JGGN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 2405

JGGN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2405 (20 July 2021)
Division:GENERAL DIVISION
File Number(s): 2017/1365
Re:JGGN
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 July 2021
Place:Sydney

The decision under review is set aside and the matter is remitted to the Minister for consideration with the direction that the Applicant satisfies the requirements of subsection 21(8) of the Australian Citizenship Act 2007 (Cth).
................................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – Rohingya persons – applicant is a minor child – identity of the father – identity of the mother – biometric – reliability of fingerprint evidence – documentary – life story – meaning of identity – application of Citizenship Procedural Instructions – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Australian Citizenship Act 2007 (Cth) (Act) ss 21 and 24
Australian Constitution
Bangladesh: Births and Deaths Registration Act, 2004 [Bangladesh], Act No. 29 of 2004, 7 December 2004, available at: [accessed 19 July 2021]
Bangladesh: The Citizenship (Amendment) Act, 1951 [Bangladesh], Act II of 1951, 13 April 1951, available at: [accessed 19 July 2021]
Evidence Act 1995 (Cth) Dictionary pt 1
CASES
Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360
Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7
Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
AP and Minister for Immigration and Border Protection [2014] AATA 706
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), International Court of Justice 23 January 2020, General List no. 178
Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
DLSV and Minister for Immigration and Border Protection [2017] AATA 2999
Fox v Percy [2003] HCA 22
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
Kodari Securities Pty Ltd v Tran [2020] FCAFC 164
Love v Commonwealth of Australia [2020] HCA 3
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
Re Canavan [2017] HCA 45
Re Wood [1988] HCA 22
R v Burgess [1936] HCA 52
Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988
Shi v Migration Agents Registration Authority [2008] HCA 31
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540
Yusuf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2096
SECONDARY MATERIALS
Arthur Conan Doyle, The Sign of Four (1890) (Penguin Classic, 1981)
Australian Broadcasting Corporation (ABC), Malaysian immigration officers sacked for deliberately disabling passport controls at airport (1 June 2016): < Citizenship Policy Statement
Australian Law Dictionary (Third edition, Oxford University Press) 2017
Where were you on Thursday the 15^th?: Testing alibis is not as straightforward as it seems, The Economist, 5 June 2021
Cicero, In Verrem
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
Department of Foreign Affairs and Trade, Country Report – Bangladesh (22 August 2019)
Department of Foreign Affairs and Trade, Rohingya: Issues related to statelessness (2 June 2021)
DPA, Rohingyas are not citizens: Myanmar minister (12 July 2016): < Malaysia Today (online), Malaysia starts fingerprinting visitors (5 May 2011): < Edmond, Kristy Martire and Mehera San Roque, Expert Report and the Forensic Sciences, University of New South Wales Law Journal 40(2) 2017
Kim Rubenstein, Australian Citizenship Law (Second edition, Lawbook Co) 2017
King James Bible
Homeland Security News Wire (online), Malaysia begins fingerprinting all visitors (10 May 2011): < Identity Proofing Guidelines
P Prem Kumar, Anadolu Agency (online) 15 officers fired in Malaysia airport migration scandal (31 May 2016): <
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
The Fingerprint Inquiry, “The Fingerprint Inquiry Report” (December 2011): < The Peloponnesian War: Book 2
REASONS FOR DECISION
Chris Puplick AM, Senior Member
20 July 2021
PRELIMINARY

In this case, the Applicant is a minor child who was born in Australia.
The case brings a particularly challenging matter before the Tribunal. In most Tribunal cases where the onus lies upon an applicant to persuade the Tribunal that it can be positively satisfied as to their identity it is not uncommon for applicants to be unable to remember precise details about various matters which may be of importance. For example in cultures where precise dates of birth are not matters of great moment, a failure to remember when a person was born may not be regarded as carrying the same weight as might be the case with more date-obsessed cultures such as Australia’s. Similarly, the failure to remember either the precise date of an event or the exact sequence of events is not uncommon – indeed they are universal. Failure to remember precise details of matters such as the exact configuration of, or processes at an unfamiliar airport; the number of days spent waiting for people smugglers to complete arrangements or the days spent at sea are not necessarily to be held against an applicant and be taken as indicative of their lack of honesty or credibility.[1]
[1] Where were you on Thursday the 15^th?: Testing alibis is not as straightforward as it seems, The Economist, 5 June 2021 at 70.
The Tribunal also notes the prescient warning of the Full Federal Court in MZZJO[2] to treat with caution and not to place excessive reliance on statements made by applicants at their first on-arrival immigration interview. The Tribunal appreciates that in this instance the relevant interview with the Applicant’s mother (Ms SK) took place about a month after first arrival, but the Court’s caveats remain, in its opinion, relevant.
[2] MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 at [56]-[57].
What is different in this case is that an absolutely critical point arises in terms of the incompatibility of a central contention by both parties.
As will be seen below, the Minister contends that the Applicant’s mother was present at Kuala Lumpur Airport on a particular day having arrived there on an aeroplane and having had her fingerprint taken by the Malaysian authorities.
Ms SK, under oath, tells the Tribunal that she has never been in an aeroplane in her life, and was not at Kuala Lumpur Airport on that (or any other) day and that she was never fingerprinted at any stage or anywhere prior to her arrival in Australia.[3]
[3] Also Applicant’s Submissions, D16: record of interview (31 July 2018) at 8.
Both of those above statements by Ms SK need qualification: she has been in an aeroplane when transferred from Christmas Island to the mainland; and there is evidence of a fingerprint which appears on her Burmese white card.[4] The Tribunal does not take these exceptions as otherwise vitiating her claims.
[4] Applicant’s Submissions, D10(c).
One of those two alternate statements put forward by the Minister and Ms SK respectively has to be false. Either the Minister is in error or else the Applicant has deliberately lied to the Tribunal.
It is one thing to find that an Applicant’s narrative is lacking in credibility because of their lapse or failure of memory. It would be another to find that they have deliberately lied and sought to mislead the Tribunal.
PROCEEDINGS
As stated, the Applicant in these proceedings is a minor child. On 8 December 2014 an application to grant the Applicant citizenship was lodged on her behalf, by the Refugee and Immigration Legal Service (RAILS).[5]
[5] Tribunal documents (T-documents) at 142.
That application was refused by a delegate of the Minister (the Respondent) on 13 February 2017 on the basis that the Delegate was not satisfied that the applicant had never been a national or citizen of another country.
The Applicant (via her legal advisors) sought a review of that decision by appeal to this Tribunal on 10 March 2017. The Applicant sought certain documents from the Respondent, which were required, by summons, to be produced by 27 November 2019.
It appears that the summonsed material was only provided to the Applicant in late January 2020 resulting in an adjournment of proceedings to allow the Applicant to consider the material. Thereafter the matter was before the Tribunal for a direction hearing until it came before the Tribunal in March 2020 when the Applicant sought an indefinite adjournment of proceedings until an in-person listing could be listed and in order to seek further evidence and to challenge certain assertions of the Minister in relation to the taking and identification of fingerprints, the issue which had been the subject of the previous summons.
The Respondent consented to the adjournment and it was only when the Applicant advised that they were unable to secure further evidence in relation to the fingerprints issue and that the matter could be listed for an in-person hearing, the matter was finally listed for hearing on 7 June 2021. The Tribunal conducted an in-person hearing, subject to COVID-19 restriction protocols with both parties being legally represented.
BACKGROUND
The relevant legislation is to be found in section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) as follows:
21 Application and eligibility for citizenship
A person may make an application to the Minister to become an Australian citizen.
…
(8) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) the person was born in Australia; and
(b) the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(c) the person has:
(i) never been a national of any country; and
(ii) never been a citizen of any country; and
(d) the person:
(i) is not entitled to acquire the nationality of a foreign country; and
(ii) is not entitled to acquire the citizenship of a foreign country.
The Applicant was born in Australia (in October 2013) to two parents, both of whom were lawfully resident in Australia at the time of her birth and the Applicant is entitled to Australian citizenship by conferral, if it is established that both of her parents were, at the time of her birth, stateless persons.
The Applicant child is not entitled to Australian citizenship if, at the time of her birth, one or both of her parents were a citizen of, or eligible to be a citizen of, another country and as a result, that such status of either parent conferred upon her (the Applicant) either automatic and immediate citizenship or a right to acquire such citizenship at a later date.[6]
[6] Australian Citizenship Act 2007 (Cth) (Act) s 21(8)(d).
In relation to the child’s father, Mr HR, the Delegate who made the original citizenship refusal decision determined that she was “unable to determine if… [Mr HR] is… a Bangladeshi citizen.”[7]
[7] T-documents at 15.
In the meantime, on 18 December 2018 the Applicant and both of her parents were granted Safe Haven Enterprise visas (subclass 790).
The Delegate who made the Safe Haven Enterprise Visa (SHEV) assessment also concluded that Mr HR “is not a Bangladeshi or Burmese citizen.”[8] Both Delegates thus come to a conclusion that the Applicant’s father is, in effect, a stateless person.
[8] Applicant’s Submissions, D19.
The Respondent apparently makes no submission on this point and so the Tribunal takes it that it does not contest that conclusion.
The Tribunal is not bound in any way to necessarily accept the assessments made by previous decision-makers, and indeed is specifically enjoined by High Court authority to make its own independent decision on the facts as they were before it at the time of that decision-making.[9]
[9] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Nevertheless, in the absence of any challenge to the finding of two independent decision-makers, and despite some doubts being raised as to the father’s identity by the Identity Integrity Assessment Report (IIAR)[10] the Tribunal is prepared to proceed on the basis that Mr HR is a stateless person as indeed he claims to be. The IIAR is itself dependent upon resolution of Ms SK’s status although the Tribunal in accepting that he is a member of the Rohingya community born in Myanmar is also led to accept that those very factors render him stateless due to the policies of the government of Myanmar.
[10] T-documents at 109 (undated).
This leaves for determination the status of the Applicant’s mother, Ms SK.
THE MATTER AT ISSUE
The issue is then simply this:
(a)is the Applicant’s mother, Ms SK, a stateless person of Rohingya ethnicity as:
(i)she claims,[11] and
(ii)the SHEV delegate has found;[12]
(b)or is she RAH, a citizen of Bangladesh and holder of Bangladeshi passport number XXXXX 310[13] as claimed by the Respondent based upon the biometric matching of Ms SK’s fingerprints with those of a Bangladeshi citizen taken at Kuala Lumpur International Airport on 16 September 2011[14] and as confirmed by a report from the Biometric Resolution Centre of the (then) Department of Immigration and Border Protection attested to on 4 August 2017.[15]
[11] Applicant’s Statutory Declaration, 27 September 2019.
[12] Applicant’s Submissions, D18.
[13] T-documents at 14.
[14] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [5].
[15] Affidavit of Caroline Ashworth dated 4 August 2017. The name RAH as shown in the Respondent’s SFIC appears in a variety of spellings, for example differently in the affidavit of Ms Ashworth. The Tribunal will use RAH in its considerations to refer to this variety of spellings.
These are examination and evaluation procedures which the Tribunal notes are contested by the Applicant in relation to both the absence of certain primary evidence in its hands and in relation to their attack on the overall integrity of the Malaysian immigration identification system.
The date of 16 September 2011 is, significantly, the date shown on the marriage certificate of Mr HR and SK1[16] which was issued in Malaysia.
[16] T-documents at 89 and Applicant’s Submissions, D29. An alternative name is given for Ms SK here, which will be referred to as SK1.
If the biometric evidence is accepted, (and the Applicant’s mother is actually Ms RAH) then the Applicant child would be either a Bangladeshi citizen by virtue of section 5 of the Bangladesh Citizenship Act 1951, or would be eligible to acquire such citizenship, albeit late and upon payment of a fee, under section 13 of the Bangladesh Births and Deaths Registration Act 2004, provided further that the documents required under subsection (iv) thereof are extant or can be obtained, and hence the actual acquisition of citizenship feasible or practicable.
Relevantly, those sections provide:
Bangladesh Citizenship Act 1951 (Act II of 1951)
5. Subject to the provisions of section 3[17] a person born after the commencement of this Act, shall be a citizen of Bangladesh by descent if his [father or mother] is a citizen of Bangladesh at the time of his birth:
Provided that if the [father or mother] of such a person is a citizen of Bangladesh by descent only, that person shall not be a citizen of Bangladesh by virtue of this section unless –
(a) that person’s birth having occurred in a country outside Bangladesh is registered at Bangladesh Consulate or Mission in that country, or where there is no Bangladesh Consulate or Mission or at a Bangladesh Consulate or Mission in the country nearest to that country; or
(b) that person’s (father or mother) is, at the time of the birth, in the service of any Government in Bangladesh.
[17] This section has no relevance in this matter.
The Bangladesh Births and Registration Act 2004 provides:
8. Persons Responsible for giving information of births and deaths.-
(1) The father or mother or guardian or the prescribed persons shall be liable to provide information related to birth of child to the Registrar within 45 (forty five) days of the child’s birth.
…
13. Delayed Registration-
If birth and death are not registered within the stipulated time mentioned in the section 8, the birth and deaths can be registered later-on with payment of late fee and following the prescribed process.
Provided that in case of birth and death that took place before promulgation of this law, shall be allowed to be registered without late fee within two years of this law coming into force.
Finally, regardless of the decision made by the Tribunal in relation to Ms SK, the Tribunal should seek to make a decision which is in the best interests of the child as recognised by case law and prescribed in the Citizenship Procedural Instructions, confined at all times within the limitation and restraints of the Citizenship Act itself.
IS THE STARTING POINT ALSO THE FINISHING POINT?
At the Tribunal hearing, evidence was taken from both the Applicant’s parents, each of whom was led through a substantial amount of evidence-in-chief and each of whom was subject to detailed cross-examination by both the Respondent and the Tribunal.
The Tribunal has taken the approach that it must start with an examination of the principal issue which turns upon the fingerprint matching at Kuala Lumpur Airport on 16 September 2011.
Regardless of the definitions of what constitutes “identity” which the Tribunal would normally consider at this stage of its deliberations, if the Respondent is correct then the matter need go no further because the Applicant’s mother will have been established as a Bangladeshi citizen and hence, through her, the Applicant will also be eligible for such status. If this is the case, the Applicant would fail the citizenship requirements of section 21(8)(d) of the Act.
If, on the other hand, the Applicant is correct then it would be necessary to consider in detail the evidence presented to the Tribunal and come to a conclusion about the citizenship status or nationality of the Applicant’s mother.
In such considerations it must be borne in mind that it lies upon the Applicant to positively satisfy the Tribunal that they are who they claim to be.
The Respondent’s position
It is provided that “under an arrangement between the Australian and Malaysian governments” requests may be made for assistance in security matters such as fingerprint identification. On 11 February 2014 Ms SK’s fingerprints were sent by the Australian authorities to Malaysia to see if they matched any records of “air arrivals” there. A match was found, and the Malaysian authorities provided details to their Australian counterparts on 22 April 2014.[18]
[18] T-documents at 14.

Rather than attempt to summarise the Respondent’s position, the Tribunal sets it out in full as given in the Respondent’s Reply Submissions:
“4. The applicant has submitted that no adverse inference should be drawn from her failure to file any expert evidence in relation to the Malaysian Fingerprints. In support of that contention, the applicant relies on the affidavit of Isobel McGarity (sworn 4 March 2020). In summary, Ms McGarity’s affidavit explains that it was not financially-viable for the applicant to obtain expert reports.
5. The Minister does not seek to challenge Ms McGarity’s evidence. However, whilst that evidence explains why the applicant has not obtained her own expert fingerprint analysis, it does not change the fact that before the Tribunal is the uncontradicted expert evidence of Ms Caroline Ashworth, which supports the Minister’s contention that the applicant’s mother was fingerprint matched using a Bangladeshi passport to enter Malaysia on 16 September 2011.
6. In Annexure A to her affidavit, Ms Ashworth confirms that on 6 June 2017, she conducted a fingerprint comparison and confirmed that the fingerprints of the applicant’s mother matched those provided by the Malaysian government. This result was confirmed by a fingerprint examiner also employed by the Minister’s Department. This result confirms the match referred to by the delegate in the decision under review (T2/14).
7. Ms Ashworth is an accredited expert in the science of fingerprints, who has been employed as a fingerprint specialist since 1988 (Ashworth Affidavit at [3]-[4]). Whatever the reason that the applicant has not obtained her own expert evidence, the Minister respectfully submits that in the absence of that evidence, the Tribunal should accept the uncontradicted evidence of Ms Ashworth. In this regard, the Minister notes that the applicant has not sought to require Ms Ashworth for cross-examination.
8. In the absence of expert evidence, the applicant argues that limited weight should be placed on Ms Ashworth’s evidence because of its purported noncompliance with the ACE-V standard. In support, the applicant has provided copies of four reports and three academic articles. As a preliminary matter, it is relevant to note that none of the material provided by the applicant addresses the biodata match. The Minister submits that the only evidence before the Tribunal that addresses the biodata match relevant to this application is the affidavit of Ms Caroline Ashworth.
9. Information before the Tribunal indicates that computerised fingerprint match systems can be accurate more than 99% of the time, and the statistical likelihood of a false positive rate can be as low as 0.01%.1 In light of that evidence, the Minister respectfully contends that the overwhelming inference to be drawn is that the fingerprints are those of the applicant.
10. At paragraph 17 of his SFIC, the Minister submitted that there is no evidence to corroborate the applicant’s assertion that the applicant’s mother was not at an airport in Malaysia on 16 September 2011. Whilst any such evidence, presumably, would not be contingent on the availability of expert evidence, the applicant has not put on any evidence to corroborate the applicant’s assertion as to her presence in Malaysia. The evidence as to how the applicant’s mother came to be in Malaysia remains inconsistent and should be afforded little weight.
11. At [18]-[19] of her further contentions, the applicant contends that even if the Tribunal was to find that the biomatched fingerprints are those of the applicant’s mother, it should still find that the applicant’s mother was not the proper holder of the Bangladeshi passport. With respect, such a finding is not available on the evidence before the Tribunal in circumstances where there is no evidentiary basis for such a finding to be made. Relevantly, there is no evidence before the Tribunal to suggest that the applicant’s mother used a fake Bangladeshi passport. Indeed, the applicant’s mother has specifically disavowed having used a Bangladeshi passport or having had her fingerprints taken (see, for example, the statutory declaration of the applicant’s mother dated 27 September 2019 at [26]). A finding for which there is no logically probative evidence, is a finding outside of jurisdiction: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.
12. Accordingly, the Minister continues to contend that the weight of the evidence supports a finding that the applicant’s mother is the proper owner of the Bangladeshi passport to which she was matched. The inference to be drawn from this is that the applicant’s mother is a citizen of Bangladesh. Therefore, the applicant is not stateless, but was eligible to become a Bangladeshi citizen at the time of her birth and continues to be eligible for citizenship under the Births and Deaths Registration Act.”
The Tribunal also notes information contained in an Identity Integrity Assessment Form to the effect that:
“The Malaysian government will only capture a Biometric when a person arrives by Air or alternatively is placed in to immigration detention.”[19]
[19] T-documents at 120.
The Applicant’s position
There are four elements to the Applicant’s position challenging both the Respondent’s narrative and conclusions.
The Applicant’s mother’s personal evidence
In sworn evidence before the Tribunal Ms SK expressly denied that she had ever been in an aeroplane and that she was not at Kuala Lumpur Airport at any time in her life, including 16 September 2011. Her claim was that she entered Malaysia by boat from Thailand.
In her Statutory Declaration of 27 September 2019, she states:
“I was never at the airport on this day. I have never held a Bangladeshi passport. I cannot understand how a finger print has been linked to me. The first time I was every (sic) fingerprinted was on Christmas Island. The first time I ever flew on a plane was between Christmas Island and Darwin.”
The Tribunal is prepared to accept that when Ms SK says that she had never been in an aeroplane she was referring to events before her arrival in Australia.
The reliability of the Malaysian airport/fingerprint systems
As with the Respondent’s position, this is best explicated by quoting in full the submission of the Refugee Advice and Casework Service put to the Tribunal:[20]
[20] Applicant’s Submissions, D3.
“According to the Department of Immigration and Border Protection (the Department), the fingerprints of Ms [SK] match those of a Ms [RAH], the holder of Bangladeshi passport number [XXXXX ]310. We note that copies of these fingerprints and passport have not been made available to the Applicant. RACS lodged a freedom of information request on 6 October 2017, requesting this evidence (amongst other documents). The Department responded to this request on 2 December 2017, but did not release copies of these fingerprints or passport.
We submit that there has been an error in matching the fingerprints of Ms [RAH] and Ms [SK]. It is our submission that the risk of such an error was increased by the fact that the biometric data against which Ms [SK]’s fingerprints were compared was taken at Kuala Lumpur International Airport in 2011, and subsequently stored by the Malaysian immigration authorities, for the reasons discussed below.
The issues affecting Malaysia’s passport control and airport biometrics systems, particularly during the period that Ms [SK] entered and resided in Malaysia, are well-documented.
We note that Malaysia only commenced fingerprinting travellers in mid-2011,[21] just a few months before the Applicant’s mother entered Malaysia. In 2011, the Director of Malaysia’s Immigration Department acknowledged that ‘during the current trial period, there are bound to be hiccups. However, all the problems encountered will be identified and rectified.’[22] Despite these assurances, Malaysia’s immigration system has been affected by significant issues, including serious security breaches and technical faults as discussed below.
[21] Free Malaysia Today (online), Malaysia starts fingerprinting visitors (5 May 2011)
< align="left">[22] Homeland Security News Wire (online), Malaysia begins fingerprinting all visitors (10 May 2011)
<
The integrity of Malaysian passport controls and biometrics data has been compromised by the fact that in 2016, 37 immigration department officers were found guilty of sabotaging the ‘Malaysian Immigration System (MyIMMs) over the past six years’.[23] In 2016, the Immigration Director-General, Sakib Kusmi, said that:
[23] P Prem Kumar, Anadolu Agency (online) 15 officers fired in Malaysia airport migration scandal (31 May 2016) < department's internal probe found that the tampering had begun in 2010 and involved a network masterminded by syndicates from abroad that made use of Malaysians, including immigration officers.
"The syndicate hacked or breached our system with the help of the involved immigration officers and it was able to control the movement of anyone entering or leaving the country," he said [emphasis added].[24]
[24] Ibid.
Kusmi also said that “the department found elements of sabotage in its myIMMs system since 2010, adding that the issue had grown to a serious level, forcing the authorities' hand”.[25]
[25] Ibid.
The Australian Broadcasting Corporation (ABC) also reported on these endemic integrity and corruption issues:
Ongoing technical faults regularly reported at Kuala Lumpur International Airport (KLIA), which led to hundreds of passengers at a time being waved through immigration without the normal checks, led to the three-month investigation.
Ahmad Zahid Hamidi said about 100 people, including immigration officers, were believed to be involved in sabotaging the myIMMs system, which verifies if a passport had been stolen or reported lost.
Mr Sakib (Immigration Department director-general) said the internal probe found that international syndicates tampered with KLIA's systems assisted by immigration and IT staff, as well as software vendors.
"The syndicate ... was able to control the movement of anyone entering or leaving the country," he said.[26]
Stolen or forged passports have long been a problem for ASEAN (Association of Southeast Asian Nations) countries, with smuggling gangs using them to move – among others – Uighur Muslims from China's Xinjiang region and Rohingya Muslims from Myanmar to third countries.[27]
In light of the acknowledged inaccuracies in the biometrics data taken by the Malaysian authorities during 2011, it is not implausible that a match between Ms [SK]’s fingerprints and those of Ms [RAH] is an error relating to the Malaysian authorities’ collection, storage or use of data. We submit that it is possible that the serious faults in Malaysia’s passport control and immigration systems during this period also increases the likelihood that an error was made when comparing the fingerprints of Ms [RAH] with Ms [SK]’s fingerprints.
The fact that ‘hundreds of passengers at a time’ were ‘waved through immigration without the normal checks’ in Malaysia also raises doubts as to whether or not Bangladeshi passport number [XXXXX ]310 was subject to the necessary checks to confirm that it was a genuine travel document. We therefore urge caution in relation to any further consideration of the Department’s decision to ‘give great weight to the fact that Malaysian authorities accepted the document as genuine at the time the fingerprints were taken and allowed entry to Malaysia.’ The passport may not have been a genuine document, and the person who entered Malaysia on that passport on 16 September 2011 may not have been a Bangladeshi citizen.”
[26] Australian Broadcasting Corporation (ABC), Malaysian immigration officers sacked for deliberately disabling passport controls at airport (1 June 2016) < align="left">[27] P Prem Kumar, Anadolu Agency (online) 15 officers fired in Malaysia airport migration scandal (31 May 2016) < integrity of the Australian fingerprint examination
The Respondent relies upon an Affidavit sworn on 4 August 2017 by Ms Caroline Ashworth a fingerprint specialist in the Biometric Resolution Centre, of the (then) Department of Immigration and Border Protection. In that Affidavit Ms Ashworth sets out her resume and details of her expertise and attaches a report headed “Identity Resolution Centre – Cursory Fingerprint Comparison” in which she concludes:
“On 06.06.2017, I conducted a comparison of the fingerprint impressions which were embedded in the Excel spreadsheet against the fingerprint impressions which were sent as a NIST file format to Malaysia in 2013 this set of fingerprints was collected by DIBP on 14/09/2013 Biometric Acquisition Matching Service Number 137947509664.
As a result of this examination I conclude that the fingerprint impressions contained on the Excel Spreadsheet sent to us by the Malaysian Immigration Department were made by the same person.
The images embedded in the Excel Spreadsheet match the Right Index finger and the Left Index finger impressions on the set of fingerprints collected by DIBP on 14/09/2013 Biometric Acquisition Matching Service Number 137947509664.
These fingerprint identifications were also verified by fingerprint examiner, Paul Palmer on 07.06.2017.”
There is no reason for the Tribunal to do anything other than accept that Ms Ashworth is an experienced and competent fingerprint specialist and that her conclusions as to the matching of the fingerprints should be given considerable weight.
Part of the delay in hearing this matter after the initial application was lodged was that the Applicant sought to obtain independent analysis of the fingerprints in question. Approaches were made by the Applicant’s legal representatives to various potential experts but, in the event, this independent analysis was not proceeded with due to financial constraints on the part of the Applicant.[28] Neither the Tribunal nor the Respondent draw any adverse inferences from this failure to lodge any alternative form of analysis, but the Respondent notes that this leaves Ms Ashworth’s conclusions uncontradicted.[29]
[28] Affidavit of Isobel McGarity (solicitor, Refugee Advice and Casework Service) dated 4 March 2020.
[29] Respondent’s Reply Submissions at [5].
On the other hand, the Applicant did put before the Tribunal a number of reports dealing with fingerprints and their general reliability as evidence.
The first of these was the “REPORT TO THE PRESIDENT: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods” from the Executive Office of the President President’s Council of Advisors on Science and Technology dated September 2016.[30]
[30] Applicant’s Submissions, D50.
That report describes the technique of “latent” fingerprint matching as follows (at page 88):
“Latent fingerprint analysis typically involves comparing (1) a “latent print” (a complete or partial friction-ridge impression from an unknown subject) that has been developed or observed on an item) with (2) one or more “known prints” (fingerprints deliberately collected under a controlled setting from known subjects; also referred to as “ten prints”), to assess whether the two may have originated from the same source. (It may also involve comparing latent prints with one another.)
It is important to distinguish latent prints from known prints. A known print contains fingerprint images of up to ten fingers captured in a controlled setting, such as an arrest or a background check. Because known prints tend to be of high quality, they can be searched automatically and reliably against large databases. By contrast, latent prints in criminal cases are often incomplete and of variable quality (smudged or otherwise distorted), with quality and clarity depending on such factors as the surface touched and the mechanics of touch.”
It further notes (at page 28):
“Latent Fingerprints
In 2005, an international committee established by the FBI released a report concerning flaws in the FBI’s practices for fingerprint identification that had led to a prominent misidentification. Based almost entirely on a latent fingerprint recovered from the 2004 bombing of the Madrid commuter train system, the FBI erroneously detained an American in Portland, Oregon and held him for two weeks as a material witness. An FBI examiner concluded the fingerprints matched with “100 percent certainty,” although Spanish authorities were unable to confirm the match. The review committee concluded that the FBI’s misidentification had occurred primarily as a result of “confirmation bias.” Similarly, a report by the DOJ’s Office of the Inspector General highlighted “reverse reasoning” from the known print to the latent image that led to an exaggerated focus on apparent similarities and inadequate attention to differences between the images.”
The second such document referenced was “The Fingerprint Inquiry Report” dated December 2011. This report was the result of an inquiry undertaken by a senior judge (Rt Hon Sir Anthony Campbell) following public concern arising from the notorious murder case dealt with in the matter of Her Majesty’s Advocate v McKie (1999). The Applicant did not supply a copy of the full report, however the Tribunal saw fit to access the report itself[31] and noted that among the ten major conclusions (in a total of 84 such) at page 740 in Volume 1 of the Report the Inquiry recommended:
“Fingerprint evidence should be recognised as opinion evidence and not fact. Those involved in the criminal justice system need to assess it as such on its merits.
Examiners should discontinue reporting conclusions on identification or exclusion with a claim to 100% certainty or on any other basis suggesting that fingerprint evidence is infallible.”
[31] The Fingerprint Inquiry, “The Fingerprint Inquiry Report” (December 2011):
<
The Applicant also included several other references including that of an article titled “Expert Report and the Forensic Sciences”[32] which repeats some of the caveats of the Fingerprint Inquiry report.
[32]Gary Edmond, Kristy Martire and Mehera San Roque, Expert Report and the Forensic Sciences, University of New South Wales Law Journal 40(2) 2017.
All this, in turn, takes the Tribunal to the question of what exactly was before the fingerprint experts, and what was its provenance.
It appears that there were two purported matching operations.
It has been set out above that the Australian authorities provided Ms SK’s fingerprints to the Malaysian authorities for matching to “air arrivals” on 11 February 2014 and were advised by them of a match on 22 April 2014.[33]
[33] T-documents at 14.
In a letter sent to Mr HR on 24 November 2015, it is stated that
“Fingerprints from [the Applicant’s] mother, Ms [SK], were matched to those of Ms [RAH], born [XX] December 1989, holder of Bangladeshi passport number [XXXXX ]310.
Malaysian authorities allowed Ms RAH entry to Malaysia on 16 September 2011 and accepted that the Bangladeshi passport was legitimately issued to her.”[34]
[34] Ibid at 97.
There is no statement in this letter as to where such fingerprints were taken nor to whom the matching fingerprint belonged.
The 24 November 2015 letter was replied to by the Applicant on 22 December 2016 disputing that the Applicant’s mother had ever been fingerprinted by the Malaysian authorities and suggesting therefore that she could not have been present at Kuala Lumpur Airport on 16 September 2011.[35]
[35] Ibid at 18-24.

On 16 May 2017 Ms Ashworth was asked by the Respondent to undertake a fingerprint match in relation to Ms SK.
Ms Ashworth attests to the truth of a Fingerprint Comparison Report she provided to the Respondent in which she states:
On 01.06.2017 I sought assistance from Kylie Ellis First Secretary Immigration and Border Protection Australian High Commission, Kuala Lumpur. The request asked for the Malaysian Immigration department assistance in providing to The Department of Immigration and Border Protection (DIBP) the fingerprint images associated with match information provided to DIBP in 2013 this was as a result of fingerprint data sharing exercise between DIBP and Malaysian Government.
As a result of this request to the Malaysian Immigration Department two fingerprint images have been provided. These images are embedded in a Microsoft Excel spreadsheet. The 2 images are labelled Right Index and Left Index. Along with the 2 images other biographic data is provided as displayed.[36]
[36] Affidavit of Ms Ashworth (4 August 2017) at 4.
On 6 June 2017 Ms Ashworth undertook her examination of fingerprints which had been sent back to the Australian authorities by the Malaysian authorities.
The “biographic data” referred to is as follows:

Profile [XXXXX ]310

Profile [XXXXX ]124

Surname

[RAH]

No record found

Given name

Doc No

[XXXXX ]310

[XXXXX ]124

Doc Expiry

13/07/2016

Date of birth

[XX]/12/1989

Issue Authority

BGD

Gender

F

WID

[XXXXX ]969

AFIS ID

[XXXXX ]888

NERS AFIS ID

BC SL

N

Blacklisted

Created Date

16/09/2011 0:00

Photo

No Photo

There are curious features of this document including reference to “Profile [XXXXX ]124”, what appear to be alleged ID (identity) numbers, a creation date timed at “0:00”, the absence of any photograph and the absence of any refence as to the place of creation of the record.
The Tribunal must gather from this that an initial match of fingerprints was made in Malaysia and was undertaken some two-plus years after those fingerprints were first recorded. Thereafter, some three years later access to those fingerprints was requested and they were then transmitted embedded in a Microsoft Excel spreadsheet for examination in Australia.
It does not appear that at any stage either the original fingerprints from Malaysia (nor the associated passport) were ever in Australian hands and that at no stage in Malaysia was there a photographic image matching the fingerprints as taken.
The Applicant’s legal representatives then made an application on 6 October 2017, under the Freedom of Information Act 1982 (Cth) for the Respondent to provide copies of both the fingerprints and the Bangladeshi passport in question. It appears that on 2 December 2017 there was a response from the Respondent but that these documents were not supplied.[37]
[37] Applicant’s Submissions, D3: Letter from RACS to Respondent dated 13 December 2017 at 2.
On 12 November 2019 an initial summons was issued on behalf of the Applicant requiring the Respondent to provide:
1Fingerprint impressions that the Malaysian government provided to the Department of Home Affairs in relation to investigations of the identity of Ms [SK], and referred to in the affidavit of Ms Caroline Ashworth affirmed 4 August 2017.
2Copy of the passport in the name of [RAH].
3All recorded details in relation to the passport in the name of [RAH], including but not limited to, details of the passport, any biometric data associated with the passport and information on the use of the passport at Kuala Lumpur International Airport in 2011, including but not limited to, the time of use of the passport.
4All recorded details of any assessment of the security features of the passport in the name of [RAH].[38]
[38] Applicant’s Submissions, D43.
On 15 November 2019 the Applicant filed a copy of an Identity Integrity Assessment report which had been released at an unspecified date under the Freedom of Information Act in which reference is made to the biometric matching of fingerprints at Kuala Lumpur Airport, Malaysia.[39]
[39] Ibid, D41.
On 29 January 2020 the Respondent wrote to the Applicant stating (inter alia):
“We write to confirm that we have now produced to the Tribunal a document in relation to Category 1 of the summons. We are instructed that the Department does not hold any documents within the scope of Categories 2, 3 or 4.”[40]
[40] Ibid, D44.
It thus appears that the only documents examined by Ms Ashworth consist of copies sent electronically of right index and left index fingerprints taken on 16 September 2011 at what appears to be “0:00” hours related to RAH whose date of birth is given as XX/12/1989 and who is recorded as holding a Bangladeshi passport numbered XXXXX 310. No photo is attached. The document itself does not appear to state where these fingerprints were taken.[41]
[41] Ibid, D42.
This obviously begs the question of the validity of the passport held in the name of Ms RAH (however spelt). It has not been subject to any examination as to its authenticity and the Applicant clearly asserts that it must be a false document.
The Tribunal notes a number of comments made by the Department of Foreign Affairs and Trade in its Country Report – Bangladesh (22 August 2019) to the effect:
“5.28 DFAT is aware of cases, both recent and historical, of people leaving Bangladesh on false passports to seek work abroad, including Rohingya. In some cases, people on false passports have successfully lived and worked abroad for years before being detected. The false passports used in these cases are often genuine passports that have been fraudulently obtained, in some cases through paying bribes to officials…
…
5.38 As with all people living in Bangladesh, Rohingya may be able to access false passports, which ostensibly demonstrate Bangladeshi citizenship and which may be held by Rohingya abroad. These passports might be entirely fraudulent, having been manufactured by people smugglers, or be fraudulently obtained genuine documents. People smugglers might also offer false passports for other countries, particularly Pakistani, Indian or Nepalese passports. These passports may allow Rohingya to travel abroad for employment, or potentially be smuggled by people smugglers.”
To the extent that it cannot be established that Ms RAH’s passport is genuine, questions must arise as to the provenance of biometric data contained therein.
The Tribunal accepts, on the basis of Ms Ashworth’s experience and professional status that the fingerprints she matched were indeed properly matched. There is no evidence before the Tribunal to contradict this proposition, nor can any be necessarily derived from caveats expressed about the absolute certainty of fingerprint matching as a means of legal identification raised in the Applicant’s submissions.
In the alternate, the Tribunal recognises that the Applicant invites it to be less than confident that the fingerprints sent from Malaysia were obtained from a genuine Bangladeshi passport or that the fingerprints therein were genuinely taken from the Applicant’s mother in relation to its issuance. It also notes the fact that the match was made, not from an original set of fingerprints but from electronically transmitted images.
Marriage date
The Respondent provided the Tribunal with a translated copy of the Applicant’s parent’s marriage certificate.[42] The Applicant has provided a photocopy of the original (untranslated) which shows, (as the former document does not) the attached photographs of the couple.[43] The Respondent has not, at any stage, challenged the authenticity of this document[44] and the photographs of the couple appear to be of the same people who appeared in person before the Tribunal.
[42] T-documents at 89.
[43] Applicant’s Submissions, D29.
[44] Respondent’s SFIC at [16]-[17].
It shows that the couple were married on 16 September 2011. The location of the marriage appears to be Ampang which is a suburb of Kuala Lumpur. The issuing authority is the Rohingya Ulama Council of Malaysia. The marriage certificate states that the marriage took place in accordance with the Hanafi School of Islam. In her oral evidence the Applicant’s mother confirmed that the actual ceremony took place in a private home and not in a mosque, although it was conducted by an Imam. She says that she spent some time on the day preparing for the ceremony. She is recorded elsewhere as giving the time of the marriage as about 1.30pm.[45] Both she and the Applicant’s father stated that the marriage took place 4 to 6 weeks after their original arrival in Malaysia by boat and that it was attended by 10 to 15 other people.
[45] T-documents at 107.
The relevant matters to note are:
(a)the marriage took place on the same day as the Applicant’s mother’s alleged arrival at Kuala Lumpur airport;
(b)it was conducted by a representative of the Rohingya community;
(c)it was conducted according to the Hanafi School of Islam – that being one of the four principal jurisprudential schools of Islam and the one most prevalent in areas such as Pakistan, Bangladesh and northern Myanmar; and
(d)there were witnesses to the ceremony who signed the marriage certificate.
The names of the married couple shown on the certificate accord with that of the Applicant’s father in all other documents (being an Arabic name) but the mother’s name appears differently. However, this is easily explained as being a poor transliteration of her Rohingya name into Arabic. The latter part of her name given as “Binti (daughter of) Zafar” and accords with details of her father’s name as shown in other documentation.
The day of the marriage, given as both “16-09-2011” and “18 Syawal 1432” places the marriage on a Friday which many classical Islamic scholars regard as the most blessed day for a marriage to take place.
The Tribunal accepts that this is an authentic record of a marriage between the Applicant’s parents which took place on Friday 16 September 2011.
If this is the case, it must, to a degree, strain credulity to believe that the Applicant’s mother arrived at Kuala Lumpur Airport on Friday 16 September 2011 and was married on the same day in a ceremony which was obviously an official one (hence the marriage certificate), conducted by an Islamic official and attended by some 10 to 15 other people.
Curiously, the officer completing the Identity Immigration Assessment Form for Ms SK concluded on this point: “It is probable but not plausible that the IMA would get married on the same day that she fingerprinted by Malaysian Border Control.”[46]
[46] Applicant’s Submissions, D41. This report was released to the Applicant pursuant to their Freedom of Information application.
There is of course, the possibility that this was an arranged marriage and that it took place on the same day as her arrival in Malaysia. In his testimony Mr HR did not deny that that there had been some element of “arranged” marriage and indeed in his Statutory Declaration he writes:
“At the end of 2011, my parents arranged for me to marry my wife (who did not come from my village but from another place south of Maungdaw). We married in Malaysia in 2011.”[47]
[47] Ibid,D2 at [32].
Ms SK, makes two statements in this regard. In the first she says:
“My brother first met my husband inside a small shop in Malaysia… My brother and I were living at that time in a difficult condition at the smugglers house. With the assistance of my husband, we left that place. I first met HR when we walked out of the smuggler’s house. After this, it was arranged that we would be married.”[48]
[48] Ibid, D1 at [21].
Ms SK however gives a somewhat different version in her Irregular Maritime Arrival Entry Interview of 20 October 2014 where she states (through an interpreter):
“Purpose of travel – 5 months. My brother brought me to Malaysia to look for a reliable and good man for me to marry.”[49]
[49] Tdocuments at 207.
On the balance of probabilities, the Tribunal is persuaded that the marriage as outlined took place on 16 September 2011 and that the couple had been in Malaysia for some time prior to that date.
It finds the Respondent’s proposition that the Applicant’s mother arrived at Kuala Lumpur Airport on the same day as her (uncontested) marriage took place to be implausible (and among other things, improbable) given all the other details surrounding the marriage event.
This however leaves the following questions unanswered:
(a)where did the fingerprints supplied from Malaysia which match those of the Applicant’s mother originate since the uncontradicted evidence leads to a conclusion that they are both from the same person; and
(b)how were those fingerprints identified in Malaysia as being those of a person whose name is not that of the Applicant’s mother?
The Tribunal is thus faced with itself having come separately to two conclusions which are mutually incompatible:
(a)the Malaysian fingerprints, certified as being taken on 16 September 2011 allegedly at Kuala Lumpur Airport and the Christmas Island fingerprints are of the same individual (with a remote possibility of error); and
(b)the Malaysian fingerprints were, on the balance of probabilities, not collected from the Applicant’s mother (whatever name may have been attached to them) at Kuala Lumpur Airport on 16 September 2011.
The Tribunal has to have come to an incorrect conclusion on at least one of these matters. It cannot tell which.
An alternative is that the Applicant’s mother was fingerprinted at some other time and place in Malaysia or Myanmar and her fingerprints have been confused in the Malaysian fingerprint system with those of another named person.
In considering this possibility the Tribunal feels somewhat constrained from by the sworn testimony of the Applicant’s mother that the first time she had ever been fingerprinted was on Christmas Island.[50] If this were true, such testimony would tend to deny her the benefit of the doubt which might otherwise have arisen. On the other hand the Applicant’s mother has provided to the Australian authorities a copy of a Burmese white card (an identity card) in her own name which contains thereon a fingerprint which must be assumed to be hers and to have been taken by the Burmese authorities at some stage. Even if this were the case there would be doubt as to how a fingerprint taken in Myanmar could end up in a system in Malaysia.
[50] Applicant’s mother’s Statutory Declaration of 27 September 2019.
Because of the uncertainty of any conclusions which can be drawn from consideration of the fingerprint evidence alone, the Tribunal cannot take this starting point to also become the finishing point. Rather, it must turn to consideration of the other evidence before the Tribunal.
WHAT IS “IDENTITY”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are “2. the condition of being oneself or itself, and not another: …6. the state or fact of being the same one.”
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
“a. The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
b. Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.”
There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
The relevant sections of the Citizenship Policy Statement[51] provide, inter alia:
The Minister may be required to refuse an application for Australian citizenship by conferral on grounds relating to:
Non-satisfaction of identity (as per subsection 24(3) of the Act)…
[51] Australian Citizenship Policy Statement.
Regard must also be had to the ID Guidelines which relevantly provide as follows:
1.1      Background
1.1.1    Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5    Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the Citizenship Policy Statement and CPIs. The ID Guidelines themselves recognise this (emphasis in original):
5.1 Exceptions processes to confirm a claimed identity
5.1.1 Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
5.1.2 Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents, for example because they were raised in institutional or foster care; people with limited participation in society; and young people or those over 18 who are yet to establish a ‘social footprint’ in the community.
To this list, the Tribunal would add people who have been refugees from conflict zones; victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities, especially those identified as being part of the “Stolen Generations”.
The ID Guidelines continue:
5.1.3 Alternative identity proofing processes that organisations MAY consider for these exceptions cases include (note different combinations of these processes may be appropriate depending on the individual circumstances).
1Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2Verification of the person's claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
3Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims…[52]
[52] National Identity Proofing Guidelines at 5.1.3(1)-(4).
It is also important to note what the ID Guidelines provide in definitional terms. Paragraph 2.1.1 states:
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.
This definition is restated in the most recent version (10 April 2019) of the Department’s Citizenship Procedural Instructions, Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16).[53]
[53] CPI 16 at [4.2].

CPI 16 identifies a trifecta of factors used to establish identity:[54]
[54] Ibid at [4.4].

Three pillars

of identity
Individual characteristics

Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

They then go on to make explicit that:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
CPI 16 states clearly at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of possibilities independent of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
Biometric (other than fingerprint evidence): The Tribunal has already discussed the principal issue of biometric identification above in relation to fingerprints. However, it also notes that the photograph on Ms SK’s marriage certificate and her UNHCR Asylum Seeker Certificate accorded with the appearance of that lady before the Tribunal on the day of hearing.[55]
[55] Applicant’s Submissions, D10(k).
Documents: Neither in its SFIC nor in detailed oral submissions did the Respondent seek any detailed examination of Ms SK’s other personal documentation.
As noted, the Applicant obtained a considerable amount of material from the Department through an FOI request. This material was submitted by the Applicant but formed no part of the Respondent’s materials.
Among that material is a 12-part Assessment Report prepared by officers of the Department in assessing Ms SK’s application for a Safe Haven Enterprise Visa (SHEV). That report is dated 4 December 2018.
Part 1 of the Assessment states that Ms SK supplied extensive documentation to the Department, including (inter alia):
·a copy of a Burmese Family Household List;
·a copy of a Burmese White Card;[56]
·copies of Burmese White Cards from each of her parents; and
·a copy of a Burmese family photo.
[56] The White Card (see Applicant’s Submissions, D10(c)) contains a photograph and a single fingerprint. White cards were temporary registration cards issued to Rohingya in Myanmar from 1995 to 2005 conferring residential but not citizenship status on their holders.
In Part 3 of the Assessment the Minister’s delegate found the copy of the Household List to be genuine and in Part 4 found the White Card to be genuine. This finding is contested by the delegate who made the initial citizenship refusal. She placed little weight on the validity of the white card, finding it to be of poor quality and indicating that the holder has a “small mole on the nose” which Ms SK does not.[57] Similarly she held the household register to have been tampered with.[58]
[57] T-documents at 13.
[58] Ibid.
Ms SK was subject to extensive questioning about her place of birth which she gave as “Ale Than Kyaw” which is in the Maungdaw township of Rakhine State in Myanmar. In cross-examination by the counsel for the Respondent Ms SK was pressed on details about this township, details of which were made familiar to the Tribunal in an earlier hearing in another matter.[59] At the hearing the Respondent’s counsel invited the Tribunal to find that Ms SK’s knowledge of the location and geography of that village was problematic. However, in Part 2 of the SHEV Assessment, the delegate there asked similar questions and concluded:
“…I am satisfied that the applicant had a detailed knowledge of the area south of Maungdaw and the area around Ale Than Kyaw… I am satisfied that only someone living in the area of Ale Than Kyaw would have the geographic knowledge demonstrated by the applicant.”[60]
[59] Yusuf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2096.
[60] Applicant’s Submissions, D18 at 6.
In Part 5 of the Assessment the delegate found that Ms SK’s primary language was Rohingya and that her knowledge of the Burmese language was consistent with the limited level of education which she had outlined in her personal history.
It was the overall assessment by the delegate who was fully appraised of the Kuala Lumpur biometric match (Assessments Parts 7 and 8) that Ms SK was “a stateless Rohingya”.[61]
[61] Ibid at 26.
As noted above, the Tribunal is not bound by such assessments but may take then into account as part of its own independent evaluations.
There was nothing put to the Tribunal at the hearing which went in any detail to the identity pillar of documentation. The Respondent had the Applicant’s material before it and raised no challenges to the findings expressed by the SHEV decision-maker. Nor were the issues of the either the White Card or the Family Household Register canvassed.
Such documentary evidence as there is would tend very strongly to support the claim that Ms SK is an ethnic Rohingyan born in the Rakhine State of Myanmar.
The Tribunal notes that, at no stage, has the Respondent advanced any evidence in support of the proposition that Ms SK is not of Rohingyan ethnicity; nor that she was born in some specified place other than Ale Than Kyaw.
Life Story: This has in part been canvassed above with reference to the place of birth and early schooling of Ms SK. There are however, some inconsistences in her narrative of her flight from her home to Malaysia and subsequently to Australia. Essentially, two matters arise: the journey and the way in which Ms SK and Mr HR met.
In one version of her narrative Ms SK puts forward the story that she travelled by boat from Myanmar to Malaysia but was unconscious for a large part of the journey which took some 12 days and hence recalls little about it. Later, she states that she walked from Myanmar into Thailand where she spent 6 or 7 days and thence by boat to Malaysia.[62] On this journey she was accompanied by her brother.[63] The journey via Thailand is also referenced in the Statutory Declaration of her husband, Mr HR.[64]
[62] T-documents at 12; Respondent’s SFIC at [16].
[63] This claim was accepted in terms of at least the final leg of the journey from Indonesia to Australia by the delegate determining the initial citizenship application: T-documents at 13.
[64] Applicant’s Submissions, D2 at [10].
There are two versions of how Ms SK first met her husband. The first, quoted above, has her first meeting him when he arrived at the smuggler’s house and helped her relocate, he having previously met her brother “in a shop.”[65] Another version has her and her brother walking in the street of the (Malaysian) village of Ampang when they saw a person who they thought (somehow) was from Arakan and they struck up a conversation with this stranger who turned out to be Mr HR.[66]
[65] Ibid, D1 at [21].
[66] Ibid, D16: Annexure A to Affidavit of Stephanie Anne Zughbi (interview record) at 11-12.
The inconsistencies in these stories was canvassed by the Respondent’s representative in the multiple days of Tribunal hearing.
The Tribunal must also take note of the inconsistencies identified in relation to the claimed other family members of Ms SK which was detailed in the Reasons for Decision given by the Minister’s delegate when refusing the initial citizenship application.[67] None of these was canvassed in the Respondent’s SFIC, nor were they put in argument before the Tribunal. In these circumstances the Tribunal does not accord them any significant weight in its further deliberations.
[67] T-documents at 13-14.
As to the inconsistencies themselves, they appear to be within the range of matters where memory may play false and where recollection may fail. They are not, in the opinion of the Tribunal, on balance, to be taken as fatal in assessing the credibility of Ms SK’s life story as she now recounts it.
DISCUSSION
Nationality – Citizenship – Statelessness
This is a case in which the central issue is one of identity, but it goes beyond that. The application is not simpliciter to establish the identity of Ms SK but rather to determine whether there is something about Ms SK which impacts upon the Applicant, her minor daughter, in terms of her eligibility to acquire Australian citizenship by conferral.
That potential disqualification arises if the Tribunal finds that she (the Applicant) is excluded from the Minister’s consideration by any of the provisions of subsection 21(8) of the Act (supra). Their effect is cumulative, each potentially fatal.
The first limb at paragraph 21(8)(a) is satisfied as the Applicant was born in Australia, in the Royal Darwin Hospital.[68]
[68] T-documents at 152.
The question is therefore: is she, was she a national/citizen of any country, or is she entitled to the nationality or citizenship of another country? Alternately, is she genuinely stateless?
Clearly, nationality and citizenship are not the same thing – the Act specifically distinguishes between them and requires their separate consideration.
The Australian Law Dictionary[69] gives:
Nationality: Identification with and allegiance to a nation. At common law whether a person is a national of a state is determined by the municipal law of that state. R v Burgess ex parte Henry (1936) 55 CLR 608,649. Original nationality (nationality acquired at birth) is based on descent from a national (jus sanguinis) or birth within the territory of a state (jus soli) or a combination of jus sanguinis and jus soli.
Citizenship: The status of belonging to or being a member of a state. In international law this implies a genuine connection of interest and sentiment and reciprocal rights and obligations: Nottebohm Case (Leichenstein v Guatemala) 1955 ICJ 4.[70] For Australia, the concept is defined in the Preamble to the Australian Citizenship Act 2007.
Statelessness: (stateless person) The condition of having no recognised nationality; lacking a legal place of domicile as well as the rights and protections afforded by citizenship or other legal connection with a particular state. A stateless person has no passport and may claim status as a refugee.
[69] Third edition, Oxford University Press, 2017.
[70] In this case the International Court of Justice found that on the international plane, the grant of nationality is entitled to recognition by other States only if it represents a genuine connection between the individual and the State granting its nationality.
Professor Kim Rubenstein in her authoritative study Australian Citizenship Law gives:
“Often “nationality” is the word used when discussing issues of citizenship at an international level and “citizenship” is used when discussing membership domestically.”[71]
“These two terms [citizenship/nationality) are different in a technical legal sense. While essentially the same concept, they reflect two different legal frameworks. Both terms identify the legal status of an individual in the light of his or her state membership. But the term “citizenship” is confined mostly to domestic legal forums, and the term “nationality” to the international law forum. As Weis states: “[c]onceptually and linguistically the terms … emphasise two different aspects of the same notion … “nationality” stresses the international, “citizenship” the national, municipal aspect”. Weis, Nationality and Statelessness in International Law (9156) p.5.”[72]
[71] Kim Rubenstein, Australian Citizenship Law (Second edition, Lawbook Co) 2017 at 65 footnote 11.
[72] Ibid at 389-390 footnote 1.
Professor Rubenstein goes on to define different concepts of citizenship in both a formal legal notional sense and as a normative concept; to identify at least four senses in which the term is used and criticise the High Court “for the inconsistent manner in which [it] has developed the common law of citizenship.”[73]
[73] Ibid at 5-7.
The concept of “citizenship” is ancient. Pericles in his Funeral Speech (431 BC) to the Athenians eulogises the “native spirt of our citizens” describing the rights and responsibilities thereof.[74] The classical Greeks had no senses of “nationality” but a keen sense of “citizenship” – inherent in those born within the polis, although capable of being bestowed upon worthy foreigners (metics). In both cases the key issue was the linkage of citizenship with the assumption of both rights and responsibilities.
[74] Thucydides, The Peloponnesian War: Book 2 at 34-46.
Cicero records that simply to pronounce “civis romanus sum” (“I am a citizen of Rome”) was a guarantee of legal safety and protection across the Empire.[75]
[75] Cicero, In Verrem.
Saul (Saint Paul), a Jew born in Tarsus claimed the benefit of Roman “citizenship”.
22 And they gave him audience unto this word, and then lifted up their voices, and said, Away with such a fellow from the earth: for it is not fit that he should live.
23 And as they cried out, and cast off their clothes, and threw dust in the air,
24 The chief captain commanded him to be brought into the castle, and bade that he should be examined by scourging; that he might know wherefore they cried so against him.
25 And as they bound him with thongs, Paul said unto the centurion that stood by, Is it lawful for you to scourge a man that is a Roman, and uncondemned?
26 When the centurion heard that, he went and told the chief captain, saying, Take heed what thou doest: for this man is a Roman.
27 Then the chief captain came, and said unto him, Tell me, art thou a Roman? He said, Yea.
28 And the chief captain answered, With a great sum obtained I this freedom. And Paul said, But I was free born.
29 Then straightway they departed from him which should have examined him: and the chief captain also was afraid, after he knew that he was a Roman, and because he had bound him.[76]
[76] King James Bible, Acts of the Apostles 22:22-29.
By contrast, the lack of clarity around what constitutes “nationality” and its historical flexibility is illustrated by quoting a decision of the High Court in 1906 where the Foundation Bench (Griffth CJ, Barton and O’Connor JJ), all of whom had major roles in writing Australia’s Constitution and where Barton J had been the nation’s first Prime Minister, said:
We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term "immigration," as used in s 51 of the Constitution, admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.[77]
[77] Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44.
Indeed, there was no such thing as a distinct Australian nationality or citizenship until the passage of the Nationality and Citizenship Act 1948 (Cth).[78] There were, effectively, no Australian “nationals” living in the Commonwealth from 1901 to 1948, simply “British subjects or nationals” who domiciled here.
[78] Renamed Australian Citizenship Act 1948, replaced by Australian Citizenship Act 2007 (Cth).
The High Court of today has been preoccupied in recent years with assessing the eligibility of persons to sit as members of the Commonwealth Parliament because they have been found to be “citizens” of another country contrary to the prohibition in subsection 44(i) of the Australian Constitution. In most such cases, that foreign citizenship was “conferred upon” or “acquired” by that person via the municipal law of a foreign country, sometimes without their knowledge or consent.[79]
[79] Re Wood [1988] HCA 22; Re Canavan [2017] HCA 45.
There has been less discussion about the meaning of Australian “nationality” although this was explored at some length in Love.[80] In particular, Edelman J (as part of the majority) focussed on the issue of nationality arising by descent. His Honour stated:[81]
No Australian court has ever considered whether Aboriginal people or, by parity of reasoning although not the focus of these cases, Torres Strait Islanders are also beyond the scope of the aliens power. Since settlement, Aboriginal people have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds that are far stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage…
Despite the fluctuation, two central matters that have remained among the norms of political community have been the traditional factors of place of birth (ius soli) and citizenship of a parent or parents (ius sanguinis). At Federation, English and United States common law placed most emphasis on the place of birth. But many nations of Continental Europe, including France and Prussia, focused more heavily upon descent. In 1862, Dr von Bar argued that “by the laws of all nations”, nationality was “closely dependent on descent”. This rule was, Dr von Bar said, the “correct canon, since nationality is in its essence dependent on descent”…
The reason that the combination of birth and descent is a norm of political community that is indelible subject only to renunciation is that these factors evince fundamental norms of attachment to country. Of the two factors, the common law placed great emphasis upon the birth of a child in the country as establishing the necessary attachment to country. But the emphasis of the common law upon birth rather than parentage was sometimes doubted. In 1869, the Lord Chief Justice of England wrote extra-judicially that, “in the vast majority of instances”, a child left to their own choice between nationality based on parentage or place of birth would choose the former. He continued:
“And the reason is obvious. Personal attachments are stronger than local ones. The place of birth is an accident; the associations connected with it are fleeting and uncertain; while the domestic ties and the relations of family and kindred are powerful and enduring. … The impression thus produced in early youth remains, and strengthening with advancing years develops itself into the national attachment which we designate by the term of patriotism.
Descent, therefore, affords the true rule for determining nationality.”
The Lord Chief Justice acknowledged, however, that there was “general agreement” as to two related exceptions to nationality based on parentage which also illustrate the centrality of attachment to country: (i) where the child was raised in a country in which their parents had become domiciled but which was different from the country of the parents’ nationality; and (ii) where for two generations the ancestors of a person have been domiciled in a foreign country.
[80] Love v Commonwealth of Australia [2020] HCA 3.
[81] Footnotes and citations omitted.

It is thus clear that in distinguishing nationality from citizenship regard must be had to the acquisition of nationality as a mere consequence of descent as opposed to the acquisition of citizenship by virtue of obtaining status or benefits conferred by legislation.
Only persons may have “citizenship”, although inanimate objects may have “nationality” – in R v Burgess, Chief Justice Latham stated:
Annex A deals in detail with the marking of aircraft so as to indicate the nationality of the aircraft, the identity of the particular aircraft, the name and residence of the owner, the name of the maker, etc. Annex A also provides for the method of registration of aircraft and, as already stated, the convention requires aircraft to be registered in order to possess a nationality so as to be lawfully flown under the convention.[82]
[82] R v Burgess [1936] HCA 52.
National or Citizen of Myanmar / Eligibility
In relation to this Applicant, the issue is then whether or not Ms SK is genuinely a “national” or a “citizen” of Bangladesh as the Respondent claims, or a “national” or “citizen” of Myanmar. Although the latter claim was not advanced by the Respondent, the material before the Tribunal, namely the place of Ms SK’s birth and her claimed holding of a Burmese white card and household registration certificate, require its consideration.
These matters must be assessed consequent upon the Tribunal’s finding that Ms SK was born in Myanmar and is of Rohingyan ethnicity.
The Tribunal will not dwell at length on the position of the Rohingya minority in Myanmar. Suffice to say that it is generally accepted that this ethnic/religious minority has been subject to lengthy and systematic persecution by the Myanmar authorities, the Myanmar military and militant sections of the Buddhist religious community. The Department of Foreign Affairs and Trade Country Information Report – Myanmar (10 January 2017) (2017 DFAT Report) states unequivocally (at [3.10]):
“DFAT assesses that official and societal discrimination against Rohingya in Rakhine State, on the basis of their ethnicity, is endemic.”
The Burmese Citizenship Law 1982 recognises 135 “national races” as constituting parts of the Burmese (Myanmarese) nation, however the Rohingya peoples are not included in this list. In 2012 the Myanmar Immigration Minister was quoted as saying of the Rohingya: “They are not included among our more than 130 ethnic races.”[83]
[83] DPA, Rohingyas are not citizens: Myanmar minister (12 July 2016): <>
There has been a recent decision of the International Court of Justice[84], by way of a provisional measures decision ordering the government of Myanmar to take steps to prevent the genocide of Rohingya and to protect them from persecution.
[84] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), International Court of Justice 23 January 2020, General List no. 178.
As far as the government of Myanmar is concerned members of the Rohingya community are regarded as immigrant Bengali peoples and are denied any rights of citizenship. They have thus been rendered stateless in terms of international law.
The recent DFAT publication Rohingya: Issues related to statelessness (2 June 2021) confirms that:
“The (mis)application of the Act (Burmese Citizenship Act 1982), and the failure of authorities to implement it, led to most Rohingya becoming de factor stateless.”[85]
“The Special Rapporteur also reported that citizenship remained inaccessible to almost all Rohingya.”[86]
[85] Department of Foreign Affairs and Trade, Rohingya: Issues related to statelessness (2 June 2021) at 4.
[86] Ibid at 11-12.
The Tribunal can thus be satisfied that Ms SK is, as a Burmese Rohingya, not eligible, in effect to be classified as either a national or a citizen of Myanmar, nor eligible to acquire such citizenship.
In this respect it is apposite to note what Deputy President McCabe said in DLSV to the effect that:
While the Zimbabwean law I have discussed suggests there is indeed a legal entitlement to acquire citizenship in Zimbabwe, the applicant says there are practical obstacles to obtaining citizenship that effectively put citizenship out of reach. The Tribunal has acknowledged that practical obstacles may be of such an order that a person is ‘not entitled to acquire’ citizenship in the sense intended by the Act notwithstanding the existence of a formal legal right: see, for example AP and Minister for Immigration and Border Protection [2014] AATA 706 at [56] per SM Taylor. As DP Frost explained in KKRG and Minister for Immigration and Border Protection [2015] AATA 635 , a person is not genuinely entitled to acquire the citizenship of another country if the application requirements “are so onerous as to undermine or negate the ‘underlying eligibility or qualification’”: at [27].[87]
[87] DLSV and Minister for Immigration and Border Protection [2017] AATA 2999.
National or Citizen of Bangladesh /Eligibility
By descent, Ms SK cannot be a national of Bangladesh. The Bangladesh Citizenship Act provides access to citizenship for people who had a parent or grandparent born “in the territory now included in Bangladesh” and who had lived there since August 1947; persons born in Bangladesh (jus soli) and those who migrated to Bangladesh and applied for “certificate of domicile” (with some exceptions).
None of these applies to Ms SK. There is no evidence of a parent or grandparent born in what is, or what was to become Bangladesh. The original delegate contested the veracity of Ms SK’s family register[88] but it was not put to the Tribunal that Ms SK had a parent born other than in Myanmar where she claims.
[88] T-documents at 13.
Ms SK was not born in Bangladesh and there is no evidence that she ever resided there and applied for a certificate of domicile or to become a citizen.
Even if Ms SK had been in Bangladesh at some stage, the Tribunal notes the information contained in the most recent DFAT report on Bangladesh to the effect that:
3.22. Regardless of their arrival date in Bangladesh, Rohingya are not eligible for Bangladesh citizenship (including through marriage) and are not legally entitled to work.[89]
[89] Department of Foreign Affairs and Trade, Country Report – Bangladesh (22 August 2019).
Additionally, that Report contains the following information:
3.24… In May 2019, police rescued 23 Rohingya girls aged between 15 and 19 who had been brought to Dhaka from Cox’s Bazar after having been promised jobs in Malaysia, and who would likely have become victims of forced prostitution. Police arrested four traffickers in relation to the case, including a Rohingya couple, and recovered more than 50 Bangladeshi passports.
…
5.28 DFAT is aware of cases, both recent and historical, of people leaving Bangladesh on false passports to seek work abroad, including Rohingya. In some cases, people on false passports have successfully lived and worked abroad for years before being detected. The false passports used in these cases are often genuine passports that have been fraudulently obtained, in some cases through paying bribes to officials.
…
5.38 As with all people living in Bangladesh, Rohingya may be able to access false passports, which ostensibly demonstrate Bangladeshi citizenship and which may be held by Rohingya abroad. These passports might be entirely fraudulent, having been manufactured by people smugglers, or be fraudulently obtained genuine documents. People smugglers might also offer false passports for other countries, particularly Pakistani, Indian or Nepalese passports. These passports may allow Rohingya to travel abroad for employment, or potentially be smuggled by people smugglers.
This leaves the question of whether or not Ms SK is a citizen of Bangladesh which would be implied from acceptance of the proposition that she was the holder of the designated Bangladeshi passport.
Once again this comes back to the question of whether the Tribunal believes the sworn evidence and documentary material presented by the Applicant in relation to Ms SK or whether the matched fingerprints are taken as conclusive evidence that Ms SK’s story is false and fabricated.
After consideration of all the material before it, the Tribunal concludes that Ms SK is not and never was a citizen of Bangladesh and that she never obtained a Bangladeshi passport.
It follows that the Tribunal also concludes that the passport issued in the name of Ms RAH, if it contains fingerprints matched with those of Ms SK is a false passport, although there is still no clear explanation of how Ms SK’s fingerprints appeared therein.
CREDIBILITY OF MS SK
Given that the Tribunal is faced with contradictory evidence in relation to a number of matters surrounding the presence of Ms SK in Kuala Lumpur it feels constrained to explain the basis upon which it prefers the version given by Ms SK in her oral testimony to some of the alternatives which appear in the documentary material. This goes more generally to the issue of her credibility as a witness.
In its approach to the issue of credibility, the Tribunal finds useful guidance in the definition of “credibility” given in the Dictionary of the Evidence Act 1995 (NSW):
credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation.[90]
[90] Evidence Act 1995 (Cth) Dictionary part 1.
The Tribunal appreciates that there is authority on both the utility of seeing a witness directly, especially where an original decision-maker has not[91] and, equally, caution about preferring assumptions drawn therefrom over documentary evidence.[92]
[91] Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.
[92] Fox v Percy [2003] HCA 22 at [30]-[31].
In Kodari the Full Federal Court, citing High Court authority regarding the acceptance of the credibility of witnesses based upon direct observation, concluded that there was an “obvious advantage” for a decision-maker to be in a position of “[h]aving seen and heard the witnesses give evidence”.[93]
[93] Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 at [65].
It further stated:
Warren v Coombes, however, was concerned with whether the trial judge erred in drawing an inference from established facts. This case, in contrast, is concerned with whether the trial judge erred in making findings based on the credibility of a witness. As McHugh J observed in Fox v Percy at [88], “[t]he distinction between the two classes of case is fundamental and almost always decisive”. The principles that apply to an appeal in the latter class were outlined in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179 (McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) and Devries v Australian National Railways Commission (1993) 177 CLR 472 (Brennan, Gaudron and McHugh JJ). They were reinforced in a number of subsequent High Court judgments, most recently by Nettle and Gordon JJ in Queensland v Masson [2020] HCA 28; 94 ALJR 785 at [119]. In Devries at 479 Brennan, Gaudron and McHugh JJ said:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact ... If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” ... or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” ...
These principles were not called into question by the majority of the bench in Fox v Percy.
In Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] Bell, Gageler, Nettle and Edelman JJ observed that appellate restraint with respect to interfering with findings of fact which are likely to have been affected by impressions about the credibility and reliability of witnesses formed as a result of seeing and hearing them give their evidence extends to findings of secondary facts based on a combination of those impressions and other inferences from primary facts.[94]
[94] Ibid at [45]-[47].
OTHER EVIDENCE BEFORE THE TRIBUNAL
The Tribunal has before it a number of documents which reinforce both the claims on the part of Ms SK to have been born in Myanmar and to be of Rohingyan ethnicity. The documents go no further than that and do not establish anything further about Ms SK or her life experiences. Nevertheless, since establishment of her place of birth and ethnicity are important, these documents carry some weight. They consist of a number of family photographs posed in such a way as to indicate that they were taken in association with the verification of household registrations (a process familiar to the Tribunal), [95] statements from the UNHCR as to birth in Myanmar[96] and acceptance by the Rohingyan community of Ms SK’s membership thereof.[97]
[95] Applicant’s Submissions, D10(h)-(j).
[96] Ibid, D10(k), D11, D12.
[97] Ibid, D13, D15.
DO THE TRIBUNAL’S CONCLUSIONS SATISFY THE TEST OF POSITIVE SATISFACTION?
Subsection 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Two important aspects of this requirements must be noted. The Minister (or, in this instance, the Tribunal) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish their identity.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)[98] makes it implicit in the operation of the Act that:
[t]here 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 [at 41].[99]
[98] The bill which became the Australian Citizenship Act 2007 (Cth).
[99] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth).
In Beyan the Tribunal identified the principle at issue here, namely the responsibility of the Tribunal in the face of uncertainty. It stated:
Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. As submitted by the Minister, 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.[100]
[100] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
In Sinnathamby and Minister for Immigration and Border Protection, the Tribunal said clearly that:
Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.[101]
[101] Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579 at [56].
I made the position clear in Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that where there are doubts as to the applicant's identity, the applicant's citizenship application should not be approved. I stated:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.
The Tribunal accepts the point made in Dhayakpa that:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity[102].
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.[103]
[102] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].
[103] Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267 at [100]-[103].
The matter in Boshra Al-Hussaini is analogous to this application because in that matter the issue was whether or not applicant was the person she claimed to be or was in fact entirely another person.
There is a balancing element in this. In Boshra Al-Hussaini, I said:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.[104]
[104] Ibid at [100]. Emphasis added.
The fact that decisions often cannot be absolute but must be made on balance is reflected in my comment in Adalat that:
Consideration of the material before the Tribunal leads it to a clear conclusion that the identity of the Applicant as Mahmoud Adalat is not established to any reasonable degree of satisfaction and that, as a result, the Respondent cannot be sufficiently satisfied of that identity to approve a grant of citizenship. The Respondent must therefore refuse the application.[105]
[105] Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360 at [64]. Emphasis added.
Similarly, in CDNB, the Tribunal observed:
I proceed on the basis that production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.[106]
[106] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9].
In Ahamod the Tribunal was engaged in a balancing exercise and found against the applicant stating:
The Tribunal finds that there are too many inconsistencies in the evidence going to the identity of the Applicant.[107]
[107] Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7 at [102].
Dixon J (as he then was) in Briginshaw discussed standards of proof in relation to establishing proof of identity. His Honour therein stated:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.
…
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[108]
[108] Briginshawv Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

However, the Tribunal itself has adopted a qualified approach to the use of the Briginshaw test as it made clear in CDNB:
In Sullivan v Civil Aviation Safety Authority, the Full Federal Court rejected the notion that the Tribunal is bound to apply the decision in Briginshaw when making findings of fact that are ‘grave or serious’, but “may inform itself – and in some circumstances should inform itself – by reference to evidence or other materials which properly support the seriousness of the findings being made and the seriousness of those findings upon a party”. While I accept the Respondent’s point that the grant of Australian citizenship is a serious issue, I do not purport to apply the ‘rule’ or ‘principle’ in Briginshaw having noted the analysis of the Full Federal Court in Sullivan. This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the CDNB and WLVM, in the context of a grant of Australian citizenship.[109]
[109] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [6]. Citation omitted.
BEST INTERESTS OF THE CHILD
The Citizenship Policy Instructions require decision-makers to have regard for the best interests of a child where the decision being made “directly relate to the child”. CPI 13 – Best interests of the child assessments contains a list of those sections of the Act where a discretionary power in relation to the best interests of a child may be enlivened. That list does not include reference to section 21 and hence there is no special provision which would allow, in itself, for the best interests of the child to be seen as in any way ameliorating any non-satisfaction of the provisions of that section.
CONCLUSIONS
Clearly, for the Tribunal to be “reasonably satisfied” in its conclusions about identity, although it is not bound by the strict rules of evidence,[110] it cannot be capricious in its assessments but must have some solid evidentiary basis for its findings.[111]
[110] Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c); Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540, at [115].
[111] Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988 at [42].
The Tribunal is positively satisfied that:
(a)the Applicant was born in Australia; and
(b)the Applicant’s father, Mr HR, is a stateless person.
The Tribunal is positively satisfied of certain negatives, namely that:
(a)the Applicant’s mother, Ms SK is
(i)not a national of Myanmar;
(ii)not a citizen of Myanmar;
(iii)not entitled to Myanmarese nationality or citizenship;
(iv)not a national of Bangladesh;
(v)not a citizen of Bangladesh; and
(vi)not entitled to Bangladeshi nationality or citizenship.
In Sir Arthur Conan Doyle’s Sherlock Holmes classic, The Sign of Four, the great detective advances the proposition:
“How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”[112]
[112] Arthur Conan Doyle, The Sign of Four (1890) (Penguin Classic, 1981) at 92 and 111.
The remaining truth is that Ms SK is a stateless person.
The conclusion that the Applicant was born in Australia to two parents each of whom is a stateless person leads to the determination that the Applicant satisfies the requirements of subsection 21(8) of the Act and is therefore eligible to be considered for a grant of Australian citizenship.
In relation to the Applicant herself, the Tribunal also notes the comments of Senior Member Taylor in AP to the effect:
By the same token, if I have correctly understood the Respondent’s contentions, they seem to lead to a quite unsatisfactory conclusion. The Respondent appeared to contend that (i) the application must fail unless AP can nominate his father’s actual citizenship (because only this could preclude the prospect of his potential eligibility for Nepalese, Indian or Bangladeshi citizenship), and (ii) any practical difficulty that an applicant might have in providing an adequate evidentiary basis for obtaining foreign citizenship falls outside the contemplation of s 21(8)(d) of the Australian Citizenship Act 2007 . The difficulty with the first of these contentions is that it appears to entail the result that a person who genuinely had no information about his paternity could never come within s 21(8)(d) - yet it is precisely that kind of situation the provision appears intended to address. The difficulty with the Respondent’s second submission is that it would require refusal of Australian citizenship even in the face of irrefutable evidence that the person had no prospect of satisfying the procedural and administrative citizenship application requirements of the relevant foreign country. Again this seems to be precisely the kind of situation to which s 21(8)(d) was intended to apply. And in that context, my previous comments about the potential ambiguity of the concept of “entitlement“, the element of futurity involved in the concept “entitled to acquire“ and the criterion of satisfaction, all have a continued relevance. Even though I regard the primary connotation of entitlement as referring to underlying eligibility or qualification, I do not consider that it is correct in the application of s 21(8)(d) wholly to exclude consideration of the practicalities of any application process that may be required. If the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country, it is difficult to accept the proposition that a decision maker could honestly and reasonably fail to be satisfied that the person was “not entitled to acquire“ citizenship of that country.[113]
[113] AP and Minister for Immigration and Border Protection [2014] AATA 706.
Sometimes in matters such this, as Pilate recognised,[114] absolute truth is elusive and the Tribunal must make findings on a balance of probabilities guided by the evidence before it. It must also have some eye to the questions of practicality resulting from its decisions. Even if it were to find, which is does not, that Ms SK is a citizen of Bangladesh and hence so is the Applicant, what would that mean for them as individuals? There is no realistic or practical way in which either of them could obtain the benefits of Bangladeshi citizenship since the primary documents which the Births and Deaths Registration Act 2004 require simply do not exist.
[114] King James Bible, John 18:38.
It is most likely, in the view of the Tribunal that the RAH passport is a false document and there must be doubts about the provenance of the material put before the fingerprint examiner for assessment.
The evidence of Ms SK is not without its contradictions and confusions but the Tribunal accepts that the key issues which it needs to be satisfied about issues of nationality and citizenship are clear enough.
DECISION
The decision under review is set aside and the matter is remitted to the Minister for consideration with the direction that the Applicant satisfies the requirements of subsection 21(8) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..................................[sgd]......................................
Associate
Dated: 20 July 2021

Date(s) of hearing: 30 January 2020 and 7 June 2021

Counsel for the Applicant: Ms A Garsia

Solicitors for the Applicant: Mr A Sawan, Refugee Advice and Casework Service
Ms I McGarity, Refugee Advice and Casework Service

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
Mr T Hillyard, Sparke Helmore

Profile [XXXXX ]310	Profile [XXXXX ]124
Surname	[RAH]	No record found
Given name
Doc No	[XXXXX ]310	[XXXXX ]124
Doc Expiry	13/07/2016
Date of birth	[XX]/12/1989
Issue Authority	BGD
Gender	F
WID	[XXXXX ]969
AFIS ID	[XXXXX ]888
NERS AFIS ID
BC SL	N
Blacklisted
Created Date	16/09/2011 0:00
Photo	No Photo

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

Date(s) of hearing:	30 January 2020 and 7 June 2021
Counsel for the Applicant:	Ms A Garsia
Solicitors for the Applicant:	Mr A Sawan, Refugee Advice and Casework Service Ms I McGarity, Refugee Advice and Casework Service
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Mr T Hillyard, Sparke Helmore