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

[2021] AATA 4480

Cho Zah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4480 (27 October 2021)

Division:GENERAL DIVISION

File Number:          2021/2479

Re:Nei Hlei Cho Zah

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:                   27 October 2021

Date of Written Reasons:      2 December 2021

Place:Melbourne

On 27 October 2021, the Tribunal affirmed the decision under review. These are the written reasons for that decision.

...........................[sgd].............................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – whether the Tribunal is satisfied of the Applicant’s identity – lack of documents prior to arrival in Australia – fraudulent driver’s licence – inconsistencies in life story – Tribunal not satisfied of Applicant’s identity – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

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

Minister for Home Affairs v G (2019) 164 ALD 103
MZLV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2630

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Department of Home Affairs, Australian Citizenship [Policy Statement] - Citizenship Policy Instructions, Reissued 27 November 2020 (as revised in January 2021)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

2 December 2021

INTRODUCTION

1. The Applicant is a permanent resident of Australia. She seeks review of a decision by a delegate of the Respondent on 16 April 2021 to refuse her application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The hearing was held in Melbourne on 25 and 27 October 2021. The Applicant was self-represented. The Minister was represented by Mr Alex Chan, a solicitor from Sparke Helmore Lawyers. Parties appeared by video link in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction.

3. At the conclusion of the hearing, the Tribunal provided oral reasons. On 18 November 2021, the Applicant requested a statement in writing of the reasons for decision. These are now provided, consistent with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA) and Federal Court authority, which states:[1]

   ...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

   [1] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).

   BACKGROUND

4. The Applicant was born in Myanmar and lived there until 2008[2] before moving to Malaysia.[3] Her details, taken with the assistance of a United Nations interpreter,[4] stated she was educated to Year 10,[5] was a crop and vegetable farmer prior to arrival in Malaysia, and that her parents were deceased.[6] Information was also provided about her siblings.

   [2] Exhibit R1, 24.

   [3] Ibid 88.

   [4] Ibid 90.

   [5] Ibid 26.

   [6] Ibid 85-91.

5. The Applicant’s first child was born in Malaysia in 2010.[7] She arrived in Australia in September 2011 with her husband and their child on a travel document issued by the Australian Government. The couple have since had two more children in 2013 and 2016.[8]

   [7] Ibid 31; 92.

   [8] Ibid 31-32.

6. The Applicant’s citizenship application was lodged in June 2016.[9] On 11 November 2016, a delegate of the Respondent invited her to comment on adverse information including that a Myanmar Driver’s Licence (MDL) she provided was counterfeit.[10] The Applicant responded through her solicitor on 5 January 2017 with a translated Statutory Declaration.[11] She explained that on arrival in Malaysia in 2008 she contacted her mother-in-law in Myanmar to send her ‘identification documents’. She claimed her mother-in law sent the MDL, but she had not previously considered whether it was genuine.[12]

   [9] Ibid 7.

   [10] Ibid 49.

   [11] Ibid 55-63.

   [12] Ibid 59 [12].

7. The Respondent wrote to the Applicant on 27 March 2017 requesting further documents.[13] The Applicant again responded through her solicitor with a translated Statutory Declaration dated 1 May 2017, stating she had never previously been given a birth certificate ‘or any other official form of state identification whilst living in Myanmar’.[14] She claimed to have contacted one of her husband’s cousins in April 2017 who promised to try and locate her identity documents. Later that month she claimed to have contacted another of her husband’s cousins, who told her the first cousin became romantically involved with a woman, following which he could not be contacted.

   [13] Ibid 77-79.

   [14] Ibid 82 [4].

8. The Respondent wrote to the Applicant on 15 February 2021 inviting her to comment on adverse information regarding her July 2016 and May 2017 declarations, including details she provided about family composition.[15] The Applicant responded on 24 February 2021 stating she had contacted her family who provided their dates of birth. She also claimed some of her documents were ‘destroyed and lost’ following a burglary and she had been hesitant in providing information because she feared ‘it could be turned into adverse information’.[16] The Applicant also referred to ‘misunderstandings’ between herself and those helping her complete the July 2016 and May 2017 representations. She provided a further Statutory Declaration dated 19 February 2021, stating she did not have any documents issued by the Myanmar Government, and had been ‘automatically removed’ from the ‘household registration or Family Book’ in Myanmar after a nationwide census in 2010, because she was living outside of Myanmar by that time.[17]

   [15] Ibid 96-99

   [16] Ibid 101.

   [17] Ibid 102.

9. The Respondent refused the Applicant’s citizenship application on 16 April 2021.[18] She asked the Tribunal to review the refusal decision on 20 April 2021.[19]

   [18] Ibid 103-116.

   [19] Ibid 1.

   LEGISLATIVE FRAMEWORK

10. Section 25(1)(a) of the AATA and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.

11. The Preamble to the Act states:

    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.

12. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. Section 24 of the Act confers a general power on the Minister to either approve or refuse to approve an application made under s 21, with eligibility circumstances set out at ss 21(2) to (8) of the Act. Section 24(1) of the Act provides that the Minister ‘must not approve’ citizenship unless the person is eligible under ss 21(2) to (8), including if the Minister is not satisfied of the person’s identity: s 24(3).[20]

    [20] Division 5 of the Act sets out identity provisions at ss 40-45.

13. Extrinsic material to 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.[21]

    [21] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth).

    Citizenship Policy and Procedural Instructions

14. In determining citizenship claims, Departmental decision-makers are assisted by policy. This includes the Australian Citizenship Policy Statement dated 2020, published by the Respondent’s Department, and containing guidance at Chapter 13 about assessing identity. Australian Citizenship Procedural Instruction 16 (CPI16), titled CPI16 – Assessing Identity under the Citizenship Act, provides further guidance, as do the National Identity Proofing Guidelines published by the Commonwealth Attorney-General’s Department (AGD Guidelines). The latter states:

    1.1 Background

    1.1.1 Establishing confidence in a person’s identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.

    …

    1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia’s digital economy into the future.

15. The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion.’[22] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[23] Although each case before the Tribunal is considered de novo, executive or Departmental policy may be considered unless there is a cogent reason not to.[24] The Tribunal sees no reason why the relevant policy should not be considered.

    [22] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].

    [23] Ibid [65]; [70].

    [24] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

16. CPI16 describes three pillars comprising biometrics, documents, and life story, as the foundation on which identity assessments are made:

Pillar of Identity	Individual Characteristics
Biometrics	Personal identifiers, which include fingerprints, facial images, or a person's signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents	Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life Story	A person's life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person's life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

1. CPI16 counsels decision makers not to rely on a single pillar in isolation; and they can apply more weight to one pillar over others, based on the specific circumstances of the case. Decision-makers are guided to:

   …test and evaluate a person's claims with regard to their identity, decision-makers should consider each pillar. In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship Applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified.

   Through their reliability and comprehensiveness, identity documents testify to important events in the Applicant’s life story. Through personal identifiers contained in identity documents the Applicant’s biometrics held on departmental records are matched and confirmed.

2. CPI16 provides additional guidance:

   4.12 How do I assess a person’s identity – an evidence based approach

   In order to make an informed assessment of a person’s identity, officers must seek to establish a person’s identity from birth using an evidence-based approach. 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.

   The way in which officers should approach the concept of assessing a person’s identity from birth is to create an identity timeline, thus creating a complete picture of the person’s identity from birth to present. The objective is to link the Applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life. The three pillars are the methodology for establishing a person’s identity, and officers must turn their mind to the individual characteristics in order to piece together a person’s identity timeline and create an ‘identity picture’.

   …

   4.14 Assessing pillar two – documents

   Documents are an important element of the process in establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).

   When assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent, or otherwise, and whether they element support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.

   …

   4.15 Assessing pillar three – life story

   When assessing a person’s life story in the context of a citizenship application, officers should seek to create a complete identity ‘picture’ of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person’s identity, while at the same time considering their life story, is to consider their identity timeline.

   …

   In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, officers should locate the information provided during these interactions, plot it on the person’s identity timeline, and compare it with information provided at the time of applying for Australian citizenship.
   
   …

   Example – testing information pursuant to the pillars of identity

   A person’s identity story can include, but is not limited to, their age compared to

   their:

   ·education, employment, places of residence, marriage and divorce;

   ·extended family history including:

   obirth of children, births and deaths of siblings and parents, date of marriage.

   Example – the importance of family composition

   Family relationships can be very useful when establishing an individual’s identity. Relationships form an important characteristic of a person’s life story. It is important for officers to compare the family composition provided by the Applicant at various interactions with the Department.

   In order to corroborate information, officers should examine the family composition provided to the Department by the citizenship applicant’s claimed family members, as well as the particulars of the information. There are generally common elements between family members who travelled to Australia together, or were from the same village. Independent corroborating evidence for a particular fact or interpretation means that the fact or interpretation is more likely to be true.

3. Paragraph 5.1 of the AGD Guidelines establishes that, where a person cannot meet the minimum identity requirements, alternative identity proofing processes may be undertaken, encompassing:

   ·     Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).

   ·     Verification of the person’s claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.

   ·     Verification of a person’s claimed identity with reputable organisations or bodies known to them…

   ·     A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.

   ISSUE BEFORE THE TRIBUNAL

4. The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.

   EVIDENCE

   Documentary evidence

5. The following documents were admitted into evidence:

   (a)Section 37 documents tendered by the Respondent numbering 258 pages;[25]

   (b)Support letter from the Applicant’s pastor, Lian Cung Thang Tla Hnie dated 23 September 2021;[26] and

   (c)Support letter from Mr Siang Uk Cin Zah dated 22 September 2021.[27]

   [25] Exhibit R1.

   [26] Exhibit A1.

   [27] Exhibit A2.

   Applicant’s evidence

6. The Applicant gave oral evidence with the assistance of an interpreter in the Chin Mara language and was cross-examined. A summary of her oral evidence follows:

   (a)When asked what documents she took on her journey from Myanmar to Australia, the Applicant stated: ‘I’ve got a Myanmar driving license on me but when I was in Perth and applied for citizenship, it was declared that it was fake.’ When asked what documents she had in Myanmar, the Applicant again referred to the MDL: ‘I wasn’t intentionally trying to bring them to Australia. Maybe I was keeping in my pocket or my bag and I don’t intend to carry with me. It’s just - I keep it there and I don’t remember and when I arrive in Australia then only I know I bring the driving license’;

   (b)Mr Chan asked the Applicant how the license came into her possession, to which the Applicant replied: ‘like I mentioned before…I’m so absent minded and I could not retain information for quite long. And I don’t even know how the driving license come into my possession. It could be it was in my pocket or it could be somebody send it to me. I don’t know, I could not remember anymore.’ The Applicant said she had driving lessons in Rangoon and: ‘got that driving license from the person who teach me how to drive…I give him money and he teach me how to drive and he also give me the driving license’. She claimed only to have learned it was fake ‘from the letter sent to us from the immigration office’;

   (c)The Applicant confirmed she and her husband were married in Myanmar prior to his departure for Malaysia and they had been separated for about six years before she re-joined him in Malaysia. When asked whether the pastor who presided over the marriage issued them with any marriage document the Applicant replied: ‘I don’t know. So far what I can remember is we do not obtain any documents’;

   (d)The Applicant claimed not to know what a family register or a family book is. When referred to a statutory declaration claiming her name was removed from a household registration in 2010,[28] she agreed that she knows what a family book is now but is unaware if she was previously registered on her own family’s or her husband’s family book. When asked about her previous evidence about being ‘removed from a family book,’ the Applicant said: ‘because we have heard some of the things…our friends talk about the persons who leave - who doesn’t live in Myanmar from 2010, they were removed. I think based on that we’ve made declarations.’ When asked if she was ‘speculating’ about being removed from the family registration system rather than it being in her personal knowledge, the Applicant replied: ‘yes, it’s speculation that the person who live out of Myanmar from 2010 were removed. So, based on that information we’ve made a declaration’;

   [28] Ibid 102.

   (e)When asked whether she had an ‘ID card’ in Myanmar, the Applicant stated: ‘I did schooling in Burma and when I was in grade 10…I was issued some, like, student card or something like that and I also received some school certificate or something like that. But all of those documents I don’t bring along with me.’ When asked whether those documents were still in Myanmar, the Applicant stated:

   Yes. I’ve been asked this question…whether I have any documents in Burma or not. I was trying to make a contact - I was trying to get or trying to find whether they are still there or not but I could not make any communications to the persons who live in Myanmar.

   (f)When asked how she attempted this communication, the Applicant said:

   Actually…there is not telephone line, there is no internet line so we cannot contact our family members but there is one friend - my husband’s friend who live in the city and we ask him whether we can get any documents or not and the answers that we get from (friend)…he says, like, we cannot get it. So that’s the attempt we’ve made so far’;

   (g)When asked whether she ever telephoned her family in Myanmar, the Applicant stated: ‘we have got some family members still living in Burma…but at the moment because of the current situation in Myanmar, we could not make any communication to them.’ The Applicant confirmed the ‘current situation’ referred to is the military coup d’état in February 2021, claiming: ‘there is no way we can…speak to the family members and my friends at the moment,’ however she then stated that ‘even before’ the coup she ‘could not speak’ to her family in Myanmar;

   (h)When referred to a 2017 statutory declaration in which she claimed to have contacted her mother-in-law in Myanmar in 2008 to obtain the driver’s license,[29] the Applicant said: ‘I think the person we talked with was in Rangoon, in the city by that time. I think that’s why we could make contact.’ She ‘could not remember’ how she made this contact but ‘my guess I think it’s the phone’;

   (i)The Applicant claimed she had not spoken to her side of the family but had spoken ‘to my husband’s family’s side’ since arrival in Australia. When referred to a previous response to the Department, in which she said that in July 2016 she contacted her own family, she responded: ‘I don’t remember’;

   (j)Mr Chan asked the Applicant about her claim that a ‘thief’ broke into her family’s house whilst she was living in Perth. The Applicant thought this occurred in September of 2017. When asked whether the thief took any documents issued in Myanmar, the Applicant replied: ‘No, not from the Myanmar Government. I don’t have any documents but there are some documents relating to immigration and I’ve also got some documents that I was sent by my lawyer. So those kinds of information got all messed up’;

   (k)When referred to her provision of inconsistent information across various dealings with the Department, the Applicant stated:

   …since I don’t know how to read and write, whenever I fill out a form or we fill out a form, somebody helps us. An interpreter. And if the interpreter asks us a question then we answer it. If the interpreter doesn’t ask, then we just leave it like that. I am also, like, so absent minded, the things that I say today, I will forget in the future. I could not retain information for long, maybe that’s one of the reasons too.

   [29] Ibid 58.

   Evidence of Applicant’s pastor

1. The Applicant’s pastor was cross-examined by Mr Chan. He said that he first met the Applicant and her husband in about 2017. When asked whether he helped them with the citizenship process, he stated: ‘yes, sometimes I help them writing, like, statutory declaration.’ When it was put to him that he could not verify the contents of their statutory declarations and was just repeating what they were said, he answered: ‘yes, I just written as they say.’  

   Evidence of Applicant’s friend

2. Mr Siang Uk Cin Zah, agreed he had known the Applicant’s husband since he was a child and they were ‘childhood friends’ but he could not remember exactly when they first met. He said they have a ‘close relationship’: ‘We share information like how is the work going on and what’s happening to us, something like that.’ When asked whether he knew if the Applicant’s parents were still alive, he said: ‘I think they already dead.’ When asked whether he attended the wedding of the Applicant and her husband, he said: ‘No, I wasn’t there.’

   CLOSING SUBMISSIONS

   Applicant

3. In closing, the Applicant stated:

   I just wish that our application process in the future will be going fine and…as I keep on mentioning, we are not educated people. When filling out a form, we are not aware that it’s going to be that much important. That eventually it could become citizen application rejected for making that silly mistake. We just want to admit that we make those mistakes and in the future, we will try our best to be careful when filling out the forms.

   Respondent

4. The Respondent submitted the Tribunal cannot be satisfied of the Applicant’s identity.[30]    

   [30] Respondent’s Statement of Facts, Issues, and Contentions dated 24 September 2021.

   TRIBUNAL CONSIDERATION

5. Receiving Australian citizenship is a significant privilege that bestows considerable rights and obligations. The strict emphasis on establishing identity as a precondition to granting citizenship is different from the refugee assessment process. The focus on identity in the former is particularly important because it links to the acquisition of valuable identity documents like a passport and taxpayer-funded benefits. Australian citizens can depart from and return to Australia at will and enjoy other privileges. Thorough assessment of identity claims is inexorably linked to the integrity of the grant of Australian citizenship.

   Biometrics

6. The only biometric information in this matter is a copy of a photograph and signature of the Applicant in her United Nations records and the fraudulent MDL. The former is entirely based on her self-reported claims.

   Documents

7. The Tribunal accepts that documents are not legally essential when determining identity. It is necessary, however, to consider whether any documents may be available and what an applicant has done to access them.

   United Nations and Australian issued documents

8. Except for the fraudulent MDL, the documents provided by the Applicant are either self-reported UNHCR documents from Malaysia or that were issued after her arrival in Australia. These are of little probative value in establishing her identity from birth.

   Fraudulent Myanmar driver’s licence

9. The Applicant claimed in her citizenship application dated 11 June 2016 that she did not hold, nor had ever held ‘any national identity documents or numbers’.[31] However, on lodging her citizenship application, she provided an MDL that was subsequently found to be fraudulent.[32] When asked about this during the hearing, the Applicant claimed she had not considered whether the MDL was genuine or not prior to submitting it. She also gave conflicting evidence about how it was procured. In a Statutory Declaration dated 4 January 2017, made with the assistance of an interpreter and while legally represented, she claimed to have contacted her mother-in-law in Myanmar in 2008 who sent her the MDL.[33] In oral evidence, however, the Applicant claimed the MDL was issued to her after taking driving lessons in Rangoon and remained in her possession when travelling from Myanmar to Malaysia and then to Australia. In response to questions about this inconsistency, she could not remember how the licence came into her possession. This gives rise to concerns about why she made such specific claims in a Statutory Declaration about her mother-in-law sending it to her.   

   [31] Exhibit R1, 9 [Q21]; 23 [14].

   [32] Ibid 12 [Q32]; 19-20.

   [33] Ibid 58.

   Robbery and documents

10. The Applicant referred in her application to a robbery at a previous residence, claiming: ‘a thief intruded our house and we missed some of our documents’.[34] Given her application relates to citizenship, where identity and the availability of documents from Myanmar are relevant, her claim appeared to be that some documents from Myanmar were stolen. In oral evidence, however, it was claimed no documents were taken during the robbery, none were from Myanmar, and it was other documents that became wet, soiled, and unrecognisable during the robbery that were thrown out. There is no police report or other evidence to corroborate the occurrence of any robbery. 

    [34] Ibid 4.

    Supportive statements

11. Most statements in evidence are from people who have known the Applicant and her husband since arriving in Australia and who reflect positively about their character and community contribution. But this application is about identity rather than the Applicant’s repute. One of the statements in evidence is from a person who claimed the Applicant’s aunt rented ‘downstairs of the house’ in Myanmar.[35] No reference was made to this evidence during the hearing and the author of this claim was not called as a witness. It was therefore not possible to cross-examine the witness and clarify aspects of this relatively brief statement made five years ago. Little weight is placed on it.

    [35] Ibid 64.

12. Two letters were tendered into evidence that provide only limited support for the Applicant’s claims. The Applicant’s pastor, Mr Lian, has only known the Applicant and her family for approximately three years, after they moved from interstate and joined his church. The pastor’s brief letter refers to the Applicant’s ‘very good character’ and being a ‘faithful church member’.  This does not assist the Tribunal’s inquiry into her identity.

13. A letter from Mr Cin Zah briefly states he and the Applicant’s husband are from the same village and were ‘childhood playmates’. He makes no reference to knowing the Applicant in Myanmar and his letter does not assist the Tribunal’s inquiry into her identity.

    Life Story

14. The Applicant claimed that her English language difficulties resulted in ‘misunderstanding between me and translator’[36] (sic). In a Personal Particulars Form 80 dated 26 July 2016, she stated that she did not know the details of her parents.[37] She also claimed not to have any siblings and provided no details in this section of the application.[38] This conflicts with information recorded by United Nations officials in Malaysia following an interview with her, about her parents and siblings.[39] In a subsequent form to the Department, however, the Applicant provided names and dates of birth for her parents and three siblings, stating all reside in Myanmar, except for her parents who died in 2000 and 2010.[40] The dates of birth for her siblings were different to those in the United Nations document.[41] In translated submissions from her lawyer in May 2017, the Applicant stated the dates of birth for her siblings were ‘unknown’.[42]

    [36] Ibid 4.

    [37] Ibid 33 [Q44].

    [38] Ibid 34 [Q45].

    [39] Ibid 85-87.

    [40] Ibid 40.

    [41] Ibid 87.

    [42] Ibid 94-95.

15. The Applicant referred in her documentary evidence to a person called Le Cai Cin Zah as a ‘relative’[43] in Australia. In a Statutory Declaration dated 20 December 2016, however, this person declared she met the Applicant in Malaysia in 2008 and they are only friends.[44]

    [43] Ibid 36 [Q47-48].

    [44] Ibid 69.

16. At one stage of her evidence, the Applicant said she could not remember if she was in her own family’s registration book or that of her husband’s family. When pressed, she said she did not really know if she was in anyone’s family registration book. When asked about her claim in a Statutory Declaration that she was removed from a family registration book in 2010, she claimed this is what friends told her and was not in her personal knowledge.

17. When questioned about several inconsistencies in application forms, the Applicant said she was ‘absent-minded - the things that I say today, I will forget it in the future.’ There was no expert evidence before the Tribunal of the Applicant suffering any cognitive deficit.

    TRIBUNAL FINDINGS

    Documents

18. The Applicant’s claims about documents were often difficult to reconcile. She submitted an MDL when lodging her citizenship application but equivocated about its genuineness. She made very specific claims in a Statutory Declaration about her mother-in-law sending the MDL to her in Malaysia, whereas in her oral evidence she was ultimately unsure how it came into her possession. She also referred to having a school ID and academic reports in Myanmar, which may still be at her family’s home.

19. The Tribunal accepts the Respondent’s contention that the Applicant has not made sufficient efforts to try and obtain information relevant to her identity that may reasonably be expected to exist. The Applicant has been in contact with some of her family members in Myanmar since lodging her citizenship application in 2016. During the intervening five-year period, however, she has not provided any documents except for the counterfeit MDL. It remains unclear why she has not provided evidence from the family members she contacted, or whether the student identity card and certificates she referred to are still at her family’s home, or about trying to contact the school she attended for a decade. There is also no evidence she has attempted to access details of her marriage from the pastor or church organisation who presided over her marriage, or about the driving lessons and MDL purportedly issued to her in Rangoon.

    Inability to communicate

20. The Tribunal accepts there are difficulties communicating with relatives and friends in Myanmar but does not accept the Applicant’s claim about being unable to ‘make any communication.’ She has done so before while living in Malaysia and Australia. The Tribunal inferred from her oral evidence that communication has been difficult after Myanmar’s military coup d’état in February 2021, but the Applicant also claimed she was unable to speak to relatives prior to the coup. When challenged this was inconsistent with her claim in a 2017 Statutory Declaration that she spoke to her mother-in-law by phone or video in 2008 to obtain her MDL, the Applicant responded: ‘I think the person we talked with was in Rangoon…I think that’s why we could make contact.’ She also claimed to have spoken to other members of her ‘husband’s family side’ but not her own. When pressed further about the extent of her contact with people in Myanmar, the Applicant said she could not recall, which came across as evasive and unpersuasive.

    MDL

21. The Tribunal does not accept that when the Applicant submitted the fraudulent MDL in 2016, she had not considered its genuineness, did not intend to lodge it, only allowed a copy to be taken because the Case Officer insisted, and ‘did not fully understand the purpose’ for which it would be used.[45] Irrespective of which story is accepted for how the Applicant procured the MDL, she had it translated after arrival in Australia and stated on her citizenship application that she was lodging the MDL as a ‘current document with [her] photograph and signature’.[46] There was plentiful opportunity to consider its genuineness before presenting it to Departmental officials.

    [45] Ibid 58 [10] – 59 [13].

    [46] Ibid 12 [Q32].

    Robbery and theft of documents

22. The Applicant’s claims about a robbery several years ago impacting her ability to provide documents relevant to her identity were inconsistent and unpersuasive. It remains unclear how a robbery several years ago, where no documents from Myanmar were taken, is relevant to her application.

    Relative claim

23. The Tribunal does not accept the Applicant’s claim that Le Cai Cin Zah is the Applicant’s ‘relative’.   Le Cai Cin Zah says they met in Malaysia in 2008 and are only friends.[47]

    [47] Ibid 69.

    Translation issues and absent-mindedness

24. The Tribunal does not accept that absent-mindedness has caused the significant inconsistencies in the Applicant’s evidence. The Tribunal also does not accept the Applicant’s frequent reliance on language and translation issues. She has consistently been supported by interpreters and others who spoke English. There is no discernible reason why these people would have recorded anything other than what she told them. Her January 2017 and March 2017 Statutory Declarations, for example, were submitted while she was legally represented and assisted by interpreters.

    CONCLUSION

25. It is for an Applicant to provide evidence relevant to their identity,[48] or explain what reasonable efforts have been made to obtain information that may help establish it. Except for the fraudulent MDL, the documents provided by the Applicant post-date her departure from Myanmar and are afforded little weight.

    [48] CPI16 [4.12].

26. A decision-maker is expressly precluded by s 24(3) of the Act from granting citizenship unless satisfied of an Applicant’s identity. The Applicant has failed to provide documents establishing her identity since birth in Myanmar and has made inconsistent claims. The absence of any genuine documents from her life in Myanmar, coupled with the lack of a credible explanation for inconsistent aspects of her life story, creates significant doubts about her identity. The Tribunal also does not consider she has made sufficient efforts to obtain records and statements about her identity that are reasonably expected to exist.

27. The relevance, quality, and plausibility of the evidence presented by the Applicant is such that the Tribunal is not satisfied of her identity for the purposes of s 24(3) of the Act. Accordingly, the prohibition under s 24(3) of the Act applies and the citizenship application must not be approved.

    DECISION

28. The reviewable decision is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

.............................[sgd]...........................................

Associate

Dated: 2 December 2021

Date of hearing:	25 and 27 October 2021
Applicants:	By video
Advocate for the Respondent:	Mr Alex Chan
Solicitors for the Respondent:	Sparke Helmore