Tella and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2115
•7 July 2020
Tella and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2115 (7 July 2020)
Division:GENERAL DIVISION
File Number: 2019/3101
Re:Zemichael Tella
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:7 July 2020
Place:Perth
The Reviewable Decision, being the decision dated 16 May 2019 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
.......................[sgd].................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity – whether Tribunal satisfied Applicant was of good character – evidence that residence identification not genuine – conduct of Applicant when responding to adverse information – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 24(3), 52(1)(b)
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Shafari and Minister for Home Affairs [2019] AATA 808
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – Chapters 11, 13
National Identity Proofing Guidelines, Attorney-General’s Department, 2016 – Part 2.1.1, Part 2.2
Revised Citizenship Procedural Instructions, Department of Home Affairs, 1 January 2019 – Chapter 16
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
7 July 2020
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated
16 May 2019 (T17/145–155) to refuse to grant the Applicant Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act). This is the Reviewable Decision that is currently before the Tribunal.
The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Act. The delegate was also not satisfied of the Applicant’s identity, as required by s 24(3) of the Act.
BACKGROUND
The Applicant was born in Ethiopia but moved to Sudan in 1980 to find work. He first arrived in Australia on 23 August 2007 under a humanitarian visa granted on 28 March 2007 (T15/90).
The Applicant lodged an application for Australian citizenship by conferral with the Department of Immigration and Border Protection, which later came to be known as the Department of Home Affairs (the Department) on 8 February 2016 (T5/43–60).
In a letter dated 31 August 2016, the Department requested further identity documents from the Applicant to process his application (T10/72).
The Applicant provided the Department with a document, and a translation of that document, titled “National Regional Government of Tigray Residence ID” (Residence ID) (T11/74–75).
The Department sent another letter dated 8 February 2018 to the Applicant inviting him to provide identification documents (T12/76–79), but the Applicant did not respond.
An email from the Visa Integrity Unit of the Department in Nairobi, Kenya, dated 8 May 2018 records that on 25 April 2018, a representative from the International Organisation for Migration at Addis Ababa, Ethiopia, attended the issuing office where it was confirmed that the Residence ID document provided by the Applicant “is not genuine and was not issued from the office”. The email concluded that the Residence ID was “counterfeit” and attached a certification from the authority (being the National State of Tigray, Central Zone) that “[t]his person is not our resident and he is not known to us” (Exhibit R2, Annexure A).
On 10 September 2018, the Department sent another letter to the Applicant inviting him to comment on adverse information (T13/80–84). The letter informed him that after referral to the Department’s overseas office to determine its authenticity, the Residence ID had been found not to be genuine. In this letter, the delegate incorrectly referred to the Residence ID being issued in Somalia (T13/80).
The Applicant responded in a letter dated 12 October 2018, received by the Department on
24 October 2018 (T14/85–88). In his response he stated that he did not provide an identity document from Somalia. The Applicant further stated:
Bear in mind that I have been officially known or identified by pertinent Austrian Government Authority as [Applicant’s full name omitted] from Sudan to Australia for the last 11-years. By the way, Perth Citizenship Section declined to stipulate or mention the surmised and bogus new name in Somali Identity Card.
I am afraid that Perth Citizenship Section might have unwittingly altered my name and confused it with Somali name. Needless to say, it is very absurd, naive, illegal, irrational, immoral and unjustifiable to jump to hasty conclusion to change somebody’s identity to peculiar identity without any substantial proof. These prejudicial and inequitable actions stand against the core values, integrity, equity, sincerity and impartiality of the Department of Home Affairs enshrined in its immigration principles and regulations. Above all, these false pretexts and lame excuses are tantamount a possible scenario for turning down my application for Australian Citizenship.
For further detailed information, I have attached all relevant documents that bear my official full name
Accordingly, I am calling upon Perth Citizenship Section to reconsider my application for Australian citizenship by assessing the previously submitted documents rather than creating artificial predicaments that are not relevant to the requirements.
(Errors in original.)
On 29 March 2019, the Department sent the Applicant another letter inviting him to comment on the adverse information (T15/89–93). In this letter the delegate clarified that the reference to Somalia was incorrect.
On 6 May 2019 the Applicant provided a response to the adverse information that his Residence ID was not genuine. In an undated statutory declaration that was signed by the Applicant but unsworn, he stated (T16/108):
I obtained the document from the Regional Authority of Tigray by providing my Australian Convention Travel Document and presenting three eyewitness who used to know me in Ethiopia. The document be considered non-gamine due to some an unintended occurrence of minor/technical mistakes by the issuing authority…
(Errors in original.)
In this bundle was a further statutory declaration of the Applicant dated 30 April 2019 that was also signed by the Applicant, but unsworn. This statutory declaration stated, in part, that the Applicant had made attempts to obtain his birth certificate “through my previous social colleagues” but was unable to obtain it because the clergyman who baptised him and the administrator of the church at that time were now deceased (T16/105 and 109). This, he explained, was why he obtained a local identity card (the Residence ID).
The Applicant also provided other supporting documentation (T16/98–144). This included his passport, visa, Western Australia driver’s licence, church membership and document for travel to Australia (T16/98–144). He also enclosed character references from a friend, a clergyman from the Applicant’s church (who is also a friend), and the Chief Administrator of the Applicant’s church (T16/139–144).
On 16 May 2019, a delegate of the Respondent made the Reviewable Decision which was to refuse the grant of Australian citizenship (T17/145–155).
On 4 June 2019, the Applicant applied to the Tribunal seeking review of the Reviewable Decision of 16 May 2019 (T2).
MATERIAL BEFORE THE TRIBUNAL
The application was heard on 29 May 2020. The parties appeared by telephone, in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing by telephone.
The Applicant was self-represented and was assisted by an interpreter in the Tigrinya and English languages. The Respondent was represented by Ms Jones-Bolla.
The Applicant gave evidence at the hearing and was cross-examined by Ms Jones-Bolla.
The materials admitted into evidence at the hearing were:
(a)a copy of a Republic of Sudan Refugee Certified Office document translated by a National Accreditation Authority for Translators and Interpreters (NAATI) accredited Arabic translator on 23 July 2019 (Exhibit A1);
(b)
the s 37 (T-documents) numbered T1 to T18 and comprising 184 pages
(Exhibit R1); and
(c)the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated
20 March 2020 with Annexure A attached (Exhibit R2).ISSUES
The issues that the Tribunal must determine in this review were accurately summarised in paragraph [13] of the Respondent’s SFIC. They are:
(a)whether the Tribunal is satisfied of the Applicant’s identity for the purpose of s 24(3) of the Act; and
(b)if so, whether the Tribunal is satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
Although the Tribunal is not required to make a finding about good character if it is not satisfied about the Applicant’s identity, the Tribunal will consider whether the Applicant is of good character for two reasons. Firstly, because the delegate made findings about both identity and character, and secondly, because issues concerning the Applicant’s character arose on the evidence before the Tribunal.
LEGISLATIVE AND POLICY FRAMEWORK
Legislative provisions
Section 21(1) of the Act provides that:
A person may make an application to the Minister to become an Australian citizen.
Further, s 24 of the Act provides:
(1)If a person makes an application under section 21, the Minister must,
by writing, approve or refuse to approve the person becoming an Australian citizen.…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 24(3) of the Act provides:
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 21(2) of the Act sets out general eligibility requirements for citizenship. It provides:
(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.)
The Reviewable Decision in this application is reviewable by the Tribunal. This is because
s 52(1)(b) of the Act provides that the Tribunal has jurisdiction to review decisions made under s 24:
(1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
…
(b)a decision under section 24 to refuse to approve a person becoming an Australian citizen; …
Identity
The concept of identity is not defined in the Act. Chapter 13 – “Identity” of the Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 (Citizenship Policy) provides that the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016) (Guidelines).
Paragraph 2.1.1 of the Guidelines provides:
2.1.1A 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.
2.1.2A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
Paragraph 2.2 of the Guidelines sets out five identity proofing objectives:
2.2.1The veracity of claims about a person’s identity is established through evidence provided to meet some or all of the following five identity proofing objectives (depending on confidence in the claimed identity required):
1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another and that the right service is delivered to the right individual…
2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created (i.e. the identity is that of a real person) through evidence of commencement of identity in Australia…
3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community (including online where appropriate)…
4.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder…
5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used…
The Revised Citizenship Procedural Instructions state the following in Chapter 16 – “Assessing Identity under the Citizenship Act”:
It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) provides that:
the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. 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.
In paragraphs [21] and [22] of the Respondent’s SFIC, the Respondent referred to two Tribunal decisions that provide some guidance as to the likely approach to be adopted by the Tribunal. The first was Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 where Deputy President Nicholson stated, 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 second was the following passage from the decision of Senior Member Walsh in Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38]:
a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
Character
The Citizenship Act does not include a definition of “good character”. However, Chapter 11 of the Citizenship Policy provides some guidance as to what constitutes good character. It states (page 145):
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship…
The Citizenship Policy refers to several decisions that define “good character”.
These include the following definition from Irving v Minister for Immigration,
Local Government and Ethnic Affairs (1996) 68 FCR 422, 431–432 (Irving) (page 145):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.
After citing the above passage from Irving, the Citizenship Policy (page 145–146) explains:
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
· characteristics which have been demonstrated over a very long period of time
· distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant.
Their behaviour is a manifestation of their essential characteristics.This broad definition means that 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 their migration and citizenship processes.
The Citizenship Policy also (page 146) refers to the decision of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn), 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 does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year's time [sic] when he can demonstrate a longer period of positive contribution to the Australian community.
Relevantly, in Irving, at 424, Davies J stated that: “[t]he question whether a person is or is not of “good character” is primarily an issue of fact.” Davies J further stated that the assessment of character requires the decision-maker to exercise a value judgment, at 427–8:
I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
Further, the Citizenship Policy (page 146) cites the decision of Deputy President Forgie in
Zheng v Minister for Immigration and Citizenship [2011] AATA 304at [120]:
120. In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another.
The ways are not finite.The Citizenship Policy also provides a non-exhaustive list of “[c]haracteristics of good character” (page 147). It provides that:
…an applicant of good character would:
· respect and abide by the law in Australia and other countries
…
· be truthful and not practice deception or fraud in their dealings with the Australian government, or other governments and organisations, for example:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during these and citizenship applications
…
The section of the Citizenship Policy titled, “Weighing up the character decision” (pages 149–150) states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of
‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
· would a person of good character have behaved the way the applicant did
· what is there to demonstrate that the applicant has upheld and obeyed the law
· has the applicant behaved in accordance with Australia's community standards
· does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however,
that, despite the many good qualities possessed by a person,
those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
The Citizenship Policy provides that referee reports (that is, character references), particularly those made in the form of a statutory declaration may be considered by a decision-maker when assessing character, with the following qualification (page 155):
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision-makers should give very little weight to references which do not acknowledge the offence or incident. However, decision-makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
The Respondent also cited two Tribunal decisions regarding the importance of applicants being truthful about their identities (Exhibit R2, para [28]–[29]). The first was Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 in which Senior Member Puplick stated, at [82]–[83]:
82.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.
83.Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
84.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.
(Footnotes omitted.)
The second was Fang and Minister for Immigration and Border Protection [2018] AATA 3686 in which Senior Member Puplick stated, at [97]:
those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike.
CONSIDERATION
Is the Tribunal satisfied of the Applicant’s identity?
As outlined above, the Applicant provided the Department with a Residence ID which was assessed to be non-genuine. Based on the evidence outlined above (Exhibit R2, Annexure A), the Tribunal finds that the Residence ID was not genuine.
When asked about his Residence ID at the hearing, the Applicant accepted that the Residence ID was not genuine but claimed that he believed it was at the time he provided it to the Department (transcript, page 18 and 20). He claimed that he would not have provided the Residence ID document if he had known that it was not genuine (transcript, page 18), and further, that he did not know that it was not genuine until he was told by the Department (transcript, page 25). However, these assertions are difficult to accept as credible when assessed against the other evidence.
Specifically, the Department advised the Applicant on 10 September 2018 and
29 March 2019 that his Residence ID was not genuine, and yet the Applicant continued to assert that it was. Indeed, in correspondence dated 12 October 2018, the Applicant accused the Department of, amongst other things, illegal and immoral behaviour and asserted that the Department had altered his name (see paragraph [10] above). Additionally, on
6 May 2019, the Applicant continued to claim the Residence ID was genuine and that he obtained it from the Regional Authority of Tigray after producing three eyewitnesses who attested to his identity (see paragraph [12] above). He further blamed the issuing authority for making “minor/technical mistakes” that may have caused the issue with his Residence ID.
However, at the hearing, the Applicant stated that he obtained the Residence ID from a person he met in his hotel when he was staying in Ethiopia so he could obtain the benefit of paying for his accommodation in the local currency (transcript/8):
The reason that I have the - my country’s ID is, I have been in Sudan for 28 to 30 years and I don’t have a chance to get my ID, but I went to visit my country and the requirement to stay in a hotel in my country is to pay in dollars. So, to avoid that, I find one person, he say to me he is a police and he provided me identification card, which helps only to register me in the hotel, as a resident of the country. That’s all I used. Otherwise, I don’t have any other documents.
Ms Jones-Bolla put to the Applicant during cross-examination, that he had been untruthful in his statutory declaration when he stated that he obtained his Residence ID from the issuing authority. The following exchange is relevant (transcript, pages 24-25):
MS JONES-BOLLA: Mr Tella, what you have said in that statutory declaration is at odds with the evidence you’ve given to the tribunal today isn’t it?
APPLICANT: Yes.
MS JONES-BOLLA: Yes, because you did not obtain the document from the regional authority of Tigray, did you? You obtained it from a person in a hotel?
APPLICANT: I didn’t obtain it from the regional government, I just obtain it from the person who I met in the hotel and he ask me to give him two photo - two photos and then he provide me the ID. He told me that he is a public servant.
MS JONES-BOLLA: Mr Tella, you also did not provide a travel document nor did you provide three eye witnesses. All you did was provide somebody in a hotel with two photographs. That’s what you’ve told the tribunal today isn’t it?
APPLICANT: That’s correct, I am saying that. That’s what I am saying.
MS JONES-BOLLA: Mr Tella, you have provided a statutory declaration to the department in support of your application for citizenship and you have lied in that document haven’t you?
APPLICANT: It could be I may made a mistake without understanding it, there may be misunderstanding.
MS JONES-BOLLA: Mr Tella, you told this tribunal that you obtained the document from somebody you met in a hotel. You had never met this person before, had you?
APPLICANT: I have never seen him before, I don’t know him, we don’t know each other before but he was in the hotel and we were discussing and then he helped us after that.
MS JONES-BOLLA: And you obtained the ID so you could get the benefit of not having to pay in dollars, is that correct?
APPLICANT: Yes, because I have an Australian travel document, if I provide that one they will charging me with a dollar so I want to use that for the purpose of paying through the local currency.
MS JONES-BOLLA: Mr Tella, I put it to you again that you knew the document was not genuine when you obtained it, didn’t you?
APPLICANT: While it was uses there I was believing it was genuine because I was using it and it was operating there…
Although the Applicant provided Australian identification, including his passport, driver’s licence (T16/98 and 100), health care card and Medicare card (T9/70-71) to support his claimed identity, those documents reflect the Applicant’s identity at a point in time (after his arrival in Australia in 2007), and do not provide an unbroken chain linking to a primary official identity document such as a birth certificate (see Shafari and Minister for Home Affairs [2019] AATA 808 at [41]).
Additionally, there is inconsistent evidence regarding the Applicant’s identity over time prior to his arrival in Australia. For example, the United Nations High Commissioner for Refugees Resettlement Registration Form states that the Applicant started to work as a goat herder when he was 12 years old, and later that he worked in the agricultural sector for two years until he moved to a refugee camp (T4/36). However, the Applicant stated in a personal particulars form that he had “never worked” and stated in a declaration of service form that he had “never been employed” (T16/115 and 132). In his undated statutory declaration, the Applicant also stated, “I have never been employed throughout my life” (T16/106). At the hearing the Applicant stated that while he was in Sudan in a refugee camp he worked on a farm (transcript, page 29), and in a mill machine grinding grains or in the garden (transcript, page 33).
There are also variations in the documentation regarding the Applicant’s date of birth. The Residence ID stated the Applicant’s date of birth as 11 September 1961 (T11/74). However, other documents state his date of birth as 1 January 1961, including his driver’s licence (T16/100), his personal particulars form (T16/111) and his declaration of service form (T16/129). In his evidence at the hearing, the Applicant said that his date of birth was
1 January 1961 (transcript/26). His membership card to his church states the Applicant’s date of birth to be 23 April 1953 (T16/101). These three different dates of birth create further doubt about the Applicant’s identity.
The Applicant also submitted a copy of a Republic of Sudan Refugee Certified Office document translated by a NAATI Accredited Arabic translator on 23 July 2019 (Exhibit A1). The Respondent submitted that “[t]he veracity of that document is questionable in circumstances where it appears to have been issued in 2006 but was not given to the department previously” (Exhibit R2, para [34]). The Tribunal agrees with this submission. The Department asked the Applicant on two occasions to provide further identity documents. The Applicant did not provide this document. Given the Tribunal’s findings that the Applicant’s Residence ID was not genuine, and the Applicant’s denials and his deflection of blame on both the Department and the issuing authority, there is a probative basis on which to doubt the authenticity of this document in the absence of any formal verification by the issuing authority.
The Tribunal notes the Applicant’s explanation about his attempts to obtain his birth certificate “through my previous social colleagues” and through members of the Church (see above paragraph [13]). However, it does not appear to the Tribunal that the Applicant “has exhausted all avenues of enquiry to find identification documentation” (Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [29]). It appears to the Tribunal that more extensive enquiries could be undertaken in addition to contacting the Church, such as making enquiries with government departments or hospitals.
In summary, there is insufficient evidence to satisfy the Tribunal about the Applicant’s identity. The Applicant submitted a non-genuine Residence ID to the Department, and there is inconsistent evidence about his employment history and his date of birth. The evidence of the Applicant himself has also been inconsistent and contradictory. Although the Applicant has Australian identity documentation, there is almost no evidence of his identity for the first 45 years of his life prior to his arrival in Australia in 2007, other than that of the Applicant and two of his character witnesses who stated they have known the Applicant since their time in the refugee camp together (also discussed below in paragraphs [58] and [59]).
For the reasons outlined above, the Tribunal is not satisfied of the Applicant’s identity for the purpose of s 24(3) of the Act.
Is the Tribunal satisfied that the Applicant is of good character?
As noted above at paragraph [14], the Applicant provided character references to the Department. The character reference from a friend of the Applicant’s (described by the Applicant as a “social colleague”) dated 30 April 2019 states that he has known the Applicant “for [a] lengthy period of time” since they resided together in the refugee camp (T16/139). Another reference of the same date is from one of the clergymen at the Applicant’s Church who has also known the Applicant “for more than two decades since [they] commenced residing together in … [the] Refugee Camp” (T16/141). The other reference, of the same date, is from the Chief Administrator of the Applicant’s church and states that he has known the Applicant for the last three years (T16/143).
Although each of the letters attests the Applicant is of good character, they can be given little weight by the Tribunal. The references are from people who would be expected to support the Applicant, being from a friend, and two members of the Applicant’s Church (one of whom is also a friend). The references were not in the form of statutory declarations, and the witnesses were not called to give evidence at the hearing. A character reference will carry more weight if the referee is aware of unacceptable conduct but is willing to attest to the person’s character anyway. However, the references do not acknowledge that the Applicant provided a non-genuine Residence ID to the Department. For these reasons, the Tribunal can only give very limited weight to these references as confirmation of good character, or as a means of confirming the Applicant’s identity (see Citizenship Policy discussed at paragraph [43] above).
When the Department brought to the Applicant’s attention that he had provided a
non-genuine Residence ID in support of his application for citizenship by conferral, he continued to assert that it was genuine, and sought to place blame on others (the Department and the issuing authority). He further stated in his statutory declaration submitted to the Department on 6 May 2019, that he obtained his Residence ID from the issuing authority with three eyewitnesses attesting to his identity (see paragraph [12] above). He admitted at the hearing, however, that he obtained the document from a person, that he had never met before. He met this person in his hotel after providing the person with two photographs so that he could pay his hotel account in local currency. In contrast to this explanation, the Applicant had previously stated that he “preferred to obtain a local identity card” when he could not obtain his birth certificate from his church (statutory declaration dated 30 April 2019 at T16/105). This evidence illustrates that the Applicant made false representations to the Department during the application process.
The Tribunal finds that, given the circumstances in which the Residence ID was obtained (in a hotel from a person he had never previously met), and given the false and inconsistent explanations made by the Applicant in his correspondence with the Department about his Residence ID, it was likely that the Applicant knew that the document was not genuine when he obtained it. Even if he only realised the document was not genuine when the Department advised him, his subsequent behaviour (of denial, false representations about how and why he obtained the Residence ID and accusing the Department of wrongdoing) does not show an ability to distinguish right from wrong. The Tribunal finds that a person of good character would not have behaved in this manner, and that these actions do not demonstrate the enduring moral qualities that a person should possess in order to be approved for Australian citizenship.
As was noted in Fenn, this does not mean that the Applicant will be prevented from making another application for citizenship by conferral in the future. A future application for citizenship will, however, require the Applicant to be frank, honest and forthright about the circumstances surrounding his non-genuine Residence ID and his conduct when dealing with the Department, including his false representations to the Department during the application process. Any future application will most likely also require him to demonstrate a longer period of honest behaviour in the Australian community.
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
CONCLUSION
The Tribunal is not satisfied of the Applicant’s identity for the purpose of s 24(3) of the Act and is not satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
DECISION
Consequently, the correct or preferable decision is to affirm the Reviewable Decision, being the decision dated 16 May 2019 to refuse the Applicant’s application for Australian citizenship by conferral.
I certify that the preceding 65 (sixty–five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
....................[sgd]...................................................
Associate
Dated: 7 July 2020
Date of hearing: 29 May 2020 Representative for the Applicant: Self-represented
Representative for the Respondent: Ms D Jones-Bolla Solicitor for the Respondent: Sparke Helmore Lawyers
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