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

[2021] AATA 4138

Khin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4138 (10 November 2021)

Division:GENERAL DIVISION

File Number:          2020/6061

Re:  Mu Mu Khin

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:10 November 2021

Place:Perth

The decision under review is set aside and the matter remitted for reconsideration with a direction that the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Australian Citizenship Act 2007 (Cth).

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

Deputy President Boyle

CATCHWORDS

CITIZENSHIP – refusal to grant Australian citizenship by conferral – delegate not satisfied of identity (Citizenship Act s 24(3)) – Applicant from Myanmar – discrepancy in Applicant’s birthdate – consistent and sufficient life story supported by witness statements and evidence – Applicant established identity to best of her ability having regard to the circumstances of her life – Tribunal satisfied of identity – reviewable decision set aside and remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Australian Citizenship Act 2007 (Cth) preamble, ss 21, 24(1), 24(3)

CASES

Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97

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

Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162; [2015] AATA 310

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179

RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654

Shafari and Minister for Home Affairs (2019) 78 AAR 516; [2019] AATA 808

Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579

YMPL and Minister for Immigration and Border Protection [2017] AATA 1458

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2016) < paras 2.1.1, 2.1.2, 2.2

Department of Foreign Affairs and Trade, DFAT Country Information Report Myanmar (18 April 2019)

Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2019) paras 4.4, 4.12, 4.14

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) ch 13

REASONS FOR DECISION

Deputy President Boyle

10 November 2021

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 4 September 2020 to refuse to approve the Applicant becoming an Australian citizen. The delegate refused the Applicant becoming an Australian citizen on the basis that the delegate was not satisfied of the Applicant’s identity and that, accordingly, the prohibition on approval under s 24(3) of the Australian Citizenship Act 2007 (Cth) (Act) applies.

   BACKGROUND

2. The Applicant claims to be a 31-year-old person born in Myanmar.

3. On 4 May 2011 the Applicant was granted an offshore Refugee (subclass 200) visa and arrived in Australia on 2 August 2011.[1]

   [1] R1, T12/89.

4. On 20 June 2016, the Applicant lodged an application for conferral of Australian citizenship pursuant to s 21 of the Act.[2] In support of her identity, the Applicant provided electronic scans of her Australian-issued identity documents being:

   (a)a health care card;

   (b)a bank statement;

   (c)a Western Australian learner’s permit (noting a date of birth 15 September 1981);

   (d)a document for travel to Australia (noting a date of birth 15 September 1981); and

   (e)a Medicare card.

   [2] R1, T4.

5. In her application for citizenship, the Applicant stated that:

   (a)Her name is Mu Mu Khin.

   (b)Her date of birth is 15 September 1981.

   (c)She was born in Myawaddy, Burma.

   (d)She was formerly a permanent resident of Burma and Thailand (and is not a citizen).

   (e)Her father was Lah Khin/ Lah Khing born 1 March 1950 in Myawaddy, Burma.

   (f)Her mother was Naw Dah born 15 May 1951 in Myawaddy, Burma.

6. On 3 January 2017 the Applicant provided further documents in support of her application.[3] In her Declaration of Service Form 1399, she listed the following siblings (including step/half siblings):[4]

   (a)Refus, PAY YEH KHIN, date of birth 5 September 1967;

   (b)Pah Gay PAH GAY, date of birth 25 April 1971;

   (c)Khin PAW DU, date of birth 13 March 1975; and

   (d)Sue SUE, date of birth 24 January 1981.

   [3] R1, T5.

   [4] R1, T5/29.

7. In that same document the Applicant listed the following places of residence since birth:[5]

   (a)September 1981 to April 1987 – Myawaddy, Burma (reason for leaving: escape the civil war); and

   (b)April 1987 to August 2011 – Umphium Camp, Thailand (reason for leaving: to have a better life).

   [5] R1, T5/30.

8. The Applicant also provided a UNHCR Household Registration Document with a registration date of 1 December 1999 (noted to have been printed on 24 July 2007).[6] That document recorded the Applicant as a single female, date of birth 15 September 1981 (aged 25) from Myanmar. It was noted that the Applicant arrived at the camp on 10 August 1984.

   [6] R1, T5/38.

9. On 3 January 2017, the Minister’s Department sent the Applicant a letter requesting further information. Specifically, the letter noted that the Applicant had, in a previous application, stated that her date of birth was 15 September 1990.[7]

   [7] R1, T6/49.

10. On 2 February 2017 the Applicant provided further identity documents as follows:

    (a)A statutory declaration which stated that, to the best of her knowledge, she was born on 15 September 1981 to parents Lah Khin and Naw Dah. The Applicant stated that she was unable to provide a birth certificate as her birth was not registered or recorded by the government.[8]

    (b)A Western Australian driver’s licence (showing a date of birth of 15 September 1981), a pensioner concession card and a Medicare card.[9]

    [8] R1, T7/54.

    [9] R1, T7/53.

11. On 14 April 2019 the Applicant contacted the Department by email, stating that her date of birth was 15 September 1981.[10]

    [10] R1, T8/54.

12. On 5 May 2020, the Department wrote to the Applicant inviting her to comment on adverse information, namely that:[11]

    (a)in her subclass 200 visa application, she stated that her birthdate was 15 September 1981, but documents also showed a date of birth of 15 September 1990; and

    (b)in her application for citizenship, she stated that her birthdate was 15 September 1981.

    [11] R1, T10.

13. On 4 June 2020, the Applicant provided a statement and a Form 80[12] which stated that:

    (a)her date of birth is 15 September 1981;

    (b)from May 1999 to April 2010 she attended Kaw Moo Rah High School (Umphium Refugee Camp, Thailand);

    (c)she has the following siblings:

    (i)sister – Refus PAY YEH KHIN, date of birth 5 September 1967;

    (ii)brother – Gay PAH, date of birth 25 April 1971;

    (iii)sister – Khin PAW DU, date of birth 13 March 1975; and

    (iv)sister – Sue SUE, date of birth 24 January 1981.

    [12] R1, T11/65.

14. In the Form 80 the Applicant also stated:

    My name is Mu Mu Khin. I was born in 1990, Parklu village, Mawaddy township, in Karen state Myanmar, during winter season…

    In April 1999, I arrived at the Thai refugee camps with one of my cousin and other village people close to my sister...

    On August 1999 we started to move to Umphium refugee camp. Umphium was a new refugee camp and there was no proper housing or walking path…

    After a few months, the United Nation High Commissioner for Refugee came and took photos of every household to keep record of the number of people, with regards to food distribution…

    [Photograph omitted.]

    I am number 9 in the photo. At the time I was nine years old.

    In 2005, the United Nation came and took a picture of us individually. They gave us this document afterward.

    [Document reproduced at T11/85.]

    I checked the document and my age was wrong; 15th September 1981, the year was supposed to be 1990. I informed the head of the Section to fix it for me, but they did not fix it. I could not do anything about it and therefore I had to accept the age...

    At that time, I was still studying at Kaw Moo Rah High School and I graduated in 2010

    [High School certificate reproduced at T11/86, showing date of birth 25 August 1990.]

    The date of birth on this certificate was estimated, but the year is correct because my aunty told me I was born on the same year as my cousin; 1990. The month was estimated by season because I was born during the winter. The date was guessed because we did not know the exact day.[13]

    [13] R1, T11/83–6.

15. On 4 September 2020 a delegate of the Minister refused the application for Australian citizenship. The delegate was not satisfied of the Applicant’s identity as required by s 24(3) of the Act.[14] In addition to noting the discrepancies in the Applicant’s reported date of birth, the delegate noted that Department of Foreign Affairs and Trade Country Information[15] confirmed that a Household Registration was issued for every household in Myanmar and that all people over the age of 10 would also likely hold a Citizenship Scrutiny Card, which the Applicant had not provided.

    [14] R1, T12.

    [15] Department of Foreign Affairs and Trade, DFAT Country Information Report Myanmar (18 April 2019).

16. On 2 October 2020 the Applicant applied to the Tribunal for review of the delegate’s decision. Under the “reasons for the application” section, the Applicant stated, “Some remote area in Myanmar There are still some places we can not have household registration as well as Identity card when I was young before I entere into a Thailand refugee camp” (without alteration.)[16] The Applicant listed her birthdate as 15 September 1981 in that application.

    [16] R1, T2/7.

    THE ISSUE

17. The Minister identifies the sole issue for determination to be whether the Tribunal can be satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act. I agree that that is the sole issue to be determined.

    THE HEARING

18. The application was heard on 5 August 2021. The Applicant appeared on her own behalf and the Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers. The following witnesses gave evidence at the hearing:

    (a)the Applicant;

    (b)Paw Yeh Khin Refus – the Applicant’s niece;

    (c)Anna Mu – the Applicant’s niece; and

    (d)Sue Sue – the Applicant’s sister.

19. All of the witnesses gave evidence through an interpreter.

20. The following documents were admitted into evidence:

    (e)Submissions and further evidence of the Applicant dated 12 April 2021 (A1) (this included statutory declarations of:

    (i)Plati Rufus, the Applicant’s nephew;

    (ii)Dah Seet Refus, the Applicant’s nephew;

    (iii)Gay Hser Doo Blit, a former teacher of the Applicant at Kaw Moo Rah High School in Umphiam Refugee Camp;

    (iv)Sue Sue, the Applicant’s sister;

    (v)Lee Allan Green, the Applicant’s employer; and

    (vi)Lourdes Smith, a friend of the Applicant.

    (f)Statutory declaration of the Applicant dated 13 January 2021 (A2).

    (g)Statutory declaration of Paw Yeh Khin dated 13 January 2021 (A3).

    (h)Statutory declaration of Anna Mu dated 12 January 2021 (A4).

    (i)Section 37 T-documents (R1).

    (j)Minister’s Statement of Facts, Issues and Contentions dated 1 April 2021 (Minister’s SFIC) and attachments (R2).

    LEGAL FRAMEWORK

21. The Preamble to the Act states that:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a)  by pledging loyalty to Australia and its people; and

    (b)  by sharing their democratic beliefs; and

    (c)   by respecting their rights and liberties; and

    (d)  by upholding and obeying the laws of Australia.

22. Section 24(1) of the Act provides:

    24  Minister's decision

    (1)  If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    …

23. Section 24(3) of the Act, relevantly, provides that:

    (3)  The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

    …

24. The Australian Citizenship Policy[17] states, at ch 13:

    The Identity provisions prohibit the approval of a citizenship application in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.

    In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.[18]

    [17] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).

    [18] As to the status of the Policy see RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654 at [105].

25. The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines.[19] Paragraphs 2.1.1–2.12 of the Guidelines relevantly provide as follows:

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context…

    For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.

    [19] Attorney-General’s Department, National Identity Proofing Guidelines (2016) <

26. Identity is not defined in the Act, however, it is addressed in the Revised Australian Citizenship Procedural Instructions (CPIs).[20] The CPIs provide guidance to decision-makers on the interpretation and exercise of the powers under the Act. Decision-makers, in this case the Tribunal, will generally apply policy such as that contained the Policy and the CPIs unless there are cogent reasons not to do so.[21]

    [20] Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act (2019).

    [21] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179 at 640 per Brennan J.

27. CPI 16 provides that the concept of identity is as described in the Guidelines. Paragraph 4.4 of CPI 16 sets out the “three pillars of identity” as follows:

    When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.

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.

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.

In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on departmental records are matched and confirmed.

1. The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives. Those objectives are set out in para 2.2 as follows:

   1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another…

   2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created … through evidence of commencement of identity in Australia…

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

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

   5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used…

   (Original emphasis.)

2. The CPI 16 further provides that:

   It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.[22]

   [22] CPI 16 para 4.12.

   CONSIDERATION

3. In Beyan and Minister for Immigration and Border Protection[23] Senior Member Walsh stated that:

   ... 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.[24]

   [23] [2015] AATA 256.

   [24] See also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267 at [30]–[31].

4. There is no requirement that identity must be established by documentary evidence alone, however, an application may be refused if an applicant has failed to avail themselves of opportunities to secure evidence of identity which might reasonably be expected to exist and which they have been advised to secure.[25] At [117] of Dhyakpa Deputy President Nicholson stated:

   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. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.

   [25] Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162; [2015] AATA 310 at [117] per Deputy President Nicholson.

1. The approach taken in Dhayakpa has been followed by Tribunals in a number of cases.[26]

   [26] See YMPL and Minister for Immigration and Border Protection [2017] AATA 1458; Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97.

2. In Sinnathamby and Minister for Immigration and Border Protection[27] the Tribunal accepted that the applicant had lost his identity documents in the capsizing of a boat en route to Australia, but found that the inconsistencies in his other evidence and the bogus nature of some documentation provided in support of the citizenship application gave rise to a conclusion that he was not a person of good character.

   [27] [2018] AATA 2579.

3. The Minister identifies the documents that the Applicant has produced as including the following:[28]

   [28] Minister’s SFIC para 29.

   (a)  Health care card;

   (b)  Australian bank statement;

   (c)   Western Australian drivers’ licence (noting date of birth 15 September 1981)

   (d)  Document for travel to Australia (noting date of birth 15 September 1981);

   (e)  Medicare card;

   (f)    Centrelink Pensioner Concession Card;

   (g)  UNHCR Household Registration Document dated 23 July 2007;

   (h)  Undated Kaw Moo Rah High School Certificate (noting date of birth 25 August 1990 and completion of grade 12 in “2009-2010”);

   (i)    School certificate noting completion of “fourth standard board examination” of secondary school on 16-19 March 2004 (document dated 25 May 2004).

   (j)    Examination Board Certificate of Lower Secondary Basic Education dated 25 April 2007 (noting date of birth 25 August 1990);

   (k)   Official Transcript of Examination Result issued 10 May 2007 from Lower Secondary Basic Education (Standard Seven) Board Examination (noting date of birth 25 August 1990)

   (Footnotes omitted.)

4. The Minister contends that I should not be satisfied of the Applicant’s identity based on the above documents “in light of the substantial inconsistencies in the [A]pplicant’s date of birth and life story.”[29]

   [29] Minister’s SFIC para 30.

5. The Minister says that the above documents list two different birthdates for the Applicant and that it was only when the Applicant was asked by the Department to comment on adverse information that she said that she was actually born in 1990, not 1981.

6. The Minister further contends that I should not be satisfied of the Applicant’s identity because she has not provided any documents which confirm her identity before 2004. According to the Minister, based on DFAT country information, it would be expected that a person over the age of 10 would have been issued with a Citizenship Scrutiny Card.

7. The Minister also contends that the Applicant’s Australian identification documents are not, of themselves, “feeder documents”[30] with an unbroken chain linking to a primary official identity document, unlike a driver’s licence issued to a person who has provided a legitimate birth certificate.[31] In circumstances where there is no substantial “feeder” document to “historically” contextualise the Applicant’s identity in Australia, the Minister contends that minimal, if any, weight should be given to the Applicant’s Australian identity documents.

   [30] Citing CPI 16 para 4.14.

   [31] Citing, for example, Shafari and Minister for Home Affairs (2019) 78 AAR 516; [2019] AATA 808 at [41].

8. The Minister also notes that when applying for citizenship in 2017 (and claiming she was born in 1981), the Applicant did not provide any school records when requested to do so, and that it was only after adverse information was put to her that she produced additional records indicating graduation from high school. The most recent DFAT Report on Myanmar indicates that document forgery is “highly prevalent” in Myanmar.

9. The Minister also contends that the Applicant’s life story is inconsistent and inadequate, pointing again to the discrepancy in her date of birth.

10. The Minister placed significant emphasis on the discrepancy or inconsistency in relation to the Applicant’s birthdate. At the conclusion of the hearing, I asked Mr Burgess how critical, in the Minister’s view, the date of birth is in establishing a person’s identity, particularly when the person comes from a country which does not have reliable birth records. Mr Burgess’s response was:

    … in my submission it is imperative and absolutely required to – for the [T]ribunal to be satisfied of identity where a person has not held or held themselves out to have a certain [birthdate] consistently.  That differs from the cases you refer to, for example in Afghanistan, where a person will generally only identify the year, and maintain that year as – for the purposes of uniquely identifying them against the rest of the population. 

    …

    It’s important to go back to the basic concept of what identity is, and in that respect I will refer you to paragraph 22 of our statement of facts, issues, and contentions [in which the Minister had referred to CPI 16; see [27] above].  That is that a person’s identity is some combination of characteristics or attributes that allow a person to be uniquely distinguished from each other within a specific context.  Now, in that respect it’s important – it’s extremely important to this matter where the [A]pplicant claims, on two different occasions, to be born nine years apart.

    It is impossible to have two birthdays – or for the [T]ribunal to be able to uniquely identify the [A]pplicant from other people where there are numerous life stories being told, and where there are numerous documents showing different identities and different dates of birth.

11. The Minister’s contention, as explained by Mr Burgess,[32] was that the Applicant had lied about her age. The Minister’s SFIC identified the documents listed at [34] above as stating that the Applicant’s date of birth was 25 August 1990 whereas other documents, including those identified in [34(c) and 34(d)], nominated her birthdate as 15 September 1981. Other documents completed by the Applicant also nominated her birthdate as being 15 September 1981.[33]

    [32] transcript at 31–8.

    [33] Declaration of Service Form 1399: R1, T5/28; Personal particulars for assessment including character assessment Form 80: R1, T11/65; Statutory declaration made by Applicant on 30 January 2017: R1, T7/54.

12. It clearly is the case that the Applicant has provided documents with significantly different birthdates some nine years apart. It is also the case that in completing documents the Applicant has provided two very different birthdates. The Applicant cannot, and does not, dispute that fact. In my view two issues arise from her provision of inconsistent birthdates:

    (a)whether there is an explanation for the discrepancies in the dates; and

    (b)what consequence those discrepancies have in relation to the Applicant’s identity.

    It is only the Applicant’s identity that is the subject of these proceedings.

13. The Applicant’s submission and further evidence document explained the discrepancy as follows:

    3.As explained in my submission dated on 13 January 2021, I was born in 1990, 25 August 1990 was a closer estimation of my [birthdate], and this was the date my eldest sister (Paw Yeh) provided to UNHCR in Thailand for my refugee registration and school enrolment in 1999 when I just arrived in camp as a young orphan. Despite of our UNHCR registration was initially conducted in December 1999 and repeated in 2005, we only received our first UNHCR Household Registration certificate in 2007 (issue date was 23 July 2007), we noticed a few  errors in this document, including my date of  birth, my sister did report this error to the camp leader, but was told that it cannot be changed.

    4.Apart from those errors listed in my submission on 13 January 2021, the "arrival date (10 August 1984)" is also incorrect for me, my sisters Paw Du and Sue. I arrived in Huaykalo Refugee Camp in 1999, while my two sisters (Paw Du and Sue) arrived in Huaykalo Refugee Camp in March or April 1988 to the best of their recollection. For my eldest sister, Paw Yeh, she left home much earlier to live and attend school in a temporary Karen settlement on Thai  border, later they moved further into Thailand  due to  ongoing security concerns on the border and then refugee camp was established gradually, there was no record of these movement during that period.

    5.After our camp leader refused to do anything for the wrong date of birth in 2007, my family did not know what else to do but to accept it and live with it.

    6.In my culture, it is perceived impolite and inappropriate  to challenge elders in the  family and in the community, we were taught from young to be happy with what we have with grateful attitude. If our camp leader said that the error could not be rectified, I had to accept it.

    7.A couple of years after the issuing of our UNHCR Household Registration, UNHCR referred me to Australia for resettlement, I did sign my visa application form, however the Form 842 was filled up by someone else, whom might had just copied everything from my UNHCR household registration, that was why my date of birth was listed as 15 September 1981 and arrival date in Thai refugee camp as 10 August 1984.[34]

    [34] A1.

14. The Minister raised questions about the veracity of the Applicant’s story around the UNHCR Household Registration Document. Mr Burgess pointed to what he submitted were anomalies in the relative ages of the members of the Applicant’s family as indicated by the photographs attached to the UNHCR document. That apparent anomaly was explained by the fact that, as a member was added to the family unit in the Umphium refugee camp in Thailand, UNHCR would take a photograph of that person and add it to the existing photographs on the document. Accordingly, the photographs of the family members appearing on the UNHCR document[35] were taken at different times.

    [35] R1, T11/85.

15. The Applicant’s explanation for the 1981 birthdate continuing to be used in various documents, was that, in effect, the only “formal” document identifying her date of birth was the UNHCR document. Her evidence was that when it came to completing those other documents:

    Actually I fill in the application long time ago without, you know, assistance, and then I - actually I didn’t understand or, you know, know very much at all, so I just use the information that I base on my travelling document on that time...

    …

    Yes, actually it seem like I lied, but do you know, when I fill in the form I have no one to help me properly.  I just asked some other people who I know, and then they told me that I better use the date of birth that I have in travelling document.  If I want to put my actual date of birth, then I may have to provide the birth certificate or other evidence to prove that I was born in 1990.  But I do not have any birth certificate or any proof, evidence that I can prove it.  So I just take that advice and use that date of birth.

    …

    Actually, yes, I did understand it just, you know, lately, not before.  When I have difficulty filling in the form and then, you know, for my application, and then I went to see the community organisation, one of the lady told me that I better, you know, put date of birth - when I went to seek assistance, you know, in the community organisation, one of the ladies there, she asked my travelling document, and I show her, and then she say yes, she told me that I have to use - I should use that date of birth, since it is there.  And then she asked me to fill it in or, you know, she helped me to fill in the form, but she didn’t explain everything to me.  Just tell me to fill in the form, but she didn’t explain everything to me in detail, so I didn’t know actually, I just take her help and advice (indistinct) very much.[36]

    [36] transcript at 11–12.

16. Whether the above explanation excuses the provision of the incorrect birthdate is not relevant for present purposes. The only issue for me to determine is whether I am satisfied of the Applicant’s identity. I accept that the reason for the inconsistent birthdates provided by the Applicant is as explained by the Applicant. I am satisfied that she was born, as she now claims, on or about 25 August 1990 which is consistent with other documentation created before the Applicant came to Australia including:

    (a)the Fourth Standard Board Examination completion certificate dated 24 May 2004;[37]

    (b)the Examination Board certificate of lower secondary basic education dated 25 April 2007;[38]

    (c)the Karen Education Department official transcript of examination result (which includes a photograph of the Applicant) issued on 10 May 2007;[39] and

    (d)The Kaw Moo Rah High School Certificate (which includes a photograph of the Applicant) certifying that the Applicant had passed grade 12 examinations conducted in 2009-2010.[40]

    [37] A2, attachment 8.

    [38] A2, attachment 9.

    [39] A2, attachment 9.

    [40] A2, attachment 10.

17. I find that the Applicant’s provision of inconsistent birthdates is not a reason for not being satisfied of the Applicant’s identity.

18. As was observed in Dhayakpa, an applicant’s identity can be established in a number of ways. As the Minister noted in his submissions, the CPIs, in particular CPI 16, refer to the “three pillars” principle in establishing identity. The third of those pillars is the applicant’s life story.

19. In my view the Applicant’s life story as told through her statements, her evidence at the hearing and the evidence of her family members and friends who have known her since childhood, is consistent and sufficient for me to be satisfied of her identity. As she herself conceded, in some respects the narrative that she has provided has been compromised by her trying to be consistent with her being born in 1981 rather than in 1990 (e.g. her giving a history of having lived in Myawaddy from 1981 to 1987.)[41]

    [41] R1, T5/30.

20. The more recent statements provided by the Applicant, in particular A2, are consistent with, and supported by, the documentary evidence created before her arrival in Australia, including the documents referred to in [47] above and the photographs attached to A2.

21. That life story is also supported by the statutory declarations and evidence of her sisters Sue Sue and Paw Yeh Khin Refus,  as well as the statutory declarations of the Applicant’s niece Anna Mu, nephews Dah Seet Refus and Plati Rufus and Gay Hser Doo Blit (who taught the Applicant when she was at the Kaw Moo Rah High School in Umphium).

22. The Applicant’s life has not been easy. I accept that she was born in a remote village in Karen state, fled Myanmar as a child with a relative and lived in a refugee camp in Thailand. In those circumstances it is understandable that she does not have any formal identity documentation issued by the Myanmar Government. As Deputy President Nicholson did in Dhayakpa at [118], I accept that in the unusual circumstances of the Applicant’s life, she has established her identity to the best of her ability.

    DECISION

23. For these reasons I consider that the decision under review should be set aside and the matter remitted for reconsideration with a direction that the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

Associate

Dated: 10 November 2021

Date of hearing:	5 August 2021
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers