Ahamod v Minister for Immigration and Border Protection
[2019] AATA 7
•8 January 2019
Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7 (8 January 2019)
Division:GENERAL DIVISION
File Number: 2017/7601
Re:Saly Ahamod
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:8 January 2019
Place:Adelaide
The Tribunal affirms the decision under review.
............................[Sgd]........................................
Senior Member B J Illingworth
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – application for citizenship refused – whether Tribunal satisfied as to identity – inconsistency in evidence – credibility - threshold requirement not met – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007, s 24(3)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540; [2014] FCAFC 93
Re Be Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Re Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Re Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310
Re CDNB and Minister for Immigration and Border Protection [2018] AATA 757Re ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection [2018] AATA 3045
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016, Chapter 13
Explanatory Memorandum, Australian Citizenship Bill 2015 (Cth)
Attorney-General’s Department, National Identity Proofing Guidelines 2016
Department of Foreign Affairs and Trade, Country Information Report, Myanmar, 10 January 2017Rohingyas - Insecurity and Citizenship in Myanmar, T. Gibson et al (eds.), 1 August 2016
REASONS FOR DECISION
Senior Member B J Illingworth
8 January 2019
INTRODUCTION
Mr Saly Ahamod (“the Applicant”) has applied to the Administrative Appeals Tribunal to review a decision of a delegate of the Minister for Immigration and Border Protection (“the Respondent”) dated 1 December 2017, refusing the Applicant’s application for conferral of Australian Citizenship in accordance with the Australian Citizenship Act 2007 (“the Act”).
The reasons for the refusal of conferral of Australian Citizenship were that:
(a)the Applicant did not satisfy s 21(2)(h) of the Act, namely, he did not meet the good character test; and
(b)the Applicant did not satisfy s 24(3) of the Act, namely, he did not satisfy the delegate of his identity.
The Respondent subsequently decided that the Applicant satisfied s 21(2)(h) and was a person of good character. Hence the only issue before the Tribunal was whether the Applicant could satisfy s 24(3) of the Act, namely his identity.
The Applicant was represented by Migration Agent Mr Mason and was assisted by an interpreter via telephone. The Respondent was represented by Mr Evans, Australian Government Solicitors Office.
The Tribunal received into evidence:
(a)Exhibit 1 – T documents;
(b)Exhibit 2 – Supplementary T documents (“STD”);
(c)Exhibit 3 – Further Supplementary T documents (“FSTD”) pages 360 – 364;
(d)Exhibit 4 – Statutory Declaration dated 27 June 2018;
(e)Exhibit 5 - Copy of the Applicant’s single entry visa 2012;
(f)Exhibit 6 - Extracts of Facebook profiles, 9 pages; and
(g)Exhibit 7 – Department of Foreign Affairs and Trade Country Information Report Country Information Report (“DFAT Report”) Myanmar (10 January 2017).
BACKGROUND
The Applicant arrived in Australia as an unauthorised maritime arrival on 9 December 2009. He gave a Biodata Interview[1] that day in which he said, through an interpreter, that:
[1] Exhibit 3, FSTD pp 360 – 364.
(a)his name was Saley Ahamod ( which has a different spelling of his first name);
(b)his date of birth was 1 September 1985;
(c)his place of birth was Pawaichaung Village, Maungdaw in Myanmar (Burma) where he lived until October 2001;
(d)his religion was Islam and his ethnic group Rohinya;
(e)he attended the following schools:
(i)Pawaichaung Primary School 1990 – 1995 , being up to grade 4, and
(ii)Nganchaung Midle School 1995 – 1997, being up to grade 6;
(f)after completing his schooling, from 1997 to 2001 he worked on his parent’s farm;
(g)he had no identity documents;
(h)between 10 April 2001 and 7 November 2001 he lived in Chitagong, Bangladesh. From 7 November 2001 to 14 November 2001 he lived in Guluk, Thailand. From November 2001 to November 2009 he lived in Penang, Malaysia;
(i)he married his wife, Noor Wati, in 2007. She was an Indonesian citizen. There is one son to the marriage, Omar Farook born in 2008, who was residing in Malaysia with his mother; and
(j)his father Nir Ahmed, was born in 1965 and was deceased. His mother Shava Khata, was born in 1961 and lived in Pawaichuang, Maungdaw, Myamar, as did his seven brothers and sisters, all of whom have now fled to Bangladesh.
On 28 December 2009, the Applicant gave an Immigration – In – Confidence Interview (“Entry Interview”)[2] in which the information contained in the Biodata Interview was mostly repeated and further information was given namely:
(a)that he was not legally permitted to live in Malaysia;
(b)in 2002 he was detained for two months by Malaysian authorities. Police then deported him to the Thai - Malaysian border;
(c)in 2003 he was detained by the Malaysian Police for one month and again deported to the Thai – Malaysian border;
(d)in March 2009 he was detained for 12 days by the Malaysian police whom he bribed and he was subsequently released from custody;
(e)he had been issued with a United Nations High Commissioner for Refugees (“UNHCR”) card in Kuala Lumpur in 2002 which had been lost in Malaysia; document number 51204 C2973 2/3;[3]
(f)he stated his wife “Noor Wati” was born in 1990, and his son “Omar Farook” was born in 2008;[4] and
(g)he made a number of protection claims relating to discrimination faced by the Rohingya population from military forces in Myanmar; that he had been required to undertake forced labour; all his farmland had been seized by the military and given to Buddhist people[5] and that he had also lived in Bangladesh and Malaysia unlawfully.[6]
[2] Exhibit 2, STD 1 p 86.
[3] Exhibit 2, STD 1 p 90.
[4] Exhibit 2, STD1, p 91.
[5] Exhibit 2, STD 1 p 96.
[6] Exhibit 2, STD 1 p 94.
On 17 January 2010, the Applicant gave an IAAAS Interview[7] in the presence of a lawyer and with the assistance of an interpreter. In general he confirmed the details previously given in the Biodata and Entry Interviews and that he never held any Myanmar identification documents.[8] His given name was here spelt differently namely “Saly”, and date of birth was 12 January 1985. Thereafter the identification details, namely the spelling of his name and date of birth, remained consistent including in his application for Refugee Status Assessment with the former Department of Immigration and Citizenship.[9] However there were some inconsistencies between the IAAAS Interview and both the Biodata and Entry Interviews which included:
(a)the spelling of his name, his date of birth, the spelling of the schools he attended and the dates of such schooling differed;
(b)that he was deported from Malaysia to the Thailand border on two occasions namely 2002 and 2007, and stayed in Thailand for 1 month on both occasions, which differed from the information provided in the Entry Interview;
(c)his UNHCR card had been taken by Malaysian police because he did not pay a bribe to them rather than was lost; and
(d)he confirmed his son was approximately two years of age but his name was given as Mohammad Farook, being a different name and spelling.
[7] Exhibit 2, STD2 p 110.
[8] Exhibit 2, STD2 p 110.
[9] Exhibit 2, STD2 p 110.
On 18 August 2010, the Applicant was granted a permanent Protection (subclass 866) (Class XA) Visa.[10]
[10] Exhibit 2, STD3 pp 159-164.
On 14 February 2011, the Applicant lodged an Offshore Humanitarian (Class XB) visa[11] for his wife and two dependents one being his son named Faruq Mohamed, the other being his nephew. In this application the Applicant was named as Saly Ahamod with the date of birth 12 January 1985.
[11] Exhibit 2, STD4.
The application enclosed a number of documents, relevantly:
(a)A UNHCR support letter[12] which identified the Applicant as Salleh Ahamad bin Nir Ahmad, date of birth 1 January 1982. The phrase “bin Nir Ahmad” means the father of Salleh Ahamad;
(b)A copy of his son’s UNHCR Card;[13] and
(c)A copy of a marriage contract and a translation.[14] The contract relevantly states that:
On the 8th of January 2003, the marriage contract between Mr. Saly Ahamod, son of Nir Ahmed… aged 29 years… and Mrs. Nur Samawati… aged 23 years… has been entered into for a dowry of 50 grams…
[12] Exhibit 2, STD4, p 236.
[13] Exhibit 2, STD4 p 237.
[14] Exhibit 2, STD4 pp 240-241.
This Class XB visa application was subsequently refused.[15]
[15] Exhibit 2, STD13 pp 355-359.
On 17 August 2012, the Applicant departed Australia and travelled to Malaysia to visit his wife and son, returning to Australia on 10 September 2012.
On 24 August 2014, the Applicant applied for Australian Citizenship by conferral under s 21(2) of the Act. The Applicant therein used the same name and date of birth as contained in the Refugee Status Assessment,[16] namely Saly Ahamod born on 12 January 1985, and declared he had not been known by any other name.[17] In his application for citizenship, the Applicant attached a translated List of Household Members (“Household list”) said to be issued by the Government of the Union of Myanmar.[18] The Applicant’s name therein was recorded as Saly Ahamod (crossed out), year of birth 1345.
[16] Exhibit 2, STD2.
[17] Exhibit 1, T4 p 26.
[18] Exhibit 1, T4 pp 42-44.
It was argued by the Respondent that this Household list was an identification document and its content, in part, was inconsistent with the Applicant’s family composition as declared in his Biodata and Entry Interviews, and was further inconsistent with the Applicant’s previous statement that he did not have any identification documents.
On 18 January 2017, the Respondent wrote to the Applicant inviting him to comment on and provide an explanation for information that might lead to his application being refused.[19] The letter referenced the various inconsistencies in the material provided by the Applicant since his arrival in Australia.
[19] Exhibit 1, T7, pp 55 – 60.
The Tribunal notes and the Respondent acknowledged at the hearing, that there were a number of mistakes contained within the invitation to comment, in which it was claimed that:
(a)The Applicant’s date of birth recorded in the Biodata Interview was 1 January 1988, and his name was spelt “Salehamed”, when in fact the date of birth recorded was 1 September 1985 and the name was spelt “Saley Ahmed”;[20]
(b)The Applicant’s date of birth provided in the Entry Interview was 1 September 1982, when in fact it was 1 September 1985;[21] and
(c)The Applicant’s date of birth recorded in his wife’s visa application was 1 September 1985, when in fact it was 12 January 1985.[22]
[20] Exhibit 3, FTSD p 360.
[21] Exhibit 2, STD1 p 88.
[22] Exhibit 2, STD4 p 168.
On 22 February 2017, the Applicant’s representatives responded to the invitation to comment,[23] which addressed some but not all of the alleged inconsistencies, following which the delegate decided that he was unable to be satisfied about the identity of the Applicant and refused the application for Australian Citizenship by conferral.[24]
[23] Exhibit 1, T8 pp 65 – 74.
[24] Exhibit 1, T2, pp 8-20.
ISSUE
The issue for determination by the Tribunal is whether the Applicant satisfies s 24(3) of the Act.
LEGISLATIVE FRAMEWORK AND PRINCIPLES
Section 24(3) of the Act provides that the Minister must not approve an Applicant becoming an Australian citizen “unless the Minister is satisfied of the identity of the person.”
The Explanatory Memorandum to the Australian Citizenship Bill 2005 (which Bill was ultimately enacted as the Act) 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.
Further, Chapter 13 of the Australian Citizenship Policy under heading “Overview of the identity provisions” states that:
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
The Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines) refers to the concept of identity as “not a fixed concept; it is highly dependent on context.”[25]
[25] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1.
Application of Briginshaw
The Respondent contends that in this matter, the significance of an approval for an application for Australian Citizenship warrants the application of the principles of Briginshawv Briginshaw (1938) 60 CLR 336 (“Briginshaw”) in considering whether the Tribunal is comfortably satisfied that the identity requirements in s 24(3) of the Act have been met.
In Briginshaw, Dixon J (as he then was) stated:[26]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.
Dixon J goes on to state:
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[26] (1938) 60 CLR at 361 to 362.
It follows that in particular cases that are of a serious or grave nature, to act on “inexact proofs, indefinite testimony or indirect references” may not be reasonable.[27]
[27] See Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, at 490.
The Tribunal is not bound to apply the common law rules of evidence,[28] however the Tribunal has the discretion to apply or inform itself by reference to such evidentiary concepts.[29]
[28] Sullivan v Civil Aviation Safety Authority [ 2014] FCAFC 93; (2014) 141 ALD 540, at [114]- [115].
[29] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540, at [121].
In considering the operation of the legislative scheme, the Respondent referred the Tribunal to ReBeyan and Minister for Immigration and Border Protection [2015] AATA 256, particularly paragraph 38 which relevantly states:
…a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
The Tribunal notes a recent decision in ReSinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579, wherein Senior Member D. J. Morris considered Briginshaw and what it is meant by the statutory phrase “satisfied” in matters of Australian Citizenship applications at paragraphs 55 and 56:
The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is “satisfied” of a requirement. Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) is the leading authority, and it has been frequently and contemporarily re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors (1992) 110 ALR 449, by Toohey J for the Court, at 450)…
Essentially… 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.
A certificate of Australian Citizenship is a legal document of considerable significance.[30] Although the Tribunal is not bound to apply Briginshaw, it does provide guidance as to the requisite proof required, having regard to the seriousness of the consequences of the matter under consideration, and the consequences that follow from that decision. It is not a hard and fast rule. Nonetheless 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 pre-requisite 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.
[30] ReBeyan and Minister for Immigration and Citizenship [2015] AATA 256.
APPLICANT’S EVIDENCE
The Applicant said that his date of birth of 12 January 1985 is the date that he chose for the purpose of the IAAAS Interview. He thereafter committed that date to memory and consistently referred to that date.
The Applicant said when he was born in Myanmar (Burma) in a small rural village. There was no registration of birth and no one in his community would be able to provide an accurate date of birth for the Applicant or any other member of the community. He has never had a birth certificate.
The Applicant was cross-examined on whether he was familiar with the “white card”. He said he had heard of such a card but did not know whether anyone in his family had one. The first time he received an identity document was in Malaysia, namely a UNHCR card.
The Applicant was asked whether he needed any form of identification in order to enrol in primary school. The Applicant said his parents enrolled him and he did not know whether registration or identification was required. When asked if he needed documentation to enrol in middle school he said perhaps the record was transferred from primary school. He said his parents would have had those records however his village was burnt down in 2017 and his family fled to save their lives. He said the school also burned down so the records are most likely destroyed. He has made no inquiry about the existence of such records.
The Household list
The Applicant was referred to the Household list he provided in support of his citizenship application.[31] He said this was a form of identification document detailing those people living in a house. Within that document the Applicant is referred to by the name Saly Ahamod, registration number 158164. When questioned about that number, and that it suggested the Applicant was not stateless, he said that he did not know what the number referred to and his best guess was that it may have been a number given to him at middle school. He also said that this Household list was nothing more than a check undertaken by authorities from time to time to see who was living in a particular residence in a particular village.
[31] Exhibit 1, T4 p 42 – 43.
The Respondent suggested the number was a birth certificate registration number, and referred the Applicant to the DFAT Report Myanmar which reads:
5.24When a baby is born, the birth certificate is required to add them to a household list.
The Applicant explained that he came from a village with no pumped water, they used lamps for lights, had no electricity and lived in primitive conditions. No one in his village had a birth certificate nor was there an official registration process.
When asked whether the registration number on the Household list was his white card number, he said he did not know. He said his parents could have applied for a white card on his behalf but said he had no idea whether they were ever in possession of one.
When asked why he did not tell the interviewer on his arrival in Australia that he had a Household list, the Applicant said that he wasn’t aware of that list at the time. It was not important to him when living in Burma or Malaysia. It has only become important now when applying for citizenship. He said he spoke to his brother and asked him for assistance in proving his identity. It was only then that he became aware of it. Further at the time he made his visa application he was in detention, therefore pursuing enquiries and accessing documents was difficult.
The Applicant acknowledged that he had made no attempt to contact the relevant Burmese authority to obtain identification documents, although he said that he had been in contact with “support groups”.
He said his parents are now deceased, but he made inquiries through his brother and family who fled Burma and were now living in Bangladesh. They had no records other than the Household list.
Inconsistencies
The Applicant was asked about the various inconsistencies between the Biodata Interview, Entry Interview and the IAAAS Interview for Refugee Status Assessment. He said that in respect of the Biodata and Entry Interviews he was illiterate and the documents were written by the interpreter. His answers were written phonetically. He did the best he could from his memory and without reference to any documents or records. Further that when he had his Biodata Interview he had just arrived off the boat, he was fatigued and his memory was not good. After the passage of time, and with the benefit of being interviewed by a lawyer, he had time to think and at the IAAAS Interview he gave what he believed to be the more accurate version of his prior history. He said all documents completed on or after the IAAAS Interview correctly recorded to the best of his knowledge the spelling of names and the relevant dates of birth.
Also in referencing the contents of the Entry Interview the Applicant said he could not spell his name and that some of the errors may have occurred because the information contained in the earlier Biodata Interview may have been used to pre-populate the Entry Interview document.
The Applicant was cross-examined about the UNHCR letter of 8 October 2009, which preceded his arrival in Australia and gave his date of birth as 1 January 1982. He acknowledged that the date of birth was only an estimate provided by UNHCR, and given that dates of birth were not important in his culture, UNHCR assumed an age and approximated the year of birth as 1982. When asked why the date of birth in the letter was different to the Biodata and Entry Interviews, both of which give his date of birth as 1 September 1985, he said he did not remember the estimated date at the time he came to Australia.
The Biodata and Entry Interview forms also reference the Applicant’s father and mother being born in 1965 and 1961 respectively.[32] In the IAAAS Interview, the dates of birth are 1947 and 1952 respectively.[33] The Applicant was unsure of their dates of birth but said that his father was older than mother.
[32] Exhibit 3, FSTD1 pp 362-363 & Exhibit 2, STD1 p 92.
[33] Exhibit 2, STD2 p 124.
In re-examination the Applicant said that in his village and when he was young he did not have, and did not know how to use a calendar. He never saw a calendar being used in the village and matters such as age and date of birth were not relevant in his culture. He never saw a Gregorian calendar until he arrived in Australia.
Travel History
Whilst in Myanmar (Burma), the Applicant was taken into custody by authorities on a number of occasions and forced to work on fencing and digging projects for no pay and no food. If he did anything wrong he was beaten.
The Applicant believed he had no rights in Burma, being a Rohingya, and left in about October 2001. He was alone, but in the course of his journey he met smugglers who were assisting others to travel to a new country. The Applicant travelled to Bangladesh from where he took a boat to Malaysia via Thailand. He recalled that he arrived in Malaysia in about early 2002.
In Malaysia, the Applicant worked in the construction industry in both paid and un-paid work.
The Applicant said in evidence that he stayed in Malaysia for approximately nine years during which time he was evicted on two or three occasions. The first occasion when he was caught was after approximately two years. He was placed in detention and later released at the border of Thailand. He spent two to three weeks in Thailand before he returned to Malaysia after paying smugglers.
When he returned to Malaysia he again worked in the construction industry and at night he would live in the jungle to avoid police raids at the construction site. That continued for close to three years but again he was caught and deported. There was a third occasion when he was arrested and detained. However he subsequently said in evidence that he bribed police and was released from custody and avoided deportation.
The Applicant’s attention was drawn to an alleged inconsistency between his evidence and the IAAAS Interview[34] which reads “please note that I was deported twice by the Malaysian authorities to the Thai border. The first time in 2002 and the second time in 2007. I stayed approximately one month in Thailand on both occasions and was unemployed”. The Applicant acknowledged there was an inconsistency.
[34] Exhibit 2, STD2 p 118.
The Applicant was then directed to his Biodata Interview which refers to him staying in Guluk, Thailand for seven days in 2001 before travelling to Penang Malaysia in November 2001.[35] In contrast his IAAAS Interview states he was in Thailand for three days before travelling to Malaysia.[36] The Applicant said that he stayed in Thailand for more than one month before travelling to Malaysia, and he does not know why he told the interviewer he was there for seven days. He said he has never kept any travel records or records of dates, and at the time of the interviews he was doing the best he could and responding to the questions under difficult circumstances.
[35] Exhibit 3, FSTD1 p 360.
[36] Exhibit 2, STD1 p 89.
UNHCR Card
Initially the Applicant did not have any identification documents, however the Applicant said in about 2006 or 2007 he obtained a United Nations identification document namely a UNHCR card. When asked again when he obtained the card, he said he could not recall exactly but it may have been 2005, 2006.
When he obtained his UNHCR card it did not provide him with any rights and often when raided the authorities did not look at that card but simply detained him. However that card enabled him to stay at night in Penang because it enabled him to rent accommodation. His name on that card was a different spelling, namely, Salleh Ahmad. The Applicant did not appreciate his father’s name “bin Nir Ahmad” appeared on a card until pointed out by his lawyer in Australia.
The Applicant travelled to Australia in 2009 and his wife and son remained living in rented accommodation in Malaysia. The Applicant arrived on 9 December 2009, and other than the clothes he wore, he had no other personal belongings or identification documents. He said when he was saved by the Australian Navy he lost his UNHCR card and bag of belongings at sea. At the time of his rescue he almost drowned. The Applicant was asked to explain the inconsistency between that evidence and the Entry Interview[37] in which he said his UNHCR card was lost in Malaysia. The Applicant said over time he had been trying to remember what happened to the card, and that his recollection now is that it was lost sea.
[37] Exhibit 2, STD1 p 90.
A further inconsistency with respect to the loss of the UNHCR card was drawn to the Applicant’s attention as contained in the IAAAS Interview which reads “my UNHCR card was taken by the Malaysian police because I could not pay a bribe”.[38] The Applicant maintained that he lost the UNHCR card at sea. His explanation for the inconsistency was not convincing.
[38] Exhibit 2, STD2 p 119.
The Applicant was also referred to inconsistencies with respect to the issue date of his UNHCR card. In his Biodata and Entry Interviews; he said he obtained the card in Kuala Lumpur in 2002 or 2003. That was contrary to his evidence in chief in which he said it was obtained between 2005 and 2007. He acknowledged he could not be sure of the date the card was obtained or the process, but said he obtained it in an office in Kuala Lumpur.
When the Applicant was cross-examined about the number of occasions he was deported from Malaysia, he could not recall if he had the UNHCR card when first deported but in 2009 he said that police seized the card and destroyed it. He said he was in police custody for up to 2 weeks on that occasion.
When asked why then he previously said that his card was lost at sea, the Applicant said that while in Malaysia he held a number of UNHCR cards. He compared them to a drivers licence in that the card has an expiry date and must be renewed. The Applicant’s attention was drawn to his son’s UNHCR card[39] which card had two dates namely 8/4/2009 and 21/01/2012. The Applicant said these were the start date and expiry date of the card.
[39] Exhibit 2, STD4 p 237.
Hence, he said he had a number of cards issued over an extended period of time. On a number of occasions, Police destroyed his cards and when he travelled to Australia the card he had at that time was lost sea. When asked what enquiries he had made to obtain a record of his UNHCR card from Malaysian authorities, he said that he had made no enquiry, and was unable to provide any satisfactory explanation for not having done so.
The Applicant’s evidence was further confused when asked if he didn’t have his UNHCR card on him during the Biodata Interview, how did he recall the number 51201 C2973 2/3. He explained that he contacted his wife who gave him the number from a photocopy of the card she had at home. He then explained that he, his wife and son were all registered on his card. When asked why therefore a photocopy of the card is not before the Tribunal, the Applicant said that after he came to Australia his wife never had a further card issued as he was the principal cardholder. He failed to adequately explain why a copy of that document held by his wife was not produced.
The Applicant’s son’s UNHCR card also gave a different spelling of the Applicant’s name as Selleh Ahmad. The Applicant said that spelling of his name was the Muslim representation of the name.
Marriage contract and wife’s date of birth
The Applicant said he first met his wife around 2007. They were married two months after they met. The marriage contract however states they were married on 8 January 2003.[40] The Applicant’s attention was directed to his wife’s Form 80 in which she provided the date of marriage as 8 January 2007,[41] and her statement dated 14 February 2012[42] wherein she gave their date of marriage as August 2007. The Applicant could not explain the inconsistencies and could not say whether either date provided by he or his wife was correct. He said he did not have a good recollection of dates.
[40] Exhibit 2, STD4 p 240.
[41] Exhibit 2, STD10 p 294.
[42] Exhibit 2, STD10 p 254.
The Applicant was questioned about different spellings of his wife’s name and dates of birth that appeared in the various documents. A letter dated 8 October 2009 from UNHCR[43] indicated a “Ms. Nur Wati Binti Ruslan, date of birth 5 April 1988.” Conversely in the Biodata Interview dated 9 December 2009 and the Entry and IAAAS Interviews his wife was named Noor Wati date of birth 1990 aged approximately 19 years. In the purported marriage contract,[44] as at the date of marriage of 8 January 2003 she was recorded as Mrs Nur Samawati, aged 23 years which made her date of birth 1980.
[43] Exhibit 2, STD4 p 236.
[44] Exhibit 2, STD4 pp 240 – 241.
The Applicant said he and his wife’s ages in the marriage contract of 29 years and 23 years respectively, were incorrect. He said that he was not sure of his wife’s correct age at the time of marriage, but then subsequently said that he was sure she was born in 1980, not 1988.The Applicant later volunteered in evidence that this was not a true marriage contract, and that it had been obtained by his wife after he had travelled to Australia in an endeavour to furnish proof of the fact their marriage.
The Applicant’s overall response to these inconsistencies was unclear. A number of times the Applicant stated his wife was born in 1980, but then subsequently stated that the date of birth as recorded in the UNHCR letter was the correct date, namely 1988.
During cross examination, the Applicant was questioned about his wife’s life story. He said she is Indonesian and was working for someone in Malaysia. He did not know whether that arrangement was legal or illegal. As to the extent of her education, the Applicant said that she can read and write a little bit.
The Applicant explained the circumstances in which his marriage occurred, namely they called upon a religious man who agreed to marry them. No marriage certificate or contract was produced at the time of the marriage. The ceremony did not occur in a mosque but they went to a home where the religious man performed prayers and conducted a ceremony. A dowry was paid. The Applicant did not know if the marriage was accepted under Malaysian law. He said that his wife had previously been married in Indonesia, had two children of that marriage but left Indonesia and was divorced. This, the Applicant said, was communicated to the religious man who accepted this was true without any documentation.
The Applicant said in Malaysia the marriage was a different process whereby one calls upon a religious leader to perform the marriage. He believes he and his wife were legally married by the religious leader.
The Applicant freely acknowledged that the marriage contract was not authentic but a document created after payment of a fee to obtain evidence of the fact their marriage. The Applicant said that his wife was responsible for obtaining this document. At the time he received it from his wife he believed it was an original document; he did not know it was false and it was written in Arabic which he cannot read.
The Applicant explained that obtaining a marriage certificate (contract) is not something that is done through, or controlled by, government authorities such as those in Australia. It is common practice to arrange for the production of a marriage certificate (contract) in the manner described by the Applicant in evidence. He acknowledges now the Malaysian government is better organised.
Further in relation to the Entry Interview document he could not explain why at page 91 he gave his marriage date as 2007 and his wife’s date of birth of 1990, both of which he said were wrong. He said that he was unaware of the importance of records such as date of birth which has now become apparent only since arriving in Australia. It was not important in his culture.
Social Media profile
The Applicant was also questioned about the contents of various Facebook records and extracts[45] which showed different addresses for the Applicant including Darwin and Sydney. The Applicant said on a number of occasions he created new Facebook accounts. The Applicant said that when his Facebook record was blocked or he forgot his password or he obtained a new phone number, because he was not accomplished in the use of Facebook, he would open up a new account.
[45] Exhibit 6.
He said that at the time he was living on Christmas Island a friend of his helped him set up a Facebook account. At that time he said he referred to his place of residence as Sydney Australia.
CLOSING ADDRESSES
Applicant’s closing
The Applicant submitted that having regard to the whole of the evidence, identification has been established. The Applicant was a stateless Rohingya who fled persecution in Burma. He was functionally illiterate. His village was insignificant and dates and records of events such as birth and marriage were not important in his culture.
It is accepted that there is an absence of authoritative identification documents. If the Applicant were to make enquiries they will be made, it was submitted, with a persecuted state. The question should not be whether the names and dates of the Applicant are consistent, but whether taking into account he is a Rohingya refugee, he was nonetheless a truthful and credible witness.
The Applicant referred to paragraph 3.47 of his Statement of Facts, Issues and Contentions and a primary source document titled “Rohingyas: Insecurity and Citizenship in Myanmar”,[46] which examined the denial of birth registration documents and in particular delivery certificates. This was said to corroborate the Applicant’s evidence in explaining the absence of any document or record of his birth. Further it supported the proposition that children could be enrolled in primary school without either a delivery or birth certificate. Country information further states that male and female persons living in rural areas had a perception that a delivery certificate was unnecessary and not required for children to be enrolled in school or to be registered on their parent’s household list.
[46] Rohingyas - Insecurity and Citizenship in Myanmar, T. Gibson et al (eds.), 1 August 2016, CIS38A80121535, p 107.
With respect to the inconsistencies in the spelling of the Applicant’s name it was argued that a number of the documents referred to were prepared by interpreters and the phonetic spelling of the Applicant’s name was used. He did not have identity documents which could be referred to for the correct spelling of his name. It was after the Applicant received representation that there was stability and consistency in the spelling of the Applicants name.
It was submitted that the Applicant’s name as referred to in the UNHCR letter of 8 October 2009, has the same spelling as the Applicant’s name in his son’s UNHCR card; supporting the Applicant’s proof of identity. Hence plainly, it was submitted, the Applicant satisfied his identity.
It was acknowledged that the marriage contract and the dates of birth referred to in the certificate were not consistent with other material produced. Nonetheless the Applicant said that was not fatal. The marriage contract was a document obtained for convenience in a culture where legal registration of marriages for Rohingyas often did not occur. This marriage contract, it was submitted, was not probative to any issue before the Tribunal.
In respect of the number of different social media accounts and addresses it was submitted that the Applicant had a low understanding of technology and these represented his regular attempts to re-access his Facebook account. The Applicant referred to his statutory declaration dated 24 June 2018 under heading “Facebook Accounts”[47] in which the Applicant explained the reasons for the number of accounts and errors. In that statutory declaration the Applicant said that he had moved on a number of occasions, lost his logins, lost or damaged his phone and as a result he would set up a new phone account. Because he was learning English he accidentally selected wrong details. On one occasion he set up a Facebook account whilst in detention and with the assistance of a friend and is not confident that the friend recorded details correctly. Further, the accounts that reference him having resided in Cambodia or educated at La Trobe University were incorrect, and he could not explain how they appear on his Facebook account. Nonetheless this was argued as indicative of the Applicant’s limited education, poor technology skills and lack of English.
[47] Exhibit 4.
Respondent’s closing
The Respondent submitted that a high level of satisfaction is required with respect to an application for conferral of Australian Citizenship; which is higher than a mere balance of probabilities.
The Respondent submitted that the Applicant was required to exhaust all avenues to obtain identity documents reasonably available to him. In this matter the identity documents were very limited. No identity document of any substance existed prior to the Applicant’s arrival in Australia. There was no personal UNHCR card or photo. The family household list was produced long after the Applicant had arrived in Australia and there were concerns about its contents and reliability. The marriage contract was a fraudulent document and could not be relied on by the Tribunal and reflected the Applicant’s lack of credibility.
The Respondent submitted that since the Applicant lacked the requisite biometrics, his life story therefore became important in meeting the high standard required for the application for conferral of citizenship. It was submitted that the inconsistencies, particularly in regard to the names and dates of birth, when viewed cumulatively cast serious doubt with respect to the Applicant’s identity. The Applicant has failed, it was submitted, to explain adequately or at all, those discrepancies.
The Respondent referred the Tribunal to the DFAT Report Myanmar dated 17 June 2017. According to that DFAT Report, Household lists are often the only formal documentation available to Rohingya in northern Rakhine State.[48] It went on to state that birth certificates are required to add children to a household list. Although this may not be the case in rural areas, the Respondent submitted the Applicant’s village of 5000 people would be considered significant to the Myanmar government. Since there is a registration number listed on the Applicant’s household list, it was submitted that at a minimum the Applicant should have made reasonable enquires as to the existence of a registration card or similar identification document.
[48] DFAT Country Information Report Myanmar, 10 January 2017, p 29.
The Respondent submitted that the Applicant was in Myanmar at the time “white cards” were issued. Relevantly the DFAT Report Myanmar states that “in 1995 the government began to issue Temporary Registration Cards (known as ‘white cards’) to those that identified as Rohingya.”[49] The Respondent submitted the Tribunal should not be satisfied that such a document does not exist, further it is incumbent on the Applicant to make such enquires.
[49] DFAT Country Information Report Myanmar, 10 January 2017, p 12 at [3.12].
The Respondent referred the Tribunal to a recent case of ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3045, which it was submitted is analogous with this matter as the applicants were Rohingya refugees from Myanmar, and discussed at [58] that:
The Tribunal, having considered all the evidence before it, given that the ZVNT and MFYW were issued with pink cards, finds that ZVNT, MFYW and SWQL, should be required to make an attempt to secure certified copies of pre requisite documents required for citizenship. The Tribunal supports the contention of the Respondent that there was no effort made to do so, and consequently, this has impacted adversely on the success of this application.
The Respondent further referred the Tribunal to CDNB and Minister for Immigration and Border Protection [2018] AATA 757. Although Member Kennedy expressly did not apply the Briginshaw test,[50] the applicants still failed to provide cogent or acceptable explanations as to the lack of identity documents. The Respondent submitted that similarly in this matter, the Applicant failed to demonstrate or corroborate his identity.
[50] [2018] AATA 757, at [6].
The Respondent reminded the Tribunal that s 24(3) of the Act says the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. Where identity documents have not been provided, an acceptable and credible explanation is required. The Respondent submitted that in the Applicant’s case, details of any significant attempts to obtain documentation are absent, with no acceptable or credible explanation. Hence having regard to the statutory provisions and authorities the Tribunal should find it is not satisfied of the identity of the Applicant to the requisite standard which is a higher level of balance of probabilities.
CONSIDERATION
What is required in this application is for the Tribunal to be satisfied of the Applicant’s identity. The level of satisfaction required has already been discussed.
The documents provided by the Applicant in support of his identity are minimal, unreliable or bogus. Where there is minimal documentation, the Applicant must be able to explain why this is the case and provide evidence that all avenues reasonably available to him have been exhausted.
The Tribunal notes the commentary in ReConfidential v Minister for Immigration and Citizenship [2013] AATA 144 at paragraph 34 and 35:
I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.
…In my opinion the application is deficient because there is no documentary evidence of any “links” between the birth name of the applicant and the current name of the applicant. The delegate had earlier advised Mr H that he required evidence of “changes of name” and such evidence has not been provided by the applicant. In my opinion the application is deficient because there is no birth certificate of the applicant or any documentary evidence of the change of name of the applicant.
The Tribunal further notes Re 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.
It is notable that the Applicant obtained the Household List and the marriage contract after the grant of his Class XB visa. The Household list was obtained in support of the Applicant’s citizenship application, and the marriage contract was provided in support of his wife, son and nephew’s humanitarian visa application.
The marriage contract is an indication of the unreliability of overseas documents produced to the Tribunal generally. It is to his credit that the Applicant volunteered in his evidence that the contract was false. That concession is relevant in assessing the credibility of the Applicant. However insofar as the Applicant submits that the marriage contract is not probative of any issue before the Tribunal, it is more accurate to say that the marriage contract being a bogus document, with wrong personal details of the Applicant and his wife and their date of marriage, is of no evidentiary value in supporting the identity of the Applicant. It is a piece of evidence that creates uncertainty about the Applicant’s true identity. It is also evidence that demonstrates the need for the Tribunal to take great care in accepting the authenticity and reliability of documents produced by the Applicant.
In respect of the Household List the absence of evidence regarding the authenticity of that document, and the unreliability of the information contained within it, demand that the Tribunal be very cautious before acting positively upon it in the absence of other reliable evidence of identity. The identification number appears under heading “Registration No.” and sub-heading “Nationality” and refers to the Applicant. The Tribunal would expect some reasonable enquiry to have been made about the number and its link to any record of identification. The Applicant’s evidence about what the number represented was mere guesswork and supposition.
The Household list was said to have been provided to the Applicant, by his brother, following an inquiry by the Applicant of his brother about the existence of any identification documents. Given the ease with which bogus documents come before the Tribunal, as evidenced by the purported marriage contract, the Tribunal is not satisfied about the authenticity of the Household list and no weight can be given to it in satisfying the Tribunal of the Applicant’s identity.
It is also noteworthy that in respect of the Applicant’s wife, there is no evidence, other than that of the Applicant, of her first marriage, birth of her first two children, her divorce or indeed her marriage to the Applicant by a holy man. On the available evidence, the Tribunal is not satisfied about the lawfulness of, or the fact of the marriage.
The Tribunal accepts that the Applicant was truthful, and was genuinely trying to assist the Tribunal. The Tribunal also accepts that the Applicant was illiterate at the time of his arrival in Australia, and was assisted in completing his Biodata and Entry Interviews by an interpreter and in difficult circumstances. Further there is strength in the argument that the Entry Interview was prepopulated and hence reproduced errors in spelling and date of birth contained in the Biodata Interview.
However insofar as the Applicant said that he was able to speak to his wife who provided correct personal details about the Applicant from a photocopy of the UNHCR card, a copy of which she retained, the absence of a satisfactory explanation about any inquiries made to obtain that photocopy or a record of the cards issued by the Malaysian authorities over time, together with the inconsistent statements and evidence about the loss of the card, all weigh against accepting, to the requisite level of proof, the identity of the Applicant.
The Tribunal finds that there are too many inconsistencies in the evidence going to the identity of the Applicant. If it were limited in explanation only to the phonetic spelling of his name by an interpreter, which information was prepopulated in the subsequent material produced, such inconsistency might be explained. But this is compounded by different spellings of his name in the UNHCR correspondence and UNHCR cards, different dates of birth of he, his wife, and his parents, including a bogus or unreliable document, and inconsistencies in his life story.
The Applicant has also failed to exhaust all reasonable avenues of enquiry with respect to his identification. Indeed the UNHCR letter dated 8 October 2009 is the only identity document that existed prior to the Applicant’s arrival in Australia which too has a different spelling of his name.
The Tribunal finds that the Applicant was truthful and genuine in his evidence. It is plain that he has had a difficult life prior to being granted a visa to live in Australia. His personal circumstances engender much sympathy. However when considering the significance of a grant of citizenship, and the application of Briginshaw, the evidence upon which the Tribunal is being asked to rely, is not capable of satisfying the Tribunal to any degree on the balance of probabilities, of the Applicant’s identity. The Applicants evidence of identity is unclear and cannot be satisfactorily ascertained.
Accordingly, the Tribunal is not satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of
.............................[Sgd]......................................
Associate
Dated: 8 January 2019
Dates of hearing: 26 & 27 September 2018 Date final submissions received: 31 October 2018 Advocate for the Applicant: Simon Mason, Visa Assist Australia Advocate for the Respondent: William Evans Solicitors for the Respondent: Australian Government Solicitor
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