Warsame and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3375

Warsame and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3375 (25 August 2021)

Division:GENERAL DIVISION

File Number:          2020/2050

Re:Mohamed Omar Warsame

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date:25 August 2021

Date of written reasons:      21 September 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside and remits the decision under review for reconsideration pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal being satisfied as to the Applicant’s identity under s 24(3) of the Act.

........................[sgd]................................................

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – refusal of application for citizenship by conferral – whether Applicant has satisfied identity requirement under s 24(3) of Australian Citizenship Act 2007 –inconsistencies within the Applicant’s  ‘life story’ –- evidence supporting Biometrics and  Documents pillars – Tribunal satisfied as to the Applicant’s identity

Legislation

Administrative Appeals Tribunal Act1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases
Alimoradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) 2021 AATA 2054

Briginshaw v Briginshaw (1938) 60 CLR 336
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579

Secondary Materials

Attorney-General’s Department’s National Identity Proofing Guidelines 2016
Revised Citizenship Procedural Instructions, Chapter 16

REASONS FOR DECISION

Mr A. Maryniak QC, Member

21 September 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the corrected transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent. The subparagraphs to Paragraph 3 of Annexure A have been inserted for convenient reference and are part of these reasons.
   
   

I certify that the following 13 (thirteen) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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Associate

Dated: 21 September 2021

Date of hearing:	25 August 2021
Counsel for the Applicant:	Mr Angel Aleksov
Solicitor for the Applicant:	Bardo Lawyers
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: This is an application for review of a decision of the delegate made on 25 March 2020 to refuse the grant of Australian citizenship by conferral pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (the Act).  The delegate was not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.

2. At the outset, I should say that the Tribunal has been greatly assisted by the advocacy of both the solicitor for the Respondent, and counsel for the Applicant.  The background facts leading to today’s hearing are conveniently set out in paragraphs 4 to 12 of the Respondent’s Statement of Facts, Issues, and Contentions. 

3. The applicable principles have recently been discussed by this Tribunal, as presently constituted, in the decision of Alimoradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AAT 2054 at paragraphs 8 to 22. For ease of reference, such paragraphs are reproduced below:  

   [8] Section 21(1) of the Act permits a person to make an application to the Minister to become an Australian citizen; and where such application is made, by s. 24(1), the Minister must approve or refuse the person becoming an Australian citizen.

   [9] The question for this Tribunal is whether it is satisfied as to the Applicant’s identity for the purposes of granting Australian citizenship under s. 24(3) of the Act. Section 24(3) of the Act contains a prohibition to conferral:

   The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

   [10] The term ‘identity’ is not defined in the Act.

   [11] The Tribunal notes that the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) states:

   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.

   [12] The Attorney-General’s Department National Identity Proofing Guidelines 2014 (Guidelines), referred to in the Citizenship Procedural Instruction 16 (CPI 16), strengthen identity proofing processes and are also to be considered.

   [13] The Guidelines acknowledge [at 5.1] that:

   (a)  in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance; [1] and

   [1] National Identity Proofing Guidelines at [5.1.1].

   (b)   Alternative identity proofing processes that organisations MAY consider for these exceptional cases include… [a] detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[2]

   [2] Ibid at [5.1.3].

   [14] Three elements are relevant in assessing identity, known as the “three pillars of identity” in paragraph 4.4 of Chapter 16 of the CPI:

Three pillars of identity

Individual characteristics

Biometrics

Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

Documents

Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life Story

A person’s life story is a narrative of the events that happened to them from birth to the present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

[15] Chapter 16 provides guidance in relation to the policies to be applied when assessing a person’s identity under the Act. Paragraph 4.15 provides guidance when assessing pillar three – life story:

There may be cases where one pillar may be given more weight than the others. For example, cases were the applicant claims they are stateless and therefore undocumented. In such cases, the available pillar (for example, life story) may become more significant when assessing the person’s identity. There is also likely to be a heightened need to explore further material. This may include, but is not limited to researching credible open source country information.[3]

[3] CPI 16 at [4.15].

[16] CPI 16 at paragraph 4.16 states with regard to being ‘satisfied of a person’s identity’:

Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.[4]

[4] Ibid at [4.16].

[17] Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether he or she is persuaded, on the basis of the evidence, of a person’s identity. In other statutory contexts, judges have said the decision-maker must feel an actual persuasion of that matter; he or she cannot be satisfied as a result of a “mere mechanical comparison of probabilities independently of any belief in its reality”.[5] On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

[18] Officers should not merely collect information and documents, but consider the quality, plausibility and relevance of the information provided, in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person. Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions; that is, where there is conflicting evidence.

[19] The relevant policies are generally to be applied by the Tribunal, unless there is a cogent reason not to.[6]

[20] The relationship between the determination of identity and the grant of Australian citizenship is of fundamental importance. Substantial significance and privileges are part of such a conferral.

[21] A certificate of Australian citizenship is a legal document of considerable significance. It is very clear that the grant of Australian citizenship by conferral is a matter in respect of which the Australian community expects the decision maker, and here the Tribunal, will approve only if the prerequisite conditions are satisfied. The grant of such citizenship brings with it a high level of responsibility and consequential entitlements. It is not to be granted lightly.

[22] Further, in Sinnathamby v Minister for Immigration and Border Protection [2018] AATA 2579 the meaning of the statutory term “satisfied” was considered in respect of Australian citizenship applications at [56]:

… the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges…

[5] Briginshaw v Briginshaw (1938) 60 CLR 336, 361.

[6] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

1. The Applicant has given oral evidence before the Tribunal today and has been cross-examined and questioned by the Tribunal.  The documentary evidence before the Tribunal consists of the various T-Documents, being exhibits R1 through to R4, and the various statutory declarations of the Applicant, being exhibit A1, and also exhibit A2, being the photograph of the reflexology premises. 

2. The Applicant, in essence, submits to the Tribunal that the Applicant has put a consistent story about his identity throughout, and that various documents, including documents produced since the Applicant’s arrival in Australia, but also importantly, documents prior to his arrival in Australia, clearly point to the Applicant being who he says he is, namely Mohamed Omar Warsame.

3. The Respondent submitted, quite persuasively, that there are questions about the Applicant’s identity, and importantly, that the Tribunal is to look holistically at the three pillars, being biometrics, documents, and life story.  Pursuant to the guidance in paragraph 4.16 of the relevant policy, being the Citizenship Procedural Instruction 16 (CPI 16), the task of the Tribunal is to balance all of the evidence before it. 

4. The sole issue before the Tribunal, as was put to the parties and confirmed by them at the commencement of this hearing, is whether the Tribunal is satisfied as to the Applicant’s identity pursuant to s 24(3) of the Act. As such, any questions as to the character of the Applicant are not in issue before this Tribunal.

5. Firstly, as to documents, the Respondent properly submits that the Somalian passport held by the Applicant does not have its provenance or may not have its provenance in documents obtained by the Applicant prior to his arrival in Australia. The submission was focused, in part, on the lack of a birth certificate held by the Applicant. However, the Tribunal needs to balance that against the fact that there are documents before the Tribunal, namely the Kenyan Police fingerprints document and the UNHCR document, which clearly identify the Applicant as being who he says he is, and such documents are not challenged before this Tribunal.

6. In those circumstances, the Tribunal is of the view that, on balance, the evidence in respect of the first two pillars, namely documents and biometrics, support the Applicant’s submission that he is who he says he is.  Further, this is not strictly a case, on the evidence before the Tribunal, where the Applicant can be found to be stateless. However, the life story still has an important role to play and is to be considered too. 

7. The Respondent fairly points out various inconsistencies in the Applicant’s life story. One inconsistency of particular concern to the Tribunal is the admitted fact that within the documents before the Tribunal are counterfeit documents in respect of the Applicant’s purported primary and secondary school education and the fact that the Applicant, despite this admission, has not on the evidence, taken any steps to address the counterfeit nature of those documents.  Further, there is a troubling tension in the evidence before the Tribunal as to the purpose of the Applicant’s trip to Malaysia in 2013, and the various other inconsistencies raised by the Respondent as set out in paragraph 28 of the Respondent’s Statement of Facts, Issues, and Contentions, and as expanded upon in closing submissions by Mr Orchard.

8. As stated above, whether or not the Applicant is of good character is not within the goal posts of the matters that this Tribunal is to consider. However, the Tribunal does indicate that there are troubling tensions and discrepancies in the body of evidence before the Tribunal that may be of relevance at a future date along the Applicant’s journey to acquiring Australian citizenship, should the Respondent bring the Applicant’s character into issue. It is not appropriate that this Tribunal says more about that.

9. Putting aside those matters, the Tribunal is left with documentary evidence, as discussed above, relating to the Applicant prior to his arrival in Australia, which goes unchallenged, and on balance, despite the matters raised by the Respondent, the Tribunal is satisfied of the Applicant’s identity under s 24(3) of the Act.

10. The correct or preferable decision is that the reviewable decision be set aside. Further, the matter is to be remitted to the Respondent for reconsideration pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal being satisfied as to the Applicant’s identity.