Tink and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 55
•27 January 2023
Tink and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 55 (27 January 2023)
Division:GENERAL DIVISION
File Number: 2021/7264
Re:Tina Tink
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member S Barton
Date:27 January 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 6 October 2021 which refused a grant of Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.
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Member S Barton
Catchwords
CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether Tribunal is satisfied of Applicant’s identity – lost documents – limited material before the Tribunal – discrepancies not adequately explained – Reviewable Decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) – ss 21(1), 24, 24(1), 24(3), 52(1)(b)
Cases
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Minister for Home Affairs v G and Another [2019] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
Secondary Materials
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2022) – paras 4, 5, 12
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) – Sub cl 19D(4)
REASONS FOR DECISION
Member S Barton
27 January 2023
INTRODUCTION
The Applicant seeks review of a decision of a delegate of the Respondent dated 6 October 2021 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The delegate refused the application on the basis that the Applicant did not meet requirements under s 24(3) of the Citizenship Act at the time of the decision.
BACKGROUND
The Applicant, a citizen of the Republic of Zambia (Zambia), arrived in Australia on 5 July 2012 as a holder of a Student (Subclass TU-572) visa.
On 16 October 2019, the Applicant was granted a Spouse (Subclass BS-801) visa (T13/86).
On 24 November 2020, the Applicant made an application for citizenship by conferral (T4/17-37), providing copies of an Australian marriage certificate, a Western Australian driver’s licence, her Zambian passport and a copy of her vehicle registration renewal.
On 1 December 2020, the Applicant was requested by the Department of Home Affairs (the Department) to provide further information in support of her identity, specifically a birth certificate that included her parents’ details (T6/40-42).
On 3 December 2020, the Applicant provided a handwritten baptism certificate and Zambian Police forms and an affidavit from Zambia containing handwritten information stating that she had lost her birth records (T7).
On 14 April 2021, the Applicant was requested a second time by the Department to provide further information in support of her identity (T9/53-55), specifically a high quality scan of the baptism certificate and an explanation as to why a name appeared to have been erased from it.
On 14 April 2021, the Applicant provided further scans of the documents listed in paragraph [6] above, as well as a Police certificate confirming she has not been convicted of felony or misdemeanour in Zambia (T10/56-63). The Applicant in her email attempted to explain the reason for the erased name on the baptism certificate (T10/56).
On 22 April 2021, the Applicant forwarded the email again (T12/73).
On 6 October 2021, the Applicant’s application for citizenship was refused on identity grounds. The delegate found that they could not be satisfied of the Applicant’s identity (T13/82-92). This is the Reviewable Decision before the Tribunal.
On 6 October 2021, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.
JURISDICTION
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
The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Thursday 10 November 2022. The Applicant was self-represented, and the Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers.
The Applicant gave oral evidence and was cross-examined. The Respondent made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Email containing the Applicant's personal statement, dated 14 February 2022 (Exhibit A1);
(b)Applicant's general receipt for payment of fee for a Zambian passport, dated 23 March 2022 (Exhibit A2);
(c)Applicant's National Registration Card, filed 8 June 2022 (Exhibit A3);
(d)Applicant's family outside Australia composition form with identity documents, filed 5 August 2022 (Exhibit A4);
(e)Applicant's family outside Australia composition form with dates of birth provided and identity documents, filed 5 August 2022 (Exhibit A5);
(f)Applicant's family in Australia composition form with identity documents, filed 4 August 2022 (Exhibit A6);
(g)Applicant's family in Australia composition form with dates of birth provided and identity documents, filed 5 August 2022 (Exhibit A7);
(h)Applicant's email containing a statement from her sister, dated 8 November 2022 (Exhibit A8);
(i)Section 37 T-Documents, labelled T1-T15, consisting of pages 1-120, filed 5 November 2021 (Exhibit R1); and
(j)Respondent’s Statement of Facts, Issues and Contentions, dated 3 August 2022 (Exhibit R2).
RELEVANT LEGAL PRINCIPLES
Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.
From 1 January 2019, the Citizenship Policy, Department of Immigration and Border Protection is being systematically replaced by the Revised Australian Citizenship Procedural Instructions (Revised Instructions) which provide guidance on the application of the “identity” and “good character” requirements relevant to assessing an applicant’s application for Australian citizenship by conferral. CPI 16 – Assessing Identity under the Citizenship Act’ (CPI16) of the Revised Instructions are the Instructions relevant to this application.
Identity
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”.
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.
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.)
Identity is defined by CPI16 at [4]:
A person’s identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.
The Department is moving from transaction-centred to person-centred processes using biometrics (for example, using a facial image to identify a person rather than requiring them to provide a range of documents at each interaction) …
Identities need to be trusted and secure. The Department establishes identity records that are relied upon by Commonwealth, state and territory agencies, the judicial system, across international borders and in the private sector. Trusted and secure identities create opportunities for innovation, productivity and economic stimulation. Robust identity confirmation is the basis of a trusted and secured identity.
In the context of the Department’s functions, identity integrity is essential in maintaining Australia’s national security, law enforcement, and economic and social interests.
CPI16 at [5] identifies three pillars of identity: biometric, documents and life story. It states:
Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.
The level of risk associated with the service being applied for determines the type of evidence required to assess a person’s life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person’s identity.
CPI16 provides some guidance as to the meaning of being “satisfied of a person’s identity” at [12]:
Reaching the point where a delegate is satisfied, or not satisfied, of a person’s identity as required by the identity provisions is a process of exercising informed judgement. It must reflect a process of reasoning where the delegate has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
For a delegate to be ‘satisfied,’ the delegate must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts, judges have said the delegate must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’. On the other hand, a delegate does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Delegates must not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy delegates that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
As established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal will ordinarily apply a relevant ministerial policy, unless there are cogent reasons not to do so. In Drake, Brennan J explained the importance of applying policy to guide decision making at page 640:
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
In this regard, the Tribunal also notes Minister for Home Affairs v G and Another [2019] FCAFC 79, in which Murphy, Moshinsky and O’Callaghan JJ outlined the legal principles concerning the application of policy, stating that [59-60]:
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.
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”.
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.
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 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.
The Tribunal is also guided by the approach taken by Member Kennedy in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 at [9], who states:
production 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.
A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker may refuse a grant of citizenship where they are not satisfied of the applicant’s identity.
EVIDENCE
As was briefly outlined above, in her application for the conferral of Australian citizenship lodged on 24 November 2020, the Applicant provided the following supporting documents to address proof of identity requirements (T4/35-37):
(a)Marriage certificate, dated 6 May 2020;
(b)A copy of her Western Australian driver’s licence;
(c)A copy of her Zambian passport; and
(d)A copy of her vehicle registration renewal.
Limited weight can be placed on the documents that the Applicant has been issued since her arrival in Australia. These documents were obtained after the Applicant’s arrival in Australia and provide little insight into her identity. As Deputy President Boyle noted in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [48], such documents are of little value in the exercise of ascertaining an individual’s identity as they, “are simply evidence of who the Applicant says [he or she] is, not of who [he or she] is”.
Her Zambian passport, however, can be given more weight. It is discussed below, in consideration with the other documentation the Applicant has provided before her arrival in Australia.
On 1 December 2020, the Department wrote to the Applicant requesting the Applicant provide further information, namely the Applicant’s full birth certificate with her parents’ details included (T6).
Two days later, on 3 December 2020, the Applicant provided to the Department a handwritten baptismal certificate from the United Church of Zambia, it identified her name as Nambule, Tina, her date of birth and her parents’ names (T7/44).
Also provided was a handwritten Affidavit-General, from Zambia, dated 19 April 2012 and signed by the Applicant stating that she had lost her birth records (T7/45). Accompanying this was a handwritten statement from the Zambia Police Service, purporting to verify that the Applicant had reported the loss of birth records, dated 19 April 2012 (T7/46-47).
On 14 April 2021, the Department wrote to the Applicant requesting further information in support of her identity, requesting a better quality scan of her birth certificate and queried why it appeared that a “name had been erased” from the baptismal certificate on the line which carried her name (T9).
The Applicant responded promptly, replying to the Department that day, stating that the provided baptismal certificate was the only baptismal certificate she had, and with respect to the erased name, replied (T10/56):
The place that looked like it’s been removed i think the put some else name at the front. Then corrected it with my name. As my old name was just Tina nambule.
(Errors in original.)
The Applicant provided further scans of the baptismal certificate and other documents listed in paragraph [36] above, as well as a Police certificate, dated 17 April 2012, that stated that the Applicant had not been convicted of any felony or misdemeanour in Zambia (T10/57-61). The certificate appeared to have a number of pages, which captured her fingerprints and the following (T10/60):
(a)Her date of birth;
(b)Her Country of birth as Zambia;
(c)Her district;
(d)Her village;
(e)Her tribe;
(f)Her Chief;
(g)Her address;
(h)Her occupation as student; and
(i)Her National Registration Card (NRC) number.
On 6 October 2021, a delegate of the Minster refused the application for Australian citizenship on the basis that she could not be satisfied of the Applicant’s identify.
On 6 October 2021, the Applicant applied to the Tribunal for a review of the decision, stating the following (T2/8):
Hi, I am applying for you to help me with. Assistant on the decision that has been made , . As the sent me 28 days to put in a document of my birth certificate . Which I lost a long time ago and when I was back home I did go get a police report on my decument missing back in 2010 which the gave a record of report for date of birth and I hard a baptism record which I provided to the department of immigration citizenship department and sent my finger prints and the police report for my record . Which the said it was ok . As I contacted them again and explained the situation the said no we just wanted you send us a copy which is clear which I did the baptism certificate I think hard error on it. But explained all that and the said that’s was ok . I did explain if they was something needed to let know If that not enough There was covid restrictions of sending things or receiving thing even if I requested someone to go and ask if the can manage to go get me the original Copy of birth certificate .
The said the document don’t have details of my birth parents but every thing is there from the police record I obtain . Please help me resolve the matter as I just received email today.
(Errors in original.)
In her submissions to the Tribunal, the Applicant provided several other documents, they included the following:
(a)A receipt from Zambia for a passport application (A2);
(b)A copy of her NRC, issued on 18 January 2011 (A3);
(c)Family details of those outside Australia (A4, A5);
(d)Family details of those in Australia (A6, A7); and
(e)A copy of her photograph and biographic details from an expired Zambian passport (A5).
CONSIDERATION
Identity
To restate the relevant policy, there are three pillars of identity: biometric, documents and life story. In terms of biometric, there are the fingerprints that were provided to the Department (T2). However, in isolation, they tell us very little about the Applicant. In terms of documents, the Applicant has presented limited material from her time prior to her arrival in Australia to support her citizenship application. There is, as previously noted, a baptismal certificate, which includes a name that has been erased. In and of itself, little weight can be placed on this document and indeed the Applicant herself noted during the hearing that, “…it’s not regarded as a document that you can take and go and obtain your passport or your birth certificate or anything…” (transcript/19).
According to the Applicant, her birth certificate and other documents were lost when she was young, noted in the Zambian Police records she has provided to that effect. The Applicant told the Tribunal (transcript/17):
Because the only reason that my birth certificate got lost is prior from moving house to house because when my father passed away, we did not have a house, so mum originally lost most of the documents prior to us moving around in different houses.
The Applicant has provided a copy of her NRC and an old passport, the Respondent has observed that both documents were issued on the same day in 2011 (transcript/14). However, when describing the processes behind the issuing of her passport in 2011, the Applicant stated (transcript/14):
…I provide - my national registration card, I think - that’s what mum provided and got to fill out a document as well if - yes, a document that you fill out with everything…
…I had the new NRC provided while I was waiting for the passport…
When questioned further on the process, noting they were both issued on the same day, the Applicant stated (transcript/15):
So you go with - when you go with your mum to get your passport, because your mum provides all the information that you have and she provides that NRC as well so she will give them the NRC document and if you haven’t received an NRC, she must have had the document to show that I haven’t received my NRC but it’s in the process of coming as well. So I think those are the documents she provided, which I can’t be sure of because all I had to do is sign the application and get all the pictures and all that. And then she did everything for me because she’s my mum, so she knows all the information that she needs to provide that passport office so yes.
This was confusing and it was unclear how both documents could be issued on the same day. Additionally, the Police certificate from 2012 provided by the Applicant records a date of issuance of 6 November 2007 (T2). It is unclear from the document whether this date of issuance refers to the Applicant’s NRC or Zambian passport.
The Respondent appears to have concluded it was the NRC, noting the following exchange during the hearing (transcript/18):
RESPONDENT: But this says that the NRC was issued in 2007?
APPLICANT: Date and place of issuance for - if this is - this is for - you mean date and place of issue, that mean the main way it was issued so could be when my mum applied for the NRC document, yes. So I am not 100 per cent sure about that one, date and place of issue so I don’t know what they’re referring to on that one. So just to clarify, so I am not saying something that’s different to and make the information confusing.
RESPONDENT: And so, your passport number isn’t listed on that document so am I right to think that you didn’t take your passport with you when you went to the police on that occasion, or?
APPLICANT: When I went to the police, no, I didn’t take my passport with me there. I only had the NRC; I don’t remember taking my passport with me there.
All that can be said with confidence at this point, is that 6 November 2007 is not recorded on either her NRC or Zambian passport, and therefore it is a date that cannot be accounted for and creates a discrepancy that cannot be explained (T2).
The Tribunal notes that the Applicant was in the process of applying for a new passport from the Zambian authorities, however it had not arrived at the time of the hearing (transcript/7).
In terms of the Applicant’s life story before her arrival in Australia, there is very little detail before the Tribunal. The Applicant did state that she did have some school records, possibly from Year 7, Year 9 and Year 12 (transcript/21). The Applicant did not provide these documents in support of her application. Details (and documents) relating to her schooling would have assisted in assessing the Applicant’s life story.
CONCLUSION
Due to the limited material presented in this matter by the Applicant, the Tribunal cannot have an affirmative belief as to the Applicant’s identity. The Tribunal has only a baptismal certificate, an affidavit and Police certificate relating to lost documents and copies of an old NRC and passport, with some discrepancies not adequately explained.
This is not to say that the Applicant is not who she says she is, but rather there is not enough evidence before the Tribunal for it to form the affirmative belief that her identity can be satisfied for the purpose of granting Australian citizenship.
Though unsuccessful on this occasion, it is open for the Applicant to apply for Australian citizenship again. The Applicant may choose to benefit from this experience by actively sourcing documents and material from the relevant authorities in Zambia or other sources, such as school records, that assist in positively establishing her identity. It was evident from the hearing that there may be avenues that the Applicant has not exhaustively explored.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 6 October 2021 which refused a grant of Australian citizenship under s 24(1) of the Citizenship Act, is affirmed.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member S Barton
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Associate
Dated: 27 January 2023
Date of hearing: 10 November 2022 Applicant: In person Solicitors for the Respondent: Ms E Tattersall, Sparke Helmore Lawyers
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