Heccae and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2022] AATA 4310

Heccae and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 4310 (14 December 2022)

ReviewNunber:     2021/0565, 2021/0563, 2021/0573, 2021/0569

Division:GENERAL DIVISION

File Number(s):      2021/0565, 2021/0563, 2021/0573, 2021/0569

Re:Van Thawng Lian Heccae, Thawng Za Tling Heccae, Esther Luthyn, and Sung Hua

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member B J Illingworth

Date:14 December 2022

Place:Adelaide

Van Thawng Lian Heccae, Thawng Za Tling Heccae, and Sung Hua

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decisions under review and remits the matter for reconsideration on the basis that the Applicants satisfy the identity criteria set out in s 24(3) of the Act.

Esther Luthyn

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the good character criteria set out in s 25(2)(b)(iii) of the Act.

.....................[SGND]...................................................

Senior Member B J Illingworth

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to the Applicant’s identity pursuant to section 24(3) of the Australian Citizenship Act 2007 – Whether Applicant was of ‘good character’ for the purposes of s 21(2)(h) – decision under review set aside and remitted for reconsideration

Legislation

Australian Citizenship Act 2007

Secondary Materials

The Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
The Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
Australian Citizenship Policy Statement

Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member B J Illingworth

14 December 2022

Introduction

1. The Applicants are members of the same family. Mr Van Thawng Lian Heccae (Mr Heccae) and Mrs Thawng Za Tling Heccae (Mrs Heccae) are married. Ms Esther Luthyn (Ms Luthyn) and Ms Sung Hua (Ms Hua) are Mr Heccae’s sisters.[1]

   [1] Mr Heccae’s Form 80 dated 31 July 2020, pages 333-349 at page 346.

2. Mr and Mrs Heccae and Ms Hua have applied for review of decisions refusing their applications for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) because the delegate was not satisfied of the identity of each of the Applicants as required by s 24(3) of the Act. The delegate relied on inconsistencies in the Applicant’s life stories and lack of documentation for each Applicant.

3. Ms Luthyn has applied for review of a decision to cancel the approval of her application for Australian citizenship under s 25 of the Act. The delegate was not satisfied that Ms Luthyn was of good character in accordance with s 25(2)(b)(ii) of the Act. The delegate relied on inconsistent information in the application for citizenship with previous correspondence provided to the Respondent.

4. By order of the Tribunal dated 11 October 2021, the matters relating to each Applicant were associated, the applications were to be heard together and the evidence on each application is evidence on the other applications.

5. Each Applicant was self-represented. The Respondent was represented by Ms Sarah Hardie of HWL Ebsworth Lawyers. The Tribunal received into evidence documentary material as listed in the exhibit list held on the Tribunal file. Each Applicant gave evidence assisted by an interpreter.

   Issue

6. The issue to be determined in respect of Mr and Mrs Heccae and Ms Hua is whether the Tribunal is satisfied as to each Applicant’s identity pursuant to s 24(3) of the Act and if not positively satisfied, the Tribunal must affirm the decisions under review.

7. The term identity is not defined by the Act and therefore the decision-maker, in this case the Tribunal, should consider the Australian Citizenship Policy Statement and the Revised Citizenship Procedural Instructions in determining identity.

8. The Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act[2] provides that in assessing a person’s identity, three pillars of identity should be considered namely Biometrics, Documents, and Life Story.

   [2] Exhibit A, T8, pages 211-226.

9. The Respondent submitted that due to the absence of documents and biometrics, heavy reliance will need to be placed on the Applicant’s life story and therefore that life story should be consistent and credible. Due to the inconsistencies in the life story with respect to each Applicant and the lack of documentation, it is submitted that the Tribunal cannot be satisfied as to each Applicant’s identity to the requisite degree.

10. In respect of Ms Luthyn, she has applied for review of the decision to cancel the approval of her application for citizenship under s 25 of the Act. The delegate was not satisfied that Ms Luthyn was of good character for the purposes of the Act, due to inconsistent information provided regarding identity.

11. The issue for the Tribunal is to determine whether the Applicant Ms Luthyn is of good character in accordance with the Act.

12. The Citizenship Procedural Instruction 15[3] provides that a person of good character will be honest and would not practice deception in dealings with the Australian Government, for example, by intentionally providing false personal information.

    [3] Exhibit A, T7, pages 187-209.

13. The Respondent submits that due to the inconsistent information provided by the Applicant in her application and previous correspondence with the Department, the Tribunal should not be satisfied that the Applicant is a person of good character.

14. The Tribunal raised with the Respondent, and it was confirmed that, the inconsistency in relation to Ms Luthyn was in respect of her date of birth. Her date of birth was, in the various documents provided by the other Applicants, consistently dated 15 March 1986. However, in the delegate’s decision dated 21 January 2021 (with respect to Mr Heccae), Ms Luthyn’s date of birth is recorded as 5 March 1986. The Tribunal invited the Respondent to identify the document relied upon by the delegate in which the date of birth was recorded as 5 March 1986. There was no such document. The reference to Ms Luthyn’s date of birth of 5 March 1986 was an error by the delegate. There were other errors in the delegate’s decision with regards the date of Ms Luthyn’s birth to which I will refer later in this decision.

    Evidence of the Applicants

    Mr Heccae

15. The Applicant provided an undated statement.[4] Following the filing of his application for citizenship, the Applicant was sent under covering letter dated 27 November 2020 an Invitation to Comment on Adverse Information.[5] He provided a response to that Invitation headed Statement of Comment on Adverse Information, and a Statutory Declaration date 31 July 2021.[6]

    [4] Exhibit A, T19, page 535.

    [5] Exhibit A, T17, pages 419-426.

    [6] Exhibit B.

    Undated Statement

16. In his statement, he said his full name was Van Thawng Lian and he was born on 15 July 1981. His father was Se Ring and his mother was In Sah. They lived in Hung Lei Village, Matupi Township in Myanmar. He married Thawng Za Tling on 7 February 2004.

17. The Applicant described the persecution that he and his family members suffered at the hands of the Burmese army on 29 January 2010. They were caught in gunfire between the Chin National Army and the Burmese army. He was severely beaten by the Burmese army and almost died. His eldest brother ran away, their tent was burnt, their livestock killed and the crops in the field were destroyed.

18. The Applicant stated that the Burmese army tied him up and denied him water, but he managed to escape. That same night, members of the Burmese army went to his residence. They beat his mother, younger sister, sister-in-law and her daughter. They tried to rape them. They demanded they find the male members of the family and if not, they would return and they would all be killed.

19. Four members of the Applicant’s family fled that night. In the early hours of the morning of 31 January 2010, the Applicant and other members of his family fled Myanmar to seek asylum in India. They arrived at the city of Sia Sih on 5 February 2010, they continued to Lawng Tlai where they heard about the Delhi UNHCR and so they travelled to New Delhi arriving on 28 March 2010 where they sought assistance from the UNHCR.

20. The Applicant said that he cannot return to Myanmar for fear of being arrested and killed. Their family property has been forfeited to the Burmese army.

    Statement of Comment on Adverse Information and Statutory Declaration

21. In the Invitation to Comment, reference was made to the Applicant’s subclass 202 visa and completed Form 842 Application for an Offshore Humanitarian visa in which he gave his name as Van Thawng Lian Se Ring born 15 July 1981. The Applicant explained that his name at birth was Van Thawng Lian and that Se Ring was his father’s name and not his official name. His correct official family name is Heccae.

22. The Applicant explained the family name was not important in Myanmar but is important in Australian culture and hence he subsequently endeavoured to change his name to officially add Heccae to his name.

23. In regard to the issue with his date of birth, he said that his date of birth was 5 July 1981. It was impossible to get original identity documents from Myanmar. He was advised by staff at the Migrant Resource Centre to change his date of birth because of the concern for the Applicant’s mother and her bad health. He later explained in evidence that the staff told him that by changing his date of birth, he would access pension entitlements and support his mother.

24. In regard his employment history, he said his main job in Myanmar was farming until he fled to India. He is an evangelist and missionary in the Gospel Baptist Church. In Australia, his main job was a religious worker and that is why he failed to declare farming work in his recently provided Form 80.

25. With regard to his educational history in his subclass 202 Visa, he said that he had no schooling, because in New Delhi, the interpreter forbade him to disclose his educational qualifications and that he held a degree, to make it easier to be given refugee status. He said he attended high school in Myanmar then went to Bible College where he obtained a degree after four years. He then studied a Master’s Degree for two years in Bharat Bible College India. He completed a Doctor of Theology Degree from the Apostolic Biblical Theology Seminary in New Delhi and received Reverend Ordination from the Zotung Christian Fellowship in New Delhi where he performed pastor work for five years before travelling to Australia.

26. In the Statutory Declaration, he confirmed he had no documents detailing his family history. These were left behind when he fled Myanmar. He confirmed Se Ring was his father’s name and consistent with his statement, he explained his correct name and his educational history. He is currently a full-time pastor.

    Oral evidence

27. The Applicant confirmed his full name was Van Thawng Lian Heccae and his date of birth is 15 July 1981.

28. He said that he had provided a different date of birth of 23 September 1973 following a conversation with his case worker.  He said at that time, he provided his identity documents namely his identity card and household family record that were not genuine. This occurred in 2015. The Applicant could not find those false documents and could not identify them within the T-Documents.

29. He changed his date of birth on advice from the case worker at the Migrant and Resource Centre who advised that as his mother was getting old, and if he changed his date of birth, he would receive a pension earlier than when he was entitled. The Applicant subsequently met with a freedom of information officer and when told the authenticity of the documents needed to be checked, he did not pursue the pension application. He apologised for his wrongdoing.[7] The Applicant never received a pension. He confirmed his correct date of birth was 15 July 1981.

    [7] Exhibit B, paragraph 2.

30. The Applicant said he could read English. He was referred to his undated statement and signed statutory declaration dated 8 August 2020[8] and an undated one-paged statement[9], and an undated statement and a signed statutory declaration dated 31 July 2021.[10] He said the facts contained in those statements and statutory declarations were true and correct.

    [8] Exhibit A, T16, pages 355-356.

    [9] Ibid, page 535.

    [10] Exhibit B.

31. The Applicant said he was born in Myanmar. He left on 31 January 2010 because the Myanmar military tried to arrest and kill him. At the time, he was a farmer. He described conflict between the Chin National Army and the Myanmar military. He was arrested by the latter but managed to escape.

32. He left Myanmar with members of his family namely his older brother Lin Cco, his mother In Sah, younger sister Sung Hua, daughter-in-law and daughter. They went to India where the Applicant made an Offshore Humanitarian visa application[11] dated 25 June 2012 which referred to the Applicant’s family name as Se Ring. When asked to explain the different family name, he said that when this application was made in India, they did not have a family name at that time. His younger sister (Ms Luthyn) advised him to put his father’s name as the family name. The Tribunal notes that in the Applicant’s Form 80[12] the Applicant’s father’s surname is Se Ring.

    [11] Exhibit A, T19, page 552.

    [12] Exhibit A, T16, page 345.

33. The Offshore Humanitarian visa also refers to the Applicant’s wife Thawng Za Tling Se Ring, his mother In Sah Se Ring, and sister Sung Hua Se Ring. The Applicant said his wife did not travel to India with him but had joined him by the time he made the visa application. The Applicant could not explain why his daughter and daughter-in-law were not named in the application. He thought they were. This application was prepared by his younger sister Ms Luthyn who was then in Malaysia.

34. The Applicant came to Australia arriving on 5 August 2014 with his mother, wife and younger sister. In 2017, the Applicant made an application to change his surname because his family name is different and wanted his correct family name in his document. His true family name is Heccae. He said he did not use that family name when he applied for the Offshore Humanitarian visa because at that time, he did not know he had to use that family name. He has no document to show his family name was Heccae.

35. The Applicant said that he has not made any inquiry in Myanmar to obtain family documents and no one has been asked to do so on his behalf because the documents were lost. The family household list was lost when their house was burnt down by the Myanmar military. He said they tried to catch him and when they failed to do so, the Myanmar military burnt down his house. He did not want to apply for documents from the authorities and does not believe the household list could be obtained from the authorities.

36. When living in Myanmar, he was a farmer. He was also an evangelist missionary in a church. He went to school up to grade 10 which was equivalent to year 12 in Australia. After school, he undertook bible studies to become a pastor. In Myanmar, he studied for 4 years. He became a qualified pastor when he was in India. In India, he studied a master’s degree in theology in New Delhi. This was 2 years of study and a further 2 years for a doctorate degree of theology in India. The Applicant said he has copies of those degrees at home.

37. The Applicant was referred to the Invitation to Comment on Adverse Information[13] which referred to the qualifications necessary to become a Reverend Doctor and that in his subclass 202 visa application, the Applicant stated he held no educational qualifications and did not attend school. When asked to comment on his subclass 202 visa application, he said when he was about to lodge the application, the translator advised him that if he was very qualified, he had no chance of being granted a refugee visa, so on his advice, he said he had no schooling.  This document was originally prepared by his younger sister Esther Luthyn, who was his sponsor and living in Australia at the time.

    [13] Exhibit A, T17, page 419 at page 423.

38. In cross-examination, Mr Heccae was referred to his surnames Se Ring and Heccae. He said he had been known as Van Thawng Lian, without reference to any surname. He has never been known by any other name.

39. Counsel referred the Applicant to the UNHCR card dated 7 September 2011[14] which named the Applicant Van Thawng Lian a.k.a. Joel. He said he had never officially been known by the name Joel. However, when he was attending bible studies, his teacher and friends called him Joel. The Applicant said it was not a nickname nor was it an official name but just the name that they called him. When he applied for the UNHCR, others called him Joel and he had an email address created with the name Joel. But that email address has been cancelled and he has never personally used the name Joel.

    [14] Exhibit A, T19, page 548.

40. The Applicant confirmed that when he left Myanmar, he left with others including his daughter and daughter-in-law. He was referred by Counsel to his Form 842 Offshore Humanitarian Visa dated 25 June 2012 and in particular at page 559.[15] Question 11 reads, “Do you have a husband, wife, de facto partner or any dependents who normally live with you but who are not included in this application.” He answered ‘No’. The Applicant’s explanation for that answer became unclear and during the exchange with Counsel, he said that the daughter and daughter-in-law to whom he referred were his brother’s daughter and daughter-in-law.

    [15] Exhibit A, T19 pages 552 – 576.

41. The Applicant was also referred to question 9[16] which reads “Do you or any other person included in this application have children from a previous marriage/relationship, including customary/traditional marriage?”. He answered yes. The Applicant could not explain why the answer is yes. The Applicant said he did not have and has never had a child.

    [16] Exhibit A, T19 page 557.

42. The Applicant said that his house, which contained his household list, was burnt down in around February 2010 which was after he left Myanmar. He was told this by someone from his village who passed on the information to the Applicant. The Applicant made no mention of his house being burnt down in his statement and statutory declaration dated 31 July 2021[17] which was his response to the Invitation to Comment on Adverse Information. The Applicant said at the time he did not think about that fact and in any event, he did not think it was necessary. I note he did refer to his tent being burnt down by the Burmese army.

    [17] Exhibit B.

43. The Tribunal referred the Applicant to T19 at page 561, question 14 which required the Applicant to detail his wife’s relatives. There were four females named. The Applicant said they were his wife’s biological sister one of whom was deceased, in 2010 or 2011. She died after his wife went to India. It was not a complete list.

44. The Applicant said that his wife had 11 siblings including the deceased sibling.

    Mrs Heccae

45. The Applicant provided an undated statement.[18] Following the filing of her application for citizenship, the Applicant was sent under covering letter dated 27 November 2020 an Invitation to Comment on Adverse Information.[19] She provided a response to the Invitation to Comment headed ‘Statement of Comment on Adverse Information’ and a Statutory Declaration dated 31 July 2021[20] and an undated statement and statutory declaration dated 8 August 2020.[21] Mrs Heccae said she could read English. She confirmed her signature appeared in each statutory declaration and the facts contained in each statutory declaration and statement were true and correct.

    Undated Statement[22]

    [18] Exhibit A, T19, page 536.

    [19] Exhibit A, T13, page 292.

    [20] Exhibit E.

    [21] Exhibit A, T12, pages 284-285.

    [22] Exhibit A, T19, page 536.

1. The Applicant said she was born on 10 May 1975 at Lum Bang Village, Falam Township Myanmar. She married her husband on 7 February 2004. She lived with her husband, and his other family members.

2. The Applicant confirmed her husband, and his family were persecuted by the Burmese army and on 31 January 2010, her husband and his family fled Myanmar. She stayed in Myanmar but after two months, the Burmese army wanted to arrest and kill her so on 3 April 2010, she too fled to India.

   Statement of Comment on Adverse Information and Statutory Declaration

3. With regards to the family name, she confirmed that it was not the practice in Myanmar to use a family name. Se Ring was not her family name. She changed her name to Heccae because of her marriage to her husband and because in Australia, a family name is essential.

4. The Applicant confirmed her correct date of birth is 10 May 1975. Like her husband, the Applicant explained that the attempt to change her date of birth was on advice from staff at the Migrant and Resource Centre because of concerns about her mother in law’s health and they were assisted by an agent in creating a Family Household List and a National Registration Card, but they stopped that process which she said was foolish and she apologised.

5. The Applicant said she had four brothers, three of whom she said were deceased and seven sisters. She was unsure why she did not declare them all and postulated that it may be because of insufficient room on the document. Her parents remained in Myanmar. Her mother died on 10 February 2012 and her father died on 23 September 2018.

6. I note that the inconsistency in regards how many of her siblings were deceased was not put to the Applicant and having heard evidence from her and the other Applicant family members, I am satisfied the naming of three deceased brothers in the statement was an error as opposed to an intended deception. The statement is poorly worded.

7. With regards to her educational history, she confirmed in her subclass 202 visa application that she had no schooling. That was done at the direction of the interpreter so that it would be easier for her to gain refugee status.

   Statement and Statutory Declaration dated 8 August 2020[23]

   [23] Exhibit A, T12, pages 284-285.

8. The Applicant confirmed her family details.

9. She confirmed that she fled to India and that she could pass the border easily without her identity card. She travelled by car and train and arrived in New Delhi on 18 June 2010. She had no identity documents. She was given an UNHCR card which was taken away from her when she arrived in Australia.

10. Following her arrival in Australia, she changed her name to include the family name Heccae because a family name is essential in Australia.

11. The Applicant explained that she had no identity documents. She fled Myanmar on foot to India. She obtained her UNHCR card which remained in her possession until she came to Australia.

    Oral Evidence

12. The Applicant confirmed that she married her husband Mr Heccae in 2004. They were living in a village in Myanmar. She went to school in Myanmar and completed grade 9. After finishing school, she was unemployed and after her marriage, she did not work.  

13. Mrs Heccae confirmed that she had 11 siblings. She said that one of her siblings was deceased. The Tribunal referred Mrs Heccae to her husband’s Offshore Humanitarian Visa application[24] in which he referred to Mrs Heccae’s sister Mawi Vum who her husband said was deceased. She said Mawi Vum is her brother. He is deceased. The other siblings named in Mr Heccae’s Offshore Humanitarian Visa application were all her sisters.

    [24] Exhibit A, T19, page 561.

14. The inconsistency about whether her deceased sibling was a brother or sister and the number of her siblings who were deceased I am satisfied was not due to an intention to mislead or deceive but was a misunderstanding in the course of interpreting her evidence and mistakes made in the preparation of documents including her Statement of Comment on Adverse Information.

15. The Tribunal referred to Mrs Heccae’s Application for Australian Citizenship[25] dated 23 August 2018. Her date of birth of 10 May 1975 was correct. She has never given a different date of birth. Mrs Heccae said she arrived in Australia on 5 August 2014 with her husband, which was consistent with Mr Heccae’s Application for Australian Citizenship. Her mother-in-law and her husband’s sister were with them.

    [25] Exhibit A, T9, pages 227-245.

16. She confirmed that she left Myanmar and fled to India where she lived for 4 ½ years. She did not work in India. She has not worked since coming to Australia.

17. The Tribunal again referred Mrs Heccae to her Application for Australian Citizenship at page 236. The family members listed were all sisters. She agreed that did not list all her siblings. She explained that when completing the form at the Migrant Resource Centre, the person assisting with the form did not complete all of her siblings. She did not know why he named some of them. She could not recall what details she provided to that person. He completed the form on the computer. The contents of the document were not read to her before signing it. Mrs Heccae could not recall if the declaration was explained to her.

18. Mrs Heccae explained that she left for India because her husband had already left. The military were looking for her as well, so she too fled Myanmar. She left about two months after her husband. She was alone and travelled by foot to the India border which was about 7 days travel. At the border, there was a village where she stayed for a night, and then she travelled by car to Sanpai where she stayed for some time. She worked as a house maid. She then travelled to another town and then by train travelled to New Delhi and joined her husband. She and her husband had been apart for about 4 months.

19. Mrs Heccae confirmed the details of her parents. Her mother died in approximately 2012 and her father died in about 2018.

20. When she came to Australia her name was Thawng Za Tling. She applied to change her name by adding the family name Heccae. She also applied to change her date of birth from 1975 to 1968. She tried to change her date of birth because her mother-in-law was very sick and one of the staff at the Migrant and Resource Centre advised her to change the date of birth to make her older in order to get a pension. Her date of birth was never changed, and she never received a pension. Her correct date of birth is 10 May 1975.

21. In cross-examination, Counsel referred the Applicant to her husband’s Offshore Humanitarian visa application[26] which refers to the Applicant’s surname Se Ring whereas in the Application for Australian Citizenship[27], her surname is Heccae. She said she never used the surname Se Ring and the form was not prepared by her. Further in answer to question 3, she said that she had been known by the name Thawng Za Tling and the reason for the change was her marriage. However, there was no reference to the surname Se Ring.

    [26] Exhibit A, T19, page 553.

    [27] Exhibit A, T9, pages 227-245 at page 227.

22. Further in her Form 80, the Applicant gave her name Thawng Za Tling Heccae and said she was previously known as Thawng Za Tling. She did have a nick name which is Ruth. Her UNHCR card at page 549 referred to the name Ruth. The Applicant said she was called Ruth because she was a Christian and someone gave her that name.

23. As for her employment history contained in her Form 80,[28] she referred to being a self-employed farmer in Myanmar, was employed in Australia at a family day care centre in 2016 – 2017 and from 2019, and she has been an interpreter to date. She said the employment was very temporary and not necessary. There was no more employment.

    [28] Ibid, page 266.

24. In the visa application form dated 25 June 2012 at page 561, the Applicant listed her father as deceased. That was a mistake. She said that she believed that Esther Luthyn completed the form. Ms Luthyn was in Australia at the time.  At the time the form was completed, it was her mother who was deceased.

25. In the Form 80[29], she referred to only 5 of her 11 siblings. The Applicant could not explain why. 

    [29] Ibid, page 270.

26. Counsel put to the Applicant that there was false information about her siblings and false information about her employment history. She asked how could the Tribunal be assured that the Applicant has provided all of her personal information. She said that it could be her ignorance which gave rise to the inconsistency.

27. The Tribunal asked the Applicant about the reference in her husband’s Offshore Humanitarian Visa application at page 553 to the surname Se Ring, but the Applicant could not say why that name was given. She was not the author of the document and had never previously used the name Se Ring.

28. In respect of her application for Australian citizenship at page 227, she gave the family name of Heccae because that family name belongs to her husband’s family. She had already completed her application to change her name to Heccae.

    Ms Luthyn

29. The Applicant had been approved for Australian Citizenship but received by letter dated 11 December 2020[30] a ‘Notice of intention to consider cancellation of her citizenship approval’ because she no longer met the eligibility criteria namely, good character. The Notice referred to, amongst other things, the use of the name Se Ring in various visa and related documents and inconsistent information. In a table of family members, her date of birth is different namely 5 March 1986.

    [30] Exhibit A, T39, page 763.

30. In a Statement of Comment on Adverse Information, the Applicant responded to the Notice[31]. She said that in her Humanitarian subclass 202 visa application lodged on 3 September 2012, her official name was Esther Se Ring but her name was changed to Esther Luthyn because of her marriage hence the change of name in the Citizenship Application.

    [31] Exhibit A, T40, page 770.

31. The Tribunal notes the Change of Name Certificate dated 28 April 2017[32]  from the Births Deaths and Marriages Registration Office Adelaide, evidencing the formal change of name as described by the Applicant.

    [32] Exhibit A. T23, page 658.

32. In regards her date of birth, she said her correct and only date of birth is 25 March 1986 and if there was any change in that date, it occurred in a document not filed or prepared by her and it is wrong.

33. Reference to Ling Cco (not Lin Cco) is a reference to her brother and not her sister which was referred to in error in a document filed by her husband and a communication error between her husband and the person preparing the form. She explained that her family name was Heccae but in Myanmar, they do not use family names and at the time of preparing the initial documents she did not know that Heccae was, in fact, their family name. For that reason, her husband gave the family the name Se Ring when the documents were first prepared. Se Ring is the Applicant’s father’s name.

34. Having found out her family name, in her Form 80 dated 22 February 2019[33] she added the family name Heccae to her parents’ name. The Tribunal notes that in her previous Form 80 dated 10 April 2018[34] her mother’s name In Sah and father’s name Se Ring was given for both their respective given names and surname.

    [33] Exhibit A, T31, pages 717-733 at page 729.

    [34] Exhibit A, T30, pages 705- 713 at page 711.

35. She does not have official Myanmar identity documents. She left her documents behind when she fled Myanmar to Malaysia where she sought asylum. She explained her journey from Myanmar to Malaysia by car and then ship to Thailand and by boat to Malaysia.

36. The Applicant also explained that she and her husband are uneducated and required the assistance of others to complete the forms.

37. In a letter dated 13 January 2021, the Applicant received Notification of the decision to cancel the approval of her Australian citizenship and an attached decision record.

    Oral Evidence

38. Ms Esther Luthyn was born on 25 March 1986 in Myanmar. She had never had another birth date.

39. The Tribunal referred the Applicant to Mr Heccae’s Application for Offshore Humanitarian visa.[35] She agreed that she prepared the document. Mr Heccae is her brother. As for the family name when living in Myanmar, she did not have a family name. She had no idea of it. In Myanmar, it was not the custom to have or use a family name.

    [35] Exhibit A, page 552.

40. In preparing the document, she used the name Se Ring because when she was in Malaysia, her husband prepared the application for her and used her father’s name as the family name. That is how the family name Se Ring came into existence. The name Se Ring was in fact her father’s given name, and he never had any other name. The names of her brother, wife, mother and sister are correct to the best of her knowledge.

41. As to the list of names in the Application for an Offshore Humanitarian visa which she helped prepare for her brother Mr Heccae,[36] she was referred to page 561 in which is listed her sister-in-law’s (Mrs Heccae) family. The Applicant said she was the one who possibly prepared that list and she thought that information may have been provided by her brother at the time. She said that it was not that long ago that she first became aware of her sister-in-law having 11 siblings. This was after Mr and Mrs Heccae arrived in Australia and lived with the Applicant.

    [36] Exhibit A, T19 page 552 – 576.

42. The Tribunal referred the Applicant to the Change of Name Certificate dated 28 April 2017[37] showing her name after change from Esther Se Ring to Esther Luthyn.  She used the surname Se Ring until she formally changed her name because she wanted to use her husband’s family name. She and her husband married in Australia on 22 November 2008 shortly after they arrived on 4 November 2008.

    [37] Exhibit A, T23 page 658.

43. In the Application for Australian Citizenship, she gave her name as Esther Luthyn and confirmed she previously had the name Esther Se Ring. I note the reason given for the change of name in the form was the Applicant’s wish to take her husband’s family name.

44. Her Form 80[38] dated 22 February 2019 is in her brother’s handwriting. At page 718, she answered no to the question, ‘have you been known by any other names?’. The Tribunal asked if the Applicant could explain that answer when she previously acknowledged the use of another name. She said it was possibly because of the language barrier. She thought it meant any other name other than that which has previously been given. She said that because of their language, they misunderstood the question. She had no intention to mislead the Government, but she accepted that in completing the form, they may have been an error because of language differences.

    [38] Exhibit A, T31, page 717-733.

45. The Tribunal raised with Counsel for the Respondent that in a previous Form 80 of the Applicant dated 10 April 2018, the corresponding questions about being known by any other name were missing. Those pages were not contained in the T-Documents. The Respondent was unable to produce the missing pages of that Form 80.

46. As to the delegate’s reference to a date of birth of 5 March 1986, the Applicant said that she never gave that date of birth and has always given the date 25 March 1986. The Tribunal accepts the Applicant’s evidence. The error in the date of birth is the delegate’s error.

47. As to the Applicant’s Statement of Comment on Adverse information and statutory declaration dated 31 July 2021, her signature appears on the statutory declaration and the contents of those documents are true and correct.

48. In cross-examination, the Applicant was referred to her Form 80 dated 10 April 2018[39] which refers to her employment history. The Applicant confirmed that employment history was correct apart from 2015 when she worked in a family day-care centre for 6 months. She said that because it was a short period of time, she did not think it was necessary to include it in the form. There was no information omitted from any other form provided to the Respondent.

    [39] Exhibit A, T30 page 705 at page 707.

49. The Applicant was then referred to her Form 80 dated 22 February 2019[40] where at page 721, the employment history there included her employment in a child-care centre in 2015. She could not explain why she omitted the reference to child-care centre employment. This form referred to the Applicant being at school from 1992 – 2005 whereas the previous form said she was a farmer from 1986 – 2005. She said that even when at school, she assisted her parents working on the family farm.

    [40] Exhibit A, T31 pages 717 – 733.

50. Counsel referred the Applicant to her brother’s Offshore Humanitarian visa application that she prepared.[41] In response to question 38, it says that none of the Applicants had schooling. Counsel referred to her brother’s evidence that it was she, Ms Luthyn, who told him not to refer to having any schooling in the form and if he included his education his visa would be refused. The Applicant said that information did not come from her. When overseas, that information came from those who assisted them to complete their UNHCR application. They advised that if you put your education in the form, you will not get the visa straight away so just say “no schooling”. This information did not come from the Applicant. She said that she was not the one to complete this form. She was living in Melbourne at the time and a friend assisted in the completion of the visa application.

    [41] Exhibit A, T19, page 552 at page 573.

51. The Tribunal raised with Counsel where the date of birth of 5 March 1986 in the delegate’s decision came from. Counsel referred to T2, page 92 ‘Summary of Findings and Decision’ dated 13 January 2021. The first paragraph has a date of birth 25 March 1985, the second paragraph that date is 25 March 1986. It was conceded that the difference may be explained by typographical error. At page 94 in the list of family details, the date is 5 March 1986, could not be explained by any of the documents or evidence before the Tribunal. I infer that the date of 5 March is also a typographical error. Hence, the date of birth which was an important factor in this decision about the Applicant’s character has no merit. The error was the delegate’s and not the Applicant providing inconsistent dates of birth.

    Ms Hua

52. Ms Hua provided an undated Statement of Comment on Adverse information and statutory declaration dated 31 July 2021.[42] The Applicant cannot read English, but she remembered the documents and confirmed the contents were true and correct. The contents of those documents in relation to the name Se Ring, the change of date of birth on advice from Migrant Resource Centre staff and her educational history of no schooling were in identical terms to the other Applicants. She said that she in fact had 2 years of schooling.

    [42] Exhibit D.

53. Her history of employment was working on the family farm in Myanmar until she fled to India. She did work briefly as a packer in a factory in New Delhi India. She left all her documents at home when she fled Myanmar.

54. Further, the Applicant provided a one-page statement to the Department [43] which detailed her life in Myanmar, the persecution she and her family suffered and her flight to India with family members.

    [43] Exhibit A, T19, page 538.

    Oral Evidence

55. In evidence, the Applicant said she was born on 5 November 1984 and has never had a different date of birth.

56. In her Application for Citizenship dated 22 August 2018,[44] the Applicant’s family name is referred to as Sung Hua with no given name included on the form. The Applicant said Sung Hua was her name not her family name. She said she does not have a family name. The form was prepared by her brother, Mr Heccae. At page 590 appears the details of the Applicant’s family members including her brother Mr Heccae. In explaining why her brother has a family name and she does not, she said they had a family name in Myanmar. Her parents had a family name, but they did not use it.

    [44] Exhibit A, T20, pages 581-599.

1. The Applicant said she has only had the name Sung Hua. The Tribunal referred the Applicant to the Invitation to Comment on Adverse Information dated 27 November 2020 under heading ‘Available Information to the Department’ which refers to a request to change the name and date of birth through Freedom of Information (FOI) and reads:

   ‘You wanted to amend your name and date of birth from Sung Hua (5/11/1984) to Sung Hua Heccae (20/10/1979)’[45]

   [45] Exhibit A, T22, pages 628-634 at page 632.

2. She said she wanted to add her family name and the case worker advised that she should change her date of birth. As for the change of birth, it was not for herself but for her mother who was sick, however she did not know what benefit was to be achieved by the change of birth. The Applicant did not change her name or date of birth.

3. The Applicant was born in Myanmar, and she lived with her brother Mr Heccae. She left Myanmar on 31 January 2010 with her mother, her brother Mr Heccae and the wife and daughter of her brother Ling Cco. They fled to India. Mr Heccae’s wife joined them later. Subsequently with the assistance of Ms Luthyn, they came to Australia arriving on 5 August 2014.

4. In cross-examination, the Respondent referred to Mr Heccae’s Application for Offshore Humanitarian visa in which the Applicant was included and reads that each Applicant had no schooling. The Applicant said they were advised by one of the staff of UNHCR that if they say they do not have any qualifications, then they will get a visa as soon as possible.

5. In the Applicant’s Form 80,[46] she said in answer to question 20 that she had basic primary school education from 1989 to 1991[47]. In Myanmar, she was self-employed as a farmer as soon as she left school. In India, she worked in a factory. Since being in Australia, in March 2016, she worked as a carer but has otherwise not been employed.

   [46] Dated 1 August 2020.

   [47] Exhibit A, T16, page 363-379 at page 368.

6. In response to the Tribunal, the Applicant could not recall how old she was when she left school. The Applicant agreed that schooling went to year 10 and after that, university. She only completed year two. When she left school, she could not read and write in her native language. Now she cannot read or write English, but she can now read and write in her native language Chin Zo Tung.

7. The Applicant speaks a different language to the other Applicants. She explained that they know how to speak Burmese, but she only speaks Chin Zo Tung. The other Applicants are more educated. Her language is a dialect and is the language they speak at home. Burmese is a more common language.

   Closing submissions

   Respondent

8. The Respondent submits that the Tribunal should not be satisfied about the identity of Mr and Mrs Heccae or Ms Hua given the inconsistencies in their life story and the lack of biometric identity documents being available.

9. In respect of Mr Heccae, it is submitted that he provided inconsistent information with regards his name and education history. He did not give evidence that he was known by the name of Joel until prompted to do so. He said that he provided false information on his visa application because his sister Ms Luthyn told him he would not be granted a visa if he listed all of his educational qualifications.

10. In his Form 80, Mr Heccae said that he had attended primary and high school in Myanmar, but it also became apparent that he completed university studies which was not originally disclosed to the Department.

11. As for the absence of identity documents, Mr Heccae has not enquired about the obtaining documents from Myanmar and has given evidence today that his house was burnt down. Further, he has his university degree documents in his possession but has not produced them.

12. In respect of Mrs Heccae, she has provided inconsistent evidence in respect of her name, education and family composition. She completed forms listing five siblings but now says that she has 11 siblings. She also declared in her visa application of 2012 that her father was deceased yet in her evidence today, she said he lived until 2018. Mrs Heccae was unable to explain the inconsistencies in her evidence.

13. In respect of Ms Hua, there were inconsistencies in her evidence in respect of her name and education history. In her visa application, she said she had no schooling despite completing documents that refer to her primary school education. There are no documents in respect of her education history.

14. It was submitted that in respect of the Applicants, the absence of strong documentation or biometrics, together with the evidence, the Tribunal should not be satisfied as to the Applicants’ life story.

15. In relation to Ms Luthyn, the Respondent submits that the Tribunal should not be satisfied that she is a person of good character as required by the Act due to the inconsistent and misleading information she provided to the other Applicants and the Department. She provided inconsistent evidence about her name being Esther Luthyn and Esther Se Ring and has failed to confirm that she had been known by other names as evidenced in her Form 80 which she explained may be the consequence of a translation error.

16. Counsel submitted that Ms Luthyn also provided inconsistent evidence about her employment history and did not think it was necessary to include the detail in the forms completed for the Department.

17. In respect of the discrepancies with regards her date of birth, the Respondent accepts that they could be due to a typographical error.

18. Mr Heccae gave evidence that Ms Luthyn told him not to include his education history in his visa application as this may cause him not to obtain the visa.  Ms Luthyn initially said that she provided this information but then said it was information that was provided by a member of UNHCR and not her. The Respondent submits that this information was intended to mislead the Department about Mr Heccae’s educational history.

19. The Respondent submits that due to Ms Luthyn’s dishonest behaviour, the Tribunal should not be satisfied that she is a person of good character as required by the Act.

    Ms Hua

20. Ms Hua submits that she is new to this country and therefore in her application for citizenship and her previous visa application, she was relying on help from others who speak English. Insofar as there are errors, she apologises. It is because of their ignorance and Ms Hua asks for forgiveness.

    Mr Heccae and Mrs Heccae

21. Mr Heccae submits that upon arrival in Australia, the family had no knowledge of what was involved in applying for citizenship and the procedure. He is currently a pastor in the community church. He is required to travel outside of Australia for missionary work and for that purpose, he seeks Australian citizenship. Mrs Heccae joined in the submission of the importance of a grant of Australian citizenship in assisting her and her husband in pursuing their religious causes.

    Ms Luthyn

22. Ms Luthyn joined in the submission of the other Applicants. Further, she submits that her children were born in Australia and are at school in Australia and it is important for her family that they have the opportunity to obtain Australian citizenship.

    Consideration

23. The Applicants are all members of the same family from Myanmar. Mr Heccae and his sisters Ms Hua and Ms Luthyn’s family were farmers and they all worked to varying degrees on the family farm. Mrs Heccae lived with the family after her marriage.

24. It was only the Applicants Mr and Mrs Heccae who had any significant education and in particular, Mr Heccae had a university education in Myanmar studying to be a pastor, which studies he completed after fleeing to India.

25. Ms Hua says that she was educated to year 2 and Ms Luthyn described herself as uneducated. Ms Hua was illiterate when she left school, but she can now read and write in her native language. She cannot read or write English.

26. All of the Applicants were assisted in the Tribunal hearing by an interpreter and some family members can now read and write English but to varying degrees. But I am satisfied that when the family members fled Myanmar, due to persecution by the Burmese army, their respective skills in the English language were poor to non-existent.

27. Completing forms required assistance of others and it is reasonable that mistakes may be made, and language difficulties may contribute to imperfect forms. When Ms Luthyn helped in the preparation of the Offshore Humanitarian visa application for her brother Mr Heccae, she engaged the help of a friend.

28. To the extent that the educational history of the Applicant was not correct, I accept that this was the result of those who provided assistance completing the forms and advising each Applicant not to disclose their educational history for fear of delay in processing their visa application or being impeded in receiving their grant of visa.

29. I accept the evidence given by each Applicant about the persecution each suffered in Myanmar by the Burmese army. Mr Heccae was captured, tied up, severely beaten and almost died. The family tent was burnt, their livestock killed, and crops were destroyed. I accept that after leaving Myanmar that the family home was burnt down by the Burmese army.

30. I accept that they took the advice of others and that forms did not disclose their educational history; but when regard is had to the terrifying circumstances that they faced and then fled Myanmar, those discrepancies can be well understood and do not detract from the credibility and reliability of the evidence of each of the Applicants. I also accept that it was not Ms Luthyn who told Mr Heccae what to say in his forms but was the advice of another who assisted Ms Luthyn with the completion of documents.

31. I also accept that surnames were not used in Myanmar and I found the explanation for the surname Se Ring being first included at the suggestion of Ms Luthyn’s husband compelling. I also note that some of the Applicants sought to formerly change their surname from Se Ring to Heccae or Luthyn which supports the Applicants’ endeavours to be frank and honest in their dealings with government.

32. It is true that Mr and Mr Heccae and Ms Hua gave a different date of birth on advice from the staff of Migrant Resource Centre in order to receive pension monies to help care for Mr Heccae’s aging mother who was unwell. However, they did not pursue that deception and apologised for it, which apology I accept was genuine.

33. Having heard from each Applicant and having considered their statements and statutory declarations together with the various forms that were required to be completed, I am satisfied that they were not a sophisticated family. In considering the evidence about family name, they came from a country that did not refer to or use a person’s family name.  They were asked to complete forms for a country in which a person’s family was an important aspect of the form. I am satisfied that they did their best and did not act to intentionally deceive or mislead Australian authorities when referring to the surname Se Ring.

34. As I have said, I accept Ms Luthyn’s evidence that when faced with completing an Offshore Humanitarian visa application form that required the giving of a family name, that her now husband suggested the use of their father’s given name(s) Se Ring as their family name. This was not done dishonestly or with an intention to provide false information or mislead the Department. It was done in a genuine endeavour to complete a form that was not referrable to their Myanmar culture and imposed upon them a cultural expectation of a western civilisation.

35. I also accept Ms Hua’s evidence that she did not have or know that her family had a family name and that consequently, Sung Hua was the only name she had ever known. She completed forms using the name Sung Hua as both her given name and family name or just her given name. Again, she was not intentionally providing false information or endeavouring to mislead the Department. She did the best she could, given her cultural differences and very limited education.

36. It is not unusual to see errors in forms completed by person when overseas, who have little or no English and who rely on others for guidance and advise about what to include in the forms, and to accurately translate into English the required details to be inserted into the forms. I also note the extraordinary error in the delegate’s decision in which Ms Luthyn was given three different birth dates which errors were not of her making, were not referred to in any document provided by Ms Luthyn and can only be explained by typographical error of the delegate. I am satisfied that Ms Luthyn has always provided the one, and correct date of birth.

37. I am satisfied that each of the Applicants were credible and reliable witnesses who were truthful in detailing their life story. They are all members of the same family and their respective evidence were consistent in regards to their life in Myanmar, the flight to escape persecution and generally the details of their family component. Albeit some evidence such as the incomplete list of Mrs Heccae’s siblings was evidence about which the Respondent was critical, I remind myself that the form was prepared with the assistance of another, that Mrs Heccae could not remember if the contents of the form being read back to her prior to signing and could not remember whether the declaration was ever read or explained to her.

38. The Respondent was also critical of Mr and Mrs Heccae not disclosing the use of different names as contained in the UNHCR card. But neither name was one used by either Applicant. Mrs Heccae said hers was a ‘nickname’ and Mr Heccae said it was a name given to him by his teacher and friends when he attended bible studies. It was not a name he used. I accept their explanations and am satisfied that the evidence does not impugn their credibility and reliability.

    Conclusion

    Mr and Mrs Heccae and Ms Hua

39. In respect of Mr and Mrs Heccae and Ms Hua, I have had regard to the three pillars of identity. I agree with the Respondent’s submission that in the absence of documents and biometric evidence, that heavy reliance will need to be placed on the Applicants’ respective life story, which should be consistent and credible.

40. I have also taken into account that neither Applicant has attempted to obtain documents from Myanmar that may be available in support of their identification. The reason is that they fled Myanmar without the documents, their family property has been seized and their family home burnt down. They do not believe such documents would be available.

41. However, I was impressed by each Applicant as witnesses of truth and that heavy reliance is properly given to their evidence and in particular their life story which I find was consistent and credible; such that I am satisfied as to each Applicant’s identity in accordance with s 24(3) of the Act.

    Ms Luthyn

42. I am satisfied that the Applicant was both credible and reliable in the evidence she gave to the Tribunal. I also accept her evidence that she was an uneducated person and relied on others for assistance in completion of forms.

43. I accept that the Applicant when in Myanmar did not have or use a surname. In regards to the use of the name Se Ring, I accept that the Applicant’s now husband, suggested the surname. The importance of a surname was not understood by the Applicant. The fact that the Applicant went through a formal change of name process after her marriage, to assume her husband’s name is further evidence that she did not act in any way to mislead or deceive the Department about her surname.

44. As to the criticisms raised by the Respondent in regards the inconsistent, incorrect or incomplete contents of the various forms for which the Applicant was responsible, I accept the Applicant’s explanation for those inconsistencies, errors or omissions. I am satisfied that they do not impugn the Applicant’s character. As I have said, mistakes are easily made and understood given the background and circumstances of the Applicant. The fact that mistakes can easily be made are evident in the delegate’s decision which referred to the Applicant having three different birth dates which can only be explained by typographical error, and not deception by the Applicant.

45. I am satisfied that the Applicant is a person of good character for the purpose of s 25(2)(b)(iii) of the Act.

    Decision

    Mr Van Thawng Lian Heccae – 2021/0565

46. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Act.

    Ms Thawng Za Tling Heccae – 2021/0563

47. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Act.

    Ms Sung Hua – 2021/0569

48. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Act.

    Ms Esther Luthyn – 2021/0573

49. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the good character criteria set out in s 25(2)(b)(iii) of the Act.

151.    

152.    I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

.................[Sgnd]................................

Associate

Dated: 14 December 2022

Dates of hearing:	28 June 2022
Advocate for the Applicants:	Self-represented
Advocate for the Respondent:	Sarah Hardie, HWL Ebsworth Lawyers