Welday and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 1851

Welday and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1851 (12 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3948
Re:Rahel Welday
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:12 June 2018
Place:Perth

Pursuant to paragraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for recommendation for reconsideration on the basis that the Tribunal is satisfied with the Applicant’s identity.
.....[sgd]...................................................................
Member C Edwardes
CATCHWORDS
Sudanese refugee - application for citizenship refused - whether Tribunal satisfied of identity – consideration of country information – identity satisfied
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s24(3)
Administrative Appeals Tribunal Act 1975 – s37(2)) – para 43(1)(c)(ii)
CASES
Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
SECONDARY MATERIALS
Australian Citizenship Instructions – instruction 5.27.1 - instruction 5.27.2.27.2
DFAT Country Information Report Sudan 27 April 2016 – 4.2 - 5.49 – 5.5
REASONS FOR DECISION
Member C Edwardes
12 June 2018
THE APPLICATION

The Tribunal is asked to review the Minister’s decision (the decision) prohibiting the approval of the Applicant’s application for citizenship. The decision was made pursuant to subsection 24(3) of the Australian Citizenship Act 2007 (Citizenship Act) that states the Minister must not approve of a person from becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Tribunal has the jurisdiction to hear this matter pursuant to paragraph 52(1)(b) of the Citizenship Act.
BACKGROUND
The Applicant arrived in Australia from Sudan on 1 May 2012 (R2 1) on a Refugee and Humanitarian (class XB) Refugee (subclass 204) visa - Woman at risk visa. (ST8 134)
The Applicant filed an application for citizenship dated on 28 June 2016. (T6 83) (R1)
The Department wrote to the Applicant on the 29 September 2016, seeking a birth certificate or a document that would establish her identity. (T9 103) (R1)
At an interview the Applicant stated by way of a statutory declaration: (T8 101) (R1)
I Rahel Teumzghi Welday was born in Sudan on 16/08/1996. Back in the days there was no health care around, so my mother gave birth to my siblings and I at home. So I never had the chance to have a birth certificate. However I have provided a Travel document to Australia which lists my date of birth, name and where I was born
The Respondent gave the Applicant a 28 day extension from 13 January 2017 to provide a list of required documents. (R2 2) The Applicant produced further non requested documents in response to this request.
On 30 June 2017 the Respondent refused the Applicant’s citizenship application as it could not be satisfied of the Applicant’s identity. (T2 2-11)
The Respondent’s advice to the Applicant is contained in the Applicant’s decision record. (Decision Record) (T2 7-11) (R1) which states:
I have considered your application against the requirements set out in subsection 21(2) of the Australian Citizenship Act 2007 (the Act).
I am prohibited from approving your applications as I am unable to be satisfied of your identity. This is in accordance with subsection 24(3) of the Act. While I am not satisfied of your identity, I am satisfied that the information I have taken into consideration when making my decision is related to you, the Applicant
On 6 July 2017 the Applicant sought a review of the Decision and the required documents mentioned in paragraph 7 of this decision were subsequently provided.
The matter was heard in Perth on 27 April 2018. The Applicant appeared in person and the Respondent was represented by Mr Arran Gerard.
At the completion of the hearing on 27 April 2018, the Respondent stated that he would make inquiries with respect to the Applicants mother’s visa application and provide supplementary documentation to the Tribunal within 14 days. The Applicant confirmed that she would provide a dated document relating to her attendance at school within 24 hours. Directions were issued accordingly pursuant to subsection 37(2) of the Administrative Appeals Tribunal Act 1975.
RELEVANT LEGISLATION AND PRINCIPLES
Subsection 24(3) of the Citizenship Act provides that the Minister must not approve of the applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the Applicant.
The Tribunal notes instruction 5.27.2.27.2 of the Australian Citizenship Instructions (ACIs) that states:
…In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity…
Further, instruction 5.27.1 of the ACIs states, under the heading “Minister’s decision (s24) – summary,” that: “There are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to: identity…”
ISSUE
The issue for determination by the Tribunal is whether the Applicant satisfies section 24(3) of the Australian Citizenship Act. That is, the Tribunal is to determine whether or not to approve the Applicant becoming an Australia citizen if the Tribunal is satisfied of the identity of the Applicant.
EVIDENCE
The Tribunal received the following:
·Exhibit A1 – Statement by Negash Berhan dated 27 October 2017.
·Exhibit A2 – Statement by Zewdi Zerimariam dated 31 October 2017.
·Exhibit A3 – School report and translation received 19 October 2017.
·Exhibit A4 – Department of Immigration Border Protection, Form 80 – Personal particulars for assessment including character assessment received 19 October 2017.
·Exhibit R1 – T documents (T1-T9 1-105) received 24 July 2017.
·Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC) dated 15 March 2018.
·Exhibit R3 – DFAT Country Information Report – Sudan – dated 27 April 2016.
·Exhibit R4 – Documents in Somalia and Sudan report dated 5 January 2009.
·Exhibit R5 – Respondent’s hearing certificate dated 19 February 2018.
On 30 April 2018 the Tribunal received further documentation from the Applicant in relation to her corrected school record. This document is marked as Exhibit A5. The Respondent submitted Supplementary T-documents, received 11 May 2018. The Supplementary T-documents are marked as Exhibit R6.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
The Tribunal notes the Secretary’s contentions: (R2 2)
20. The respondent contends that the Tribunal is faced with an application where it cannot be certain of the applicant’s identity to the standard expected for the conferral of Australian citizenship. A certificate of Australian Citizenship is a legal document of considerable significance: see Beyan at [38]. The Tribunal should not countenance an outcome which could lead to a certificate being issued in circumstances where, as here, the identity of the applicant is far from clear.
21. In this case, sufficient documentation has not been provided which should lead the Tribunal to conclude that it can be satisfied as to the applicant’s identity to the requisite degree.
22. The respondent contends that having regard to the country information it is reasonable to expect the applicants to produce a birth certificate, substitute health document or age certificate or at the very least evidence of attempts made to obtain such documentation including evidence of communications with the relevant Sudanese authorities. In light of the fact that the applicant has provided evidence of attending school in Sudan, it is also reasonable to assume that the applicant should be able to produce a certificate of nationality.
23. Furthermore, in light of the concerns expressed by DFAT in respect of the prevalence of fraud. The Department should have the opportunity to examine the original copies of these documents should the applicant provide them.
24. The respondent acknowledges that there are circumstances where an applicant should not be required to produce documents appropriate to an established society: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117]; YMPL and Minister for Immigration and Border Protection [2017] AATA 1458 at [34]. In this case, having regard to the high standard of satisfaction required for Australian citizenship, the applicants have not provided evidence which the country information indicates should be available.
25. Furthermore, the respondent contends that what is strikingly absent from the statements provided by the applicant and her mother is any explanation of the attempts they have made to obtain documentation from the Sudanese authorities. There is simply an unsupported assertion that the applicant cannot obtain a birth certificate because she was born at home. There is certainly no evidence that the applicant has “exhausted [their] avenues of search for such documentation”: see Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [27]. Given the importance of a certificate of Australian citizenship, the Tribunal should expect that if an applicant asserts that they cannot obtain satisfactory identity documentation then evidence should be provided of attempts to obtain such documentation. In this regard, the respondent notes that the country information suggests that the fact that the applicant was born at home does not preclude her from obtaining an identity document from the authorities.
26. In these circumstances, the respondent contends that the applicant’s identity is unclear and cannot be satisfactorily ascertained.”
The Respondent has provided the following country information in respect to the Sudan: (R2 3)
According to Sudanese law all births should be registered with the public authorities. UNICEF has focused on a child’s fundamental right to be registered (UNICEF 2007) and reports that 63.8% of Sudanese children between 0-4 years of age are registered. In urban areas the percentage is considerably higher at 82.2%. This is because most births in urban areas take place in hospitals where births are automatically registered. In rural areas, children are born at home, often attended by a midwife or other public sector obstetrician who will register the birth. Where no midwife is in attendance, the duty to register is only met to a limited extent and the number of children registered is much lower. In general, however, the percentage of registered births is high in Sudan compared to many other African countries (UNICEF 2007).
The Department of Statistics’ Birth and Death Register is responsible for issuing birth certificates. Unregistered persons without birth certificate can contact the register to receive confirmation that he/she has not been registered. Subsequently, the written confirmation can be submitted to the Health Commission, who will issue a so-called substitute health document or age certificate based on the given information and confirmation from two witnesses (NRC, Alexander Jones, Interview in Khartoum 5 May 2008). A substitute health document will indicate a person’s year/date of birth, but not necessarily place of birth. The date of birth in this type of document is normally stated as 1 January followed by an estimated year.
However, in March 2008 the Sudanese authorities implemented new requirements regarding the witnesses. The witnesses must have ID documents and they have to be related to those who apply for a substitute health certificate / age certificate. This implies that few of those who need the document will be able to obtain one, since those who are unregistered seldom have relatives who themselves are registered (NRC, Alexander Jones. Interview in Khartoum 5 May 2008).
A birth certificate or substitute health document is required to obtain an ID card, proof of citizenship or passport (IRB 2007a, Embassy of the Republic of Sudan, in Oslo, 3 January 2008) (emphasis added)
Country information in respect to birth certificates states (R2 4):
Birth Certificates
Birth certificates are issued free-of-charge by the Department of Vital Statistics, Ministry of Health, Ministry and Interior or Civil Registrar. Each hospital is responsible for accurately recording all births, and reporting these to the Department of Vital Statistics. Midwives who perform home births are also required to report all births to the Department of Vital Statistics. In reality, it is unlikely that all births are registered, particularly in rural and conflict-affected areas. DFAT understands that less than 40 per cent of births are actually registered…
The Tribunal notes the Applicant’s oral submissions that she was born in a rural area.
The Applicant has provided the following written evidence (A2)
To whom it may concern
I, Zewdi Zerimariam, write this statement as the mother and guardian for my daughter Rahel Teumzghi Welday. Therefore, I witness that Rahel does not have and has never had a birth certificate.
Rahel was not able to provide a birth certificate for the citizenship process because she has never been granted a birth certificate as she was born at home like the rest of her siblings. Because she was born at home with a traditional birth attendant and was a second-class citizen in Sudan, it had an impact on getting a birth certificate. In addition, to purchase a birth certificate, it required a large amount of money that I was not able to afford. Therefore, this is the reason as to why Rahel cannot provide a birth certificate as she does not have possession of one.
Kind regards Zewdi Zerimariam
31/10/17
The United Eritrean Association of WA INC has stated: (A1)
UNITED ERITREAN ASSOCIATION OF WESTERN AUSTRALIA INC.
To whom it may concern,
This is to confirm that Rahel Teumzghi Welday D.O.B- 16/08/1996 is a member of our youth under the united Eritrean Association of W.A. She participated in many of our cultural events since 2013, and her mother Zewdi Gebrelul is a member of our association
The Applicant provided a translated Department of Education school record (A3) indicating attendance at the Awet Asetriba School in the district/town of Port Sudan located in the province of the Red Sea.
The Applicant’s Form 80 (A4) states she has lived in Western Australia since November 2013.
The Applicant holds a Western Australian drivers licence number. (T6 74) (R1)
The Applicant held a Western Australian learners permit that expired on 5 January 2018 (T6 86) (R1)
The Applicant has produced a card to show that she has undergone a working with children check. (T6 85) (R1)
The Applicant held a health care card from the Australian Department of Human Services that expired on 12 April 2017. (T6 87) (R1)
Under cross-examination the Applicant said the following:
·The Applicant stated she is 21 years old.
·The Applicant was born in a refugee camp in a conflict area.
·The Applicant was born with the assistance of a traditional unqualified camp member.
·The Applicant stated her information came from her mother.
·The Applicant stated she assumed her birth was not reported.
·The Applicant stated she was the second oldest amongst her siblings.
Additionally, during the hearing, the Applicant stated that she:
·     attended a Catholic College in Western Australia 2015 to undertake year 12 studies;
·     attends Curtin College and is undertaking a course in Diploma in Health Science;
·     holds a permanent visa and resides with her mother and siblings. Her father is deceased;
·     works at a fast food restaurant as a cashier in Western Australia;
·     had not made inquiries from authorities because she assumed she had provided sufficient information;
·     stated her mother had told her that people that may have known her in the refugee camp that she was previously residing in were no longer residing in the refugee camp;
·     stated that she attended 2 schools from the age of 7 years until her departure;
·     stated “I thought what I did was enough;”
·     stated that Australian Citizenship meant safety to her.
CONSIDERATION
What is required in this application is for the Tribunal to be satisfied of the Applicant’s identity.
The Tribunal notes wording in page 103 of the T-documents under a document titled “Minister's Request for further documents.” The Minister states:
I am writing regarding your application for Australian citizenship…
To further assist with the processing of your application, please forward any additional documents that will help with confirming your identity before you came to Australia…
These documents can include (but are not limited to):
Birth certificate
National identity cards
Military service cards
Family registers
Marriage certificates
Church or religious affiliation card
Any UNHCR cards or documents
School records
Expired drivers licenses
Expired passports or travel documents
Refugee ration card
Vaccination record
This list is not exhaustive; it is open to you to provide whatever documents you think establish your identity since birth…
The Tribunal notes Respondent’s concerns that the Applicant has not produced any official or reliable documentation from Sudan to substantiate her identity.
The Respondent claims that the Applicant has not taken appropriate steps to inquire as to her identity from appropriate authorities.
The Tribunal notes commentary in Confidential v Minister for Immigration and Citizenship [2013] AATA 144:
[32] Evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of an applicant
…
[34] Where the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of an application an application is correction rejected.
The Tribunal notes commentary in Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310 at paragraph 117:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal
The Tribunal accepts a certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256).
The Tribunal notes page 123 of the Respondent’s supplementary T-documents (ST2 123) titled “Preamble to Interview Questions.” The Applicant’s mother signed a document accepting:
…It is an offence against Australian law (s234 of the Migration Act) to provide any false or misleading information in relation to my application;
If I provide any false or misleading information in relation to my application, my application may be refused on the grounds that I am not of good character (s501 of the Migration Act).
I therefore agree not to provide any false or misleading information in relation to my application…
The Tribunal notes page 125 of the Respondent’s supplementary documents (ST2 125) titled “INTERVIEW NOTE: THIS TRANSCRIPT OF THE INTERVIEW WAS TYPED DURING THE INTERVIEW.” The transcript of interview states that Rahel Teumzghi Welday was a dependent of “Zewdi Gebrelul ZERIMARIAM,” and that the Applicant was born on 16/08/1996.

The Tribunal notes page 143 of the Respondent’s supplementary documents (ST8 143) titled “Visa Grant Notice” which, amongst other things, states:
The Australian Government strongly encourages eligible permanent residents to apply for Australian citizenship.
Australian citizenship is the final step for many in the migration journey.
The Tribunal notes page 131 of the Respondent’s supplementary documents (ST5 131) where the Applicant’s father’s death certificate lists the Applicant as one of his children.
The Tribunal notes that the Applicant has provided an expired “Document for travel to Australia.” This document contain an official stamp from the “Department of Immigration and Citizenship Cairo,” and Australian emblems.
The Tribunal has no evidence to indicate the Applicant provided falsified information in her citizenship application.
The Tribunal notes that the Applicant holds permanent visa (ST8 136-143)
The Tribunal notes that the Applicant took additional time to produce documents and complete a Form 80 however the Tribunal does consider this to not significantly affect the application at hand.
The Tribunal considers that there is no evidence before it to suggest that the Applicant does not respect and abide by the law.
The Tribunal finds the Applicant as coming across as truthful, honest and responsible.
The Tribunal finds that there is no evidence before the Tribunal to suggest that the Applicant is not truthful or has practiced in fraudulent and deceptive practices.
The Tribunal considers that there is no evidence to suggest that the Applicant has previously been involved in unlawful activity.
The Tribunal is satisfied with the identity of the Applicant.
The Tribunal accepts that the Applicant has not been able to produce official documentation in terms of her birth; however the Tribunal accepts her mother’s explanation and accepts the Applicant’s oral evidence.
The Tribunal notes relevant Country information provided in relation to the Applicant.
The Tribunal notes that the Applicant was granted an Offshore Humanitarian visa – Woman at risk (subclass 204) and arrived to Australia on this visa.
The Tribunal notes that the Applicant’s visa application in relation to paragraph 53 stated:
… You must attach evidence of identity of each person (e.g. Certified copy of birth certificate, marriage certificate, passport), wherever this is available. If you do not have identity documents, please attach an explanation as to why you no longer have them… (ST1)
The Tribunal notes that the Offshore Humanitarian visa – Woman at risk (subclass 204) permitted the Applicant to (ST8):
·stay in Australia indefinitely.
·work and study in Australia
·enrol in Medicare
·access certain social security payments.
·apply for Australian citizenship (after you have lived in Australia for four years)
·propose family members for permanent residence.
·attend English language classes
Having considered all the evidence before it, the Tribunal is satisfied with the Applicant’s identity.
CONCLUSION
For the above reasons the Tribunal sets aside the decision under review and remits the matter for recommendation for reconsideration on the basis that the Tribunal is satisfied with the Applicant’s identity.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

........[sgd]................................................................
Associate
Dated: 12 June 2018

Date(s) of hearing: 27 April 2018

Date final submissions received: 11 May 2018

Applicant: In person

Solicitors for the Respondent: Arran Gerrard, Australian Government Solicitor

Date(s) of hearing:	27 April 2018
Date final submissions received:	11 May 2018
Applicant:	In person
Solicitors for the Respondent:	Arran Gerrard, Australian Government Solicitor