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

Uwangabe and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4118 (1 December 2022)
Division:GENERAL DIVISION
File Number: 2020/1486
Re:Jane Uwangabe
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member S Barton
Date:1 December 2022
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 12 March 2020 which refused a grant of Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.
.........[Sgd]...............................................................
Member S Barton
Catchwords
CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether Tribunal is satisfied of Applicant’s identity and good character – uncertainty and inconsistencies in the Applicant’s life story – the Applicant has provided false information to Australian Government authorities – identity not satisfied – Reviewable Decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 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
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
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 15 – Assessing Good Character under the Citizenship Act (2021) – paras 3.1, 3.3, 4
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2022) – paras 4, 4.1, 5, 12
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) – Sub cl 19D(4)
REASONS FOR DECISION
Member S Barton
1 December 2022
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent dated 12 March 2020 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) and s 21(2)(h) of the Citizenship Act at the time of the decision.
BACKGROUND
The Applicant arrived in Australia on 8 April 2010 as the holder of a Class XB (Subclass 200) Refugee (permanent) visa (refugee visa) (ST39/541).
The Applicant’s refugee visa was granted on 3 December 2009 on the basis that she was a “dependent applicant” of the primary applicant, Fred Ndayishimiye, who the Applicant claimed to be her full biological brother at the time of the refugee visa application (T19). The Applicant’s refugee visa was granted with the following identifying particulars (ST12/351):
(a)Name:  Jane Uwangabo;
(b)DOB:  1 January 1991; and
(c)Place of birth:           Democratic Republic of the Congo.
On 11 June 2010, the Applicant requested an amendment to her personal records under s 48 of the Freedom of Information Act 1982 (Cth) (FOI Act), requesting that her name and date of birth be changed to Jane Uwangabe, DOB: 21 August 1986 (ST16).
On 9 July 2010, the Applicant disclosed to a FOI case officer that she was adopted by Mr Ndayishimiye’s father and that she was not biologically related to the family she came to Australia with (ST18/416).
On 6 August 2010, the Applicant made a further request for her personal records to be amended pursuant to s 48 of the FOI Act, to reflect her “parents names” and that she was not biologically related to Mr Ndayishimiye (ST21/423-425).
On 23 September 2015, the Applicant applied for conferral approval under subsection 21(1) of the Citizenship Act (ST25/442-464), providing the Department of Home Affairs (the Department) with a Congolese birth certificate dated 27 May 2015, recording the Applicant’s date of birth as 21 August 1991.
The Applicant also provided the Department with a statutory declaration made 6 November 2015, indicating that she had travelled to Australia with Mr Ndayishimiye and they had since separated due to family disputes (ST26/465).
Between March and April 2016, the Department sought to verify the Applicant’s Congolese birth certificate and school records. Their enquiries revealed that the birth certificate was not issued from the Registry of Births, Deaths and Marriages in Goma, the certificate number was not issued to the Applicant and the signatory on the birth certificate has not held the position of the Registrar (or his delegate) since 2008 (ST28/471).
[Paragraph redacted.]
On 7 October 2016, a delegate of the Minister refused the Applicant becoming an Australian citizen on the basis of identity concerns (ST38/528-540).
On 8 September 2017, the Applicant made a second application for citizenship approval, claiming to be born in Nyagatare, Rwanda, not Goma in the Congo, and recorded the names of her parents as John Mugabo and Veneranda Mutegwaraba (T8).
In support of this second application, the Applicant provided a handwritten letter apologising for “inconsistent documents” and stated she was not certain of her country of birth “due the [sic] adopted parent [sic] that were misleading to me [sic]” (T8/124). She also provided an original Rwandan birth certificate (with translation) dated 27 February 2017, indicating that she had been born in Nyagatare on 21 August 1991, and Ms Mutegwaraba’s Rwandan national identity card (T8/127).
[Paragraph redacted.]
On 12 March 2020, the Department refused the conferral of citizenship in accordance with s 24(3) and s 21(2)(h) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity and the Applicant was assessed as not meeting the character requirements. This is the Reviewable Decision before the Tribunal.
On 13 March 2020, 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 and whether the Applicant satisfies the character requirements for the purposes of s 21(2)(h) of the Citizenship Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Thursday 15 September 2022. The Applicant was represented by Ms Sophie Manera of Tang Law and the Respondent was represented by Mr Jon Papalia, an Australian Government Solicitor.
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)Applicant’s Statement of Facts, Issues and Contentions, dated 29 March 2021 (Exhibit A1);
(b)Applicant's statement with attachments, dated 20 August 2020 (Exhibit A2);
(c)Applicant’s further statement with attachments, dated 26 March 2021 (Exhibit A3);
(d)Applicant's Statutory Declaration, dated 30 April 2021 (Exhibit A4);
(e)Applicant's further Statutory Declaration with attachments, dated 8 April 2022 (Exhibit A5);
(f)Statement of Venerada Mutegwaraba, dated 24 March 2021 (Exhibit A6);
(g)Statement of Jannet Kanyana with attachment, dated 1 April 2021 (Exhibit A7);
(h)Statutory Declaration of Prossy Kujji, dated 5 June 2021 (Exhibit A8);
(i)Character reference letter by Gordon Trewern, dated 24 August 2020 (Exhibit A9);
(j)Character reference letter by Mulfalme Habanabakize, filed 27 August 2020 (Exhibit A10);
(k)Character reference letter by Sarah Williams, dated 28 August 2020 (Exhibit A11);
(l)Character reference letter by Ernest Kalisa (President of Rwandan Community Abroad Perth Inc), dated 17 August 2022 (Exhibit A12);
(m)Certificate of Australian Citizenship of Sonia Mirembe, dated 22 May 2017 (Exhibit A13);
(n)Section 37 T-Documents, labelled T1-T30, consisting of pages 1-300, filed 19 May 2020 (Exhibit R1);
(o)Supplementary Section 37 T-Documents, labelled ST1-ST40, consisting of pages 301-543, filed 5 November 2020 (Exhibit R2); and
(p)Respondent’s Statement of Facts, Issues and Contentions, dated 24 May 2021 (Exhibit R3).
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 15 – Assessing Good Character under the Citizenship Act (CPI15) and 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.
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.
CPI16 [4.1] states:
While most citizenship applicants are likely to be well documented, some humanitarian entrant citizenship applicants may not be. Humanitarian and protection visa holders may have fled their homeland as a result of persecution or substantial discrimination, and/or have been displaced long-term in third countries prior to arrival in Australia…
It is still appropriate to rely on the three pillars in assessing identity for these applicants. Under the document pillar, however, it may be appropriate to take the permanent visa grant as the starting point of the identity assessment and consider Australian issued primary identity documents (for example PLO56, Document For Travel to Australia (DFTTA) or ImmiCards) giving significant weight, in the absence of contrary evidence, to these documents and continuity of identity from the point of issuance until the present.
While having due regard for CPI16 [4.1], the Tribunal is also guided by the approach taken by Member Kennedy in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 at [9], who states:
[p]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants.
A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker may refuse a grant of citizenship where they are not satisfied of the applicant’s identity.
Character
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Citizenship Act, as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Good character is not defined in the Citizenship Act. The Tribunal is guided by CPI15, mentioned above, in its discussion of this requirement.
Paragraph 3.1 of CPI15 states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·     consider any character issues that arise on the facts of a case;
·     consider all relevant information;
·     guard against bias;
·     be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·     be mindful that a person who may not have been of good character can become a person of good character;
·     continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
Relevantly, paragraph 3.3 of CPI15 states:
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·     characteristics which have endured over a long period of time;
·     distinguishing right from wrong; and
·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

Paragraph 4 of CPI15 provides a list of characteristics that may be expected from someone of good character, it states:
As a general proposition, a person who is of good character would:
·     respect and abide by the law in Australia and other countries;
·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …
ointentionally providing false personal information …
…
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Also of relevance in this matter is paragraph 6, which states:
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
EVIDENCE
In her application for the conferral of Australian citizenship lodged on 8 September 2017, the Applicant stated that her name was Jane Uwangabe and her date of birth was 21 August 1991. She also stated that she had previously recorded a different date of birth, 21 August 1986. She stated that the reason for the different date was “Mistake…done by system [sic] at UNHCR in visa application to Australia” (T8/106).
She stated that her mother was Veneranda Mutegwaraba, born in Nyagatare, in Mutara, Rwanda, and her father was John Mugabo (T8/114).
The Applicant provided the following supporting documents to address proof of identity requirements:
(a)Translated copy of a Rwandan birth certificate in the name of Jane Uwangabe, born 21 August 1991 (T8/125-126);
(b)Photocopy of her mother’s Republic of Rwanda national identity card (T8/127);
(c)Copy of the Applicant’s Western Australian driver’s licence, with date of birth listed as 21 August 1986 (T8/128);
(d)Copy of an Australian Government pensioner concession card (T8/129); and
(e)A copy of an energy bill (T8/130).
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”.
As noted above, accompanying the Applicant’s application for citizenship was a handwritten note, presumably referring to her previous application for citizenship. It stated that (T8/124):
I would like to first of all apologise to the department for the previous inconsistent documents, this was caused of up bringing that I was not sure of my country of birth due to adopted parent that were mis leading me. I have attached an evidence of birth certificate given to me by my biological mother and together with a certified copy of my mother’s nation identity card…
(Errors in original.)
On 25 October 2018, the Department wrote to the Applicant requesting that she complete a Declaration of Service (Form 1399) and provide further documents confirming her identity (T9). The Applicant responded by providing a copy of her “titre de voyage”, a translation of a handwritten request from Rwandan provincial authorities to the national identity office for a national identity card with date of birth of 21 August 1991, a copy of her birth certificate and a medical letter (T10/150-156). In her Form 1399, the Applicant provided details of four siblings: John Shyaka, Eric Nkusi, Daphne Ingabire and Molly Uwera. Mr Shyaka lived in Rwanda, while the others lived in Sweden (T11/167).
The Applicant’s Form 1399 was only partially completed and, on 29 August 2019, the Department wrote to her requesting she complete a Form 80, a UNHCR Disclosure Consent Form and that she complete questions in her Form 1399 that she had not answered (T11). The Department also posed some questions to the Applicant (T11/159).
The Department noted that the Applicant was granted a permanent visa to Australia in 2009 with the date of birth of 21 August 1991. In 2010, the Applicant requested that the Department amend her date of birth to 21 August 1986. In 2017, the Applicant travelled to Rwanda and obtained a new birth certificate with the date of birth of 21 August 1991. The Department requested an explanation as to why she changed her date of birth to 1986 (T11/159).
The Department noted that her Rwandan birth certificate was issued on 27 February 2017, when she was in Australia. The Department requested an explanation as to how she was able to obtain a Rwandan birth certificate without any identity documents from Rwanda and without being in the country (T11/159).
The Department noted that the Applicant claimed to have applied for a Rwandan national identity card but had not returned to collect it. The Department requested an explanation as to why she did not seek to have it collected on her behalf or why it could not be posted to her in Australia (T11/159).
The Department also drew attention to a previous citizenship application where the Applicant stated she had been adopted at an early age and that she did not know where her parents were. The Department sought information on her movement history from her birth to 2009 and how she came to be separated from her biological family, and how she came to subsequently locate her parents (T11/159).
On 19 September 2019, the Applicant responded to the Department, beginning with a letter detailing her life story (T12).
The Applicant stated that on her arrival to Australia, her date of birth was recorded as 1 January 1991 and her name misspelt as Uwangabo. Following discussions with a social worker, the Applicant stated the only way to remedy this was if she had a document that spelt her name correctly and with the right date of birth. She used a friend’s document, with the name Jane Uwangabe and date of birth of 21 August 1986. The Applicant also states that this was a period when she was in dispute with her adopted family, having declared that she was not a biological member of the family (T12/172).
It is noted that in 2010, the Applicant supplied the Department with a baptismal certificate and various education records from Uganda in the name of Jane Uwangabe, with the 1986 date of birth (ST16/399-410). The Applicant also provided a supporting letter from a social worker from the South Australian Department for Families and Communities (ST16/411). This was accepted by the Department and the records were amended accordingly in July 2010 (ST19).
With respect to the Rwandan birth certificate being issued while she was in Australia, and the question how she was able to obtain it without any identity documents from Rwanda, the Applicant stated (T12/172-173):
I received this birth certificate through my mother who sent it after reconnecting on facebook by my aunt (mother’s sister), in Rwanda an child born before the genocide can only get a birth certificate or birth declaration through known residential parents or relative that is known, or family log and she sent through my Australian friends who had visited Rwanda.
(Errors in original.)
In response to the Department’s questions regarding the Rwandan national identity card, the Applicant stated that (T12/173):
The Rwandan National ID office had advised me that if Australia does not consider the birth certificate, they will give me an ID that corresponds with my current travel document and disregard my actual date of birth, because I have explained to the department of Home and affairs several times the reason of not collecting this ID and they have insisted on additional information. This has pushed me to make a request from my mother to collect the Rwandan id and my aunt has emailed me a copy, whereas the date birth appearing on my current travel document is 21/08/1986 together with an authorization letter.
(Errors in original.)
The Applicant also provided a copy of the identity card (T13/206).
In terms of her life story, the Applicant states that her parents, members of the Tutsi ethnic group, were displaced following political and ethnic instabilities in Rwanda. Her parents met as refugees in Tanzania, before returning to Rwanda. She states that both her and a sister (Shallon Urujeni) were born in Rwanda before the genocide (the Rwandan Genocide of 1994) (T12/173-174).
The Applicant stated that she could not be specific with dates and times because she was very young and could not remember. She did, however, state that her family left Rwanda during the genocide and fled to the Congo. She states that this region experienced unrest and soldiers came to her school to ‘rescue school children’, separating her from her parents (T12/174).
The Applicant states that one of the soldiers, Isaac Semahoro, adopted her, and she met his family members, Mr Ndayishimiye and Solonge Mahirwe. She states that after Isaac Semahoro died, the family moved to Uganda in 2008. Mr Ndayishimiye was now the family head and, the Applicant claims, he controlled what was said and what was discussed in interviews with the UNHRC (T12/174).
The Applicant stated that Mr Ndayishimiye threatened to abandon her in Uganda if she did not follow his instructions. She states that she decided to remain quiet until she arrived in Australia. It is for this reason that she states her name was spelt ‘Uwangabo’ on her arrival in Australia. She claims that Mr Ndayishimiye and his siblings abused her emotionally, psychologically and physically. According to the Applicant, they insulted her for not having an identity, which offended her (T12/174-175).
The Applicant states that her mother arrived in a refugee camp in Uganda in 2011, where she met Ms Mahirwe, who spoke to her because she looked like the Applicant. Ms Mahirwe facilitated contact between the Applicant and her mother, and the Applicant unsuccessfully applied for her mother to come to Australia in 2012. She subsequently lost contact with her mother, before reconnecting through an aunt on Facebook. In 2017, she returned to Rwanda to visit her mother (T12/175).
In her Form 80, the Applicant listed two siblings, an adopted brother who lives in Rwanda, Alex Muhriwa and a sister, born on 23 September 1989, Ms Urujeni (T12/189). She stated her parents were John Mugabo and Veneranda Mutegwaraba, both born 1 January 1960 (T12/188). This is the same information provided in her Form 1300 (T12/196-197).
The Applicant also submitted a signed UNHRC Consent to Disclose Form, providing her details as they were upon her arrival to Australia: Jane Uwangabo born 1 January 1991, born in the Congo (T12/203).
On 11 December 2019, the Department wrote to the Applicant inviting her to comment on adverse information. The Department noted that in her interactions with them, she had provided different names, dates of birth and nationality, which are as follows (T15/249):
(a)Jane Uwangabo, born 1 January 1991 in Kiziba in the Democratic Republic of Congo (DRC);
(b)Jane Uwangabe, born 21 August 1986 in Goma, DRC; and
(c)Jane Uwangabe, born 21 August 1991 in Rwanda.
The Department noted that the UNHCR had described the family composition as follows (T15/249):
(a)Father Semahoro Ndayishimiye and mother Janet Nyirabeza;
(b)Siblings Fred Ndayishimiye, Alice Uwase, Blaise Serugo; and
(c)Cousin, Solange Mhirwe (later removed from the application ST8/343].
The Department noted that in June 2010, the Applicant had lodged a freedom of information (FOI) request to amend her personal details, providing a baptismal certificate issued by a Catholic Church in Uganda on 29 October 2006 to support the claim. The Applicant had also stated that Mr Ndayishimiye was her adopted brother (whom she had a child with). The certificate listed her father as John Mugabe and her mother as Josphine Mulewa. In 2016, the Department received information from the church confirming the people listed on the certificate (T15/249).
On 6 August 2010, the Applicant lodged a second FOI request, to change her family relationships and provided a second baptismal certificate. This document was issued by a Catholic Church in the DRC on 6 April 2000, it lists her father as John Mugabo and her mother as Venn Mutega. In 2016, the Department received information from the church confirming the people listed on the certificate (T15/249-250).
On 27 July 2011, the Applicant lodged a sponsorship for Venancia Mutega, born 1 January 1950, for a humanitarian visa. The Applicant stated Venancia Mutega was her mother and listed a number of siblings: Bosco Shema, John Shyaka, Daphine Ingabire, Molly Uwera, Erick Nkusi, Jannet Kanyana, Joel Murwanashya and Diendonne Hategekiimana (T15/250).
On 23 September 2015, the Applicant also lodged a citizenship application, listing her parents as John Mugabo and Venn Mutega. On 8 September 2017, the Applicant lodged another application for citizenship, stating that her parents were John Mugabo, Veneranda Mutegwaraba, with an adopted brother Alex Muhirwa and sister Shallom Urujeni (T15/250).
The Department noted that there was inconsistent information regarding the Applicant’s family and sought clarification on her family composition.
Additionally, the Department sought clarification from the Applicant on her nationality, noting there were differing accounts as to whether she was born in the DRC or Rwanda. The Department also drew attention to concerns regarding documents the Applicant had provided, which were as follows (T15/250-251):
(a)The baptismal certificate issued by a Catholic Church in Uganda has a date of issue that differs to church records;
(b)A DRC birth certificate provided by the Applicant in 2015 (ST26/467), which was found to be counterfeit, with the certificate number found to be issued to a male; and
(c)[Paragraph redacted.]
The Applicant responded on 15 December 2019, addressing the concerns raised by the Department.
With respect to her identity presented in 2009, the Applicant stated (T16/257):
I would like to say that the worst cause of all the mis leading information that I did supplied to the department was as a result of this actual mis spelling of my last name Uwangabe as Uwangabo and date of birth as 01/01/1991 rather than 21/08/1991. And am sure there must be other people from a refugee back ground that would have experienced the same name spelling issue and date of birth with an errors.
(Errors in original.)
Referring to the two FOI requests the Applicant lodged, the Applicant stated (T16/258):
Yes, I did lodge in all the above changes because all I cared was my peace of mind but not anyone else’s and since I left my country or got separated from family due political instabilities and genocide. Growing up in an illegally adopted family, I suffered internal discrimination all sorts of psychological abuses but maintained silence to survive.
(Errors in original.)
The Applicant conceded that she sponsored her mother for a visa, spelling her name as Venacia Mutega with a date of birth of 1 January 1950, and later referring to her as Veneranda Mutegwaraba, date of birth 1 January 1960, stating (T16/258):
… I don’t find that as an issue because I had the same issues with my own name and date of birth. And I need to be clear with this, in the refugee camp while doing interviews we always each time one went for a second interview there were always errors to make correction.
(Errors in original.)
The Applicant conceded that she had lodged an application for citizenship in 2015, in the name of Jane Uwangabe, born 21 August 1986 in the DRC, stating (T16/258):
Yes, did apply for citizenship with 21/08/1986 and I also attached certificate from D R Congo that was later found as false or false document. I did that trying to provide consistent information to the department. I did not remember asking asking details about where I was born with my mother during my conversation the phone 2011, she did not disclose to me that I was born in Rwanda so, all a long I knew that I was Congolese…
With respect to her family composition recorded by the UNHCR, with her father listed as Semahoro Ndayishimiye, the Applicant stated that this was the soldier who adopted her while living in the Congo, when war broke out, though she could not remember the year. She stated that she did want to tell the truth during the interviews when applying for a visa to Australia, but Mr Ndayishimiye did not let her (T16/259).
The Applicant stated that the Catholic baptismal certificate issued in Uganda was not hers, but that of her friend who had a similar name but different date of birth, hence the father is listed as Mugabe not Mugabo (T16/259). The other baptismal certificate, issued in the DRC, is the Applicant’s, with a shortened version of her mother’s name (T16/260).
She confirmed that the siblings listed in her 2011 visa application for her mother were either her siblings or her cousins, and that she did not include them in her application for citizenship because she was unsure of their dates of birth and did not want to provide inconsistent information (T16/260). She did not directly address why Shallon Urujeni and Alex Muhirwa did not appear in the 2011 application.
On 12 March 2020, the Department refused the conferral of citizenship in accordance with s 24(3) and s 21(2)(h) of the Citizenship Act, because the delegate was not satisfied of the Applicant’s identity and the Applicant was assessed as not meeting the character requirements.
CONSIDERATION
Identity
The challenge in determining the Applicant’s identity is that she has presented with three different identities: Jane Uwangabo, born 1 January 1991 in Kiziba in the DRC, Jane Uwangabe, born 21 August 1986 in Goma, DRC and Jane Uwangabe, born 21 August 1991 in Nyagatare, Rwanda.
In essence, her contentions could be summarised as follows. She arrived in Australia with her adopted family, however, did not feel in a position to correct her name, or date of birth or the fact that she was not related to that family until 2010. In order to do this, she used the identity of someone she knew with the same name, who was five years older than her, but born on the same day. In the interim, she was reconnected with her mother and, was subsequently able to confirm the circumstances of her birth and Rwandan identity documents.

Elements of this story are plausible, notably that a person in her circumstances might conceal for a period that she was adopted and not a biological member of that family. Additionally, that only upon re-connecting with her mother, could she become aware of her country of origin and previously unknown aspects of her life story.
However, other elements of the Applicant’s life story involve circumstances of great coincidence that appear to stretch credulity, for example, a friend with the same name and date of birth, albeit five years older. The fraudulent Congolese birth certificate and issues with the Ugandan baptismal certificate cast further doubt on this aspect of the Applicant’s story. This is not to say that it is not true, merely that, with the evidence before the Tribunal, it involves a suspension of healthy scepticism.
Additionally, the Applicant said that her adopted cousin, Ms Mhirwe, sought out her mother in the camp in Uganda because she looked like the Applicant. It is true that in the wake of great upheaval and strife, families have been reunited in circumstance of considerable luck or coincidence. Nevertheless, it is a terrific coincidence, that a woman in her fifties or sixties, in a refugee camp in Uganda, could remind Ms Mhirwe of the Applicant, who she knew as a girl and young woman. The circumstance of the Applicant’s separation from her parents and adoption are also murky, though they may indeed be true.
It is worth noting that the Applicant’s mother, when asked when she had learnt that the Applicant moved to Australia, she stated through an interpreter that (transcript/36):
She answered that when she was speaking to her friends in the Nakivale Camp she learnt that her daughter was - had been in Uganda, and that she had moved with some other people into Australia.
However, the Applicant’s mother, stating that her memory was not good, thought it was in 1998 or 1999. This, according to the Applicant, was her mother getting confused. When asked how she knew the Applicant was her daughter when, in 2017, she saw her for the first time in many years, the Applicant’s mother said it was her teeth and that her daughter’s front teeth had “an opening, a space” (transcript/38-39). During the hearing, there was no observable diastema, or gap between the applicant’s front teeth. The Applicant observed (transcript/39):
My mum is mixed up. If you start asking her about years and things she’ll get mixed up. So if you keep asking you get a lot of mixed up information, trust me.
This exchange is only referenced because it serves to illustrate the uncertainty in aspects of the Applicant’s life story.
Some weight should be placed on the fact that the Applicant’s name has been relatively consistent throughout her interactions with Australian authorities: it has been Jane Uwangabo or Uwangabe.
[Paragraph redacted.]
The Applicant’s representative also drew the Tribunal’s attention to the Form 842, the Application for an Offshore Humanitarian visa, where it lists the education of all people included in the application. The Applicant’s name is spelt ‘Uwangabe’ and the Form states that she attended primary school from 1995 to 2003 (ST7/338). The Applicant’s representative stated (transcript/42-43):
…there’s the handwritten name Jane Uwangabe. And to me really I’ve got to say that looks like an “e” at the end of Uwangabe, not an “o”, so I’ll come to that later, that says that she attended primary school from ‘95 to 2003, and now this form is probably written with the assistance of UNHCR staff or, you know, interpreters.
So if that’s correct, if she attended primary school from about ‘95 to 2003, well if she was born in 1991 that’s the correct year of birth, then she would have attended primary school between the ages of about four and 12 years old, which is pretty consistent with primary school. If she was born in 1996, well, there was no way that she started primary school in 1995. If she was born in 1986, then according to what’s on the form she would have attended primary school between the ages of nine and 17 years old, which is a bit old for primary school. So we submit the information in the form 842 is consistent with her claim that she’s born in 1991, that’s correct, not ‘86 or ‘96.
The Rwandan national identity card carries the date of birth of 21 August 1986. The Applicant states that the date of birth on this card corresponds with her travel documents. Despite having a Rwandan birth certificate recording the date of 1991, the Applicant contends that when she went to Rwanda and met the authorities for issuing her with a national identity card (transcript/24):
I spoke to every person that was in that office, they said, “We cannot print against something that contradicts your national ID. Unless Australia changes it then we can change it.” It’s all there, I can go back to the same website and put in my national ID, I’ll get a birth certificate now that says ‘86 because that’s what the national ID I have there.
…I think the mistake I did, I shouldn’t have applied for national ID before getting this done. This is where the conflict comes. If I didn’t apply for the national ID the conflict wouldn’t happen on this birth certificate. But then the national IDs they say, well, whatever happened in Australia it’s their business. If Australia accepts this, we have no problem about it and we change your national ID. But if you still come with anything that says that doesn’t match what you have and we still give you what we have in the system.
As noted above, the Applicant in her application for Australian citizenship did provide a translation of a handwritten request from Rwandan provincial authorities to the national identity office for a national identity card with a date of birth of 21 August 1991 (T10/153 -154).
[Paragraph redacted.]
The Applicant has also provided different spellings and dates of birth for her mother. It is accepted that the spelling of names can be corrupted through the translation process and that Western naming conventions are not universal, but it does add further uncertainty to the matter. The Applicant’s various lists of siblings and cousins complicate the task of positively establishing her life story.
It is entirely possible that the Applicant is Jane Uwangabe and she was born on 21 August 1991 in Rwanda. However, there is too much uncertainty in the Applicant’s life story and documentary evidence to be positively satisfied and form an affirmative belief in her identity.
In the future, the Applicant may be able to clarify the discrepancies regarding her dates of birth with Rwandan authorities. Her representative also made mention of DNA tests with family members; however, this has not been able to proceed to date.
Character
Given the Tribunal is not satisfied of the Applicant’s identity, it is not necessary to consider if the Applicant is of good character. However, the issue of character in this matter is inextricably linked to identity.
The Tribunal places emphasis on paragraph 4 of CPI15, which was cited above under “Relevant legal principles”, it states:
As a general proposition, a person who is of good character would:
·     respect and abide by the law in Australia and other countries;
·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …
ointentionally providing false personal information …
(Emphasis added.)
By her own admission, the Applicant has provided information to Australian Government authorities that is false, she did so in 2010 and in 2015. The Applicant has provided an explanation as to why she did this. Some of her explanations are plausible, though not excusable, but without positively establishing her identity, it is difficult to properly assess her explanations in the proper context.
The Applicant’s representative submitted that (transcript/45):
In terms of her employment, so she’s currently working as a [disability support worker]. It’s difficult work, it’s underpaid, it’s a sector that not many Australians want to work in, and we submit this goes to her good character. You know, we’ve got a skills shortage. She could choose to do other work but she chooses to help vulnerable, marginalised people in society. And she came to Australia, you know, really with nothing. You know, she’s survived two abusive relationships, one with Fred, one with the father of her second child, she has a restraining order against him. And yet to think how far she’s come. She’s put herself through university, she has a Bachelor Degree in Psychology. She works long hours as a [disability support worker]. She earns a good income. She is single-handedly raising two children. She doesn’t have the family support, the mum to rely on to help looking after the little kids. She’s bought a house, she’s financially independent, she doesn’t receive child support from her former partners. She should be very proud of what she’s accomplished here.
And then in terms of the documents, the incorrect information that she gave to support her freedom of information requests, well, the first FOI request was really - the goal of that was to change her name from Uwangabo to Uwangabe. And, you know, your name is your identity. So to want to correct your name so that you’re no longer - your name no longer means - your name no longer means wife of Angabo, which just wasn’t true, she had to change it. You know, the “o” was more than - it was more than a syllable, it was more than a letter. That “o” meant that she was wife of Angabo which was just wrong. You know, it conferred that incorrect status. So what she did to change that was wrong, but it was more important to her to have the - to have that correct name.
You know, to her that was - that name is what gave meaning and identity, rather than a year which is just different, I guess, different - probably different to the way that she would see it now. But she has, you know, she has said today that she is sorry and that she’s made a mistake, and now we submit she does understand the importance of providing correct information to the Department and the serious consequences that her actions have had. And we do submit that her behaviour should be considered in the context of the abusive relationship she was in with her adoptive brother Fred, you know, the hostile relationship that she had with the other siblings that said she didn’t have an identity. You know, all of that was really just to separate herself, to be independent, to have her own identity, and it’s just caused all these problems years later.
And finally, she is supported by high profile members of the community. By a teacher, by a senior public servant, by a member of - the President of the Rwandan Community Abroad Perth who provided a support letter. So she does - she has effectively found her own family here in the Australian community. So we acknowledge that there have been concerns with her identity and character, however we submit there are reasonable explanations that she’s done her best to try and prove her identity. And considering all she’s achieved in Australia that is evidence of her good and her strong character and her identity.
Elements of this submission are not without merit. The Applicant has arrived in Australia as a young woman, witness to tumultuous and traumatic events surrounding the Rwandan Genocide. She is raising two children and has put herself through tertiary studies and is, in many respects, a productive member of society, for which she can be justly proud. However, the uncertainty surrounding her identity and her previous inactions with the Department does raise legitimate doubts.
The Tribunal is also mindful that a person of good character may do things they otherwise regret or is out of step with their usual conduct and behaviour, for example, for whatever reason, providing false information to Australian authorities.
There is a chance the Applicant is of good character who made a series of mistakes from poor judgement and invidious circumstances; however, this falls short of the affirmative belief required.
CONCLUSION
The Tribunal is unable to reconcile the inconsistencies and uncertainties regarding the Applicant’s life story and therefore cannot have an affirmative belief as to the Applicant’s identity. Furthermore, in her interactions with Australian Government authorities she has provided false information. On this basis, the Tribunal cannot be satisfied she is of good character.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 12 March 2020 which refused a grant of Australian citizenship under s 24(1) of the Citizenship Act, is affirmed

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

...............[Sgd].........................................................
Associate
Dated: 1 December 2022

Date of hearing: 15 September 2022

Solicitors for the Applicant: Ms S Manera, Tang Law

Solicitors for the Respondent: Mr J Papalia, Australian Government Solicitor

[2022] AATA 4118

1 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Date of hearing:	15 September 2022
Solicitors for the Applicant:	Ms S Manera, Tang Law
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor