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

[2021] AATA 2105

Kaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2105 (28 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1994

Re:Sekou Ben Kaba

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:28 June 2021

Place:Adelaide

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Australian Citizenship Act 2007.

..................[SGND].................

Senior Member B J Illingworth

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – whether Tribunal is satisfied of Applicant’s date of birth – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth).

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.

SECONDARY MATERIALS

Australian Citizenship Policy Statement

Attorney-General’s Department, National Identity Proofing Guidelines, 2016

REASONS FOR DECISION

Senior Member B J Illingworth

28 June 2021

INTRODUCTION

1. Sekou Ben Kaba (the Applicant) has applied for a review of the decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent), dated 5 March 2020, refusing his application for citizenship by conferral under s 21(2) of the Australian Citizenship Act 2007 (the Act) because she was not satisfied of the Applicant’s identity as required by s 24(3) of the Act.

2. At the hearing before the Tribunal, the Applicant appeared in person and was self-represented. Mr Cameron Retallick, Australian Government Solicitor, appeared on behalf of the Respondent.  

   BACKGROUND

3. The Applicant is a citizen of Liberia. The delegate declined the application for citizenship because she could not be satisfied as to the Applicant’s date of birth because of inconsistencies contained in documents before the delegate.  Further, that in respect of the application before the Tribunal the Respondent raised the conduct of the Applicant returning to Liberia in late 2016 which it was submitted was contrary to, and inconsistent with, his claims for protection made in the Applicant’s original Offshore Humanitarian visa application received by the Department on 22 December 2006.

4. The Applicant arrived in Australia on 2 December 2009 as the holder of the Humanitarian and Refugee (subclass XB 200) visa[1]and has generally remained in Australia since that time.  His visa was sponsored by his former wife Ms JT.[2] On 4 December 2006, Ms JT completed a United Nations High Commission for Refugees (UNHCR) Resettlement Registration Form (RRF) in which she recorded the Applicant’s date of birth as 1 January 1975[3].

   [1] T2, page 9.

   [2] T2, page 11.

   [3] ST23, page 181.

5. On 16 February 2015, the Applicant wrote to Freedom of Information (FOI) Melbourne seeking to change his date of birth. The Applicant explained in that letter that an error was made in 2003 when the Ghana Refugee Board and the UNHCR conducted a refugee registration process and his date of birth was incorrectly recorded on his identification card as 14 September 1966.[4] He claimed his correct date of birth was 14 September 1976.

   [4] ST23, page 252.

6. On 18 March 2015, the Applicant’s FOI application was refused[5].

   [5] Ibid, page 253.

7. On 11 June 2016, the Applicant lodged an application for Australian citizenship by conferral.[6] In support of this application, the Applicant provided copies of his Document for Travel to Australia and South Australian driver’s license[7].

   [6] T8, pages 86-99.

   [7] Ibid, pages 101 and 127.

8. On 4 June 2019, the Department sent the Applicant a request for further information in support of the Applicant’s identity.[8] In response, the Applicant provided a family composition form[9], two Australian issued titres de voyage[10] issued 19 October 2016 and 19 February 2019 respectively, an Autism SA staff member card[11] and a letter from the Commonwealth Bank.[12]

   [8] T14, pages 116-117.

   [9] T15, pages 119 – 122.

   [10] Ibid, pages 124-126.

   [11] Ibid, pages 127.

   [12] Ibid, pages 118-128.

9. On 16 July 2019, the Department invited the Applicant to comment on adverse information, namely conflicting dates of birth in the information before the Department.[13] In response, the Applicant submitted a completed Form 80 – Personal particulars for assessment including character assessment[14], a second family composition form, a copy of the personal details page of his Liberian passport, a birth certificate and a statutory declaration dated 20 August 2019[15]. On the Form 80, the Applicant declared his date of birth as 14 September 1966. The Applicant’s Liberian passport and birth certificate (both issued in December 2016) declare his date of birth as 9 September 1976.

   [13] T16, pages 130-132.

   [14] T17, pages 137- 153.

   [15] T17-18, pages 135-157.

10. On 5 March 2020, the delegate refused the application for citizenship on the basis that she could not satisfied as to the Applicant’s identity, and thus he did not satisfy subsection 24(3) of the Act.[16]

    [16] T2, pages 9 – 15.

11. On 5 April 2020, the Applicant filed an application for an extension of time to make an application to review a decision in the Tribunal. That extension was granted on 20 April 2020 and the Applicant applied to this Tribunal for a review of the delegate’s decision.

    ISSUE TO BE DETERMINED BY THE TRIBUNAL

12. The only issue before the Tribunal is whether it can be satisfied of the Applicant’s identity pursuant to s 24(3) of the Act.

    LEGISLATIVE FRAMEWORK

    Identity Requirement

13. Section 24(3) of the Act provides:

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

14. The Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 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.

15. Further, Citizenship Procedural Instruction 16 of the Australian Citizenship Policy Statement (the Policy)[17] of November 2020 provides that:

    Purpose

    The identity provisions of the Act prohibit the approval of a citizenship application in cases where the decision-maker (the Minister or their delegate) is not satisfied of the person's identity.

    To the extent that the Act allows for discretion, decision-makers should give due consideration to the Department’s approved policy and procedures where relevant and appropriate in decision-making.

    [17] Exhibit H.

16. The Attorney-General's Department, National Identity Proofing Guidelines refers to the concept of identity as ‘not a fixed concept; it is highly dependent on context.’[18]

    [18] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1, 2.1.1.

17. In Boy19 v Minister for Immigration and Border Protection, the Federal Court of Australia confirmed that the level of satisfaction required in the granting of citizenship is one of ‘reasonable satisfaction[19]’, which can be taken to mean that the Tribunal must act reasonably in a legal sense. 

    [19] [2019] FCA 574 at [55].

    THE DEPARTMENT’S FINDINGS

18. In the delegate’s decision to refuse the Applicant’s application for Australian citizenship by conferral, the delegate stated[20]:

    Given all the erroneous information above and lack of physical evidence (prior to the identity documents issued in 2016) that would support your claims of being born in 1976, I cannot be certain of your identity to the standard expected for conferral of Australian Citizenship.

    …

    There were too many irregularities surrounding your claims. There is not enough evidence (both in terms of your physical and verbal recounts) that support your claims of being born in 1976. On the other side of this, your insistence that your birth year is 1976 leads me to question whether the department’s record of you being born in 1966 is accurate either. And your travel back to Liberia, a place where you claimed protection from has me questioning your honesty.

    [20] T2, page 13.

    EVIDENCE BEFORE THE TRIBUNAL

19. The Applicant gave oral evidence at the hearing. He also called five witnesses to give oral evidence, namely, Mr AF, Mr WC, Ms CK, Mr ET and Ms JT. Their respective statements were also received into evidence.

    The Applicant’s Evidence

    Statutory Declaration dated 20 August 2019[21]

    [21] T18, pages 159-162.

20. The Applicant said he arrived in Ghana from Liberia by cargo ship in October 1990, along with thousands of other civilians fleeing the Liberian civil war. He left Liberia with no clothes or documents. He was running for his life after his parents were killed in August 1990.  He knew his date of birth at this time, which was 14 September 1976.

21. In October 2003, after he had been living in Ghana for 13 years, the Ghana Refugee Board in collaboration in the UNHCR, registered all refugees in Ghana and issued identification cards. The Applicant declared a birth date of 14 September 1976, but to his surprise he received an identification card recording his date of birth as 14 September 1966. He was one of over 500 refugees who were affected by errors; some did not even receive an identification card.  Management at the refugee camp promised to fix the mistake, but this never happened. From then on, he was forced to use the incorrect birth date.

22. The Applicant said that his former wife Ms JT made a mistake when she wrote his date of birth as 14 September 1975 on the UNHCR RRF. He had reminded Ms JT of his day of birth every year, but they never celebrated his birthday. They had been separated for over two years at the time she provided this information.

23. After his arrival in Australian and in 2015, the Applicant made an FOI request after friends in Australia told him it would be possible to amend his date of birth. He wasn’t aware that he needed documents to support such a request. As such, the request was refused. He made this request because he knew he was 10 years younger than his recorded age and does not want to retire 10 years early.

24. The Applicant declared that this eldest daughter, ICK was born in 1983 but that she is not his biological daughter, rather she is his brother’s daughter. His brother has been missing since 1990 when the war broke out in Liberia. He was missing and presumed dead at the time of writing the statutory declaration. He declared, “I am the father of his children and husband to his wives though not in an intimate sense except otherwise [sic]”. This is the reason why he listed ICK as his daughter.

25. In 2016, the Applicant, in response to being asked if he had ever been known by another date of birth, recorded he had not. He said he recorded this answer because it was consistent with his 2015 FOI request. 

26. In October 2016, the Applicant applied for and received a resident return visa and a travel document and subsequently travelled to Ghana in December 2016. The motive to travel was to locate his siblings. When he attempted to travel to other countries, he realised that his travel document was not considered a proper passport in Ghana. He was advised to obtain an Economic Community of West African States (ECOWAS) passport. He travelled to Liberia on 11 December 2016 to obtain his birth certificate and passport. The ECOWAS passport was issued by the Ministry of Health and Social Welfare on 13 December 2016. The Applicant said the birth certificate was sent to him in Ghana which he received on 21 December 2016[22].

    The Applicant’s Oral Evidence

    [22] Ibid, page 162.

27. The Applicant said he was born on 14 September 1976. His father was married three times. The last occasion was to the Applicant’s mother. His father had 9 children from his first two marriages who were adults when his parents married. His mother gave birth to six children of which three have survived, namely himself and a younger brother and sister. In 2016, the Applicant tried to locate his surviving siblings. He understood they lived in Sierra Leone. He did not locate them, but he located a niece and nephew. He has not since heard from them.

28. The Applicant’s father’s date of birth in the material before the Tribunal was 1906. The Applicant said that he believed the date was correct and that his father was significantly older than his mother. It was his best estimation of his father’s birth date. Later in evidence the Applicant explained that his father did not meet or know his own father, the Applicant’s grandfather. He served and died in World War 1 and when he went to war the Applicant’s grandmother was pregnant. The Tribunal infers therefore that the Applicant’s father was likely born closer to the start of World War 1 which was 28 July 1914 and that the date of 1906 was incorrect.

29. The Applicant was 13 – 14 years of age when the civil war broke out in Liberia. He was living with his parents.

30. The Applicant outlined the events that led him to fleeing his home in Liberia. He said on 17 August 1990 rebels entered their city and his family home. His mother, father and eldest sister were killed by gunshots. He was hiding in a mango tree at the time. He took his eldest sister’s youngest son Joe, who was next door, with him and fled without going back inside the house. They went to find family in a suburb called Westpoint but when they got to the house no-one was there. They met up with a lady who was a family friend who looked after Joe, including while they were in Ghana.

31. The Applicant spent three days on board a cargo ship before arriving in Ghana. When he arrived in Ghana in October 1990, he and others went to the refugee camp. He was referred to as an unaccompanied child and he spent the next 19 years there until 10 November 2009. The Applicant was then about 33 years of age. He said 50,000 – 60,000 people were held in the refugee camp, and the government in Ghana wanted to be able to identify the refugees. For this reason, they were issued identification cards.

32. The Applicant said lots of mistakes were made in the process of issuing identification cards. Over 500 people went to the authorities to seek amendments to their identification cards, but this never happened.

33. The Applicant met his first wife Ms JT in the refugee camp in Ghana in 1993 when he was 16 or 17 years of age. There was no formal wedding ceremony, but they went through a cultural requirement after which she was regarded as his wife.

34. The Applicant had three children namely a son, ICK, born in Ghana in July 1992 from a prior relationship, and two sons, CK and MK, born in 1995 and 2001 respectively from his marriage with Ms JT. The Applicant and Ms JT separated but remained in the refugee camp. Ms JT subsequently had a child with another partner.

35. When Ms JT resettled in Australia in 2006 with the Applicant’s children and her third child, she fought for the Applicant to be reunited with his children. She posted an offshore humanitarian visa application to the Applicant. A person in the refugee camp assisted the Applicant to complete the form by writing what the Applicant dictated to him. The Applicant could read and write English at the time, but he was not familiar with forms of this nature.

36. When filling out the form, the Applicant told the person assisting him that his date of birth was 14 September 1966 because he was told that the information on the visa application form had to be the same as that on his identification card[23]. He had to maintain a consistent date of birth in all documents he completed.

    [23] ST24, page 183.

37. The Applicant arrived in Australia in 2009 on an official travel document that was issued to him prior to his arrival in Australia.  He subsequently made the FOI application in 2015 to change his date of birth because friends told him he could amend his date of birth through the FOI process. The response he received from the department was negative. He provided no documentation to support his application; just an explanation for why the error had occurred.

38. The Applicant commenced another relationship, married and they had a daughter KK born in December 2016.

39. As for his other children, his eldest son ICK who was born in 1992 lives interstate and is employed in fly in – fly out contract work. CK now lives in Western Australia and his youngest son MK still lives in Adelaide with his mother Ms JT.

40. The Applicant returned to Liberia in 2016. He outlined the circumstances of his return and the obtaining of his passport in Liberia in December 2016. The Applicant wanted to look for his brothers and sisters. He went to Ghana for a holiday and with the intention of looking for his siblings in neighbouring countries. He had difficulty travelling by road because he did not hold a passport. He first went to the Liberian embassy in Accra, Ghana to obtain a passport but was told he had to go to Liberia to get a passport. He was issued with a pass to travel to Liberia.

41. He said returning to Liberia was “high risk”; he was concerned about his personal safety, but he was quick, and he wanted to find his brothers and sisters. He contacted and met with a school friend named Maruf, who was also in the refugee camp with him, and who returned to and lived in Liberia. Maruf let the Applicant stay at his home. The day after he arrived in Liberia he went to the Ministry of Foreign Affairs and obtained a clearance which he needed to obtain a passport. He was still in Liberia when the passport was issued on 13 December 2016. He left Liberia approximately 2-3 days later on about 15 December 2016. He later obtained a birth certificate issued on 21 December 2016, which Maruf sent to him in Ghana[24]. The Applicant found but did not see his siblings, but did see their children.  

    [24] T17, page 157.

42. In cross-examination the Applicant was asked about the application process for applying for an offshore humanitarian visa. He admitted that during an interview he told the interviewer that he was born in 1966[25]. He maintained this date to the interviewer even after the interviewer asked him this question three times because he believed he would fail the interview if he requested a change without supporting documentation.

    [25] ST27, pages 230-235.

43. The Applicant was asked about the UNHCR RRF[26] that Ms JT filled out, particularly why Ms JT wrote his date of birth as 1 January 1975. By way of explaining the mistake, the Applicant said he and Ms JT were not together at the time she completed the form. He was surprised by the date because his birthday was 14 September and hers was 15 September (1980). It would be best to ask her.

    [26] ST23, page 181.

44. The Applicant was taken to the Application for an Offshore Humanitarian visa. He completed the form where the writing is capitalised; otherwise the form was completed by the person assisting him with the form. That person was familiar with the form, interviewed the Applicant and then subsequently completed the form which was returned to the Applicant. Hence, for example, at pages 195-6 this part of the form was written by that person.

45. At page 196 the Applicant expressed fear of returning to Liberia because his family had too many enemies. He said he maintained that fear and referred to a maternal cousin who returned in 2003 and was later found dead. He referred to those who allegedly killed his cousin.

46. The Applicant was further asked how he could reconcile the fears he expressed in his offshore humanitarian visa application about returning to Liberia, with his travel to Liberia to retrieve identity documents. He said that he knew the journey was high risk, but he wanted to find his siblings and the best way to do this was to get a passport. Maruf helped him a lot.

47. The Applicant was further asked about his family composition referred to in his Form 80[27] and his Statutory Declaration dated 21 August 2018[28] and the nature of the relationship that he had with the family members listed on the form. He explained the ways in which his role differed in African culture from Western tradition. In referring to his brother Musa who went missing in 1990, and was presumed dead, he said in the context of African tradition, he was then the father to his brother’s daughter, Isata. Isata would call the Applicant small father, however, in the context of Western tradition, Isata is his niece. He said this was cultural practice and was the cause of confusion. Subsequently, he located his brother who was living in Sierra Leone. He has had a stroke and cannot speak. He thereafter referred to Isata as his niece.

    [27] T17, pages 137 – 153.

    [28] T18, pages 159 – 162.

1. In reference to a response to further information requested by the Department, the Applicant completed a Family Composition form[29] in which he referred to two daughters. The first, KK, born in 2005 was his natural daughter born to another relationship after his separation from his former wife Ms JT. The second daughter, RK, born in 2017 is his sister’s daughter and he sends money to look after her and her family. Culturally, she is his daughter but biologically she is his niece. He referred to her as his daughter because she is very young, and he continues to support her. He does not know whether her mother is alive or dead. Insofar as he referred to Isata as his niece, he did so because she is much older, married and living in the United States of America. He therefore sought to distinguish them and his relationship to each. He explained that at the time of completing this form in July 2019, he then knew Isata’s father previously presumed dead, was in fact alive, and therefore it was not culturally correct to then describe Isata as his daughter.

   [29] T15, page 121.

2. The Applicant was referred to his Application for an Offshore Humanitarian visa[30]. The brothers and sisters there mentioned did not include the Applicant’s two younger siblings with whom he shared the same mother and survived the war. He has not seen those siblings. He said the document was hastily prepared. The Applicant was again referred to the Form 80. He completed that form online in or about August 2019 and copied the contents from the Offshore Humanitarian visa.  Despite copying the material, there was some inaccuracy which he said were just mistakes.

   [30] ST24, page 188.

   Evidence of Mr AF

3. Mr AF provided a witness statement dated 20 July 2020[31] and gave evidence before the Tribunal. He was born in 1955 in Liberia. He was the head of the elders’ committee of the Manding ethnic group.

   [31] Exhibit D.

4. He was a police officer until the war broke out in Liberia. He knew the Applicant’s parents and in particular his father. The Applicant’s mother was much younger than his father. They lived in the same neighbourhood in Liberia. He knew the Applicant as a small boy in the 1980s.

5. During the civil war, Mr AF fled to Guinea in 1990. At that time the Applicant was aged between 14 and 18 years of age. Mr AF had no further contact with the Applicant or his family. He subsequently travelled to Australia.

6. Mr AF met the Applicant again in Australia in 2009 when the Applicant was introduced to the Mandingo community. He resembled his father. The Applicant told him about the death of his parents. Following their discussion, he was satisfied that the Applicant was the young boy he knew in Liberia before the civil war. Mr AF does not know the Applicant’s age but would estimate him to be in his 40s.

   Evidence of Mr WC

7. Mr WC provided an undated witness statement[32] and gave evidence before the Tribunal.

   [32] Exhibit G.

8. Mr WC was born in Liberia in July 1974. He is now a 45-year-old naturalised Australian.

9. He first met the Applicant in Liberia approximately a decade before the civil war started. They went to different schools in Liberia, but they got to know each other by playing sport together. He said that during this time he formed the view that he and the Applicant were of or about the same age group, but that he may be older that the Applicant.

10. After the civil war, Mr WC and the Applicant met in the refugee camp in Ghana after some years. In the refugee camp they remained friends, discussing their future and families together. They were very close. Mr WC arrived in Australia in August 2009, while the Applicant remained in the refugee camp. The next time they saw each other was in Australia in 2010 or 2011. Mr WC lived in Melbourne and the Applicant lived in Adelaide. They telephoned each other regularly and have remained in contact. They visit each other. They talk by telephone 3-4 times a week. They remain good friends.

    Evidence of Ms CK

11. Ms CK provided a witness statement dated 30 July 2020[33] and gave evidence before the Tribunal. She was assisted by the interpreter.

    [33] Exhibit E.

12. Ms CK was born in Monrovia, Liberia but cannot recall in which year. She said she was aged in her mid-70s. She is married and has children.

13. Ms CK said that she knows the Applicant because the Applicant’s late father and her late husband were best friends. The all lived in the same suburb. She said that the Applicant was named after her husband, but she could not remember the Applicant’s age. She attended the Applicant’s naming ceremony in Liberia.

14. Ms CK left Liberia during the civil war. She did not know where the Applicant was. She went to the Ivory Coast.

15. Ms CK next saw the Applicant when they were both at a community gathering in Australia about 5 years ago. Ms CK said that at the community gathering her son recognised the Applicant and then Ms CK recognised him straight away.

    Evidence of Mr ET

16. Mr ET provided an undated witness statement[34] and gave evidence before the Tribunal.

    [34] Exhibit F.

17. Mr ET was born in Liberia in June 1975. Mr ET lived in the same area as the Applicant and they were childhood friends. Mr ET believed they were in the same age group, but that he was one year older than the Applicant.

18. They were separated by the war. He fled Liberia when he was aged about 15 years to the Ivory Coast. The next time they met was in the refugee camp in Ghana when he was about 30 years of age. They immediately recognised each other. Mr ET lived in Ghana for about 5 – 6 years before coming to Australia.

19. When Mr ET arrived in Australia in 2006, the Applicant remained in the refugee camp. He did not see the Applicant again until 2009 when they met in Adelaide, but they maintained contact via telephone and social media during this time.

20. Mr ET lives in Melbourne. Since their 2009 meeting in Adelaide, they have continued to maintain contact via telephone. Mr ET has visited the Applicant in Adelaide and was best man at his wedding in 2014, and the Applicant has visited Mr ET in Melbourne. Since COVID-19 they have maintained contact by telephone.

    Evidence of Ms JT (former wife)

21. Ms JT provided a witness statement dated 17 July 2020[35] and gave evidence before the Tribunal.

    [35] Exhibit C.

22. Ms JT was born in Liberia on 15 September 1980. She first met the Applicant in the refugee camp in Ghana in 1993. They were both teenagers. She said the Applicant’s date of birth is 14 September 1976. She knows this because the Applicant told her, and their birthdays are one day apart. They had two children together and then separated while in the refugee camp.

23. After they separated, Ms JT was not communicating with the Applicant. She did not communicate when him until she had an interview in the refugee camp to come to Australia. On that occasion, the Applicant looked after the children. She arrived in Australia in 2006. Her youngest child by a different relationship was 3 months old.

24. When Ms JT arrived in Australia, the Applicant remained in the refugee camp. She wanted him to join her in Australia to help her look after their children. She prepared the UNHCR RRF for this purpose and wrote that the Applicant’s date of birth was 1 January 1975. She accepted that she provided the wrong date of birth on the form. She said at the time that she completed the form, she and the Applicant were separated and were not communicating regularly. She has remained in contact with the Applicant since his arrival in Australia.

    CONSIDERATION

25. The Tribunal is required to be satisfied of the Applicant’s identity within the meaning and for the purpose of s 24(3) of the Act.

26. The Applicant was a credible and reliable witness. His explanations with regards to the inconsistent dates of birth were consistent throughout the hearing. The Tribunal also received evidence from five witnesses who knew the Applicant and his family from his time in Liberia and Ghana and have continued to engage with him in Australia. They were credible and reliable witnesses whose evidence was relevant to establishing the Applicant’s identity and age generally. The Tribunal accepts this evidence.

27. It follows that the Tribunal accepts the Applicant’s evidence that in 1990, his parents and sister were killed by a rebel group in their home in Liberia and that the Applicant fled, taking his nephew without re-entering his home. The Tribunal accepts that when fleeing Liberia, the Applicant did not take personal papers, including identity papers relating to himself or his family.

28. He travelled to Ghana via cargo ship, where he resided in Buduburam Refugee Settlement in Accra, Ghana from October 1990 to November 2009. The Applicant arrived in Australia on 2 December 2009 as the holder of the Humanitarian and Refugee (subclass XB 200) visa, where he has resided ever since.

29. The Respondent submitted that it was unlikely that the Applicant was born on 14 September 1976 because his humanitarian visa application listed his eldest daughter, IK, as being born on 23 December 1983. However, the Applicant explained in oral evidence and in his written statement dated 20 August 2019, that IK was his non-biological daughter; IK is the biological daughter of his older brother and the African tradition recognises a man’s brother’s children as his own children. The Applicant said his older brother went missing in 1990 and so he assumed responsibility as father to IK. The Applicant explained that because of his brother’s disappearance, his culture also recognised him as husband to his brother’s wife. He said this was the reason why he listed his siblings’ children as his own children. The Tribunal accepts this explanation.

30. In cross-examination, the Respondent asked the Applicant why, in a request for further information from the Department, he listed IK as his niece, not his daughter. The Applicant explained the inconsistency by saying that he outlined his relationships on the family composition form[36] to reflect the Western version of the relationship, as distinct from the African version which recognises IK as his daughter. The Respondent further submitted that at the time of filling his statutory declaration in August 2019, the Applicant knew that his older brother, the biological father of IK, was alive and therefore he no longer assumed the cultural role of father.

    [36] T15, page 121.

31. The Applicant explained that the contents of his statutory declaration described his state of mind at the time of writing his offshore humanitarian visa application.

32. To the extent that the Tribunal has been referred to such inconsistency the Tribunal is satisfied about the Applicant’s identity when viewed against the balance of the Applicant’s evidence and his witnesses.

33. It was the Respondent’s submission that, although the Applicant’s Liberian passport and birth certificate identified 14 September 1976 as the Applicant’s date of birth, and had been verified as genuine, the documents were based on verbal information provided by the Applicant to the authorities in Liberia, and thus did not provide conclusive evidence of the Applicant’s date of birth, from the time of birth. However, the Applicant explained in evidence that he first had to apply for a birth certificate in Liberia before obtaining his Liberian passport. He attended the government premises, provided information which had to be verified, after which his date of birth was confirmed, and he was able to obtain his passport. The Tribunal is satisfied that these documents were not brought into existence based merely upon the information provided by the Applicant without verification. Hence, the Tribunal is satisfied that theses genuine documents accurately record the Applicant’s date of birth.

34. While the Respondent was critical of the Applicant’s travel to a country from which he sought protection, the Applicant explained in oral evidence the purpose of going to Liberia was to obtain these documents which he needed for freedom of travel in his search for his siblings.

35. He said that he travelled to Ghana to search for his siblings. It was his intention to travel to neighbouring countries. He wanted to travel by road, but he did not have an Australian passport which would allow his freedom of movement. He had heard a person could travel within African countries for free with a Liberian passport, and this motivated his journey first to the embassy in Ghana and then to Liberia to obtain his birth certificate and in turn his Liberian passport.

36. When in Liberia he was assisted by a friend. He recognised the risk involved but his stay in Liberia was short and he was anxious to find his siblings. The Tribunal accepts his explanation for travelling to Liberia. The Applicant’s explanation does not enliven a concern about the reliability and credibility of the Applicant’s evidence as to his identity, including his date of birth.

37. The Tribunal accepts that the date of birth referred to in his identity card was an error which the Applicant tried unsuccessfully to change. Hence, the documents brought into existence for the purpose of obtaining an offshore humanitarian visa were, for consistency, endorsed with the wrong date of birth. The Applicant observed in submissions that if it was not for the error about his year of birth in his identification card, he would not be before the Tribunal.

38. The date of birth contained in the UNHCR RRF was authored by his former wife Ms JT. The Applicant said that he was surprised that she got his date of birth so wrong because his birthday was the day before Ms JT’s; namely his birthday was 14 September and Ms JT’s birthday was 15 September. He reminded her of his birthday every year. Ms JT gave consistent evidence about her birthday being the day after the Applicant’s. She said she provided the wrong date because she and the Applicant had very little communication since separation. She admitted the date she provided was an error. The Tribunal accepts that evidence.

39. The various documents before the Tribunal contain family compositions which refer to members of the Applicant’s family differently, such as Issata being both his daughter and his niece. However, the Tribunal is satisfied that, in respect of Issata, this is explained by the Applicant’s national custom and not due to lack of credibility or reliability. The fact that for a period Issata’s father was missing and presumed dead also impacted upon how the Applicant referred to her. When presumed dead, the Applicant assumed the role of her father. That ceased when the Applicant’s brother was later identified as living, albeit suffering the effects of a stroke. The Tribunal accepts that explanation.

40. The Tribunal also accepts that the Applicant’s family was large. His father had 9 children by his first two wives and six children with the Applicant’s mother. As a consequence of the Liberian civil war and the Applicant fleeing Liberia, the whereabouts of each of the Applicant’s siblings was in many cases unknown, including whether they were alive or dead. He does not know the whereabouts or status of his two younger siblings.  The Tribunal accepts the Applicant’s explanation for the lack of precision in completing the relevant forms.  

41. The Tribunal notes that there have been inconsistencies in various dates in documents to which the Tribunal has been referred, particularly in relation to the Applicant’s date of birth. However, the Applicant was consistent in the explanation for those inconsistent dates. His identification card contained a date error which then was replicated in subsequent documents for the sake of consistency and to ensure the Applicant would be granted a visa to travel to Australia.

42. The Applicant’s witnesses, while unable to identify the Applicant’s date of birth, were useful in painting a picture of the Applicant’s life story and identifying his age by reference to their own age and by reference to their childhood and adolescent friendships. In particular, the evidence of Mr WC and Mr ET, former childhood friends of the Applicant, confirmed that the Applicant was of or about the same age as each man which supports the Applicant’s evidence that he was not born in 1966, and that his year of birth was 1976.  

43. The Tribunal is satisfied that the Applicant’s date of birth contained in the identification card was an error, and having regard to the evidence of those witnesses who knew and associated with him in Liberia and Ghana, together with the birth certificate and passport evidence, the Tribunal is satisfied that his correct date of birth is 14 September 1976. 

44. Having regard to the three pillars of identity, and taking into account the Applicant’s evidence as to his life story, his evidence generally as it related to his date of birth, and weighing that against the inconsistent dates of birth, the uncertainty around the family composition and the Respondent’s criticisms of those topics respectively, the Tribunal is satisfied of the Applicant’s identity.

    CONCLUSION

45. The Tribunal is satisfied as to the Applicant’s identity as referred to in his application for the purposes of the eligibility criteria to become an Australian citizen.

    DECISION

46. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Act.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

……………[SGND]…………………

Associate

Dated: 28 June 2021

Dates of hearing:	11 & 12 January 2021
Applicant:	Self-represented
Advocate for the Respondent:	Cameron Retallick, Australian Government Solicitor