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

Cangmah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5406 (13 December 2019)
Division:GENERAL DIVISION
File Number: 2018/0165
Re:Sandawin Cangmah
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:13 December 2019
Place:Brisbane

The decision under review is affirmed.
................................[SGD]........................................
Member R Maguire
CATCHWORDS
CITIZENSHIP – citizenship by conferral – Australian Citizenship Act 2007 (Cth) – section 24(3) – whether Tribunal satisfied of identity – section 21(2)(h) – whether applicant is of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Bill 2005 (Cth)
Migration Act 1958 (Cth)
Statutory Declarations Act 1959 (Cth)
CASES
Ali Abdul Amer Abdullah Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) AAR 148
Zheng v Minister for Immigration and Citizenship (2011) AATA 304
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2004)
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member R Maguire
13 December 2019
INTRODUCTION

This is an application by Ms Sandawin Cangmah for the review of a decision[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) on 20 December 2017 to refuse her application[2] for Australian citizenship (made in the name Sandawin Cangmah) by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the ground that the delegate was prohibited by section 24(3) from approving the application for conferral of citizenship because the delegate was not satisfied as to the applicant’s identity, and further that the applicant did not meet the ground under paragraph 21(2)(h) of the Act which requires the Minister to be satisfied that the applicant is of good character at the time of the Minister’s decision on the application.
[1] Exhibit 1, T Documents, T12, pages 121-138, Notification of refusal of an application for Australian citizenship by conferral.
[2] Exhibit 1, T Documents, T5, pages 45-61, Application for Australian citizenship.
The applicant made this application, (also in the name Sandawin Cangmah) for review pursuant to section 52(1)(b) of the Act on 15 January 2018.[3]
[3] Exhibit 1, T Documents, T1, page 1, Notice of application for review of decision.
ISSUE FOR DETERMINATION
There are two issues for this Tribunal to determine:
(a)Is the Tribunal satisfied of the applicant’s identity for the purposes of subsection 24(3) of the Act? And if so,
(b)Was the applicant a person of good character for the purposes of paragraph 21(2)(h) of the Act?
THE LAW
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) sets out the general eligibility criteria for an applicant who is 18 years or older, and a permanent resident. Subsection 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the applicant “is of good character at the time of the Minister’s decision”.
Subsection 24(1A) of the Act provides that the Minister (or a person delegated by the Minister) must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Identity
Subsection 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 the person. Identity is not defined in the Act.
The Citizenship Policy (the Policy) states, in Chapter 13,[4] that the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2004) (the Guidelines).[5] At page 7, the Guidelines describe 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.
[4] Exhibit 1, T Documents, T13, pages 152-157, Citizenship policy.
[5] Exhibit 1, T Documents, T13, page 152, Citizenship policy.
The Guidelines further states 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 13:
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 two and three 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.
The Policy provides that where a person changes their name they will need to provide evidence that explains the change and shows a clear link between the original identity details and the identity details they are currently using.[6]
[6] Exhibit 1, T Documents, T13, page 154, Citizenship policy.
Importantly, the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) explained in relation to section 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.
In reaching a finding of fact about a person’s identity, decision-makers are expected to consider issues such as:
·the reason that the person provided the original personal information relating to their identity when they applied for citizenship;
·the reason for changing their personal information; and
·whether the person has had any other amendments such as dates of birth/names and the reasons for those changes.[7]
[7] Exhibit 1, T Documents, T13, page 155, Citizenship policy.
Good Character
The term “good character” is not defined in the Act, however Chapter 11 of the Policy provides guidance on the administration of the “good character” provisions under the Act.
Chapter 11 of the Policy[8] provides that “‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship”.[9]
[8] Exhibit 1, T Documents, T13, pages 139-151, Citizenship policy.
[9] Exhibit 1, T Documents, T13, page 140, Citizenship policy.
The Policy refers to the “Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432)”:
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The description of this passage as coming from a “Full FC judgment” is slightly misleading, as the judgment in question was not a joint judgment of the Full Court of the Federal Court. It was from a judgment delivered in the Full Court, but was not a judgment of the Full Court in that it was not a judgment of all three judges. The Court was constituted by Davies, Lee, and RD Nicholson JJ. Each of the judges gave separate reasons, concurring in the result. Nicholson J expressly concurred with the reasons of Davies J, and neither Davies J nor Nicholson J expressed concurrence with the judgment of Lee J from whose judgment the quoted extract is drawn.
The question whether a person is or is not “of good character” is primarily an issue of fact.[10] Davies J remarked (at 427-428):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of ‘good character’ requires the exercise of a value judgment. There are no precise parameters which distinguish ‘good character’ from ‘bad character’. Although in general, ‘good character’ can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
[10] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424 per Davies J (with whom RD Nicholson J concurred).
In deciding that fact, the Tribunal “was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act”.[11]
[11] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420 per Bowen CJ and Deane J.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court[12] said (at 197):
The words ‘good character’ in the section should, as Lee J pointed out in Irving, (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
[12] Burchett, Branson, and Tamberlin JJ.
The decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 makes clear that in considering the application of policy, the Tribunal must not lose sight of its duty. Brennan J said (at 642):
The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Neither party has submitted that there are cogent reasons so as to warrant a departure from the Policy in this review. Nevertheless, the Tribunal bears in mind that the Policy expressly states that it is not a binding checklist, and that decision-makers need to look at the merits of each case, and to turn their minds to the issues until they are “satisfied” on a reasonable basis that an applicant is, or is not, of good character.[13]
[13] Exhibit 1, T Document, T13, page 139, Citizenship policy.
The Policy also states that in this context, “moral” does not have any religious connotations, and that the phrase “enduring moral qualities” encompasses the following concepts:[14]
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
[14] Exhibit 1, T Document, T13, page 140, Citizenship policy.
The Policy further states that a decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
The Policy also refers to the matter of Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
The Policy also refers to Zheng v Minister for Immigration and Citizenship (2011) AATA 304, a decision of Deputy President SA Forgie. In that decision, after considering relevant authorities, Deputy President Forgie stated (at [119]):
It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.
Deputy President Forgie found that the preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character.
The Preamble to the Act is as follows:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
After considering the text of the Preamble, Deputy President Forgie stated (at [120]):
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
The Policy also includes a non-exhaustive list of characteristics of good character:[15]
[15] Exhibit 1, T Documents, T13, page 142, Citizenship policy.
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds;
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.
oinvolvement in bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
BACKGROUND
The applicant claims to be a citizen of Myanmar born in the town of Matupi on 30 November 1992.[16] The applicant was granted offshore a Woman at Risk (subclass 204) visa (the visa), and subsequently entered Australia on that visa on 30 November 2009. The applicant has not departed Australia since that time, and remains the holder of the visa.[17]
[16] Exhibit 1, T Documents, T5, page 45, Application for Australian citizenship.
[17] Exhibit 1, T Documents, T12, page 128, Notification of refusal of an application for Australian citizenship by conferral.
At the time that the applicant arrived in Australia, the applicant went by one name only, albeit one comprised of three words, San Da Win, and this name was recorded as a family name, in accordance with the Policy.[18] In a document dated 6 October 2009,[19] the applicant’s father was named as Len Thang, and his whereabouts were given as “Burma, unknown”. The applicant’s mother was listed as Bung Mung, and her whereabouts was listed as “deceased”.
[18] Exhibit 1, T Document, T13, page 153, Citizenship policy.
[19] Exhibit 1, T Documents, T4, pages 43-44, Form 1258 – Agreement to undertake care of an unaccompanied humanitarian minor.
Prior to her arrival in Australia, the applicant lived in New Delhi, India as a mandated refugee under the name of San Da Win and a date of birth being 30 November 1992. She was a minor of 15 years of age at the time of registration with United Nations High Commissioner for Refugees (UNHCR).[20]
[20] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraph 10.
Since that time, questions as to her true identity have arisen as she has used three different names in her dealings with the Australian government:[21]
·San Da Win;
·Sanda Win; and
·Sandawin Cangmah.
[21] Exhibit 4, Applicants Statement of Facts, Issues and Contentions, page 1, paragraph 2.

On 12 June 2015, the applicant lodged an Application for Australian citizenship in Form 1300t seeking Australian citizenship by conferral.[22] In the Form 1300t, at item 24 recorded her male parent as Lenthang Cangmah, and at item 25 recorded her female parent Bungmung Cangmah as “Deceased”.[23] The only documents provided to prove the applicant’s identity were of Australian origin. These included a Medicare card, drivers licence, a healthcare card, cards and correspondence from financial institutions, and a Document for travel to Australia.[24]
[22] Exhibit 1, T Documents, T5, pages 45-53, Application for Australian citizenship.
[23] Exhibit 1, T Documents, T5, page 48, Application for Australian.
[24] Exhibit 1, T Documents, T5, pages 56-61, Application for Australian citizenship.
The Form 1300t included “Part D – Proof of identity”, which in turn included item 26 which provided for “Evidence of your date of birth, birth name and any change of name”. The applicant inserted in that box “change of name.” Item 26 also provided for “Evidence of your identity in the community”, and the applicant inserted in that box “Part E – identity declaration”.
The Form 1300t included “Part E – Identity declaration”, in which one Rev. Francisca Zingi declared having known the applicant for five years and vouched for her identity.
At item 41 of the Form 1300t, the applicant made a declaration which was immediately preceded by the following:[25]
Part L – Declaration
WARNING: it is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
[25] Exhibit 1, T Documents, T5, page 53, Application for Australian citizenship.
Item 41 commenced with the following words of caution “Please read the following carefully before signing”.
Item 41 contained the following bullet point which is presently relevant:
·I declare that the information I have supplied in this form is complete, truthful and correct in every detail.
The applicant signed the declaration at the foot of item 41, and inserted date “29/05/2015”.
On 16 July 2015, the applicant made a Declaration of service in Form 1399 in which she gave at item 10, a date of death of “23 3 2002” for her parent Cangmah Bungmung.[26] In “Part D – Declaration” the following words appeared before the operative words of the declaration in item 32:
WARNING: Giving false or misleading information is a serious offence.
[26] Exhibit 1, T Documents, T7, pages 62-71, Form 1399 – declaration of service.
For present purposes, the following bullet points which appeared in item 32 are relevant:
·I have read and understood this document.
…
·For Citizenship applicants:
oI understand that any false statements or representations (as referred to in section 50 of the Australian Citizenship Act 2007) may result in my committing a criminal offence, the consideration of refusal of my citizenship application or, if citizenship has been subsequently granted, the consideration of revocation of my citizenship.
On 8 March 2017, the applicant attended a phone interview (citizenship interview) with a delegate of the Minister to discuss her application, including her ability to contact family in Myanmar and obtain identity documentation.[27]
[27] Exhibit 1, T Documents, T8, pages 72-75, Transcript of interview.
The citizenship interview includes the following exchanges which the Tribunal has numbered for reference purposes:
1.Q: “Where is your family book from Myanmar?”
A: “When I was young my mother died, there is only my father and I.”
2.Q: “Where is your family registration book?”
A: “I live in Australia and my father lives in Burma.”
3.Q: “Do you understand what I’m asking for?”
A: “I only have a visa for Australia. I lost my other documents when I moved house.”
4.Q: “Could you get a copy of it?”
A: “I don’t have contact with my father; he does not know that I am in Australia.”
5.Q: “Your father does not know where you are?”
A: “I left for India when I was about fifteen. I think that he is still in our village, but I do not have contact with anyone from home”
6.Q: “Do you have any photos of your parents with you?”
A: “I do not have photos of anyone from my family with me; you can’t take photos in the village.”
7.Q: “Does anyone else have photos of your parents?”
A: “No.”
8.Q: “So you have not seen a picture of your family for a long time?”
A: “No, we have no camera in our village.”
On 10 March 2017, the applicant was sent a letter by the Department and requested to provide various identity documents, including a copy of her household registration book from Myanmar; any other government issued evidence of her birth, birth name or parentage from Myanmar; copies of any other documents relating to her life in Myanmar and copies of any documents issued during her time spent in India. The applicant was requested to provide these documents within 35 days, by 13 April 2017. The applicant failed to respond to this letter.[28]
[28] Exhibit 1, T Documents, T10, pages 80-82, Letter from Department to applicant/representative – invitation to comment.
On 18 August 2017, the applicant was invited to comment on adverse information, namely that she had failed to provide documentary evidence from her home country as requested and had appeared to provide false and/or misleading information to the Department as to the extent of contact with her family.[29] The basis for this assertion lay on the fact that the Department had obtained open source information, being the applicant’s Facebook page, which contained posts of several photographs of the applicant’s family members, including her father, mother, and grandmother.[30] The photographs of the applicant’s father were dated 27 April 2015, 26 June 2015, 8 July 2015, 2 August 2016, and 18 August 2015. These photographs contained accompanying comments “My dad n friend”, “My lovely dad”, and “My dad n cousins”. The Department also had access to open source information containing two photographs of the applicant’s grandmother dated 3 February 2016. The double image had the accompanying title “My grandmother”.[31]
[29] Exhibit 1, T Documents, T10, pages 78-84, Letter from Department to applicant/representative – invitation to comment.
[30] Exhibit 1, T Documents, T11, pages 118-120, Letter from applicant’s representative to Department.
[31] Exhibit 1, T Documents, T10, page 82, Letter from Department to applicant/representative – invitation to comment.
On 19 September 2017, the applicant responded with a statutory declaration (the first statutory declaration) made in the name Sandawin Cangmah,[32] in which she stated that her birth name was San Da Win, and that she “did a name change to Sandawin Cangmah”, and that the name “Cangmah” came from her forefathers and is associated with her tribe. The applicant declared that sometimes her name is spelled “Sandawin or Sanda win”, and that one of the reasons for the name change was that it became very difficult to deal with authorities and computer systems which required a first name and a surname. The applicant produced a Queensland Change of Name Certificate dated 8 April 2015 issued by the Registrar-General of Queensland whereby her name was registered on that date as being changed from San Da Win to Sandawin Cangmah.[33]
[32] Exhibit 1, T Documents, T11, pages 109-110, Letter from applicant’s representative to Department.
[33] Exhibit 1, T Documents, T5, page 58, Application for Australian citizenship.
The applicant provided a further statutory declaration (the second statutory declaration) also made in the name Sandawin Cangmah on 19 September 2017,[34] in which she declared among other things that to the best of her knowledge there were no unresolved matters that would bring into question whether or not she passed the character test as defined in section 501 of the Migration Act1958 (Cth).
[34] Exhibit 1, T Documents, T11, pages 111-112, Letter from applicant’s representative to Department.
The following extracts from the first statutory declaration are also of significance:
6. On Facebook, I posted photographs of my mother, grandmother and father.
…
8. I was sent these photographs in early 2015. I made contact with my cousin through Viber and Facebook.
9. This cousin had contact with my parents as they lived in the same district and that is how she obtained those photographs and sent them to me through Viber.
…
10. I last had contact with my parents over 2 or 3 months ago, when my cousin was still in Myanmar.
11. My parents live in a small village with no telephone, so when they come to the bigger town where my cousin used to live, that is when I could contact them.
12. The contact is usually made using Vibre.
13. I first made contact with my parents in 2015.
…
14. I am unable to get the family registration documents as I have lost all contact with my parents again after my cousin left for USA.
…
18. I have never attempted to knowingly provide false and/or misleading information to the Department. Any inconsistencies that may have occurred in the past were honest mistakes.
19. I have been a law-abiding citizen in Australia and of good character. I have never committed any criminal or civil offence in Australia or any other country.
On 19 September 2017, the applicant also made a declaration at the conclusion of a Personal particulars for assessment including character assessment Form 80,[35] in which she responded at item 44[36] to the question “Do you know details of your parents?” With a tick in the “Yes” box. The applicant named “Parent 1”, her father as Len Thang and gave his date of birth as 17 April 1964. The applicant named “Parent 2” her mother as Bung Mung and gave her date of birth as 26 November 1973, and in the “Country of current residents (if not living write “DECEASED”)” inserted “deceased 23 March 2002”.
[35] Exhibit 1, T Documents, T11, pages 91-108, Letter from applicant’s representative to Department.
[36] Exhibit 1, T Documents, T11, page 103, Letter from applicant’s representative to Department.
The declaration in the Form 80 was preceded by the following:[37]
Part S – Declaration
WARNING: Giving false or misleading information is a serious offence.
[37] Exhibit 1, T Documents, T11, page 107, Letter from applicant’s representative to Department.
The body of the declaration contained the following bullet points of present relevance after the words “I declare that”:
·the information I have supplied in or with this form is complete, correct and up-to-date in every detail.
·I have read and understand the information supplied to me.
On 20 December 2017,[38] the application was refused by the delegate on the grounds referred to above.
[38] Exhibit 1, T Documents, T12, pages 121-138, Notification of refusal of an application for Australian citizenship by conferral.
The references to section 50 of the Act rendering it appropriate to set it out at this point:
50 False statements or representations
(1)A person commits an offence if:
(a)the person makes, or causes or permits to be made, a representation or statement; and
(b)the person does so knowing that the representation or statement is false or misleading in a material particular; and
(c)the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
(2)A person commits an offence if:
(a)the person conceals, or causes or permits to be concealed, a material circumstance; and
(b)the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
APPLICATION HEARING
The application for review was on 13 June 2018, but was unable to proceed on that date owing to difficulties contacting the interpreter. The matter was relisted for Friday, 17 August 2018 and was heard before a Senior Member who subsequently became incapacitated and unable to deliver a decision. Subsequent to the hearing, the review was reconstituted to the present Member for a decision on the basis of the transcript of the hearing and all other evidence before the Tribunal. In view of the passage of time since the hearing, both parties were invited to provide any further submissions they might wish to make by 21 June 2019, however neither party chose to make further submissions.
The following exhibits are before the Tribunal:
·Exhibit 1 – T Documents;
·Exhibit 2 – Respondent’s Statement of Facts, Issues and Contentions dated 30 April 2018;
·Exhibit 3 – Household list – Union of Republic of Mayanmar (translated);
·Exhibit 4 – Applicant’s Statement of Facts, Issues and Contentions dated 28 March 2018;
·Exhibit 5 – Statutory declaration of Zual Cangmah dated 15 March 2018;
·Exhibit 6 – Statutory declaration of Alain Quero dated 4 January 2018;
·Exhibit 7 – Statutory declaration of Sandawin Cangmah dated 15 March 2018;
·Exhibit 8 –Statement of Michael Marcantelli (undated);
·Exhibit 9 – Statement of Ross Victor Allan dated 3 January 2018; Statement of Aaron Torcasio dated 5 January 2018; Statement of Pastor Jim Chhan Him dated 6 January 2018; Statement of Michelle Baldwin dated 11 January 2018; Statement of Rinkimi Bathang stamped 12 January 2015; Statement from Wembley Medical Centre;
·Exhibit 10 – Applicants traffic record;
·Exhibit 11 – Department of Foreign Affairs and Trade Country Information Report – Myanmar;
·Exhibit 12 – Statement of Nathern Minchin dated 16 August 2018;
·Exhibit 13 – Statutory declaration of the applicant dated 9 August 2018; and
·Exhibit 14 – Facebook screenshots.
APPLICANT’S STATEMENT OF FACTS, ISSUES AND CONTENTIONS (EXHIBIT 4)
Exhibit 4, the Statement of Facts, Issues and Contentions (SFIC) delivered by the applicant contended that the Department had failed to accept reasonable explanations provided by the applicant under statutory declaration as to how she obtained the photographs of her father and grandfather, and as to changes in name over time and also the adoption of the surname Cangmah. It also contended that the Department failed to recognise that it had identity cleared the applicant in 2009 prior to resettlement. It further contended that the Department failed to give proper weight to the fact that the applicant was a single child of her parents, and left for India when she was 15 years old, and having lost contact with her father, was not able to obtain an identity document from Myanmar. It also contended that when the applicant re-established contact with her father, through her cousin in 2015 until mid-2017, she never contemplated to ask about her identity documents as this was not an issue raised within her Chin community in Brisbane, as citizenship applicants before her from her community were routinely provided conferral with the absence of household registration documents.
Exhibit 4 did not address the applicant’s repeated statements that her mother was deceased.
RESPONDENT’S STATEMENT OF FACTS, ISSUES AND CONTENTIONS (EXHIBIT 2)
The respondent accepted that the applicant had, in accordance with the Guidelines, provided one document and two secondary documents (consistent with her name and when changed.[39] The respondent also accepted that the application for citizenship was made in the applicant’s most recent name according to an acceptable identity documents, being an official Queensland Change of Name Certificate and government issued drivers licence.[40]
[39] Exhibit 1, T Documents, T5, pages 56-61, Application for Australian citizenship.
[40] Exhibit 1, T Documents, T5, pages 56-58, Application for Australian citizenship.
The respondent further accepted the applicant’s appearance and signature (her personal identifiers as defined in the Act s. 10, and that the applicant’s name on the Australian identity documents is consistent (albeit with an officially effected and recorded name change)), and that the applicant’s Australian identity documents track a consistent usage of the applicant’s identity from her UNHCR Resettlement Registration form dated 14 October 2008 until her assistantship application on 12 June 2015.
The respondent asserted that the difficulty in the applicant’s case is that there is no independent verification of her identity prior to her UNHCR Resettlement Registration form, and that the information contained in that form is entirely self-reported and not corroborated by any documentary evidence from her home country.
The respondent submitted that in these circumstances, it would be necessary for the Tribunal to be satisfied as to the credibility of the applicant. If the Tribunal was unable to be satisfied of the applicant’s credibility, and particularly her account as to the circumstances surrounding the lack of Myanmar identity documentation, the Tribunal cannot be satisfied of her identity.
The respondent further submitted that the applicant had failed to provide a true and accurate account of her circumstances during her dealings with the Department. She had also failed to avail herself of the opportunities to secure evidence of her identity which might reasonably be expected to exist and which she had been advised to secure.
The respondent referred to the citizenship interview on 8 March 2017, where the applicant confirmed that she was unable to obtain her family registration book from Myanmar on the basis that “I don’t have contact with my father” or “anyone from home”.[41] The respondent submitted that these responses were in direct contradiction to the open source information obtained by the Department, and the applicant’s subsequent statutory declarations. The applicant had confirmed that she had been in contact with her parents from 2015 until mid-2017 when her cousin departed to the United States.[42]
[41] Exhibit 1, T Documents, T8, page 73, Transcript of interview.
[42] Exhibit 1, T Documents, T11, pages 109-110, Letter from applicant’s representative to Department.
The respondent submitted that the applicant’s explanation that her inconsistent answers had been “honest mistakes”[43] was implausible in the circumstances.
[43] Exhibit 1, T Documents, T11, page 110, Letter from applicant’s representative to Department.
The respondent further submitted that according to the applicant’s evidence, she remained in contact with her father until June/July 2017 being approximately two years after lodging her Application for Australian citizenship, and the applicant had ample opportunity to secure evidence of her identity, particularly in circumstances where she confirmed the family registration documents were in her parent’s possession.[44]
[44] Exhibit 1, T Documents, T11, page 110, Letter from applicant’s representative to Department.
It was further submitted by the respondent that the assertion made in Exhibit 4 that the applicant “never contemplated asking [her father] about her identity documents” was implausible as during the time in which the applicant remained in contact with her father the Department requested she secure identity documents on several occasions including the citizenship interview on 8 March 2017. The respondent also raised questions as to whether the applicant had in fact lost contact with her father following her cousin’s departure to the United States, as her cousin remained in contact with people residing in her family home in Myanmar.
The respondent submitted that so long as the applicant’s life story remained uncertain, or the Tribunal has doubts as to the applicant’s credibility, the Tribunal should find itself unable to be satisfied of her identity.
As to the applicant’s good character, the respondent submitted that this issue would only need to be considered in the event that the Tribunal is satisfied as to the applicant’s identity. The respondent further submitted that even if the Tribunal is satisfied of the applicant’s identity, it remains evident that the applicant knowingly provided false and/or misleading information to the Department on at least one occasion, and that the applicant’s responses provided during the citizenship interview are directly contradicted by the contents of her Facebook profile and her statutory declarations of 19 September 2017 and 15 March 2018.

Pivotal to the applicant’s assertion of her identity is Exhibit 3, a document which purports to be a translated copy of a Household list issued by the government of the Union of Republic of Myanmar. Exhibit 3 was provided immediately prior to the commencement of the initial hearing.
As noted above, the review hearing was initially listed for Wednesday, 13 June 2018. The proceeding did not continue beyond the tender of Exhibits 1 to 10 owing to the inability to contact the required interpreter. The presiding Senior Member adjourned the matter, and it was subsequently relisted for hearing on Friday, 17 August 2018.
At the commencement of the resumed hearing, the respondent tendered a statement by Inspector Nathern James Minchin which became Exhibit 12. The applicant did not require Mr Minchin for cross-examination.[45]
[45] Transcript (17 August 2018), page 15, line 15.
A further statutory declaration made on 9 August 2018, “the third statutory declaration” by the applicant became Exhibit 13. Copies of Facebook screenshots were tendered, and became Exhibit 14.
In the third statutory declaration, the applicant declared:
How did you obtain the Household List?
1.I talked with and sent text messages on Facebook to my cousin Isaac Lian to get the household list from my father. He took a picture of both sides of the household list and sent it to me as a message on Facebook. It is hard to talk with my cousin on the phone as the phone line connections are bad, so most of the time I will send him a Facebook message. I never used to talk with Isaac because I always had conversations with my other cousin Khin Thet Mon who is now in the US. Prior to this contact with Isaac, the last time I had contact with him was in 2013.
3.… My father had the original household list with him which he brought with him and let Isaac take a photograph of it with his phone and these are what was sent to me via Facebook messenger.
What other documents were needed to be produced to get a copy of the Household List?
4.No documents were needed as my father had the original household list with him.
Were any witnesses needed to vouch for identity? What papers did they have?
5.No witnesses needed as father already had originaldocument.
Explain the process that you followed.
As explained in question 3 to obtain a copy of the household list from my father.
At the hearing, the applicant gave sworn evidence that her name at birth was Sanda Win, and that the correct spelling was two words, but the UNHCR split it into three words, San Da Win. The other had also stated “originally Sandawin in one word”.[46] The applicant explained that she adopted the three word name as it had been written down like that.
[46] Transcript (17 August 2018), page 19, line 32.
The applicant gave further evidence that her father’s name was Len Tung.[47] The applicant also gave evidence that her mother passed away in 2002.[48] The applicant confirmed she had changed name on 8 April 2015 to Sandawin Cangmah.[49] The applicant departed from what she had said in her citizenship interview, and said that neither of her mother, father nor grandfather had used the name Cangmah,[50] and that she had wrongly answered questions 24 and 25 as to her parent’s family name when she completed her Application for Australian citizenship.[51]
[47] Transcript (17 August 2018), page 20, line 1.
[48] Transcript (17 August 2018), page 20, lines 21-22.
[49] Transcript (17 August 2018), page 20, line 45.
[50] Transcript (17 August 2018), page 21, lines 25-37.
[51] Transcript (17 August 2018), page 22, lines 10-35; Exhibit 1, T Documents, T5, page 48, Application for Australian citizenship.
When asked by the Senior Member why she had included the name Cangmah in both her mothers and fathers descriptions, the applicant replied “I simply wrongly filling it – the name, the surname, or family name”.[52]
[52] Transcript (17 August 2018), page 22, lines 40-41.
The applicant gave evidence that in 2015 she contacted her cousin over Viber and Facebook prior to lodging her application for citizenship and that the cousin had spoken with the applicant’s parents and given the applicant some photographs of them.[53] The applicant was cross-examined as to what she meant by the term “my parents” and said that she was only referring to her father.[54]
[53] Transcript (17 August 2018), page 26.
[54] Transcript (17 August 2018), page 26, lines 15-45.
The applicant gave evidence that she had telephoned her father, and had used Facebook or Viber as the telephone line was bad.[55]
[55] Transcript (17 August 2018), page 27, lines 5-40.
Under cross-examination, the applicant was shown Exhibit 12 and asked if she agreed with what Mr Minchin was saying, i.e. that the household registration document the applicant had provided was fraudulent. The applicant confirmed that she understood this, and when asked if she agreed with Mr Minchin’s assessment that the document is fraudulent she replied “I don’t know whether it’s a genuine or fake document, but it’s what I got from them”.[56] The applicant later added “I don’t know whether that document is genuine or fake”.[57]
[56] Transcript (17 August 2018), page 38, lines 9-20.
[57] Transcript (17 August 2018), page 38, line 24.
In his closing submissions, Mr Madhukar Naiker, who appeared for the applicant, submitted that at a meeting with UNHCR the previous month he had been told that UNHCR did not determine the identity of people.[58]
[58] Transcript (17 August 2018), page 41, lines 23-24.
Mr Naiker also said with reference to Exhibit 12 and Exhibit 3:[59]
And, again, it comes down to the household document itself that, you know, she does not know herself whether that is a fraudulent document or genuine. I think she’s also asked – well I instructed her to ask Isaac whether there is anything that she can do to get from Matupi itself or from the village of Dainen to prove that this is a genuine document, and we just don’t know how long that’s going to take.
[59] Transcript (17 August 2018), page 42, lines 27-33.
CONSIDERATION – IDENTITY
It appears to the Tribunal that the applicant entered Australia under a name which the UNHCR had applied to her based on her uncorroborated self-reporting. Following her arrival in Australia the applicant continued to use this name as the basis for generating various identity documents until 8 April 2015 when she took her present name.
As noted above, when this matter was reconstituted to the present Member, both parties were invited to make any further submissions they might wish to make to the Tribunal, and neither party made any. As at the date of this decision, the applicant has had over 15 months to provide evidence as to the authenticity of Exhibit 3. The evidence as to the authenticity of Exhibit 3 is entirely unsatisfactory. The applicant herself declined to vouch for its authenticity, whilst the evidence of Mr Minchin was that “the document is fraudulent”. Mr Minchin made this assessment based on 6 factors which were recited at paragraph 13 of his statement:[60]
(a)On page two, next to the handwritten entries on the first line, there should be a stamp of the Myanmar Immigration Department next to the signature. There is no such stamp.
(b)There should be a stamp or record of the recording Immigration officer’s rank and station on the second page. There is no such record.
(c)The dates recorded on the first and second pages are different in a manner that does not make sense. The date on the first page tells us that the document was created on the 28 December 2000. But the date on the second page should be the date the document was updated, which logically must be after the document is created. In this case, the date on the second page is 11 January 2000.
(d)The officer’s signature on pages one and two should have been co-signed by a second officer. This has not occurred.
(e)The officer who purportedly signed the first page as having issued this document is the head of the Matupi township. Although not impossible, this is a rank far higher than would ever be involved in the issuing of a document of this nature.
(f)The first page of the document contains a watermark of the word ‘immigration’. This watermark was first introduced in 2004 in Yangon and throughout wider areas of Myanmar on or around 2008. I have reconfirmed with the Immigration Department that this watermark had not been created in 2000 when this document was supposed to have been issued.
[60] Exhibit 14, Facebook Screenshots, page 3.
In his closing submissions, the applicant’s representative said that he had asked the applicant to see if there was anything else she could get from the village to prove that the household list was a genuine document. No such evidence has been forthcoming. In these circumstances, the Tribunal gives no weight to Exhibit 3.
Exhibit 5 is a statutory declaration by Zual Cangmah a “distant cousin” of the applicant “from my paternal grandfather side.” The declarant stated in part “As we were distant cousins, I presume our families are hardly ever met back in Myanmar but when we met in Brisbane we became close as we are family”.[61] To the extent that the declaration refers to the applicant’s circumstances in Myanmar, this appears to be based on information from the declarant’s parents. The declarant never met the applicant until she came to Australia. The Tribunal therefore considers that this declarant is not in a position to give persuasive evidence as to the applicant’s identity in Myanmar. The Tribunal gives Exhibit 5 little weight.
[61] Exhibit 5, Statutory Declaration of Zual Cangmah dated15 March 2018, paragraph 3.
Exhibit 6 is a statutory declaration by Alain Quero dated 4 January 2018. Whilst the declarant speaks positively of the applicant, the declarant had only known the applicant for about one year and a half as at the date of the declaration, and this declaration has no relevance to the applicant’s identity in Myanmar.
Exhibit 8 is a document which purports to be a statutory declaration made under the Statutory Declarations Act 1959 (Cth), but does not appear to have been properly witnessed. Neither is the document dated. This declarant also spoke positively of the applicant, but shed no light on her identity in Myanmar.
Exhibit 9 is a bundle of statements and character references from various individuals who speak positively of the applicant’s work ethic and good character, however none of these shed any light on the applicant’s identity in Myanmar.
The Tribunal considers that there is no credible verifiable evidence before it so as to confirm the applicant’s original identity. Ultimately, the applicant appears to be the sole source of information provided to the UNHCR which prompted them to register her under the name San Da Win, and all evidence as to her identity in Australia flows from the information the applicant provided. The Tribunal nevertheless accepts that the applicant has changed her name, and her reasons for doing so, and that those with whom she associates know her and recognise her by that name.
Unfortunately for the applicant, there is no independent verification of her identity prior to her UNHCR Resettlement Registration form, and the information contained in it is entirely self-reported and not corroborated by any credible documentary evidence from her home country. The Tribunal is therefore unable to be satisfied as to the applicant’s identity, and therefore section 24(3) of the Act applies to her, and consequently the decision under review must be affirmed in that regard. The Tribunal records that it would also affirm the decision under review on the basis that the applicant is not a person of good character.
The Tribunal considers that the applicant lacks credibility. The Tribunal finds it most concerning that the applicant would provide Exhibit 3 to the Tribunal and yet not be prepared to vouch for its authenticity, notwithstanding her evidence as to how she procured it. The applicant’s evidence throughout this entire transaction has been a litany of inconsistencies and contradictions. The applicant did not seek to cross-examine Mr Minchin in respect of his statement to the effect that Exhibit 3 was fraudulent.
Following the applicant’s change of name on 8 April 2015, the applicant assigned the surname Cangmah to each of her parents in her Application for Australian citizenship received by the Department on 12 June 2015, and as discussed in paragraph 35 above. In evidence given at the hearing, and discussed at paragraph 77 of these reasons the applicant gave different names for her mother and father, and contradicted her prior evidence of their use of the name Cangmah. The applicant allowed the false and misleading statements contained in her Application for Australian citizenship to go uncorrected for a period of years.
In her citizenship interview held on 8 March 2017, the applicant gave false or misleading statements in response to questions 4, 5, 6, 7, and 8, set out in paragraph 45 of these reasons, and effectively admitted as much in her first statutory declaration in evidence discussed at paragraph 50 of these reasons.
In evidence discussed at paragraph 51 of these reasons, the applicant made a statutory declaration inconsistent with a prior statutory declaration discussed in paragraph 35 of these reasons.
In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon made remarks which are apposite to the current discussion:
The observance of truth in dealing with officials in migration matters, (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
The Tribunal has previously expressed concerns when applicants have made deliberate and repeated false and misleading statements to the government.[62]
[62] Ali Abdul Amer Abdullah Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97; Beyan v Minister for Immigration and Border Protection [2015] AATA 256; Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082.
This Tribunal’s findings as to the credibility of the applicant fortify it in finding that the applicant was not a person of good character, and was not a person of good character as at the time of the Minister’s decision in this matter.
DECISION
The decision under review is affirmed.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

................................[SGD]........................................
Associate
Dated: 13 December 2019

Dates of Hearing:
13 June 2018
17 August 2018

Advocate for the Applicant:
Mr Madhukar Nakier
Naiker Associates

Solicitors for the Respondent: Ms Leith Helsdon
Sparke Helmore

[2019] AATA 5406

13 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Dates of Hearing:	13 June 2018 17 August 2018
Advocate for the Applicant:	Mr Madhukar Nakier Naiker Associates
Solicitors for the Respondent:	Ms Leith Helsdon Sparke Helmore