Cho Zah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4431
•27 October 2021
Cho Zah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4431 (27 October 2021)
Division:GENERAL DIVISION
File Number: 2021/2478
Re:Pai Thai 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: 30 November 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 – insufficient efforts to obtain documents and statements – inconsistencies in life story –Tribunal not satisfied of Applicant’s identity – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007CASES
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 2630Negri 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
30 November 2021
INTRODUCTION
The Applicant is a permanent resident of Australia. He seeks review of a decision by a delegate of the Respondent on 16 April 2021 to refuse his application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).
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. Parties appeared by video link in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction.
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 the 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
The Applicant was born in Myanmar and lived there until 2002, working as a farmer.[2] The Applicant states he arrived in Malaysia in 2001,[3] where his wife subsequently joined him in 2008. The couple had their first child in Malaysia.[4]
[2] Exhibit R1, 7; 48; 49.
[3] Ibid 29 [Q11].
[4] Ibid 80.
In his application for an offshore humanitarian visa dated early 2011,[5] the Applicant referred to parents and five siblings living in Myanmar, with years of birth provided for his siblings.[6] He also gave details of a cousin living in Australia.[7]
[5] Exhibit R2, 1-26.
[6] Ibid 9.
[7] Ibid 13.
The Applicant arrived in Australia in September 2011[8] on a travel document issued by the Australian Government.[9] He was accompanied by his wife and child. The couple have had two more children since.
[8] Exhibit R1, 116.
[9] Ibid 18.
The Applicant lodged a UNHCR identity card, copies of his Australian driver’s licence, Medicare Card, and other Australian-issued documents with his citizenship application in 2016. He provided no documents from Myanmar and claimed never to have previously held any national identity documents or numbers while living there.[10] In supporting documents he claimed not to know the details of his parents[11] and claimed to have no siblings.[12] He referred to a cousin living in Australia but no other personal contacts.[13]
[10] Ibid 9.
[11] Ibid 57 (Q44)
[12] Ibid 57 [Q44]; 58 [Q45].
[13] Ibid 60.
The Respondent asked the Applicant to provide further information in support of his citizenship application in July 2016,[14] November 2017[15] and October 2018.[16] The Applicant responded to these requests as follows:
(a)In July 2016 the Applicant provided a Declaration of Service Form 1399;[17]
(b)In December 2017 the Applicant provided a Personal Particulars Form 80,[18] in which he referred to a past ‘alias name’[19] and denied knowing his parents’ details or having any siblings;[20]
(c)In November 2018 the Applicant provided a further Personal Particulars Form 80.[21] On this occasion, however, he stated that his parents lived in Myanmar and provided details for them. He also referred to four siblings living in Myanmar and a cousin living in Australia.[22] In terms of documents, the Applicant stated:
I don’t have any document from my country (Myanmar). All documents I had were seized by Myanmar Army when I left my country.[23]
[14] Ibid 25.
[15] Ibid 39-44.
[16] Ibid 63-69.
[17] Ibid 27-35.
[18] Ibid 45-62.
[19] Ibid 46 [Q4].
[20] Ibid 58 [Q45].
[21] Ibid 70-86.
[22] Ibid 82-84.
[23] Ibid 90.
On 15 February 2021 the Applicant was invited to comment on adverse information.[24] This included inconsistent responses he had previously provided about his family composition and the absence of any identity documents. In an email dated 24 February 2021, it was submitted by the Applicant that information deficiencies resulted from ‘language barriers’ and being ‘uneducated’.[25] He explained the inconsistency between previously not providing any information about his parents and subsequently being able to do so as: ‘Fortunately, I had contact with my parents that provided me their date of birth’.[26] The Applicant referred to a robbery at his home in Australia, claiming ‘some of our documents were destroyed and lost.’[27] The Applicant also stated there had been ‘misunderstandings’ with those helping him to complete forms, including one where he failed to mention one of his sisters. He attached a Statutory Declaration stating, in part, that he had been ‘automatically removed’ from the household registration or ‘Family Book’ in Myanmar after a nationwide census in 2010.[28]
[24] Ibid 93.
[25] Ibid 99.
[26] Ibid 98.
[27] Ibid 99.
[28] Ibid 100.
The Respondent refused the citizenship application on 16 April 2021.[29] The Applicant asked the Tribunal to review this decision on 20 April 2021.[30]
[29] Ibid 102-115.
[30] Ibid 1-6.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) 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.
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.
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).[31]
[31] Division 5 of the Act sets out identity provisions at ss 40-45.
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.[32]
[32] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth).
Citizenship Policy and Procedural Instructions
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 policy 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.
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.’[33] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[34] Although each Tribunal application is considered de novo, executive or Departmental policy may be considered unless there is a cogent reason not to.[35] The Tribunal sees no reason why the relevant policy should not be considered in this case.
[33] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].
[34] Ibid, [65]; [70].
[35] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
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.
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.
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.
Paragraph 5.1 of the AGD Guidelines states 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
The issue to be determined is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of section 24(3) of the Act.
EVIDENCE
Documentary evidence
The following documents were admitted into evidence:
(a)Section 37 documents numbering 253 pages;[36]
(b)Supplementary Section 37 documents numbering 95 pages;[37]
(c)Supporting letter from the Applicant’s pastor, Lian Cung Thang Tla Hnie, dated 23 September 2021;[38] and
(d)Supporting letter from Mr Siang Uk Cin Zah, the Applicant’s friend, dated 22 September 2021.[39]
[36] Exhibit R1.
[37] Exhibit R2.
[38] Exhibit A1.
[39] Exhibit A2.
Applicant’s evidence
The Applicant gave oral evidence with the assistance of an interpreter in the Chin Mara language and was cross-examined. A summary of his oral evidence follows:
(a)The Applicant claimed that in ‘about 2000’ the ‘Myanmar Army’ took away his ‘identity card’. When asked why they did so, the Applicant said it was because they thought he was a ‘member of the…Chin National Army.’ However, he then stated that ‘when the Myanmar Army confiscated my identity card they told me this is a wrong document and this is not a valid document’;
(b)When asked by Mr Chan whether he knew what a ‘household registration’ is, the Applicant confirmed he did, but claimed ‘never’ to have seen one before. When challenged by Mr Chan as to how he knew what it was if he had never seen one, he claimed to have ‘heard people speaking about it.’ The Applicant did not know if his family in Myanmar still had a household registration;
(c)The Applicant was referred to his claim in a previous statutory declaration that he did not have a current household registration because he was removed from it when he moved from overseas,[40] which he agreed was ‘correct.’ When challenged that this implied he must have had a household registration in the past, he responded:
[40] Exhibit R1 100.
Yes, I think before 2010 my name was still there, but after that, I don’t know what happened, so I was removed. That’s all I know…
When I was in Burma I don’t know that we have that document. Maybe our parents will have and keep it to themself, because I never seen them, but after I arrive Australia I know that it is required, and I know that I heard that people is talking about it, so that’s how I come to know.
(d)When asked by Mr Chan about a previous claim that a ‘thief’ stole some of his documents from his house, the Applicant explained that he and his family were sleeping over at a friends’ house. On return to their own home, they realised ‘that the thief broke the house, and all the things were scattered on the floor, and some of our documents were wet…and we don’t know what documents are, so we just throw them away.’ When asked to clarify what documents the thief took, the Applicant stated: ‘Actually the thief did not take the documents, but when it was all messy and wet, we could not identify what documents are, so it becomes a rubbish, so we just throw them, because we don’t know what they are.’ He further stated: ‘none of the documents are from Myanmar, they all are from Australia. They were like a gas bill, electricity bill, and the letters from Immigration’;
(e)The Applicant was asked about his sponsorship of a person who claimed he was the Applicant’s sibling on a visa application. The Applicant claimed this was a ‘mistake’ and the visa applicant was ‘just a friend.’ He claimed not to know this friend had declared himself to be the Applicant’s sibling;
(f)The Applicant said he ‘cannot contact’ his parents in Myanmar. When asked why, he explained: ‘I can’t send any letters to them because they are quite old and they like to stay in their village…our village is quite remote, it doesn’t have any telephone line connections, it doesn’t have internet connections.’ When asked whether he had ever contacted his parents since arriving in Australia, the Applicant claimed he had not, but ‘heard about their story through a friend who lived in a city’. He stated that he previously contacted this person by telephone ‘and often ask them about my parents.’ The Applicant claimed, however, he had not been able to contact this friend since moving to Melbourne because the friend had ‘no internet connection.’ The Applicant said he tried to call the friend ‘but it doesn’t go through;’
(g)The Applicant was referred to evidence that he had contacted his parents in 2016. The Applicant agreed ‘maybe that was the time I was last speaking to them…I could not remember.’ When challenged about the inconsistency with his evidence that he ‘never’ contacted his parents, the Applicant said ‘yes, that’s where my problems is. I could not remember things; I could not remember dates. I easily forget them’;
(h)When referred to previous evidence that he never had any documents issued to him by the Myanmar government, the Applicant said ‘yes, that’s correct.’ When asked by Mr Chan to clarify this given his claim that the ‘army’ took an ‘identity card’ from him, which he said he had held ‘for a very long time,’ the Applicant said the army ‘already confiscated’ this identity card. He explained: ‘And I don’t have it any more. And I was refugee, so when I arrive here I have no document, that’s why I’m saying the government doesn’t issue me anything.’ The Applicant was asked whether he now accepted the Myanmar government had issued him a document in the past, he said: ‘yes, that’s correct’;
(i)Mr Chan asked the Applicant why he had declared the existence of a sister in some forms but not others. The Applicant explained:
Sometimes I forget to mention, and when I remember, and when we fill out the form, if I remember, I just fill out. Yes, that’s the case…actually I know that I have a sister, I always remember, but when I fill out the form, I’m not the one who is reading the document…maybe the person who helps me forgets to ask me…because I don’t know what’s written there, and I don’t know whether in the form it asks me to enter my sister’s name or not.
(j)The Applicant said his ‘relatives’ helped him to fill out several forms. He identified one such ‘relative’ as being from the ‘same place’ and ‘same tribe’ as him, and that this person lived in Melbourne;
(k)The Applicant confirmed he has a sister living in Melbourne, and they ‘often talk to each other.’ When asked by Mr Chan whether this sister had written a statement supporting his application, the Applicant replied ‘no, she hasn’t.’
Evidence of Applicant’s pastor
The Applicant’s church pastor, Mr Lian, was cross-examined by Mr Chan. He gave evidence that he first met the Applicant and his wife in about 2017. When asked whether he assisted them with their citizenship application, 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 these statutory declarations and was ‘just repeating what they were saying’, the pastor agreed: ‘yes, I just written as they say.’
Evidence of Applicant’s friend
Mr Siang Uk Cin Zah, the Applicant’s friend, was asked questions by Mr Chan and the Tribunal. He said that he had known the Applicant since they were ‘childhood friends’ but could not recall where they met. He ‘could not exactly remember’ how many siblings the Applicant has.
Mr Cin Zah said he and the Applicant called each other ‘like twice a week’ and 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 if he knew when the Applicant last contacted his family in Myanmar, the witness said: ‘not that I can remember’. When pressed, he claimed not to have previously discussed this with the Applicant. When it was put to him this was hard to believe given they were ‘such close friends’, Mr Cin Zah said ‘So I just don’t know, and I don’t know what to say about that.’
CLOSING SUBMISSIONS
Applicant
The Applicant submitted in closing:
I don’t have a good education. So in the past when I am filling out the form, I might have make a mistake, but I don’t lie I just tell the truth. But when I say the truth, sometimes my memory retention is not good…But I always try to tell the truth. It’s all my mistakes again, and I just want to say sorry for that.
Respondent
The Respondent submitted that the Tribunal cannot be satisfied of the Applicant’s identity.[41]
[41] Respondent’s Statement of Facts, Issues, and Contentions dated 24 September 2021, 8 [36].
TRIBUNAL CONSIDERATION
Being granted 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
The only biometric information in this matter is a copy of a photograph and signature of the Applicant in his Australian travel document.[42]
[42] Exhibit R1, 18.
Documents
The Tribunal accepts that documents are not legally essential when determining identity. It is necessary, however, to consider whether any documents are available and what an applicant has done to try and access them.
The documents provided by the Applicant either relate to his time in Malaysia or were issued to him after arrival in Australia. These are of little probative value in establishing his identity from birth in Myanmar.
Documents from Myanmar?
The Applicant initially claimed he ‘never’ received any documents from the Government of Myanmar. He later claimed that military authorities took his documents prior to departure. In oral evidence he said the army only took his identity card. He also claimed not to have previously seen a household registration form in Myanmar and did not know if his parents had one. In a statutory declaration in early 2021, however, he claimed to have been removed from his family’s household registration form in 2010.[43]
[43] Ibid 100.
Robbery and documents
The Applicant referred in documentary evidence to a robbery at his home, claiming: ‘a thief intruded our house and we missed some of our documents’.[44] Given his application relates to citizenship, where identity and the availability of documents from Myanmar are relevant, his claim seemed to be that some documents from Myanmar were stolen. In oral evidence, however, the Applicant claimed no documents were taken during the robbery and none were from Myanmar. There is no police report or other evidence to corroborate the occurrence of any robbery.
[44] Ibid 4.
Sponsorship of other offshore humanitarian visa applications
The Applicant was asked about his support for an offshore humanitarian visa application in May 2014 from a person with the same family name, who claimed to be the Applicant’s brother.[45] The Applicant claimed this was a ‘mistake.’ The Tribunal notes another offshore humanitarian visa application dated September 2016 from a person claiming to be the Applicant’s biological sister.[46] The Applicant gave oral evidence during the hearing that this sister lives nearby in Melbourne, but he did not provide any evidence from her.
[45] Exhibit R2, 39.
[46] Ibid, 55.
Supportive statements
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 his 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 the Applicant’s identity.
A letter from Mr Cin Zah briefly states he and the Applicant are from the same village and were ‘childhood playmates’. Aspects of this witness’s oral evidence were uncertain, guarded, and unpersuasive. The witness could not recall how old he was when he met the Applicant or where they met; was unsure how many siblings the Applicant had; claimed he and the Applicant had never previously spoken about contact with their families; and was unsure if the Applicant’s parents were still alive, despite claiming to be close friends with the Applicant and communicating with him twice weekly. The Tribunal places little weight on this witness’s evidence.
Life Story
There is a paucity of information about the Applicant’s life in Myanmar, and inconsistencies in his past claims about family composition. It is noteworthy there are no statements from the Applicant’s immediate family members in Myanmar, or from his sister and cousin in Melbourne. The Applicant also referred to another unnamed person from the ‘same place and tribe’ as him, who assisted him with preparing his citizenship application and other documents, but there is no statement from this person. It remains unclear to the Tribunal why the Applicant’s sister, cousin, and the other person from his village were not called to give evidence, while others who did not know him as well were.
The Applicant’s evidence about never being in contact with his parents since coming to Australia, and only been able to enquire about them through a friend in Myanmar who could no longer be contacted, was unpersuasive. In a previous Statutory Declaration, he referred to contacting his parents in 2016, well after arrival in Australia. He declared that his parents had given him certain information including family birthdates. When challenged about this inconsistency, the Applicant agreed he previously contacted his parents ‘when they came to the city,’ but was ‘not sure’ when he last spoke to them. The Applicant’s wife has also previously declared she was in contact with the Applicant’s mother in 2008 and two of his cousins in Myanmar in April 2017. The Tribunal does not consider the Applicant’s evidence about contacting relatives in Myanmar to have been entirely forthright.
When asked about his failure to mention all his siblings in some applications, particularly one sister, the Applicant claimed he forgot. Yet there is a five-year difference in the ages he claimed for this sister under two names in previous material lodged with the Department. In later evidence, the Applicant confirmed this sister now lives nearby in Melbourne, but he decided not to provide a statement from her or to call her as a witness.
CONCLUSION
It is for an Applicant to provide evidence relevant to establishing identity,[47] or explain what reasonable efforts are made to obtain it. The Tribunal accepts the Applicant’s submissions that he made ‘mistakes’ when submitting and advancing his citizenship application. Given the importance of Australian citizenship, it is essential applicants are careful with what information is presented, to ensure it is as genuine and complete as possible.
[47] CPI16 [4.12].
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 his identity since birth in Myanmar and has made inconsistent claims. The absence of any documents from his life in Myanmar, coupled with the lack of a credible explanation for inconsistent aspects of his life story, creates doubts about his identity. Given that the Applicant has relatives in Myanmar and Australia, it remains unclear why he has not provided evidence from these people, who appear to know him best and could help establish his identity. Instead, he relies on a pastor who has only known him for three years, and a childhood friend with limited ability to recall their past association. The Tribunal does not consider the Applicant has made sufficient efforts to obtain records and statements about his identity that are reasonably expected to exist.
The relevance, quality, and plausibility of the evidence presented by the Applicant is such that the Tribunal is not satisfied of his 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
The Tribunal affirms the reviewable decision.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC
............................[sgd]............................................
Associate
Dated: 30 November 2021
Date of hearing: 27 October 2021 Applicants: In person Advocate for the Respondent: Mr Alex Chan Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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