Khupchawn and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 2133
•1 July 2022
Khupchawn and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2133 (1 July 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4262
Re:Benedict Zaw Lwin Kyaw Khupchawn
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s):2020/4330
Re:Rudy Par Khupchawn
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s):2020/4340
Re:Julia Van Dawt Chin Khupchawn
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
File Number(s):2020/4344
Re:Grace Ngun Za Par Khupchawn
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:1 July 2022
Place:Sydney
In applications 2020/4262, 2020/4330, 2020/4340 and 2020/4344,
the reviewable decisions are affirmed.
......................................[sgd]..................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether satisfied of identity of applicants – Australian Citizenship Procedural Instructions – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Han and Minister for Home Affairs (Citizenship) [2019] AATA 3325
Yusuf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2096
SECONDARY MATERIALS
Citizenship Procedural Instruction - CPI 4 - Australian Citizenship by Conferral - Person under 18
Citizenship Procedural Instruction - CPI 13 - Best interests of the child assessments
Citizenship Procedural Instruction - CPI 16 - Assessing Identity under the Citizenship Act
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
1 July 2022
The decisions under review
The decisions under review are refusals of applications for citizenship by conferral made in respect of two adults and two children. The cases of each of the adults will be considered and then the cases of the two children.
The issue to be decided in relation to each of the adults, Benedict Zaw Lwin Kyaw and Rudy Par Khupchawn, is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act) which provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Departmental policy
The Department has issued the Citizenship Procedural Instructions (CPIs). CPI 16 - Assessing Identity under the Citizenship Act (CPI 16) is particularly relevant to the assessment of a person’s identity for the purposes of the Act. The Tribunal applies lawful Government policy unless there is a cogent reason not to do so.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
CPI 16 provides that there are three pillars relevant to the assessment of identify and describes them as follows:[2]
[2] 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 description of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
CPI 16 further relevantly provides that:
(a)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;[3]
(b)officers must seek to establish a person’s identity from birth using an evidence-based approach. 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;[4] and
(c)officers may have regard to relevant country information to assess a person's life story, particularly where that person is unable to provide identity documents to support their identity.
2020/4262 – BENEDICT ZAW LWIN KYAW KHUPCHAWN
[3] At [4.4].
[4] At [4.12].
The decision under review
The decision under review is a decision of a delegate of the Respondent made on 14 August 2020 to refuse to grant the Applicant citizenship by conferral because the delegate could not be satisfied of the Applicant's identity for the purposes of s 24(3) of the Act.
The issue to be decided is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act which provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Facts not in contention
The following facts are not in contention.
The Applicant claims to be a citizen of Myanmar. The United Nations High Commissioner for Refugees (UNHCR) recognised the Applicant as a refugee on 30 March 2009 when he was living in Malaysia with the person who now uses the name Rudy Park Khupchawn, who is said to be his wife.
In 2009, the Applicant’s wife gave birth to a daughter who will be referred to as “J”.
On 15 February 2010, the Applicant and his wife applied for a Refugee and Humanitarian (Class XB) visa on behalf of themselves and “J". Before the Applicant's application for a visa could be determined, the Applicant's wife gave birth to their second daughter, who will be referred to as "G", in 2011.
On 13 February 2012, an officer of the Department decided to grant the Applicant, his wife, J and G Refugee and Humanitarian (Class XB) visas. The Applicant, his wife, J and G arrived together in Australia on 18 April 2012 from Malaysia.
On 3 July 2017, the Applicant lodged with the Department an application for citizenship by conferral. He provided no identity documentation which related to a period prior to the UNHCR's decision to recognise both as refugees. To date, the Applicant has still not furnished any identity documentation issued by the Government of Malaysia, the Government of Myanmar, or any reliable authority for a period prior to the UNHCR’s decision to recognise him as a refugee.
The evidence
The Applicant’s application for the offshore humanitarian visa was signed and dated 15 February 2010. The Department file in relation to the visa application includes the following information.
His mother’s year of birth was 1952. He attended primary school from June 1981 until March 1986 and high school from March 1986 until March 1993. He was self-employed as a carpenter from 1995 until May 1998. He studied for a Bachelor of Divinity degree from June 1998 until March 2001. He obtained that degree. He worked as a Youth Minister in Lungtar Village from April 2001 until November 2002. He left Myanmar illegally on 1 April 2003 and arrived in Malaysia on 4 April 2003. He travelled from Lungtar Village, Myanmar to Yangon, Myanmar on foot and by bus. From Yangon to Kawhtaung, Myanmar he travelled by bus and from there to Thailand he travelled by boat. From Thailand to Malaysia he travelled by car and on foot. In Malaysia, he worked as a plantation worker in the Cameron Highlands from April 2003 until May 2006, in an undisclosed occupation in Shah Alam from July 2006 until January 2008, and as a wireman in Kepong from February 2008 until “current” (February 2010). He was married “religiously” on a date in 2008 in Malaysia.
He met his wife when he heard her sing at a youth worship service on 10 February 2008 at Century Christian Fellowship in Sungei Besi, Fajar Lama, Malaysia. He contacted her by telephone. They commenced a relationship. They informed their families in Myanmar on 16 March 2008 and married in 2008 at Century Christian Fellowship conducted by Rev. Hrang Kam. The service started at 2:00 PM and went until 4:00 PM. Around 130 people attended the wedding ceremony.
There was evidence that the Senthan Christian Fellowship Malaysia has a Facebook page.
The Applicant provided UNHCR cards for himself, his wife and J. Details on a UNHCR Resettlement Registration Form in evidence were annotated by hand. I infer that was done during an interview. The form included details of the Applicant’s family members in Myanmar and in Australia. Some dates of birth were amended. Details of one sister were added. The UNHCR Resettlement Registration Form stated that she was born in 1989 and died in 1998 in a motor accident.
The Applicant listed a person with the family name of Inhmai born in 1979, his mother’s brother, as a permanent resident residing in Australia. (A person of the same name was granted a humanitarian visa in 2007.)
The Applicant had resided in the hotel in Kuala Lumpur since January 2009.
The Applicant’s UNHCR Resettlement Registration Form updated on 16 August 2011 included photographs of him, his claimed wife and two young daughters. It listed his education as “University level, BA, BS, License or equivalent”. His occupation/skills were “religious associate professionals: 2001-2003” and “electrical line installers, repairers & cable join: 2003-2010”. The annotated UNHCR form includes details of the families of the Applicant and his wife.
His refugee claim set out in the UNHCR Resettlement Registration Form included the following:
·He is a refugee of Chin ethnicity. After finishing high school, he studied at the Gospel for Asia Theology College in Yangon where he graduated with a Bachelor of Divinity. He was issued with an evangelical card which allowed him to preach, which he did on return to his home village where he became the leader of the church’s youth group.
·(The Respondent provided printouts of the Facebook page of the Gospel for Asia Theological Seminary (GFA Bible College) which shows that it existed in Yangon in 1998.)
·When he turned 20 years old the Applicant was subjected to forced labour. He had to work on road construction for one or two days, once or twice a month. He was constantly verbally abused and beaten when he did not work fast enough. He had to provide his own food and water.
·On two occasions he was forced to “porter” for the military when he was 21 and 23 years old. He reported incidents when he was treated harshly.
·On 7 November 2002, the Applicant held the regular youth meeting in his village which was attended by two travellers whom he did not know. The next day, the Applicant was called to the Village Council Chairman’s (VCC) office where there were a few soldiers and their Captain. They asked him why he preached to the Chin National Army (CNA). He responded that he did not know that the two travellers were CNA. The Captain accused him of supporting the CNA. The soldiers tied his hands with rope and beat him. The Captain confiscated his ID and evangelical card. The VCC’s house was on stilts. Livestock were kept under the house. That night, the soldiers tied up the applicant and placed him under the VCC’s house. One soldier guarded him. After midnight, the VCC headed out to the outhouse when he noticed that the guard was fast asleep. The VCC cut the ropes tying the Applicant, releasing him, and told him to flee as it was no longer safe for him in the village.
·The Applicant travelled to Yangon where he stayed with his uncle for four months. It was no longer safe for him to stay in the country because he had no ID. His uncle advised him to flee the country and helped him find an agent, who took him to Malaysia on 4 April 2003. He met his wife in 2007 during a service at the Senthang Christian Fellowship. They married in April 2008.
A translation of an undated note from the Applicant to the Australian Mission explained that during an interview in February 2010 he had mistakenly given the date of death (sic) of his daughter as the date of death of his sister. A translation of a handwritten note by the Applicant dated 26 February 2010 stated that he could not submit a household members list and death certificate because they were refugees in Malaysia.
The Applicant provided the following information in a Form 80 dated 25 August 2011:
·He was residing in a hotel in Kuala Lumpur.
·He answered “none” to a question about whether he had or was known by other names.
·He listed his parents, two sisters, two brothers and another sibling whose gender was not identified. They all resided in Lungtar Village.
·He worked as a youth minister from January 2000 to November 2002 in Lungtar village. From April 2003 to June 2006 he was a plantation worker in the Cameron Highlands in Malaysia. From July 2006 to January 2008, he worked as a construction worker in Cheras, Malaysia. From February 2008 to present (being August 2011), he worked as a wireman in Kepong, Malaysia. He nominated the employer in each case and a location address. His employer was Rev. Tial Dum, Lungtar village, in 2001 and 2002 when he was a youth minister.
·The only information he provided about his education was from June 1998 to March 2001. He studied theology at the Gospel for Asia Theological College, Yangon for a B.D degree.
·He provided details of one contact in Australia whom he described as an uncle (Kang Che Yhang INHMAI).
When he applied for citizenship in 2017, the Applicant accepted communication to his email address.He provided copies of a gas bill in his name and a record of payment, a copy of his NSW provisional driver’s licence and his Australian travel document stamped with his arrival date of 18 April 2012.
In two letters to the Department dated 11 October 2017 in reply to letters from the Department dated 5 August 2017, the Applicant explained that he was unable to provide a marriage certificate but he had provided a copy of the Document for Travel to Australia which showed that he was married and was unable to provide a birth certificate because when he was born in 1976, Burma did not provide birth certificates.
An officer of the Department wrote to the Applicant by email on 26 February 2020, requesting further information, specifically:
further information to support your claimed identity before you arrived in Australia. This includes providing evidence of any Myanmar issued documents you have and details of your life story to support your identity.
The letter was comprehensive and detailed. It set out specific advice about the particular documents that may be obtained and provided and stressed the importance of identity to the citizenship approval process.
On 24 March 2020, the Applicant replied to the officer's request for further information, providing:
(a) a "Form 80", containing personal particulars for assessment including character assessment, signed and dated 16 March 2020;
(b) a statutory declaration sworn on 21 March 2020, providing further details of his background;
(c) a table purporting to list all visa applications in which the Applicant had been a sponsor; and
(d) a table of all identity documents provided (which lists only "Document for Travel to Australia").
The Form 80 listed a visit to friends in Malaysia the Applicant made from 9 to 25 May 2015. Question 20 was not answered. It requested details of all tertiary education and qualifications and explained what that included.
The Applicant stated the following in his statutory declaration sworn 21 March 2020. He lived in a small village in a remote part of Myanmar. His parents were never given a household registration document or family book. Birth certificates were not issued when he was born. He was never given a baptismal certificate or paper to mark his first communion. His small church did not keep written records. Photos were very rare for poor people when he was growing up. He could ask his sister if a current member of the church who knew him could write a letter saying that he had attended. His school did not keep records that far back. He obtained a marriage certificate when he was married but he had to give it to the UNHCR. They were married in the Senthang Christian Fellowship, Sungei Besi, by Rev Hrang Kam. The Applicant does not have a Myanmar passport. He had a UNHCR card but was asked to return it before he left Malaysia. He did not have a Myanmar driver’s licence because his family was too poor to own a car or a motorbike. He had no employment records from Myanmar because his family were farmers. He has asked his sister who lived in the village to find some documents to show that he lived there. She had been unsuccessful because he had been removed from many Myanmar government records because he had not lived there since 2003. He did not need documents to live in his small village full of people from the Chin minority.
On 6 April 2020, an officer of the Department wrote to the Applicant, inviting him to comment on potentially adverse information held by the Department and reiterating the lack of documentation relating to the Applicant's identity prior to his registration with the UNHCR. The correspondence also highlighted that the Applicant had provided limited details of his life story.
The letter of 6 April 2020 also raised concerns about the process by which the Applicant had been registered as a refugee with the UNHCR. The letter stated that the UNHCR had advised the Department of suspected identity fraud that occurred during registration processes at the time of the Applicant's registration. The UNHCR has not, to date, advised of any determinative finding with respect to the legitimacy of the Applicant's application. The delegate did not rely upon this information in making the decision under review and the Respondent does not rely on it in these proceedings. The Tribunal does not rely on that information in making its decision.
On 20 April 2020, the Applicant responded by email to the Department's letter of 6 April 2020, stating that he could not provide any documents from his time living in Myanmar. Further, as the teachers who taught him at school had since left, there was nobody who could provide evidence as to his schooling. The Applicant's family, being a poor farming family, could not afford a camera. Accordingly, it was not possible to provide photographs from his time in Myanmar.
The Applicant did attach to the letter of 20 April 2020, a letter purporting to be from Reverend Tial Dum, the pastor of Lungtar Baptist Church, who stated that Mr Khupchawn was baptised on 16 April 2000 and provided a list of the Applicant's family members who were listed in the Lungtar Baptist Church’s records, which corresponds with the list provided by the Applicant in his application for citizenship.
On 24 April 2020, an officer of the Department wrote again to the Applicant, suggesting that the Applicant might provide a more fulsome statutory declaration, setting out:
(a) his schooling details;
(b) his places of work in Myanmar;
(c) how his family lived, a list of his family members, and where they reside;
(d) who lived in his family home;
(e) what happened to make him leave Myanmar;
(f) how, and with whom, he travelled from Myanmar to Malaysia;
(g) what documentation he had used to travel within Myanmar and Malaysia;
(h) details of his employment in Malaysia; and
(i) where he lived in Malaysia.
The Applicant responded with a statutory declaration sworn on 30 April 2020, in which he provided the following information. He attended school from kindergarten in June 1981 until March 1992, which was year 10. He worked with his father as a farmer and in his father’s small carpentry business. He provided a list of family members and where they lived (either “Lungtar” or “Australia”). He left Myanmar because as a Chin person, soldiers used to force him and other villagers to labour for them. On 6 November 2002 he preached at church. There were two visitors there. Later that night, some Burmese soldiers came, asked him about the visitors and told him that the visitors were members of the CNA. They questioned him all night which made him very frightened. He decided to leave Myanmar because he was very worried for his safety. He travelled by bus, vans, boat and on foot. A lot of travel was at night to keep safe. He provided a similar route as previously given. He had travelled without any documents. After arriving in Malaysia, he first lived in Kuala Lumpur with a friend. He moved to another address in Kuala Lumpur where he and his wife lived after they married and during the period when they were granted Permanent Residence in Australia.
On 14 August 2020, the decision under review was made to refuse the Applicant’s application for Australian citizenship.
In his application to the Tribunal, the Applicant wrote that because he was from a small remote village in western Myanmar where they were not given official government documents, he was unable to provide the original documents that had been requested. In relation to “small discrepancies” on forms which the department had pointed to, he believed that they were due to poor translation or recording errors which he could explain.
The Applicant gave oral evidence at the hearing with the assistance of an interpreter in the Hakha Chin language.
Consideration
The Applicant has provided consistent information about his name, ethnicity, date, and place of birth in the various documents he has provided since he was granted refugee status by the UNHCR. He claims to be a citizen of Myanmar who is married to another applicant (in application 2020/4330).
Biometrics
The Applicant has explained that he has no photographs from his life in Myanmar because he comes from a poor farming family who did not own a camera.
However, he pursued higher studies in a tertiary education institution in Yangon, the capital city, for at least two years. It is unlikely that no photograph was taken of him in that period, whether for identification within the institution or otherwise, which could be produced to establish his biometric identity while in Myanmar.
Further, the Applicant lived in Malaysia for six years before being granted refugee status by the UNHCR, during which period he was married before 130 people. That no photograph of the Applicant can be produced from that period is implausible.
He has produced no biodata to support his claimed identity in Australia, prior to being granted refugee status by the UNHCR. No weight can be attributed to this pillar.
Documents
The only document the Applicant has provided from Myanmar to support his claimed identify is the letter from the pastor of Lungtar Baptist Church dated 15 April 2020. He has provided no documents from Malaysia before he was registered by the UNHCR, including his marriage certificate.
In his oral evidence, he said that he was baptised in 1998. The church pastor wrote that he had baptised the applicant on 16 April 2000. When he was asked about that inconsistency, the Applicant said that he could not remember the year and just guessed.
The Applicant claimed that he was studying theology in Yangon at that time. The primary difficulty with that evidence is would a Christian theology college accept a student who was not baptised? The Respondent provided a printout of a webpage with information containing about the Bachelor or Theology at a college with a very similar name to the college the Applicant claims to have attended, which shows that current policy of the college requires a “personal conversion testimony, an official high school Certificate or your highest degree Certificate and pastor’s recommendation”. That is consistent with a requirement of such a college. The second difficulty is if he had not been baptised before he arrived at the college, why was he not baptised in the years he was studying there before 2000? A third difficulty is how or why would he return to his village for baptism, which was approximately 1,0000 km or 17 ½ hours by car from Yangon, and why in 2000?
That the pastor was able to provide a precise date of baptism and details of his family members including dates of birth, strongly suggests that the church did keep written records, contrary to the Applicant’s claim.
The pastor’s name is the same as the pastor the Applicant described as his employer from 2001 to 2002 when he was a youth minister, but there is no mention of that employment by the pastor. The Applicant was on notice that evidence of his life story and identity were important to the consideration of his application for citizenship when the letter was obtained. That the pastor did not provide more information about his knowledge of the Applicant, including that he had employed him in a particular role for a period of time or the qualifications the Applicant held raises doubts about the authenticity of the letter.
Given the inconsistency in the information provided by the pastor and the Applicant’s evidence and the failure to provide apparently relevant information, I give no weight to the pastor’s letter to support the Applicant’s claimed identity.
I acknowledge that in some circumstances, it may be impracticable for a person to obtain any form of identity documentation. However, the circumstances of each case need to be considered, including the effort the person has made to obtain documents.
The Applicant advised the UNHCR that he had completed theology college. His evidence at the hearing was that he did not complete that course because he was unwell. He said that is what he had told the UNHCR and they, or perhaps the translator, made mistakes, including that he had a card to preach which he did not. He only had an ID card.
He claimed that he had not sought documents from the theology college to support his identification because he had heard that Bible colleges do not issue a transcript if you did not graduate. He also said that he did not need it because he did not graduate and then he had a problem in Myanmar, which I understood to refer to the events leading him to leave Myanmar.
The Applicant was asked whether he had tried to get a copy of his ID card from the Myanmar government. He gave several responses, some of which were inconsistent. He said that he had asked one of his sisters to try to obtain it but said that there was now a problem with the government. If he fled from Myanmar in 2003 because he was in fear of the military who had confiscated his ID, it seems highly unlikely that he would have asked his sister to put herself at risk of possible revenge by asking her to approach the government for a copy of his ID. He explained that a person’s name is removed from the register if they move to a foreign company or get married. He said that he did not know where to get a copy of his ID. He said that without a person being present it is not possible to get an ID. Each of those explanation is inconsistent with asking his sister to try to get a copy of the ID. He also claimed, contrary to his other evidence, that he was never given any ID documents by the Myanmar government.
The Applicant claimed that the UNHCR had the original of his marriage certificate and he had lost his copy. He had not approached the UNHCR to get a copy. He did not have the contact details. He did not think to use Google to find out the contact details but said that if the Respondent wanted it, he would try to Google and find the contact number.
He said that the marriage certificate was not registered with government. The marriage was conducted by a pastor in a Christian fellowship who has gone to the US. Upon further questioning, the Applicant said that he had tried to contact the pastor through the Fellowship but they have not got back to him.
The Applicant has provided no corroborative evidence of the marriage, including photographs, despite 130 people attending the ceremony. His explanations for not contacting the UNHCR are unpersuasive. Malaysian law requires registration of marriages between non-Muslim people with the Registrar General of Marriages who is required to keep marriage records regardless of whether the parties are Malaysian citizens. Any person may apply for a certified extract of the marriage register. The Applicant’s evidence that the marriage was not registered is inconsistent with the requirement of Malaysian law.
Although he nominated employers in Malaysia, he provided no evidence from any of them to support his claimed identity or detail any efforts he had made to obtain such evidence.
The Applicant explained that he could not provide documents from his school years because the teachers were not there anymore, and the school did not keep records going back that far. He did not describe any effort he made to actually check whether or not there were any records.
I am not satisfied that the Applicant has availed himself of all reasonable opportunities to secure documentary evidence of his identity. I am not satisfied that the applicant has established his identity to the best of his ability, per Dhayakpa and Minister for Immigration and Border Protection [5]. I place no weight on this pillar.
[5] [2015] AATA 310, at [118].
Life story
The Applicant’s life story takes on special significance given the absence of biometric and documentary evidence of his claimed identity.
In summary, the Applicant’s relevant life story is as follows. He was born in a village in Chin State Myanmar on 21 June 1976. He attended school from 1981 to 1993. From June 1998 to March 2001 he studied for a Bachelor of Divinity at the Gospel for Asia Theological College in Yangon. He was baptised in his village by Rev. Tial Dum in 1998 or 2000. He was harassed by Burmese Army soldiers on 6 November 2002 for preaching to members of the CAN and escaped to Yangon where he stayed until he travelled to Thailand and then by boat to Kuala Lumpur. For a few years he worked as a plantation worker in the Cameron Highlands and then as a construction worker in Shah Alam, Kuala Lumpur while living at Cheras, and then as a “wireman” in construction in Kepong, Kuala Lumpur, while living at Pudu. He married Rudy Par Khupchawn in 2008. On 10 December 2008 he sought registration as a refugee with the UNHCR using the name he claims is his identity.
The Applicant’s email address is not in that name. When asked about that, the Applicant said that it was a nickname given to him by his father. He agreed that he had also used that name or a version of it on Facebook for a while and had signed his visa application form using that name. He said that he had not advised immigration that he had used that name because it was a nickname and everyone also know him by that name. He denied that it was his real name.
That he used that name for his email and for a period on Facebook, was apparently widely known by that name and signed a visa application using that name raises very serious doubt that his real name is as he claims, particularly in the absence of identity documentation.
At the hearing, the Applicant’s account of the events following his arrest by the military after preaching to a congregation that included two CNA soldiers differed significantly from the account set out above. He claimed that while he was tied up, he wanted to go to the toilet and the soldier would not allow him to do so. When the soldier was looking ahead, the Applicant cut the rope with a sharp stone and jumped up and ran away.
When questioned about the discrepancy in his accounts, the Applicant said that it is always different in writing from when he speaks. It was a long time ago and he has been interviewed many times. Each interview is a little bit different. It is hard for him to remember. At the end of the hearing, the Applicant apologised for his poor memory.
The Applicant’s explanations for the very different accounts of a life-defining moment, leading him to flee his existing life and his country, are not persuasive.
At the hearing he said that he stayed with his uncle in Yangon for two weeks, rather than the four months he had stated in his refugee claim. A poor memory is not a persuasive explanation for such a discrepancy. If he were in fear of his life to the extent that he had to flee his country, waiting for a period of four months before being able to flee, would have seemed interminable.
The Applicant’s evidence about his places of residence in Malaysia was inconsistent. In his visa application he claimed that he had first resided and worked in the Cameron Highlands from 2003 to 2006. In his oral evidence he said it was one year. He did not mention the Cameron Highlands in his statutory declaration sworn 30 April 2020.
In his most recent statutory declaration, the Applicant claimed to have resided in two locations in Kuala Lumpur when he first arrived in Malaysia. Neither of those locations is the Cameron Highlands which are more than 200 kilometres from Kuala Lumpur and where he had previously claimed to have worked for three years.
Some of the other inconsistencies in the evidence were that the Applicant had/had not completed his theology degree and was baptised in 1998/2000.
The Applicant has provided no corroborative evidence of his marriage in Malaysia, despite 130 people attending. I have addressed the biometric and documentary evidence that he might have sought and his claimed efforts to do so earlier in this decision.
The Applicant did not provide a complete record of all the visa applications he had sponsored. The instructions asked for “all applications you have applied for to sponsor anyone to Australia”. He said that only his brother had been successful and so he was the only name he provided. He had sponsored six visa applications involving 13 different people. None of the others was granted. Some were undecided and some were refused. The form of the table included a space for “decision”. The form of the table did not suggest that only applications that had been granted needed to be included.
The Applicant has not provided corroborative evidence about his identify from his brother who is in Australia or from the relative he had previously nominated as being resident in Australia.
The Applicant explained that the inconsistencies in his evidence were caused by the fact that he had been interviewed many times over a long period of about 10 years; he cannot remember some dates, his parents’ details were difficult to remember, he tried to explain correctly, his English is limited, and he has had no help although he has asked for help. When questioned, he said that someone did help him with his citizenship application but had not translated it back to him. Finally, he said that interpreters made mistakes. I have taken the Applicant’s explanations into account but do not accept that they explain the inconsistencies in his evidence.
The Applicant’s life story includes limited information and numerous inconsistencies. Little weight is placed upon this pillar.
Conclusion
I have considered each of the three pillars prescribed in CPI 16: biometrics, documents, and life story. The Applicant has provided limited information and his evidence is inconsistent. He has provided no persuasive corroborative evidence of his identity before his registration with the UNHCR in Malaysia. I am not satisfied that he has availed himself of all reasonable opportunities to provide such evidence. I am not satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Act.
Decision
The reviewable decision is affirmed.
2020/4330 - RUDY PAR KHUPCHAWN
The decision under review
The decision under review is a decision of a delegate notified to the Respondent on 23 June 2020 to refuse to grant the Applicant citizenship by conferral because the delegate could not be satisfied of the Applicant's identity for the purposes of s 24(3) of the Act.
Facts not in contention
The following facts are not in contention.
The Applicant claims to be a citizen of Myanmar.
On 30 March 2009 she was recognised as a refugee by the UNHCR when she was living in Malaysia with the person who now uses the name Benedict Khupchawn and who is said to be the Applicant’s husband.
In 2009, the Applicant gave birth to a daughter who will be referred to as “J”.
On 15 February 2010, the Applicant and her husband applied for Refugee and Humanitarian visas for themselves and J. Before the applications were determined, in the Applicant gave birth to a second daughter, who will be referred to as “G”, in 2011.
On 13 February 2012 the Applicant, her husband, J and G were granted Refugee and Humanitarian (Class XB) visas. They arrived in Australia from Malaysia on 18 April 2012.
On 19 July 2017 the Applicant and her husband lodged separate applications for citizenship by conferral. J and G were included in her application. The Applicant provided no identity documentation which related to a period prior to the UNHCR's decision to recognise both her and her husband as refugees. To date, the Applicant has still not furnished any identity documentation issued by the Government of Malaysia, the Government of Myanmar or any reliable authority before registration with the UNHCR.
On 11 October 2017, the Applicant wrote three letters to the Department. In the first two letters, she stated that she was unable to produce a marriage certificate to support her claimed identity because she did "not have a marriage certificate from that ceremony". In the third letter, she stated that she did not have a birth certificate from Myanmar.
An officer of the Department wrote to the Applicant by email on 26 February 2020, requesting further information. Specifically, the officer sought:
further information to support your claimed identity before you and any dependent children included in your application arrived in Australia. This includes providing evidence of any Myanmar issued documents you have and details of your life story to support your identity.
On 8 April 2020, an officer of the Department wrote to the Applicant, inviting her to comment on potentially adverse information held by the Department. This correspondence reiterated the lack of Myanmar issued identity documentation. The correspondence also highlighted that the Applicant had only provided surface-level detail with respect to her life story.
The Department's letter of 8 April 2020 also raised with the Applicant concerns regarding the process by which she had been registered as a refugee with the UNHCR. The letter indicated that the UNHCR had advised the Department of suspected identity fraud that occurred during registration processes at the time of her registration. The UNHCR has not, to date, advised of any determinative finding with respect to the legitimacy of the Applicant's registration. The delegate did not rely upon this information in making the decision under review and the Respondent does not rely upon it before this Tribunal.
On 21 July 2020, a delegate of the Respondent decided to refuse the Applicant's application for Australian citizenship on the basis that they were not satisfied of the Applicant’s identity pursuant to s 24(3) of the Act.
The evidence
Following is a summary of the evidence relating to the Applicant’s claimed identity which includes documents the Applicant has provided beginning with UNHCR documents, the visa application and related documents, the application for citizenship, correspondence with the Department, the application to the Tribunal and her oral evidence.
The Applicant was born in 1986 at Lungkhin Village, Chin State, Myanmar. Her father is deceased. Her mother was born in 1960.Her siblings included a sister born in 1984 and a brother born in 1991. The UNHCR Resettlement Registration Form showed different dates of birth for her father, mother and siblings.
Her refugee claim provided to the UNHCR was as follows. After leaving school she was subjected to forced labour. Whenever the military came to her village, she had to wash their clothes and cook for them. She was verbally abused. She portered once for the military, carrying a heavy bag for a whole day without rest, while being subjected to verbal abuse. She taught Sunday School at her village church to the local children. On 8 April 2007, five soldiers arrived at the church, leading the children to flee. The soldiers ordered her to tell the children not to run away. She tried, but they were too afraid to remain. The soldiers accused her of telling the children to run away and slapped her. They took her to the VCC’s house and beat her. The church chairman and pastor came, apologised to the soldiers, and asked them to release the Applicant. The soldiers refused to release her, confiscated her ID card and told her not to leave the house. They had to go to a neighbouring village but on return would arrest her and take her with them. Following advice from the church chairman, the Applicant fled to Yangon where she found an agent who took her to Malaysia, via Thailand. She arrived in Malaysia on 28 April 2007. In December of that year Malaysian immigration officers arrested her. She was taken to Lenggeng Immigration Detention Centre and detained for a month before being deported to Thailand. After five days, she returned to Malaysia because she was afraid of being arrested in Thailand and being deported to Myanmar. During 2007, she faced extortion from Malaysian police twice, paying RM100 the first time and RM30 the second time.
In the Application for an Offshore Humanitarian visa which was signed and dated 15 February 2010 by the Applicant and her husband, her education was set out. She attended primary school from June 1991 until March 1996 and secondary school from June 1996 until March 2002. She completed 10th standard.
Her employment history is set out in a Form 80 dated 25 August 2011. From April 2002 to April 2007 she was employed by Rev. Tin Lang in her home village; from April to December 2007 she was employed as a waitress in Nilai, Malaysia by “Robert”; from January 2008 to March 2009 she was employed as a waitress by “Jeny” at Ampang, Malaysia; and from April 2009 until “present” (being August 2011) she was unemployed. Similar information was provided in the Application for an Offshore Humanitarian visa.
The Applicant lived in Sungei Besi, Malaysia from April 2007 to April 2008 and in Cheras, Malaysia from April 2008 until December 2008.
The Applicant and her husband married in Malaysia in April 2008.
Consideration
Biometrics
The Applicant provided a copy of her UNHCR Resettlement Registration Card which included her photograph. She has provided no biometric evidence before that time from Myanmar or Malaysia. On 24 February 2010, the Applicant signed her name as Rudy Par KAIRO on an Australian values statement which she claims is her maiden name. She acknowledged during oral evidence that she had signed documents using the name “Hnem”.
Documents
The Applicant has provided no documents relating to her identity prior to recognition as a refugee by the UNHCR. On the UNHCR Resettlement Registration Form her name is Rudy Par.
The Applicant’s name on J’s birth certificate dated 19 October 2009 is Rudy Par, as it was in a Detention Statement dated 15 February 2010.
In a Relationship Statement dated 15 February 2010, the Applicant’s husband set out how he met and married the applicant, “Rudy Par”.
On an annotated copy of the UNHCR Resettlement Registration Form dated 12 February 2010, the annotation next to Rudy Par is “Kairo @ Rudy Par”. It is not clear when the annotation was made.
In the Application for an Offshore Humanitarian visa, the Applicant was named as both Rudy Par Kairo and Rudy Par. Her parents’ names did not include Kairo. A person named Kang Che Yhang Inhmai was listed as the brother of the mother of the Applicant’s husband.
The Applicant’s name listed on G’s birth certificate dated 21 June 2011 was Rudy Par.
In a Notification of changes in circumstances, signed by the Applicant and her husband on 28 July 2011, the Applicant’s name was Rudy Par Kairo.
In the Form 80 signed and dated 25 August 2011, the Applicant gave her family name as Kairo and given names as Rudy Par. She gave her parents’ family name of Kairo. That family name for her parents did not appear on the UNHCR Resettlement Registration Form. She said during oral evidence that it was her maiden name.
The Applicant swore a statutory declaration on 9 September 2011 in relation to her criminal history. It begins “I, Rudy Par KHUPCHAWN @ Rudy Par KAIRO @ Rudy Par”.
In her Application for Australian citizenship, the Applicant listed “Kai Ro” as her family name before her marriage.
On 11 October 2017, the Applicant responded to a request from the Department for evidence to support her change of family name. She wrote that she married Mr Khuphawn on 3 April 2008 in Malaysia when her name became Mrs Rudy Par Khupchawn but did not have a marriage certificate. She provided a certified copy of the Document for Travel to Australia which included her photograph and claimed name.
In a letter of the same date, the Applicant stated that Burma did not provide birth certificates when she was born and provided the above Document for Travel to Australia.
Life story
There is an absence of documentary evidence or biodata to tie the Applicant’s identity in Australia to her life in Myanmar or Malaysia, prior to registration with the UNHCR in 2009. Her life story takes on special significance when considering whether I am satisfied her identity is as she claims.
The available evidence shows that the Applicant’s name evolved from the time she engaged with the UNHCR from Rudy Par, to Rudy Par Kairo to Rudy Par Khupchawn. During her oral evidence, she said that “Kairo” was a tribe name. It is understandable that the Applicant may have adopted her husband’s name when she married but that does not seem to have occurred until a few years after the marriage. Her Australian identity documents have been consistently issued in that name. I must be positively satisfied that the Applicant has always used the same name, as she claims.
The Applicant has a Facebook account in the name of “Ruddy Za Cuai Hnem”. While “Ruddy” may be seen to be a version of “Rudy”, “Za Cuai Hnem” are not names that the Applicant has previously disclosed that she used.
She also operates an Instagram account using the name “Rudy-A Hnem”. The “handle” for her Instagram account is “zacui_hnem”.
The Applicant operates a business which maintains a website to which the Applicant has posted a link on her Instagram account. The website features the slogan “I Help People Work Smarter NOT Harder!” and states “Join the winning seminar for an intense learning session: How to become a business owner with an internet-based business”. The website includes testimonials from clients, has a “Sign up now” link and includes legal disclaimers and a comprehensive privacy statement. Placed prominently on the website is a photograph of the Applicant with the caption “Rudy Hnem”. Around her photograph are five small illustrations in circles with the following captions underneath: “Mentorship – guided learning to grow your business”, ”Global Business community of 10 000+ Owners”, “Years of training available at your fingertips”, “Video-based training” and “All training masterminds are saved”. It appears to be quite a sophisticated business website.
Finally, the Applicant’s email address is consistent with her on-line identity, containing “Zahnempar”. Its components are “Za Hnem Par”.
When asked about her use of those names, the Applicant said that she started to use that name in Malaysia. It was part of her dream to save a lot of money to help people. The Applicant said that “our cultures are different” and talked about naming children and said that the name was quite unique and it made a lot of sense to her. She changed her name on social media a lot. It was a “fun platform to entertain”. She never thought that social media was important to the present proceedings. She included her email address and business website in her definition of social media. She denied that Hnem was her real name.
When taken to a document where she had signed her name “Hnem”, the Applicant said that she thought she could use any name. She had thought about what was best for her signature, that was most convenient and unique. She had started using that name in Malaysia.
When questioned about not disclosing the name “Za Cui Hnem”, the Applicant said that she never used it officially. When it was pointed out that she had signed an official document using that name, the Applicant said that it was convenient and easy to remember and she had no further explanation. She repeated that she never used it on official documents in Myanmar or Malaysia and just used it for fun.
When I asked whether she signed documents “Hnem”, including in Australia, she said yes. She said that she registered the business in the name of Rudy Par Khupchawn.
The Applicant acknowledged that both she and Mr Khupchawn did not use their claimed name in their signatures or their email addresses.
While there may be cases where a social media identity is part of “a fantasy world”, as Senior Member Puplick observed in Yusuf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6], I am not persuaded this is such a case. The Applicant’s consistent use of a different name, apparently since she lived in Malaysia, across social media, in her business, her email address and her signature, casts doubts on the veracity of the identity she has provided for the purpose of her citizenship application, indeed going back as far as registration as a refugee with UNHCR. Her evidence suggested that the name she has adopted has a special significance for her. If so, why did she did not disclose it?
[6] [2021] AATA 2096, [97].
The Applicant has made no attempt to obtain corroborative evidence which may have been available, particularly in Malaysia. She has made no effort to obtain corroboration of her detention and deportation by the Malaysian authorities or obtain corroborative evidence from her employers. When she was questioned about her employers and the names and locations of the restaurants where she worked, her evidence was very vague. It was inconsistent with what a person would know who had to attend premises to work over months or longer. She has made no effort to obtain corroborative evidence from her employers.
Her evidence about the locations in Malaysia where she lived was limited to the area or village.
What did emerge clearly from her oral evidence was that she had been taken to Malaysia and indeed returned to Malaysia from Thailand by an “agent” who was paid money. She said that people from her village had been doing that all her life. Her evidence casts doubt on her claim, set out in the UNHCR Resettlement Registration Form, to have fled her village because of fear of the military and travelled alone to Yangon with the help of strangers on the way.
She has made no effort to obtain a copy of her marriage certificate from the UNHCR. She has provided no photographs of her wedding, although she said that 120 or 130 people attended and took photographs, and has made no effort to do so, despite there being a Facebook page for the fellowship where she was married – and she has a Facebook page.
The Department made very clear to the Applicant the importance of evidence of her identity to the decision and the information that she might obtain, including from Myanmar. I do not accept that her lack of English, poor education or poor memory explains the lack of detail about her life story. Her business website reflects a mastery of English and business acumen. I do not accept that she has made reasonable efforts to obtain documents or biometric evidence or corroborative evidence of her life story.
I am not satisfied of the Applicant's identity for the purposes of s 24(3) of the Act.
Decision
The reviewable decision is affirmed.
JULIA AND GRACE KHUPCHAWN - 2020/4340 AND 2020/4344
The decisions under review
The decisions under review are two decisions made by a delegate of the respondent on 23 June 2020 to refuse to grant the Applicants’ applications for Australian citizenship pursuant to s 24(1) of the Act. The delegate was satisfied that the Applicants met the requirements of s 21(5) of the Act, being under the age of 18 at the time of application and a permanent resident of Australia at the time the person made the application and at the time of decision. However, the delegate exercised the discretion in s 24(2) of the Act to refuse the applications, having regard to the guidance in the Citizenship Policy.
Facts not in contention
Julia was born in 2009 in Kuala Lumpur, Malaysia to parents who now use the names Benedict Khupchawn and Rudy Par Khupchawn.
On 15 February 2010, Benedict Khupchawn and Rudy Par Khupchawn applied for a Refugee and Protection (Class XB) on behalf of themselves and Julia.
Grace was born in 2011 in Kuala Lumpur, Malaysia to Benedict and Rudy Khupchawn. Benedict Khupchawn notified the Department of Grace's birth on 28 July 2011 and requested that she be included in his application, to which request the Department acceded.
On 13 February 2012, the four applicants were granted permanent visas. They arrived in Australia on 18 April 2012.
On 3 July 2017 Benedict and Rudy Park Khupchawn made separate applications for citizenship by conferral. The Tribunal has decided to affirm the decisions made by a delegate to refuse both applications because of concerns with respect to the identity of both those applicants. The Applicants, Julia and Grace, were included in the application of Rudy Par Khupchawn.
The Applicants’ applications were also refused on 23 June 2020.
The issue
The only issue to be decided is whether it is appropriate to exercise the discretion under s 24(2) to refuse to approve the applicants becoming Australian citizens despite the person being eligible to become an Australia citizen under s 21(5) of the Act.
Relevant policy
The Tribunal will ordinarily apply a general policy adopted by the Minister to guide the decision maker in the exercise of the exercise of a power “unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.[7]
[7]. Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 635.
CPI 4 - Australian Citizenship by Conferral - Person under 18 (CPI 4) is relevant. It emphasises that a decision-maker “must have due regard to all the circumstances of the family unit when considering individual applications”. A relevant factor is if a child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time, such has not having access to a scholarship that was available only to Australian citizens.
The policy must not be applied inflexibly, and the best interest of the child is a primary consideration but is not the only consideration.[8]
[8] CPI 4, at [10.1].
Paragraphs 3.2 and 3.4 of CPI 13 - Best interests of the child assessments set out factors to be taken into account when assessing the best interests of the child.
Consideration
The Applicants’ parents have made no representations that the Applicants may face any hardship or disadvantage if the discretion were exercised to refuse their applications for citizenship. The evidence does not suggest that the Applicants may face any such hardship or disadvantage.
As permanent residents, the Applicants are generally in the same position as they would be if they were citizens and be entitled to education in the Australian public school system, medical treatment under Medicare, and access to social security services. Employment prospects are not likely to be a relevant consideration as there is no indication that they would be disadvantaged as permanent residents.
The Applicants’ parents have not provided any evidence or made submissions about whether the best interests of the Applicants would be served by acquiring Australian citizenship. The Respondent acknowledged that in many cases it can be assumed that acquisition of Australian citizenship may reasonably be associated with bolstering a sense of identity and integration within Australian society. There is no evidence either way in this case.
Senior Member Puplick’s observations in Han and Minister for Home Affairs are relevant:
The Tribunal is persuaded that it is not in the best interests of the child to be in a situation where his citizenship and that of his parents are not congruent while the Applicant is still at such a young age. There would be, under such circumstances, the real possibility that the family unit could be split or severed. The Tribunal accepts that this is a hypothetical proposition, but difficulties with potential visa non-renewal, cancellation or revocation in relation to the Applicant’s parents may occur and give rise to the possibility of them not being able to remain in or return to Australia. Were the Applicant to be an Australian citizen, such a right could not be denied to him.[9]
[9] [2019] AATA 3325 at [54].
The Applicants are permanent residents. The evidence does not suggest that they will face hardship or disadvantage if they remain permanent residents. Their best interests are served by having citizenship that is congruent with that of their parents.
Conclusion
I am satisfied that it is appropriate to exercise the discretion under s 24(2) to refuse to approve the Applicants becoming Australian citizens, despite them being eligible to become an Australia citizen under s 21(5) of the Act.
Decisions
In applications 2020/4340 and 2020/4344, the reviewable decisions are affirmed.
I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
....................................[sgd]....................................
Associate
Dated: 1 July 2022
Date(s) of hearing: 29 & 30 September 2021 Applicants: By videoconference Solicitors for the Respondent: Oliver Morris, Clayton Utz
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