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

[2023] AATA 2198

Basir and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2198 (25 July 2023)

Division:GENERAL DIVISION

File Number(s):      2020/4033

Re:Abdul Basir

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:25 July 2023

Place:Sydney

The correct or preferable decision is to affirm the reviewable decision of 19 June 2020.

..............................[SGD].........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – Whether the identity requirement under paragraph 24(3) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – where the Applicant must rely on their life story – Applicant’s evidence and available history considered – witness evidence considered – decision under review affirmed

LEGISLATION

Australia Citizenship Act 2007 (Cth) section 24

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

SECONDARY MATERIALS

CPI 16 – Assessing Identity under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

25 July 2023

1. I note that, as the Applicants were related and applied for review in similar circumstances, Applications 2020/4030 and 2020/4033 were heard together.

2. For ease of reading separate decisions have been issued for each Applicant despite the concurrent treatment of both matters. 

   BACKGROUND

3. The Applicant is a 39 year old, stateless Rohingyan born in Maungdaw, Burma. He arrived on Christmas Island as an unauthorised maritime arrival in November 2009. He was granted a Protection (subclass 866) visa in September 2012.

4. In October 2016, the Applicant applied for Australian citizenship by conferral.

5. In September 2018, the Applicant was granted a Resident Return (subclass 155) visa.

6. In April 2020, the Department requested further information from the Applicant to support his claimed identity, including:

   (a)A completed Form 80;

   (b)Documents issued to him or his family in Burma; and

   (c)A statutory declaration addressing his attempts to locate such documents as well as his life story.

7. In April 2020, the Applicant provided:

   (a)A completed Form 80;

   (b)A marriage certificate;

   (c)A Burmese Household Registration List; and

   (d)A statutory declaration dated April 2020.

8. In April 2020, the Department invited the Applicant to comment on adverse information. In summary, that adverse information was:

   (a)Departmental documents dated November 2009 which recorded the Applicant’s identity as ‘Abdul Absid’, born 1 January 1984. The delegate noted that the Applicant had answered ‘no’ to the questions of whether he had ever been known by another name or had a different date of birth;

   (b)A copy of an International Driving Licence issued by the Union of Burma, obtained in an interview conducted by the Department in November 2009.

   (i)Departmental notes indicate that the Applicant had claimed that he had renewed the licence in the Burmese Embassy in Malaysia in 2008, and later that the Applicant had stated the licence was fake. A 2020 investigation by the Department concluded that the licence was non-genuine;

   (ii)The Applicant provided a Burma Household Registration List dated 21 May 2017 on which he was listed, when the Applicant had previously stated to the Department that he had departed Burma in 2000. Country information available to the Department suggested that household registration lists are updated annually to add or remove residents;

   (iii)A marriage certificate provided to the Department was issued in Cox’s Bazar, Bangladesh, for a marriage that took place in July 2013 and TA. However in an interview conducted in November 2009, the Applicant had indicated that he was married to EB, and expressed concern for his wife and child in Indonesia. The delegate noted that there was no evidence of the Applicant having ended the first marriage, or seeking to bring that wife and son to Australia which brought into question the genuineness of the Marriage Certificate;

   (iv)The Applicant had claimed in the Form 80 that he had not undergone any tertiary education. Publicly available information indicated that he attended middle school in Burma and studied at Yangon University;

   (v)The Applicant had, on 3 previous occasions, provided information indicating that he had worked on a farm owned by his farther in Burma before leaving the country. Country information indicated that in order to the Applicant’s farther to have owned land, his family would have to have been in possession of Burmese documents and must have been Rohingya recognised as citizens of Burma; and

   (vi)Inconsistencies in the Applicant’s stated family composition across various interviews and documents provided to the Department.

9. In June 2020, a delegate of the Minister refused the application for Australian citizenship, on the basis that they were not satisfied of the Applicant’s identity pursuant to section 24(3) of the Australian Citizenship Act 2007 (Cth).

10. On 4 July 2020, the Applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

    LAW AND POLICY

11. Section 21(1) of the Act provides that a person may make an application to the Minister

    to become an Australian citizen. Section 24(1) of the Act provides that if a person
    makes an application under s 21 of the Act, the Minister must, by writing, approve or
    refuse to approve the person becoming an Australian citizen.

12. Section 24(1A) of the Act provides that the Minister must not approve a person

    becoming an Australian citizen unless the person is eligible to become an Australian
    citizen under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

13. Section 24(3) of the Act provides that the Minister must not approve the person

    becoming an Australian citizen unless the Minister is satisfied of the identity of that
    person.

14. Identity is not defined in the Act; however, it is addressed in the Australian Citizenship

    Procedural Instructions (CPIs). The CPIs provide guidance to decision makers on the
    interpretation and exercise of the powers under the Act. The Tribunal, as the decision
    maker, will generally apply policy such as that contained the Policy unless there are
    cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs
    (No 2) (1979) 2 ALD 634 at 640 per Brennan J).

15. CPI 16 provides that the concept of identity is as described in the Attorney-General’s

    Department’s National Identity Proofing Guidelines (2014) (Guidelines).1 Relevantly,
    part 2.1 at page 7 of the Guidelines describes “identity” as follows:

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some

    combination of characteristics or attributes that allow a person to be uniquely

    distinguished from others within a specific context…

    For people not born in Australia, their identity in Australia is generally established

    from personal details recorded on DIBP Australian immigration documents or records.

16. The Guidelines further provide that the veracity of a person’s identity is established

    through evidence provided to meet some or all of the five identity proofing objectives.
    Those objectives are in part 2.2:

    1. To confirm the uniqueness of the identity in the intended context to ensure that

    individuals can be distinguished from one another.

    2. To confirm the claimed identity is legitimate to ensure the identity has not been

    fraudulently created through evidence of commencement of identity in Australia.

    3. Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community.

    4. Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder.

    5. Confirm the identity is not known to be used fraudulently to provide additional

    confidence that a fraudulent (either fictitious or stolen) identity is not being used.

17. The CPI 16 further provides that:

    It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.

18. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007

    explained in relation to s 24(3):

    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.

19. Senior Member Walsh stated as follows in the matter of Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38]:

    … 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.

    ISSUE

20. As the Applicant is unable to establish their identity under section 24(3) of the Act, it is necessary for the Tribunal to make a decision based on the Applicants’ life story.

    ORAL EVIDENCE OF ABDUL BASIR

21. The Applicant affirmed his statement of 16 January 2023 and 24 January 2023. He said that he was a non-English speaker, and said that, as of today he was basically uneducated, having only attended a religious school in Burma for a couple of years. He said that whilst he was at school the emphasis was on religious studies and that he did not learn to read or write in any language. Since arriving in Australia he had learned some basic English words and he had learned to write his name.

22. He arrived in Australia by boat in 2009, and at the time he claimed to be both stateless and uneducated.

23. He was asked whether at the time of arrival he was financially poor, and gave evidence that he had previously worked hard and that he had not been wealthy.

24. Whilst in Malaysia, the Applicant said that he had worked to support his wife and children. He had worked as a cleaner and did not have a permanent job.

25. When released from detention in Australia, he had also worked as a cleaner, and he had had a number of full time jobs including in the meatpacking industry. He said that he now worked in metal fabrication.

26. The Applicant was taken to a number of arrival and departure cards relating to times when he had travelled to and from Australia. The Applicant confirmed that it was his signature on an outbound passenger card dated 25 September 2014. He said that all of the other information on the card, including the date had been filled in by another person. He was not travelling with anyone else at the time and said that someone else may have helped him to fill out the form, and that when he travelled he asked other people for help.

27. When it was put to the Applicant that he was not telling the truth, he said that he had nothing further to say and that he did not know how to write.

28. He was taken to a number of other cards where the writing appeared to be similar but said that he did not know whose writing it was and that he had asked for help on each occasion and that he did not know what the other people had written. He said it was a different person who had filled in the cards on each occasion.

29. When asked to explain the similarity in the writing the Applicant said that other people helped him, and that they had completed the card. He said that he had given them his passport and licence in order to assist them in completing the details on the card.

30. He was asked whether he told them details such as his occupation to put on the card. He said he had no memory of the person and that he did not know whether or not they were able to speak in Rohingya language.

31. When questioned as to his date of birth, the Applicant said that he did not know his date of birth and that on arrival in Australia he said that he was born in 1982. However, in detention his brother had told him the exact date of his birth. He did not recall exactly when the brother had passed on this information to him, only that it was whilst he was in detention.

32. The Applicant was questioned about inconsistencies in the time as to when he became aware of his date of birth. He said he couldn’t remember about his arrival interview and did not know whether the interpreter had filled in the form incorrectly. He did not recall whether at his interview of 13 November 2009 he had understood the Rohingya language interpreter, although he accepted that he had signed the form to say that he understood.

33. In this regard, the Applicant said it was a long time ago, and he couldn’t recall anything about it. He went on to say that he could understand the interpreter, but he was not sure of exactly what was said at the time. He did not recall how he knew his date of birth to be 24 May 1982 prior to his brother advising him of the date of his birth. He said he asked his brother and his brother told him it was the 26^th and not the 24^th, but otherwise could give no explanation.

34. The Applicant, when further questioned as to the incoming passenger cards where his date of birth was stated to be 26 May 1982 the Applicant said he did not know and that the date may have been taken from his licence. He also could not recall who wrote the date of 26 May 1982 on another incoming passenger card dated 24 December 2014, but he said it was not him. He accepted his date of birth was written as 26 May 1982 on a number of incoming and outgoing passenger cards and that the handwriting was similar. The Applicant, when asked who had written it said, ‘who knows, I can’t recall clearly’. However, the Applicant said that it was not his handwriting.

35. When questioned further, the Applicant said that he could write his name in English and that he could also write some numbers. However, he said that all of the outgoing passenger cards to which he was referred, had been completed by other people and not by him. When pressed, he said that he was telling the truth and that it was all because of his lack of education.

36. When asked about the reference to Canada on the incoming passenger card dated 7 January 2014, the Applicant said he did not know how the reference to Canada got there, and that he had only been to Bangladesh.

37. The Applicant was asked about his facebook page and also about his relatives who appeared to be living normally in Yangon. He did not see his relatives in Yangon as family members, and said that he had no contact with them.

38. The Applicant was referred to the ‘basic family tree’ which the delegate had prepared from various social media posts. The Applicant said that although they may have sent friend requests to him on facebook, he did not know them. He said that he only knew his parents and family in Bangladesh.

39. He said the people in Yangon could be from his mother’s family but he did not know them. Generally, he did not regard these people as being his family.

40. The Applicant was referred to a number of particular people, including Arthur Naing Win Aung and Rashidul Haque, but said that he had never communicated with them and that he did not know them, even though his brother might have known them because, his brother and his brother’s partner had lived there.

41. When questioned about Arthur Naing Win Aung and asked if he was a close relative, the Applicant said that he did not know and that he had no contact with him.

42. The Applicant was questioned extensively about the driver’s licence which he had acquired whilst he was living in Malaysia, prior to coming to Australia. He gave evidence that the driver’s licence had been acquired for him by a smuggler/broker in Malaysia. He said he did not recall what had happened at his interview with the Department on 13 November 2009, but said that he did not present the licence as an identification document. He also denied that he had presented the ‘licence’ to strengthen his chances of being given entry into Australia. He said that Government representatives had taken the licence from his baggage.

43. When taken to a copy of his response to the Department of Immigration’s identity concerns, the Applicant said he did not recall anything about it, and that he did not recall giving the document to the department in response to a letter to the Department. When referred to paragraph 31 of his statement, the Applicant said he did not recall the statement and said that it must have been written by his friend. The Applicant said he was uneducated, that he forgets and that he does not understand, although he is trying to be truthful.

44. The Applicant was taken to an email dated June 2020 and agreed that it was authored by him. When questioned further as to how he could write the email when he could not read/understand English. He said that he had discussed the matter with a work colleague, who had composed the email for him, although he acknowledged it had been sent in his name as if he had typed it. When it was put to the Applicant that he had lied, he said that he had not.

45. The Applicant was referred to inconsistencies in his evidence as to the production of his driver’s licence, including a statement it had been obtained from the Burmese Embassy in Malaysia in 2012. He said that this was what the smuggler/broker had told him to say.

46. The Applicant said that he had to have the licence in Malaysia in order to be able to move around in that country. He knew that it was a bogus document at the time of the interview, but he had told the Australian Authorities what the smugglers had said he must tell them. He had never had any documents issued by the Burmese Government.

47. The Applicant was questioned as to his marital status. He said that he had been married in Bangladesh in October 2013. He was referred to the marriage certificate, on which he said all the details were correct but he could not read or write. He gave the date of his marriage as around 13 October 2013. The marriage was contracted in July 2013, three months prior to his departure from Australia.

48. The Applicant said that his marriage was a religious ceremony, not an official one, and when it was put to him that his marriage certificate had an incorrect date, he said that it was an error, not on the part of the Bangladeshi Government but from the religious community who had conducted the marriage or the Court which had entered the wrong date. When it was put to the Applicant that the statements about his marriage were untrue, he said that he had told the truth, and that he had no reason to lie.

49. The Applicant accepted that his statement of 24 January 2023 had been drafted for him, and that he had not prepared it himself.

50. When questioned about paragraph 17 of his statement of 24 January 2023, and the reference by the delegate to Facebook posts on his account, the Applicant said that he did not use Facebook and did not know anything about it.

    CONSIDERATION

51. The Applicant, like his brother, must rely on his life story in order to establish his identity, as he cannot otherwise satisfy the requirements of Section 24(3).

52. It is not necessary for me to repeat the reasons why the establishment of identity is so important for the conferral of citizenship which is a significant privilege.

53. At the outset, I should note that although it was put to the Applicant on numerous occasions that he was lying to the Tribunal, I make no adverse finding in relation to his honesty or integrity. Rather, I note that the Applicant at the very least, struggles with the English language and has had very little formal education.

54. The only purported official document before the Tribunal recording the Applicant’s name and date of birth, i.e., the Burmese driver’s licence, is accepted by him as false, having been produced by a smuggler/broker in Malaysia, who was paid to assist the Applicant. Although the evidence would support the proposition that it was presented to the Australian authorities as evidence of identity it is clearly of no value. It was impossible for the Tribunal to be satisfied about the details of the Applicant’s life in Malaysia, which were sketchy at best. There was no evidence which could be given any weight as to his work history, where he had lived in Malaysia or any third parties with whom he had had contact and may have been able to support his story.

1. Similarly, the Applicant’s marriage certificate cannot be relied upon, and there are inconsistencies in relation to the date of marriage and any record of the ceremony was not official.

2. There was no official document of any kind to support or give veracity to any aspect of the Applicant’s life story. There was little evidence as to his life in Burma or any other third country including Bangladesh and Malaysia other than the Applicant giving evidence that he had worked, and that he would describe himself as neither rich nor poor.

3. There was no third-party corroboration of any aspect of the Applicant’s life which could be given any substantive weight.

4. It was of concern to the Tribunal that incoming and outgoing passenger cards contained information which was said to be incorrect, and although the handwriting was remarkably similar on a number of the cards, the Applicant said they were all completed by different people, who were otherwise unknown to him, and that none of them had been completed by him. This strains credulity.

5. I accept that the Applicant has worked in Australia, but details of his work history were vague, with no details provided as to dates of employment and no corroborating evidence from any employer.

6. Even if the Tribunal accepts that the Applicant did not fill in official documents or compose important communications between himself and the Minister’s Department, he must take responsibility for errors/inconsistencies in those documents, and cannot simply rely on the fact that he does not understand English or was poorly educated. He must accept some responsibility in relation to being aware of the contents and being satisfied that the contents of the documents were correct.

7. Even when asked about the delegate’s table showing family and extended family members, the Applicant claimed not to know many of the people who were included.

8. Although there were a number of paragraphs in the Applicant’s statements in relation to Facebook, there most that can be said is that there was nothing in relation to Facebook that could be of any assistance to the Tribunal in relation to being positively satisfied as to the Applicant’s identity.

9. I do not place any weight on the fact that the language used in the Applicant’s statements may not be language that would ordinarily be used by a person of limited education. Clearly the statements were prepared for the Applicant and this is not unusual. What is important is that he gave evidence to the Tribunal that he had read and understood the statements, and affirmed them.

10. Overall, there was simply no evidence that would allow the Tribunal to be satisfied as to the Applicant’s identity based upon the details of his life story, rather the Applicant’s evidence was full of contradictions and inconsistencies.

11. The Tribunal is unable to be satisfied to any degree as to the Applicant’s identity for the purposes of section 24(3), and therefore the application must fail.

12. Accordingly, the correct or preferable decision is to affirm the reviewable decision of 19 June 2020.

I certify that the preceding 66 (sixty - six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD].........................................

Associate

Dated: 25 July 2023

Date(s) of hearing:	13 & 14 October 2020; 17, 23 & 24 January 2023; 8 May 2023
Date final submissions received:	7 June 2023
Solicitors for the Applicant:	Mr Daniel Taylor
Counsel for the Respondent:	Mr Paul d'Assumpcao
Solicitors for the Respondent:	Mr Matthew Sheedy