Hay and Minister for Immigration and Citizenship (Citizenship)

[2025] ARTA 2148

Hay and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 2148 (16 October 2025)

Applicant/s:  Xuan-Hay Thi Hay

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2024/1335

Tribunal:General Member S Evans  

Place:Sydney

Date:16 October 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction the prohibition in s 24(3) of the Act does not apply. 

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

General Member S Evans

Catchwords

CITIZENSHIP – Refusal of citizenship – Whether identity requirement under paragraph 24(3) of the Australian Citizenship Act 2007 (Cth) is met – Citizen of Vietnam - Citizen of the United States – Tribunal satisfied of applicant’s identity – Reviewable decision set aside and remitted.

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3245

Secondary Materials

Attorney-General’s Department National Identity Proofing Guidelines (2016)
Citizenship Procedural Instruction 16 - Assessing Identity under the Citizenship Act
Explanatory Memorandum to the Australian Citizenship Bill 2005

Statement of Reasons

INTRODUCTION

1. Xuan-Hay Thi Hay (the Applicant) is a citizen of Vietnam and the United States of America who applied for Australian citizenship by conferral on 10 March 2022. On 8 February 2024, a delegate of the Minister for Immigration and Citizenship (the Respondent) refused to approve her application as they were not satisfied of her identity and prohibited from approving the application under s 24(3) of the Australian Citizenship Act 2007 (the Act). The Applicant seeks review of the decision at the Tribunal.

2. For the reasons that follow, the reviewable decision will be set aside.  

   LEGISLATION AND POLICY 

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

4. 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 the person. Identity is not defined in the Act. 

5. The Explanatory Memorandum to the Australian Citizenship Bill 2005 (which is the Bill that became the Act) explained in relation to s 24(3) that:

   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.

6. The judicial precedent on identity has been summarized in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 at [32]:

   Ultimately, the concept of “identity” is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application. The historic use in documents of different names that appear to all be attributed to an applicant may clearly be relevant to this assessment. But use (or ascription, even without knowledge, to a person) of a different name may in a given factual circumstance say nothing about identity. Take for example the common situation of a person changing their name when they marry. There may not be documentary proof of this name change, for a variety of reasons, in any given circumstances. But the name change may not affect the proposition that the person has a single identity, rather than being two different human beings, or a human being with an entirely different background to the one they rely upon in their citizenship application. The Minister’s submissions acknowledged this to some extent.

7. Departmental policy provides guidance on assessing identity of citizenship applicants. The Tribunal is not bound to strictly apply policy, but as it is government policy it should be considered unless there are cogent reasons not to do so.[1]

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

8. The Citizenship Procedural Instruction 16 - Assessing Identity under the Citizenship Act (CPI 16) identifies three pillars of identity which are to be relied upon when assessing a person’s identity: biometrics, documents and life story. Each pillar is made up of individual characteristics and in some cases, one pillar of identity may be given more weight than others.[2]

   Biometrics: Personal identifiers which include fingerprints, facial images, or a person’s signature.

   Documents: Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. Only reliable identity documents can satisfy this pillar.

   Life story: A person’s life story is a narrative of the events that happened to them from birth to present. It includes 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.

   [2] Citizenship Procedural Instructions (CPI), Chapter 16 - Identity, s 4.4.

9. CPI 16 states that it is not sufficient to be satisfied of a person’s identity at one point in time. Rather, identity should be verified incrementally throughout a person’s life by assessing a person’s identity from birth.

   Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.

   The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.

10. The Attorney-General’s Department National Identity Proofing Guidelines (2016) (Guidelines) are referred to in CPI 16 as a resource which “serves as a benchmark for identity related services and standards within the Department”. The proofing guidelines provide a set of recommended processes and requirements which are aligned to international standards. The Guidelines also provide that the veracity of the person’s identity is established by evidence provided to meet some or all five identity proofing objectives which aim to confirm: 

    (a) the uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another;

    (b) the claimed identity is legitimate to ensure the identity has not been fraudulently created through evidence of commencement of identity in Australia;

    (c) 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;

    (d) 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; and

    (e) 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

    ISSUE TO BE DETERMINED

11. The issue to be determined is whether the Tribunal can be satisfied of the Applicant’s identity in accordance with subsection 24(3) of the Act.

    BACKGROUND AND EVIDENCE

12. The Applicant was born Xuan-Ha Thi Nguyen in April 1954 in Saigon, Vietnam. A certified translation of her birth certificate is in evidence.[3] In a written submission dated 30 July 2024, the Applicant detailed the circumstances of her marriage to her first husband James Rygg, the birth of their son, their departure from Vietnam, arrival in the United States, and her divorce from Mr Rygg.  

    To provide some context, my marriage to Mr. Gerald Kurt Rygg took place in Saigon, South Vietnam in 1974. We had a child, James Quang Rygg, whose name is included in my U.S. passport. We left Vietnam shortly before the fall of South Vietnam on April 30, 1975, and arrived in the USA. We divorced in 1977 at the District Court in Tennessee, and I was granted custody of James.

    [3] T4, 38

13. The Applicant writes that following her divorce from Mr Rygg, she married Gary Dillard: 

    Subsequently, I remarried Mr. Gary Nelson Dillard, who later adopted James. James is now known as James Quang Dillard and is currently living in Sweden….

14. The Applicant says she obtained a copy of her Vietnamese birth certificate in 1971 in anticipation of her marriage to Mr Rygg, who was a US citizen[4]. She gave evidence at the hearing that her marriage to Mr Rygg was a simple signing ceremony with just two witnesses present. There were no celebrations, and no photographs were taken. After they married, the Applicant initially retained her maiden name “Nguyen”, as adopting spousal surnames is not common practice in Vietnam. 

    [4] T4, 38

15. After migrating to the United States, the Applicant frequently travelled to Vietnam. She gave evidence that during one visit to Vietnam, she sought to obtain a copy of her marriage certificate to Mr Rygg, but was informed that pre-1975 records had been lost. She claims to have filled in an application for the marriage certificate, but does not have evidence of having done so.

16. The Applicant has provided a document she found on Wikileaks which is purportedly a manifest of United States citizens and their dependents compiled by the American Embassy in Saigon on 18 April 1975. The document provides a list of individuals who had received ‘parole documentation’ in order of ‘American husband followed by parolee and relationship to him’. Individuals listed in the manifest include “GERALD KURT RYGG, NGUYEN THI XUAN HA, WIFE.”[5]

    [5] Exhibit A7

17. The Applicant gave evidence that when she arrived in the United States in 1975, she used her Vietnamese passport and changed her name to “Rygg”. She and Mr Rygg immediately travelled to Chicago. She said that she was not required to obtain a visa, but was issued a “Green Card” after submitting her marriage certificate.

18. The Applicant has provided a copy of a “Commonwealth of Virginia license” issued to Xuan-Ha Thi Rygg in May 1977. The Applicant gave evidence that in 1977 or 1978 she and Mr Rygg divorced. She said that she had formal court documents to that effect which she was required to show when she re-married, but she had either lost the documents or Mr Rygg had kept them.

19. The Applicant was residing in Tennessee with her sister when she filed for divorce from Mr Rygg. The Applicant said she had attempted to obtain her divorce papers from the Tennessee District Court. She asked court staff to help her obtain the documents and was advised to contact the Tennessee Central Court. She attempted to do so but was unable to contact them by phone.

20. Despite residing in Tennessee for one or two years, the Applicant said she was not required to interact with Tennessee state or other government agencies because she was staying with her sister. She is confident that the divorce papers were the only official record held in Tennessee which would record her surname as “Rygg”. 

21. The Applicant said that she met Gary Dillard in 1979 and they lived in Virginia and married in Houston, Texas, in 1980. That year, while living in Texas, the Applicant became a US citizen. She said that when she lodged her application for US citizenship, she was required to provide her Vietnamese passport and other documents, all of which were retained by the US government.

22. A sworn statement dated 5 August 2024 from Gary Dillard is in evidence.[6] Mr Dillard writes that he is the Applicant’s ex-husband, that the Applicant had previously been married to Gerald Kurt Rygg, and that she changed her name from “Rygg” to “Dillard” when they married.

    [6] Exhibit A2

23. A decree of divorce issued by Harris County, Texas, dated 4 January 1982, confirms the divorce of “Gary Dillard” and “Xuan Ha Tai Dillard.”[7] The decree notes that the parties were expecting another child and that they were the parents of “James Quang Dillard”, born in December 1972 in Saigon.

    [7] T8 57-58

24. In evidence are pages of the Applicant’s US passport issued 9 June 1980 in the name Xuan-Ha Thi Dillard.[8] A stamp confirms that the passport was ‘amended to remove a minor’ – James Rygg – in October 1980.  

    [8] T10(a) 71-72

25. The Applicant confirmed that in July 1980 she and Mr Dillard travelled to Singapore on US passports. She was in Singapore when she met her current husband, Douglas Hay, who she married in June 1992 in Melbourne. The Applicant and Mr Dillard divorced after she returned from Singapore having met Mr Hay in 1981, but she did not change her name until she and Mr Hay married.

26. Before travelling to Singapore, the Applicant and Mr Dillard spent between 6 and 12 months in Honolulu. In Hawaii, the Applicant worked in a restaurant but she retained no documents from that time. Despite her legal surname being “Dillard” when she was in Hawaii, the Applicant continued to use her Virginia drivers licence because she failed her Hawaiian driving test.

27. A Texas Department of Public Safety criminal history record dated 12 December 2022 confirms the Applicant’s stated birth in August 1954 and records that she had been known by “Hay” and “Dillard,” but makes no reference to her maiden name “Nguyen” or “Rygg”.[9] The document also confirms her social security number.  

    [9] T8, 55 1

28. At the hearing the Applicant confirmed that she had a US Social Security number but had had not sought to obtain her social security records. The Applicant also confirmed that she had not contacted the US Department of Immigration to obtain records which may help prove her identity.

29. A summary of the Applicant’s US Federal Insurance Contribution earnings confirms earnings for the ‘years requested’, 1975 through 1980.[10] The document records her name as “Hay” and also “Dillard”. The document was generated in June 2013. When asked by the Respondent why there was no reference to “Rygg,”and also why she only asked for the earnings across five years, the Applicant explained the document was requested for another purpose, not in support of her citizenship application. 

    [10] Exhibit A1

    CONSIDERATION

30. The Respondent contends there is insufficient or inconsistent information and documentation in relation to the Applicant’s identity. Specifically, the Applicant has not provided sufficient evidence to demonstrate a clear link between her original identity details, her past identity details and the details she is currently using. The Respondent contends that she has not availed herself of opportunities to secure evidence of her identity which would demonstrate a clear linkage and ultimately explain her legal change of name from “Nguyen”, to “Rygg”, to “Dillan” to “Hay”. 

31. The Applicant has provided reliable identity documents which corroborate aspects of her life story. A Vietnamese birth certificate establishes the Applicant’s date of birth and maiden name “Nguyen”. Her marriage and divorce from Mr Dillard are confirmed by the divorce decree. Her marriage to Mr Hay is supported by their Australian marriage certificate. A US passport was issued to the Applicant under the name “Dillard” in 1980.

32. I accept the Respondent’s contention that there is no official documentation in evidence that supports the Applicant’s marriage to Mr Rygg. Curiously, the Applicant did not declare she used the surname “Rygg” when making her application for citizenship, and as mentionied the Texan criminal history check records neither “Nguyen” or “Rygg”.

33. The Applicant says she married Mr Rygg in South Vietnam and the government collapsed the following year. In the circumstances, it is not implausible that she was unable to obtain access to state records of her marriage. The authenticity of the Saigon Embassy manifesto she found on Wikileaks is not able to be verified, but is consistent with her life story. I afford it some weight in support of her having been married to Mr Rygg and leaving Vietnam as his spouse, while using the surname “Nguyen”. 

34. That the Applicant was known as “Rygg” is demonstrated by her Virginia drivers license in that name. The documentary evidence that most strongly supports her having been married to Mr Rygg is the Applicant’s US passport confirming in 1980 her son’s name as “James Rygg”. It is consistent with her account that Mr Rygg was her son’s father and supports her having been married to Mr Rygg. Her son is later referred to as “James Dillard”, born in 1972 in Vietnam, in the January 1982 divorce papers. This is consistent with her having changed her name from “Rygg” to “Dillard” after she and Mr Dillard married in 1980. 

35. The Respondent has identified avenues through which the Applicant may obtain documents that to support her identity, such as approaching the US Internal Revenue Service or Department of Social Security, which the Applicant has not pursued.

36. I accept that these avenues may elicit further evidence confirming the Applicant changed her name. However, unless the Applicant is able to obtain feeder documents relating to her marriage or divorce from Mr Rygg, additional documents would be of marginal utility because there is sufficient evidence that both she and her son adopted the surname “Rygg” and then “Dillard”.

37. In any event, when she was married to Mr Dillard, the Applicant obtained US citizenship and a US passport consistent with her claimed identity. The Respondent argues despite holding a US passport, the Applicant should pursue other avenues through which she may obtain documents as US authorities would have had access to information such as social security records which are not available to the Respondent. However, the Applicant’s life story and claimed identity is consistent with her US passport. As such, I consider the ability of the US government to consider information or records not accessible to the Respondent adds weight to her claimed identity. 

38. I note that in Beyan v Minister for Immigration and Border Protection [2015] AATA 256 the Tribunal acknowledged that a Certificate of Australian Citizenship is a legal document of such significance the Tribunal should not allow a certificate to be issued where the identity of the applicant is far from clear.

39. While there are some inconsistencies in the Applicant’s life story, they are not significant in the broader context of her claimed identity. The Applicant has provided feeder documents which are accepted as authentic and corroborate key elements of her life story. While the Applicant may be able to pursue further documents in support of her application, CPI 16 states that more documents do not necessarily result in better identification of a person. I consider this applies in this matter.

40. Overall, the Applicant’s life story and the documentation are chronologically consistent. There is no evidence that refutes the Applicant’s claimed identity or implausible aspects to her life story. Having regard to the evidence before the Tribunal, I am satisfied of the Applicant’s identity. 

    DECISION

41. The reviewable decision is set aside, and the matter is remitted to the Respondent with the direction that the prohibition in s 24(3) of the Act does not apply. 

Date of hearing:	16 September 2025
Applicant:	By video
Solicitors for the Respondent:	Mr Alex Chan, Spark Helmore