Mr Wanaw was asked if he knew the Applicant had changed her name. He responded, “Yes. She had a previous name before she changed it due to religious conversion. It was Ayelesh Challa. It was a difficult name because it came from the Oromo tribe. Four or five years ago this attracted difficulties for political reasons. It was seen to be anti-government. She thought it was appropriate to change when she converted.”
CONSIDERATION
The Tribunal is satisfied to make certain findings. I am satisfied that the Applicant was known as Ayelech Challa Tadesse from before she arrived in Australia until she formally changed her name in 2014 by submitting a Change of Name Certificate to the relevant Victorian Government registry. It is lawful for a person to change his or her name, and no adverse finding is made against someone so doing, unless it can be proven or is suspected that the name change is for reasons of subterfuge or for some other evasive purpose.
The change of name
The Applicant has given a variety of reasons why she changed her name. She has said it was for religious reasons, given that she was formerly Ethiopian Orthodox Christian and converted to Islam on marriage. Secondly, she says it was because her name was recognisably Oromo, and she did not like people to make an assumption that she supported the Oromo Liberation Front in Ethiopia. Thirdly, she says it was because her name was difficult to pronounce, and she tired of correcting people.
Three of the witnesses who gave evidence to the Tribunal believed the name change was connected with her religious conversion, but one volunteered that another reason was that ‘Tadesse’ is an obviously Oromo name, and that caused difficulties in recent years owing to the civil strife in Ethiopia and the stereotyping impression that, if a person came from a particular area, they automatically supported political groups from that area.
The Tribunal notes that the Applicant has given evidence that, while she grew up as a Christian, she converted to Islam in 2005 at the time of her first marriage. Accepting Mr Turab’s evidence that it is a common practice in Ethiopia for a woman to change her name on conversion, the Applicant did not explain why, if she wanted to adopt a different name to reflect the fact that she was now Muslim, she waited until 2014 to do so. The Respondent remarked that the Applicant has ‘given different explanations at different times’. That may be so, but it does not necessarily follow that any or all of the reasons for the name change are not true.
The different birthdates
In respect of her birthdate, three different dates are in the papers before the Tribunal: 1 January 1968; 11 October 1968 and 1 January 1971. The largest number of documents, including documents produced by South African authorities and Australia-sourced documents, quote the date 1 January 1968.
It is not clear why the passport-issuing authority would have put ’11 October’ in the third passport ending in 802 which the Applicant provided to the Department. This is the passport which Mrs Sultan stated she obtained from the then Ethiopian Honorary Consulate in Melbourne, however it clearly states (TD, p 161) ‘Issued at: [and then, in handwriting] F.D.R. Ethiopia Embassy, Beijing, China.’ The provenance of the third passport is completely undermined. Given there was no evidence that the Applicant has ever been to China, the fact of the place of issue and the different birthdate fuels speculation it might be a passport issued to another person which has then been altered.
The evidence of the Applicant that she obtained the third passport from the then Ethiopian Consulate in Melbourne may be true, but I find that any suggestion it was officially issued by the former Honorary Consul, Mr Maddocks, is not true. It is possible someone else at the Consulate produced it for Mrs Sultan for payment, and that she thought it was authentic. But there is no plausible explanation for the place of issue being Beijing. No weight can be given to this third passport in terms of supporting the Applicant’s identity.
The family composition
Three of Mrs Sultan’s siblings have completed visa applications at different times, one in 2002 and two of them in 2005. All three of them, when providing details of their family composition, stated that Ayelech Challa Tadesse was born on ‘15 July 1971’. There was no explanation proffered by Mrs Sultan as to why they would have cited this date, when she maintains her date of birth is 1 January 1968.
In her Form 80, completed for the Department to provide additional personal particulars (TD, pp 119-136), Mrs Sultan states that from ‘September 1982 to June 1989’ she attended Sefere Selam Primary School, and then from ‘September 1990 to June 1992’ she attended Keftegna 7 Junior Secondary School (TD, p 124). If she was born, as she states, on 1 January 1968, that would mean she was almost 15 years of age when she started primary school. A birth year of 1971 would make more sense, however the age of starting school in Ethiopia is unknown to the Tribunal, and may well be flexible. Putting that to one side, the Tribunal, using its powers under s 33 of the AAT Act to inform itself, has found that both schools are still operating in Addis Ababa.
Given that she knows the obstacle to her being granted Australian citizenship hinges on the lack of Ethiopian documents, the Tribunal is perplexed as to why Mrs Sultan has not contacted either or both the schools she said she attended asking for a letter confirming her enrolment dates. It was also surprising that Mr Hussen said, when he was in Addis Ababa in 2022, he did not attempt to go to either school to obtain some proof of attendance, especially if the Tribunal accepts his evidence that he was rebuffed at the government offices, partly because he did not speak the local language.
The Tribunal accepts the consistent evidence of three community members who attended the Tribunal and gave evidence, two of them being officers of the Bilal Ethiopians Association, that Mrs Sultan is an active and valued member of the Ethiopian community in Victoria. Of particular note was the evidence that she assisted members of the community affected by the recent SARS-CoV-2 pandemic and the State Government lockdowns in Melbourne. However, these people all met the Applicant in Australia and have known her in this country, they do not have firsthand knowledge of her back in Ethiopia.
A particularly incongruous matter was the fact that two siblings, in providing details of family composition in their own separate visa applications to the Department, both state, apart from the Applicant being their sister, that they have a sister named ‘Hellen Challa’ (TD, p 197). When asked who this person might be, Mrs Sultan told the Tribunal, somewhat incuriously, “I have no idea.”
The Tribunal notes that two of the Applicant’s brothers currently reside in Australia. Neither of them was called to give evidence at the hearing, or to provide a statement. While it may be accepted that Mrs Sultan does not have contact with one brother, because he is apparently married to a sister of her first husband, she said she does have contact with the other. I draw no adverse conclusion from the fact that the Applicant did not ask either of her brothers to give evidence: it is a matter for any applicant as to how he or she chooses to present their case. But where evidence may be significantly corroborative of claims in a case where there are no documents sourced from Ethiopia, such evidence would self-evidently be important in supporting Mrs Sultan’s contentions about her life story.
The Tribunal notes the wise remarks of Deputy President Nicholson, who was a former Federal Court judge, when he said, in Re: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310, at [117]:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
The Tribunal accepts that Ethiopia is not a settled or an undisturbed society, and that the conventional structures of government administration in that country are not robust, largely because of the battering caused by years of erosive civil conflict, coupled with the natural devastation of famine. But the Tribunal is also of the view that the Applicant has not attempted in any concrete way to obtain identity documents from her home country, including enrolment proof from the schools she attended, or other statements from people who knew her before she left for Sudan.
I have no reason not to accept the evidence of Mr Hussen, the Applicant’s husband, about what steps he took to try and obtain an identity document for his wife when he was back in Ethiopia in 2022. But the fact that he tried, and did not succeed, does not assist the Tribunal to arrive at a state of satisfaction about the Applicant’s identity.
Is the Tribunal satisfied?
Section 24(3) of the Act is couched in terms that the Minister (or the Tribunal standing in his shoes) must not approve an application for citizenship unless the Minister is satisfied of the person’s identity. It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied in regard to this requirement.
The Courts and this Tribunal have frequently considered that is meant by the statutory phrase that a person is “satisfied” of a requirement. Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’) is the leading authority. Briginshaw was contemporarily restated by the High Court in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors (1992) 110 ALR 449, by Toohey J for the Court, at 450.
In Briginshaw, Dixon J stated:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
CPI 16 reproduces some of the language from this passage in Briginshaw at paragraph 12, where it states:
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 that 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.

In shorthand, the Tribunal must be satisfied to a degree of reasonable satisfaction about a claim, and this degree of satisfaction may vary according to the consequences which ‘flow’ from, or are provided by that claim if it were successful. In the case of conferral of citizenship, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because the rights, responsibilities and privileges flowing from the grant of citizenship are significant.
There are certain things the Applicant has done which have unnecessarily muddied the waters about her life story. She signed a form and submitted it to the Department with a birth year of 1971 and now maintains the correct birth year is 1968. It is not a sufficient explanation to say that someone else filled in the form for her; in such a case, she has an obligation to have the person read it back to make sure all the information she was declaring to the Department was accurate and truthful in every respect before she signs and submits it.
In addition, Mrs Sultan provided a statutory declaration in June 2010 to the Department in which she relevantly wrote (TD, p 312): “I have six biological siblings and two adopted brothers. My two adopted brothers came to Australia as refugees several years ago.” In subsequent statutory declarations she has retracted this and said that all her brothers are biological brothers, and that she did this as some gesture of ‘revenge’ for the lack of support she says they gave her when she was going through her first marriage break-up. That does not detract from the fact that she knowingly provided false information to the Department in a statutory declaration. That sort of conduct by a person only serves to give reasons for Department officers to be suspicious of other claims a person may make. It raises red flags.
The Tribunal notes the remark in CPI 16 that merely the provision of more documents may not satisfy a decision-maker of a person’s identity. But in this case, there are no documents at all from the time of the Applicant’s birth until her registration as a refugee in South Africa in 2004 – a period of some 36 years. In addition, the Applicant has submitted documents which are inconsistent in respect of her birth date, in both day, month and year. Mrs Sultan has also not sought to explain why two of her siblings would separately submit details of family composition to the Department setting out the same parents and all the same siblings as Mrs Sultan has done, but with an additional sister recorded.
While there may be plausible explanations for the inconsistencies, they have generally not been forthcoming. Coupled with the complete absence of any Ethiopia-sourced documents, the Tribunal finds that it cannot be satisfied to the requisite degree of the Applicant’s identity. Her life story is relatively consistent in terms of her movements from Ethiopia to Sudan and thence to South Africa and Australia. Her two marriages and one divorce are verified, as well as a number of her activities and academic study while she was living in Johannesburg and Pretoria. Her claimed identity since she has been in Australia has been consistent and she has adhered to a common date of birth in her interactions with government authorities for such items such as a driver licence and Medicare card. She changed her name legitimately in 2014 and I accept that the main reason was to avoid any negative connotation that the name may have with certain political or ethnic groups in Ethiopia. In acknowledging that a secondary reason may have been her conversion to Islam, I note the change did not happen when she converted in 2005, but nine years later.
But what the Tribunal finds determinative is the lack of any primary documents from Ethiopia. A chain of identity cannot therefore be established before her residency in South Africa. The Tribunal notes that the Applicant presented a fake Ethiopian birth certificate to the Department, but possibly not with the knowledge that it was fraudulent; it is more likely she provided the necessary particulars to someone who purported to have access to official channels, but who had it created to appear authentic. In any event, the Ethiopian Government has advised the Department that it was not a genuine certificate.
Equally, I consider the third passport which the Applicant says was given to her at the Consulate in Melbourne, but which states it was purportedly issued in Beijing is either a fake document or, more likely, an authentic passport issued to another and then ‘re-purposed’ for the Applicant. I am troubled by her suggestion that the Consulate provided this passport, she says, on the basis that they knew she was Ethiopian and spoke Amharic, when it was not apparent that she provided any identity documents for it to be issued. However, while I do not consider the passport validly issued, I do not make an adverse finding about her conduct in that regard. As I have said earlier, this third passport carries no weight in terms of proving identity.
However, I am not satisfied as to what is the Applicant’s real birthdate. I am further satisfied that two of her siblings apparently recorded in documents given to the Department a sister they all have in common, Hellen, but the Applicant did not. That discrepancy remains unexplained by the Applicant, and sows a seed of doubt which could be clarified by action by the Applicant herself.
Finally, I consider that Mrs Sultan has not attempted to explore avenues readily available to her, such as her former schools and neighbours in Addis Ababa, or perhaps a direct approach to the Ethiopian Embassy in Canberra (now that there is no Consulate in Victoria).
The Tribunal finds for these reasons that it is unable to be satisfied of the Applicant’s identity. Therefore, under s 24(3) of the Act, she cannot be granted Australian citizenship by conferral.
I make the point that it is not enough in a case which hinges on proof of identity for a person to bring to the Tribunal friends who give evidence – no doubt genuine and truthful evidence – about how they know the person in Australia, interactions they may have had with them, and good works they may have done. None of that assists in completing the chain of identity before a person’s arrival in this country.
The ball is in the Applicant’s court. These reasons set out some of the things she can do to help complete the missing links in the chain. The Tribunal’s decision does not affect Mrs Sultan’s right to reside in Australia as a permanent resident. It is also open to her to lodge a fresh application for Australian citizenship at any time. If she does, it would be preferable that she provides further Ethiopian-sourced documents supporting her identity. This decision should not be taken as any reflection on the work Mrs Sultan has done in the local Ethiopian community, which was attested to by witnesses. This community work is accepted by the Tribunal and is creditable.
DECISION
The decision under review is affirmed.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[SGD].......................................
Associate
Dated:   8 June 2023

Date of hearing:

24 May 2023

Applicant:

Self-represented

Advocate for the Respondent:

Ms Sarah Hardie

Solicitors for the Respondent:

HWL Ebsworth Lawyers

ANNEXURE – Schedule of Exhibits
Exhibit No.     Description
R1                  Volume of T documents
R2                  Ethiopia Documents and Citizenship, Danish Immigration Service
A1                   Statutory declaration of Applicant, dated 11 July 2021
A2                   Statutory declaration of Applicant, dated 31 March 2023
A3                   Letter from Mr Seid Ahmed, Chairperson, Bilal Ethiopians Association
A4                   Letter from Dr Gloria Moscattini, general practitioner
A5                   Statutory declaration of Abdulresak Hussen, dated 2 February 2023
A6                   SUDD Foundation letter of support, dated 2 February 2023
A7                   Statutory declaration of Abdulresak Hussen, dated 31 March 2023

[2023] AATA 1569

8 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date of hearing:	24 May 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Sarah Hardie
Solicitors for the Respondent:	HWL Ebsworth Lawyers