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

[2023] AATA 2197

HALIM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 2197 (25 July 2023)

Division:GENERAL DIVISION

File Number(s):      2020/4030

Re:Abdul HALIM

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

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

Date:25 July 2023

Place:Sydney

The correct or preferable decision is that the reviewable decision of 17 July 2020 is affirmed.

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The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

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

LEGISLATION

Australia Citizenship Act 2007 (Cth) section 24

CASES

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

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

SECONDARY MATERIALS

CPI 16 – Assessing Identity under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

25 July 2023

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

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

   BACKGROUND

3. I note that the Respondent’s Statement of Facts, Issues and Contentions contains a helpful factual summary of these matters, much of which is replicated below.

4. The Applicant is a 51 years old, and is a stateless Rohingyan born in Maungdaw, Burma. He arrived on Christmas Island in December 2009 as an unauthorised maritime arrival and was granted a Protection (Subclass 866) visa in November 2010.

5. On 4 November 2014, the Applicant applied for Australian citizenship by conferral.

6. On 19 July 2016 the Applicant was granted a five year Resident Return (Subclass 155) visa.

7. On 31 January 2020, the Department requested further information from the Applicant to support his claimed identity, including:

   (a)A completed Form 80;

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

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

8. In February 2020, the Applicant provided:

   (a)A completed Form 80;

   (b)A translated extract of a marriage record;

   (c)A translated members of household list;

   (d)A translated birth certificate for Ommal Khair;

   (e)A Burmese Household Registration List; and

   (f)A statutory declaration dated February 2020.

9. On 17 July 2020, the Department invited the Applicant to comment on adverse information within 28 days. In summary, the adverse information was:

   (a)Inconsistencies in the Applicant’s name and date of birth across a number of documents provided to the Department, including a United Nations High Commissioner for Refugees (UNHCR) registration card which provided the Applicant’s name as ‘Abdul Halim bin Abdul Shakur’. The Applicant was also described as having a listed alias of ‘Abdul Salim’ on the Department’s client record; and

   (b)Inconsistencies in the details of the Applicant’s family composition provided to the Department across various interviews and documents, including the Applicant’s marital status;

   (c)Conflicting statements made by the Applicant during his interactions with the Department in relation to:

   (i)His UNHCR registration card which he claims was taken from him by police in Malaysia;

   (ii)The age at which he purportedly began to perform forced labour by the Burmese military;

   (iii)His claim that his wife Noor Jahan and child Ommal Khair are also both stateless Rohingya in circumstances where the Department holds copies of both his wife and child’s Burmese passports; and

   (iv)His claim that his wife and child live in Yangon and are staying with a cousin even though it is dangerous for them to live there on account of their status as stateless Rohingyas.

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

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

    LAW AND POLICY

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

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

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

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

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

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

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

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

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

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

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

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

    distinguished from others within a specific context…

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

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

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

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

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

    individuals can be distinguished from one another.

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

    fraudulently created through evidence of commencement of identity in Australia.

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

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

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

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

18. The CPI 16 further provides that:

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

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

    explained in relation to s 24(3):

    There may be cases where identity is unclear or cannot be satisfactorily ascertained.

    In these circumstances the Minister cannot approve the person becoming an Australian citizen.

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

    … a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.

    ISSUE

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

    ORAL EVIDENCE OF ABDUL HALIM

22. The Applicant arrived in Australia on 9 December 2009, having travelled from Burma to Indonesia and taking a long sea voyage which ultimately saw him on Christmas Island.

23. The Applicant was cross-examined as to the information he gave on his arrival interview on 19 December 2009. In response to questioning from the representative of the Minister, he said he did not know what was meant by ‘date of birth’. He said he told them that he was about 40 years old, and the officers said that he was born in 1969 but he did not understand what they meant.

24. The Applicant said that he was uneducated and suffering from sea sickness at the date of the interview. He said his brain was not working at that time.

25. Under further cross-examination, the Applicant said that he had been affected by sea-sickness even though he arrived by boat on 9 December 2009, and the interview was conducted some ten days later.

26. The Applicant said that even though ten days had elapsed between his arrival and his interview, his head still was not working at the time and that he was still living in fear and scared so that he could not remember.

27. The Applicant said that even if he was no longer sea-sick on 9 December 2009, his head was still not working. He denied that he had made up sickness as an excuse for his limited memory when speaking to the immigration officer, and that he ‘just could not remember anything’.

28. When asked whether he had made up being scared and fearful as the reason for not remembering, the Applicant said that he did not make it up and that he did not mention this in his interview.

29. The Applicant also said that he had difficulty with the interpreter at the interview on 9 December 2009, and that he did not understand some interpreters. The Applicant said that at the time he arrived, the interpreter did not interpret properly, and that he and the interpreter did not understand each other.

30. The Applicant said again that his head was not working at the time.

31. Questioned further as to the transcript of the interview, which states that he understood what the interpreter was saying, the Applicant said that he did understand but it was difficult for him. Again, he said that even if he said he understood, his head was not working at the time.

32. The Applicant denied that he had ever lied.

33. When questioned as to the fact that the Applicant had given very detailed answers as to his background and history before his arrival in Australia, the Applicant said that he understood some interpreters more than others and that he was not lying.

34. When questioned about his statutory declaration of 15 January 2023, the Applicant said that this had been given to him by his lawyers through an interpreter. He affirmed that the document was true and correct, and said that he had called his family in Burma from detention in order to get his full birth date. He said that this was the first time he had contacted his family to get his date of birth.

35. He said he had asked his brother and confirmed again that this was how he got confirmation of his date of birth. He said that he was unable to get his date of birth while he was in detention, and he got this information once he was out of detention. He said he had contacted his brother on maybe 1 or 3 December before he came to Australia, and that he had given the Applicant his date of birth as 20 July 1969.

36. When questioned about inconsistency with previous evidence to the Tribunal, the Applicant said he could not remember what he had previously said, but that he was not lying. He said that he could not remember anything and that he was “uneducated”.

37. When questioned about his UNHCR card, the Applicant said that he recognised the card, and said that it was not the only card that the UNHCR issued to him. The Applicant was referred to the transcript of the interview where he referenced the card. He was living in Penang and went to Kuala Lumper to apply. When asked if he had arrived in Malaysia in 1995, the Applicant said that he could not remember. He said that he had lived in Malaysia for about 14 years before coming to Australia.

38. When questioned as to why he told the immigration office that he had received the UNHCR card three years after arrival, while the card had an issue date of 19 January 2009, the Applicant said “my head is destroyed” and that he did not understand. He said that he was not lying but that he could not remember.

39. The Applicant said that he had only given his name and his father’s name at the time that he applied for the UNHCR card. He said that he could not provide his date of birth at the time that he applied for the card, and that 1971 was close to 1969 but he did not know. The Applicant said that he only needed to provide his father’s name and that the officials at the UNHCR filled in all of the details. He said that no-one asked him about his date of birth, and that no one asked him about his date of birth until after he arrived in Australia.

40. When asked why he had told the immigration officer that he had given the UNHCR his correct name and date of birth, he said that he did not say that to the officer, and that he did not know what the interpreter had told the officer, and that he had not lied even though there was a great consistency between what he told the immigration officer in 2009 and his evidence to the Tribunal in 2021.

41. The Applicant said he had not raised any problems he was having with the interpreter at the time of his arrival interview because he “did not know what was going on.”

42. The Applicant confirmed his evidence that the Malaysian police had taken his UNHCR card and said that that was because he was unable to pay a bribe to the police to get his card back.

43. When asked how he had been able to provide a copy of his UNHCR card to the Department in support of his application for a protection visa, the Applicant said that he did not know who had provided a copy of the card to him whilst he was in detention in Darwin, and said that he did not arrive in Australia with his UNHCR card.

44. The Applicant was taken to his Refugee Status Assessment Record, where he stated that he had divorced his first wife and married an Indonesian national in Malaysia with whom he had a daughter. The Applicant said that he did not divorce his previous wife, and said he had two wives, one in Burma and one in Malaysia.

45. In his interview of 19 December 2009, the Applicant gave the name of his second wife as Li Liss. He said that the name of his Malaysian wife was Noor, and that he did not know when he had married her but he thought it was about 10 years ago. He said he did not regard himself as separated from his first wife and said “no, still husband and wife.”

46. When questioned about the translated version of his first wife’s identity card, the Applicant said he had had to pay bribes to the authorities in order to get the card.

47. The Applicant said that he did not know why the identity document did not record his wife as being married.

48. When questioned about his claim to be stateless, the Applicant said he was forced to leave Burma and that he did not have any documents other than his family registration and that he had to make this document in Yangon “to save our lives.” He had the assistance of an immigration officer and said “I have never had any Burmese identity documents.” He said the only document was the family registration list, but he did not tell the government that at the time he got the documents in Yangon.

49. On re-examination, the Applicant confirmed that he had not said the documents he obtained in Yangon were fraudulent, only that he had had to pay money in order to get them.

50. He said that he had told the Department that he had had to pay for the documents.

51. The Applicant said that when he obtained the documents in Yangon, he could not make any reference to Maungdaw which was the area where he had lived. He said that there had been fighting in Maungdaw and that many Rohingya people had been killed, and by 2017 most Rohingya people had fled the Maungdaw area.

52. The Applicant said he had two uncles who are close relatives living in Yangon.

53. The Applicant said that he had some basic English that enabled him to communicate.

54. The Applicant said that when he arrived in Australia all of his belongings were confiscated, and he only got access to them when he was put into detention.

55. The Applicant said that he did not speak, read or write Burmese.

56. He also said that he had a relative Abdul Halim who lives in Singapore (Chicago).

57. The Applicant said that he was never entitled to a passport. He said that Rohingya people did not have an identity card.

58. When taken to a previous answer that he had a household register for his himself, his first wife and their child, he said that he had not lied and that his head had not been working. He said he had not previously disclosed that he had a household register to the authorities because he was afraid of being deported.

59. The Applicant had sponsored his wife and child to come to Australia.

60. The Applicant said that he had never read the delegate’s decision nor the Identity Assessment Report.

61. The Applicant was taken to his Facebook page. The Applicant said that he had not created a Facebook page, and that a third party had opened it for him. The Applicant agreed that it was his name and photo on the Facebook page. He confirmed it was his Facebook page at the time of the delegate’s decision, but said that although it was his name and face, another person had created it for him and that he had never used it. The Applicant said that he was unable to use Facebook.

62. The Applicant said that before his cross-examination, he did not know that one of the issues the delegate was concerned about was the content of his Facebook page. The Applicant denied that he had discussed any of his evidence with any other person.

63. When taken to those parts of the Facebook page that referred to him having studied in Canada, the Applicant said that that was simply not possible as he was illiterate, and that he had just asked someone else to create the page. He said the other person had told him that he had out the information about Canada because “he liked it.” The Applicant said that they were “laughing about it.”

64. He said that other photos had been put on Facebook by the third party at his request.

65. The Applicant said that he knew some of the people in the pictures on Facebook. The Applicant said that he had closed the Facebook account, but he does not know if it was actually closed or not.

66. The Applicant said that he had not removed information after the delegate’s decision, and that he did not know how to remove information, he had just closed the account.

67. The Applicant agreed that he had asked for the Facebook page to be closed after the delegate’s decision once he found out that it was still operational, and that he had found out after the Tribunal hearing “last week.”

68. The Applicant was questioned at great length about the various screenshots of his Facebook page, and the friends listed on his Facebook account. The Applicant said that he had never requested anyone to be a friend on Facebook, and that he had not added anyone as a friend on Facebook. The Applicant said that he did not do this as he did not know how to read and write.

1. The Applicant said that he does not now look at Facebook and that he had not asked his friend Mr Habi Abdullah to add those friends on his behalf. He said he did not know who could access his Facebook account.

2. The Applicant denied that he had a second Facebook account. He said that he did know some of the people that were listed as friends.

3. He said he had nothing to do with his family in Yangon and that he did not have a second Facebook account.

4. When asked about close relatives, the Applicant confirmed that Maung Maung Ting was his uncle’s son and the mother was Rijew. He recognised Calvin Wyn (Rashidul Haque) as a nephew, and said that he had heard that he was studying in Yangon. He also recognised Naing Wing and said that he was a cousin.

   ORAL EVIDENCE OF WITNESS 1

5. The Witness affirmed their statement of 11 October 2021.

6. When asked whether the Applicant’s father had been able to work between 1995 to 1999, the Witness said he left the country in 1991 but that he had witnessed the father farming the land prior to 1991, growing rice. He said in addition to farming, the father had also worked as a fishmonger.

7. He could not confirm whether the father owned the approximately 2 acres of land he was cultivating.

   ORAL EVIDENCE OF WITNESS 2

8. Witness 2 was the daughter of the Applicant. She affirmed her statement of 12 October 2021.

9. She gave evidence that extended family members had been killed by the Government in Burma.

10. She said she learned the Burmese language when she went to school in Yangon and through private tuition. She would interpret for her mother when she needed to speak Burmese.

    ORAL EVIDENCE OF WITNESS 3

11. Witness 3 was the Applicant’s wife (which). She affirmed her statement made in January 2021, and said she agreed with her daughters statement.

12. She said that she didn’t feel safe in Burma, and had difficulty sleeping due to fear. She said this was because the authorities would often attend her residence and ask after the Applicant following his departure for Australia. Her evidence was that she was worried that the authorities would remove their daughter from her care by force.

13. She gave evidence that many young girls or women in similar situations were worried, as the military had killed and raped many young Rohingya in Burma.

14. She said she it had been compulsory for her have her photograph taken every year, while wearing a number tag around her neck. Her evidence was that all Rohingyan people must do this.

15. Her evidence was that she and the Applicant had never divorced.

    ORAL EVIDENCE OF WITNESS 4

16. The witness had lived in the same village as the Applicants when they were in Burma, and knew their parents. The witness affirmed their statement of 11 October 2021.

17. The witness said that the Applicant’s father used to farm the land and sell fish. His evidence was that the father owned the land, but also that Rohingya people would have no rights to property in Burma. He said that they would have grown vegetables in summon and then rice in the rainy season.

18. The witness gave evidence that the Applicant’s father used to own the fishing equipment he used, but he was unable to confirm whether he owned the boat, as many people were using the boat and the use of it would have been arranged between families.

19. The witness said that in 2017 the military had destroyed the village, along with many others and forced the inhabitants to move to Bangladesh.

20. The witness aid he had left Burma a long time ago and no longer had contact with the family.

    CONSIDERATION

21. Once again, this is a case which highlights the difficulties faced by an Applicant who is seeking Australian citizenship and is forced to rely on their life story in circumstances where they may have faced persecution in another country and been forced to flee with very little documentary evidence as to their identity and no easy means of contacting relatives or even knowing if all of their relatives are alive.

22. This is the situation with many Rohingya people who have fled persecution in Burma.

23. However, it is important that the Tribunal does not minimise the importance of identity in the granting of citizenship which is a very important privilege given by the people of Australia. It includes a variety of benefits, such as travelling on an Australian passport. The onus of establishing identity is on the Applicant, and the Tribunal must be positively satisfied. This is well-recognised in cases before the Tribunal, and I note also the Explanatory Memorandum to the Australian Citizenship Bill 2005 which states that in order to establish identity, the Applicant’s life story must be consistent virtually from birth until the present.

24. In this case, there are no documents before the Tribunal which provide reliable evidence as to the Applicant’s identity. The Applicant’s UNHCR card does not have reliable information as to the Applicant’s date of birth and there is doubt as to the date on which the UNHCR card was actually issued.

25. The Applicant cannot rely on biometrics to establish his identity.

26. When considering the Applicant’s life story, there are simply too many inconsistencies for the Tribunal to be able to be satisfied to any degree – let alone positively – as to the Applicant’s identity. There are inconsistencies between various official interviews and documents relating to the Applicant’s date of birth, marital status, and even to the limited extent that any evidence is available, his life in Burma. There was no independent evidence given in support of the Applicant which corroborated any aspect of the Applicant’s life story in any detail.

27. The documents that the Applicant did have from Burma were documents that he had obtained by paying an official in Yangon, and the Applicant said that those documents could not refer to his having been or lived in Maungdaw, which is the village/region where he said he had lived.

28. There was limited evidence as to the Applicant’s life in Malaysia, his life or work history in Malaysia, and what happened to his UNHCR card in that country. The Applicant said that it was taken by the police and not returned because he could not pay a bribe, but there was simply no corroborating evidence of this or any other aspect of the Applicant’s life in Malaysia.

29. Several witnesses appeared before the Tribunal to give oral evidence on behalf of the Applicant, but any corroborating evidence they gave was limited in its utility. I note the written statements filed in October 2021 but those statements both individually and collectively provide little assistance to the Tribunal in relation to the Tribunal being positively satisfied as to the Applicant’s identity.

30. There was inconsistent evidence as to the Applicant’s first wife. There was also very little evidence as to the Applicant’s second wife, who he gave evidence was an Indonesian national, LL with whom he had a daughter. That person was not called to give evidence before the Tribunal, although there appeared to be no particular reason why she could not do so.

31. The Applicant had not provided any documents from Burma to the officials on his arrival, although I note his explanation that he did not do so because he feared deportation. The Applicant gave no evidence to the Tribunal as to the contents of the documents and was not cross-examined on it.

32. Whilst I accept that many of the Applicant’s difficulties may have been caused by the fact that he is illiterate, that fact alone does not assist the Tribunal in its task of being positively satisfied as to the Applicant’s identity.

33. The Applicant was questioned very extensively as to his Facebook page and the information on that page. The Applicant said that he asked another person to open the page for him and agreed that he had at least some part in the posts relating to a claim of him having attended university in Canada which appeared on that Facebook page, and which the Applicant acknowledged was untrue. The Applicant denied having a second Facebook account and denied that he had added or accepted “friends” on his Facebook page even though some of the “friends” were acknowledged to be people he knew.

34. Counsel for the Minister asked the Applicant on a number of occasions in relation to the Facebook page whether he as telling the truth to the Tribunal, and the Applicant was consistent in his answer that he was telling the truth, that he was illiterate, that he did not understand English, and that he had not asked any third party to put additional information or ‘friends’ on his Facebook page.

35. The Applicant also denied that he had tried to delete his Facebook as a result of the delegate’s concerns about the Facebook postings.

36. I accept the Applicant’s evidence in relation to the Facebook account, although it is of little weight. The Facebook account is simply of no benefit to the Tribunal in establishing the Applicant’s identity. It may reinforce questions as to whether or not the Applicant was truthful, but I make no findings as to the Applicant’s credibility in light of past trauma and at best limited knowledge of English.

37. Unfortunately for the Applicant, when all of the evidence is considered, the Tribunal cannot be positively satisfied as to his identity. There is simply no evidence before the Tribunal as to the Applicant’s life in Burma, and inconsistent evidence about important aspects of his life given to the authorities after he arrived in Australia. Even if the Applicant’s explanations are accepted, it simply does not fill in the gaps.

38. Accordingly, the Tribunal is unable to be satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Act. I note that the Applicant is not precluded from making another application for citizenship, and if he were to do so, it will be important for him to provide a clear and consistent life story with as much objective evidence to support that story as it my be possible for him to obtain.

    DECISION

39. Accordingly, the correct or preferable decision is to affirm the reviewable decision of 17 July 2020.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 25 July 2023

Date(s) of hearing:	13 & 14 October 2021, 17 & 23, 24 January 2023, 8 May 2023
Date final submissions received:	7 June 2023
Solicitors for the Applicant:	Mr Daniel Taylor
Counsel for the Respondent:	Mr Paul d'Assumpcao
Solicitors for the Respondent:	Mr Matthew Sheedy