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

KXHA and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 397 (5 February 2020)
Division:GENERAL DIVISION
File Number: 2017/1543
Re:KXHA
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:5 February 2020
Place:Sydney

The Reviewable Decision dated 22 February 2017 is set aside and in substitution a decision is made that the Applicant is eligible for citizenship by conferral under s 21(8) of the Australian Citizenship Act 2007 (Cth) and is to be granted citizenship under s 24 of that Act.
...............................[SGD]..............................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – child applicant born in Australia to parents of Rohingya ethnicity – whether applicant considered to be stateless and eligible to become an Australian citizen under s 21(8) of the Australian Citizenship Act 2007 (Cth) – where applicant’s parents found not to be citizens of Myanmar and de jure stateless – where the Burma Citizenship Law of 1982 effectively excludes the Rohingya from acquiring Myanmar citizenship – where the Rohingya are not recognised as a designated “national race” for the purposes of Myanmar citizenship – decision under review set aside and substituted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Burma Citizenship Law 1982
SECONDARY MATERIALS
‘Country Policy and Information Note – Burma: Rohingya (including Rohingya in Bangladesh)’ (Country Information Note, Version 2.0, United Kingdom Home Office, March 2019)
Department of Immigration and Border Protection, ‘Rohingya: Issues relating to statelessness (Myanmar, Bangladesh and Malaysia)’ – Thematic Briefing – Country of Origin Information Services Section, effective from 14 July 2017)
Department of Immigration and Border Protection, ‘Situational Update – Myanmar’ (Information Paper, Country of Origin Information Services Branch and Refugee and Humanitarian Programme Branch, 15 December 2017)
‘DFAT Country Information Report Myanmar’ (Country Information Document, Department of Foreign Affairs and Trade, 18 April 2019)
Nick Cheesman, ‘Problems with Facts about Rohingya statelessness’, E-International Relations, 8 December 2015
Trevor Gibson, Helen James and Lindsay Falvey (eds), Rohingyas - Insecurity and Citizenship in Myanmar (Thaksin University Press, 2016)
Yemi Lufadeju, ‘Adoption of a new national Manual on Vital Registration: a major step towards the fulfilment of the rights of every child in Myanmar’ (Press Release, UNICEF, 28 July 2017)
REASONS FOR DECISION
Senior Member Linda Kirk
5 February 2020

KXHA (‘the Applicant’) was born in Australia in May 2014 to parents who are Rohingya Muslims. Her parents and older brother arrived in Australia on 26 July 2013 as unauthorised maritime arrivals. The Applicant’s birth has not been registered at the Myanmar Embassy in Canberra.
On 20 December 2016 the Applicant and her family applied for Subclass 790 Safe Haven Enterprise visas, which were granted on 27 March 2018. The delegate found that while the parents and older brother of the Applicant were citizens of Myanmar, there was a real chance that they would not be able to renew their documents if returned to Myanmar and this would make them more vulnerable to discrimination and harassment as Rohingya Muslims.[1]
[1] Exhibit R2, p 62.
On 14 November 2014 the Applicant applied for conferral of Australian citizenship under s 21(8) of the Australian Citizenship Act 2007 (‘the Act’).[2]
[2] Exhibit R1, T4 pp 39-79.
On 22 February 2017 a delegate of the Minister (‘the Respondent’) refused the Applicant’s application for citizenship (‘the Reviewable Decision’).[3] The delegate found that the Applicant’s parents and her brother were able to depart Myanmar legally on genuinely issued Myanmar passports, and was satisfied they were accepted as Myanmar citizens by the Myanmar authorities and are not stateless as claimed. The delegate was therefore satisfied that the Applicant became a citizen of Myanmar automatically under Myanmar law upon her birth in Australia to parents who were both Myanmar citizens at the time of her birth, and therefore the Applicant does not meet the statelessness provisions in s 21(8)(b).[4] The delegate further found that the Applicant’s parents could not be considered as leaving Myanmar permanently.[5]
[3] Ibid T2 pp 13-23.
[4] Ibid T2 p 19 and 23.
[5] Ibid T2 p 20.
The Applicant applied to the Administrative Appeals Tribunal for review of the Reviewable Decision on 17 March 2017.[6]
[6] Ibid T1 pp 1-12.
The matter was heard in Sydney on 12 July 2019. The Applicant’s parents appeared by video link from Brisbane and were assisted by an interpreter in the Burmese language.
The materials before the Tribunal are:
·Respondent’s T-documents – Exhibit R1;
·Respondent’s Supplementary T-documents – Exhibit R2;
·Statutory Declaration of Applicant’s father dated 15 July 2019 – Exhibit A1;
·Statutory Declaration of Applicant’s mother dated 7 July 2019 – Exhibit A5;
·Applicant’s Statement of Issues, Facts and Contentions dated 6 December 2018;
·Applicant’s Supplementary Statement of Issues, Facts and Contentions dated 26 April 2019;
·Applicant’s Supplementary Material filed on 29 April 2019;
·Respondent’s Statement of Facts and Contentions dated 22 January 2019;
·Respondent’s Additional Statement of Facts and Contentions dated 22 May 2019;
·Applicant’s Submissions including Annexure ‘A’ dated 14 May 2017;
·Country of origin information document titled: ‘Rohingya: Issues relating to statelessness (Myanmar, Bangladesh and Malaysia) – Thematic briefing’ published by the Country of Origin Information Services Section (COISS) of the Department of Immigration and Border Protection dated 14 July 2017 – Exhibit A2;
·Report of the Special Rapporteur on the situation of human rights in Myanmar by the Human Rights Council dated 9 March 2015;
·Myanmar driving licence of Applicant’s father – Exhibit A3;
·Burmese statement and two translated copies of ‘Household Members List’ – Exhibit A4;
·Unauthorised Maritime Arrivals and Induction Interview of Applicant’s mother – Exhibit A6;
·Unauthorised Maritime Arrival and Induction Interview of Applicant’s father – Exhibit A7;
·Situational update about Myanmar from the Department of Immigration and Border Protection (COISS) dated 15 December 2017 – Exhibit A8;
·Department of Foreign Affairs and Trade Country Information Report - Myanmar dated 18 April 2019 – Exhibit A9;
·UNICEF Press release titled: ‘Adoption of a new national Manual on Vital Registration: a major step towards the fulfilment of the rights of every child in Myanmar’ dated 28 July 2017 – Exhibit A10.
The Applicant’s solicitor was invited to provide written submissions at the conclusion of the hearing to supplement the oral submissions already made.
The following further submissions were received by the Tribunal:
·Applicant’s Submissions dated 27 August 2019;
·Respondent’s Further Submissions dated 26 September 2019;
·Applicant’s Further Submissions dated 27 October 2019 attaching Report of the Special Rapporteur on the situation of human rights in Myanmar (dated 2 May 2019).
LEGISLATIVE FRAMEWORK
Australian Citizenship Act 2007 (Cth)
A person is eligible to become an Australian citizen if, relevantly, that person satisfies s 21(8) of the Act.
Section 21(8) provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a)the person was born in Australia; and
(b)the person:
(i)is not a national of any country; and
(ii)     is not a citizen of any country; and
(c)the person has:
(i)     never been a national of any country; and
(ii)     never been a citizen of any country; and
(d)the person:
(i)     is not entitled to acquire the nationality of a foreign country; and
(ii)     is not entitled to acquire the citizenship of a foreign country.
If the Tribunal accepts s 21(8) is satisfied, the Respondent must grant citizenship to the Applicant under s 24. There is no discretion to refuse citizenship if eligibility under s 21(8) is established.
Burma Citizenship Law 1982
The following provisions of the Burma Citizenship Law 1982 (‘Citizenship Law’) are relevant to the determination of the citizenship of the Applicant and her parents:
Chapter I - Title and Definition
1.
This Law shall be called the Burma citizenship Law.
2.
The expressions contained in this Law shall have the following meanings:
(a) "State" means the Socialist Republic of the Union of Burma;
(b) "Citizen" means a Burma citizen;
(c) "Associate Citizen" means an associate citizen prescribed by this Law;
(d) "Naturalized Citizen" means a prescribed by this Law;
(e) "Foreigner" means a person who is not a citizen or an associate citizen or a naturalized citizen;
(f) "Certificate of citizenship" means a certificate of citizenship granted under the Union Citizenship (Election) Act, 1948 or the Union Citizenship Act, 1948 or this Law;
(g) "Certificate of Associate Citizenship" means a certificate of associate citizenship granted under this Law;
(h) "Certificate of Naturalized Citizenship" means a certificate of naturalized citizenship granted under this Law;
(i) "Central Body established under this Law.
Chapter II - Citizenship
3.
Nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the State as their permanent home from a period anterior to 1185 B.E., 1823 A.D. are Burma citizens.
4.
The Council of State may decide whether any ethnic group is national or not.
5.
Every national and every person born of parents, both of whom are nationals are citizens by birth.
6.
A person who is already a citizen on the date this Law cones [sic] into force is a citizen. Action, however shall be taken under section 18 for infringement of the provision of that section.
7.
The following persons born in or outside the State are also citizens:
(a) persons born of parents, both of whom are citizens;
(b) persons born of parents, one of whom is a citizen and the other an associate citizen;
(c) persons born of parents, one of whom [sic] and the other a naturalized citizen;
(d) persons born of parents one of whom is
(i) a citizen; or
(ii) an associate citizen; or
(iii) a naturalized citizen;
and the other is born of parents, both of whom are associate citizens;
(e) persons born of parents, one of whom is
(i) a citizen; or
(ii) an associate citizen; or
(iii) a naturalized citizen;
and the other is born of parents, both of whom are naturalized citizens;
(f) persons born of parents one of whom is
(i) a citizen; or
(ii) an associate citizen; or
(iii) a naturalized citizen;
and the other is born of parents, one of whom is an associate citizen and the other a naturalized citizen.
…
10.
A person born outside the State shall have his birth registered either by the parent or guardian in the proscribed [sic] manner within one year from the date of birth at the Burmese Embassy or Consulate or organizations prescribed by the Ministry of Home Affairs.
Proviso. If registration is not possible within one year from the date of birth, application may be made by the parent or guardian, furnishing sufficient reasons to the Central Body through the Burmese Embassy or Consulate or organizations prescribed by the Ministry of Home Affairs
11.
(a) A parent or guardian who fails to comply with section 9 or section 10 shall be liable to pay a penalty of kyats fifty [sic] per year to the Burmese Embassy or Consulate or an organization prescribed by the Ministry of Home Affairs.
(b) A parent or guardian who fails for five years in succession to comply with section 9 or section 10 shall be liable to a penalty of kyats one thousand [sic].
…
16.
A citizen who leaves the State permanently, or who acquires the citizenship of or registers himself as a citizen of another country, or who takes out a passport or a similar certificate of another country, ceases to be a citizen.
17.
The citizenship of a citizen by birth shall in no case be revoked except in the case of cessation of citizenship due to infringement of the provision of section 16.
…
Chapter IV - Naturalized Citizenship
42.
Persons who have entered and resided in the State anterior to 4th January 1948, and their offsprings [sic] born Within the State may, if they have not yet applied under the union Citizenship Act, 1948, apply for naturalized citizenship to the Central Body, furnishing conclusive evidence.
ISSUES FOR DETERMINATION
The issues for determination are as follows:
(1) Are the Applicant’s parent’s citizens of Myanmar?
(2) If so, did the Applicant acquire Myanmar citizenship at birth?
(3) What is the consequence of the failure to register the Applicant’s birth?
(4) Is the Applicant eligible for citizenship by conferral under s 21(8)?
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s father
In his statutory declaration, the Applicant’s father stated he was born in Myanmar and is Rohingya.[7] His paternal grandfather was Rohingya from Sittwe and fled to Yangon as an internally displaced person as a result of the ethnic cleansing of Rohingya from Sittwe.[8] His father obtained a census Household List by way of a bribe, which indicated that they were mixed blood, Zerabari, and were citizens.[9] He also obtained a Naing card for the Applicant’s father by the payment of a bribe, and this was entered on the Household List.[10]
[7] Exhibit A1, [1].
[8] Ibid [2].
[9] Ibid [5].
[10] Ibid [6].
In 2006 his father organised a driver’s licence for him with the assistance of an agent and the payment of a bribe.[11] The Household List[12] was used to obtain this licence as it contains a National Registration Card (NRC) number and indicates he is a Myanmar citizen.[13]
[11] Exhibit A1, [7]; Transcript pp 29-30; Exhibit A3.
[12] Exhibit A4.
[13] Transcript p 31.
In May 2007 the Applicant’s father and his wife married and their first son was born in 2008.[14] His father, as head of the household, was unable to have them registered on the Household List.[15] The Applicant’s father’s wife could not be registered because she did not have documents.[16] The Applicant’s father told the Tribunal that he did not ask why they could not be registered but he assumes it is because they are Muslims and Rohingya.[17]
[14] Ibid p 40.
[15] Ibid p 34.
[16] Exhibit A1, [10].
[17] Transcript p 17.
The Applicant’s father was asked how his son was able to attend school if he was not on the Household List. He said that he did attend school but not for long.[18]
[18] Ibid p 35.
The Applicant’s father stated in his statutory declaration that his son had a birth certificate.[19] During cross examination he was asked about this and he said that his father had applied for a birth certificate for his son but it was never received.[20] They did receive the hospital record for the birth.[21]
[19] Exhibit A1, [11].
[20] Transcript p 37.
[21] Exhibit A1, [11].
The Applicant’s father had been told by his family that the Household List was confiscated, but he does not know why.[22] His father told him about this when they were speaking on the phone, but he did not tell him the details of what happened.[23] He said it is not safe to discuss these matters over the phone.[24]
[22] Ibid [9].
[23] Transcript p 36.
[24] Ibid p 16.
In 2009 the Applicant’s father obtained a Myanmar passport with the assistance of an agent and the payment of a bribe organised by his father.[25] He provided a photograph and signed some forms. He did not provide a birth certificate as he does not have one.[26] He used this passport to travel to the United Arab Emirates (UAE) and to obtain a work visa.[27] Once there, he was able to open a bank account and obtain a driver’s licence and work as a taxi driver.[28] He stayed in the UAE for a little less than a year.[29]
[25] Exhibit R1, T4 p 77.
[26] Transcript p 24.
[27] Ibid p 23.
[28] Exhibit R2 p 57; Transcript p 23.
[29] Transcript p 24.
The Applicant’s father was asked about the statement in his statutory declaration on 19 June 2014 in which he said his parents were able to obtain a birth certificate for him.[30] He said this is incorrect.[31]
[30] Ibid pp 24-25.
[31] Transcript pp 24-25.
When the Applicant’s father returned to Myanmar from the UAE his passport was confiscated by the Myanmar authorities at the airport.[32] He told the Tribunal it was taken from him when he showed it at the immigration counter and he was told it was the Government who was taking it from him.[33] He said he was required to pay a $100 bribe and was questioned as he was returning from a Muslim country.[34]
[32] Exhibit A1, [8].
[33] Transcript p 26.
[34] Ibid pp 26-27.
The Applicant’s father travelled to Australia on a Myanmar passport issued on 20 February 2013 with an expiry date of 19 February 2018.[35] The Applicant’s mother had a Myanmar passport issued on 4 April 2013 with an expiry date of 3 April 2018.[36] The Applicant’s older brother had a Myanmar passport issued on 5 April 2013, with an expiry date of 4 April 2018.[37] They flew Jetstar to Indonesia via Singapore using these passports.[38] These passports were assessed to be genuine.[39]
[35] Exhibit R1, T8 p 99.
[36] Ibid p 98.
[37] Ibid p 97.
[38] Exhibit R2, p 51.
[39] Ibid p 44.
In response to a letter from the Department providing an opportunity to comment on adverse information,[40] the Applicant’s father stated that his father acquired the passports for him and his family by engaging an agent who obtained the passports without documentation by the payment of a bribe. The Applicant’s father told the Tribunal that he does not know how much was paid for the bribe.[41] He said that it is not possible for a Muslim to obtain a passport without paying a bribe.[42]
[40] Exhibit R1, T10 p 104.
[41] Transcript pp 28-29.
[42] Ibid p 17.
The Applicant’s father was asked whether he has approached the Myanmar Embassy in Canberra about registering the birth of his daughter.[43] He said he had not done so because they will not accept Muslims.[44]
[43] Ibid pp 37-38.
[44] Ibid p 38.
Applicant’s mother
In her statutory declaration, the Applicant’s mother stated that she was born in Myanmar in 1983 and is Rohingya.[45] Her maternal grandparents were Rohingha from Sittwe. Her father is a Pathan Indian and her mother is a Burmese Muslim.[46]
[45] Exhibit A5.
[46] Transcript p 47.
The Applicant’s mother told the Tribunal that when she married in 2007 and moved to her husband’s house she could not be registered on the Household List because she didn’t have any documents.[47] She lived there from 5 May 2007 to 20 May 2013.[48] They were unable to register their first born son because they did not have any documents for him. He was able to go to school because her father-in-law paid money and he was enrolled.[49]
[47] Ibid pp 44-45.
[48] Ibid p 45.
[49] Ibid p 48.
The Applicant’s mother said that the passport she used to travel to Australia was obtained by her father-in-law. She did not meet the agent who organised the passport.[50]
[50] Ibid pp 49-50.
She said that she has never tried to approach the Myanmar Embassy to ask about how she can get her daughter’s birth registered.[51] She does not want the Burmese authorities to know she has been granted refugee status.[52]
SUBMISSIONS
[51] Ibid pp 50-51.
[52] Ibid p 51.
Applicant
The status of the Applicant under s 21(8)(b)(i) and (ii) and (c)(i) and (ii) of the Act is that she is not a citizen or national of any country and has never been a citizen or national of any country. The question for determination by the Tribunal is whether under s 21(8)(d)(i) and (ii) the Applicant is entitled to acquire in the future, the nationality or citizenship of Myanmar.[53]
[53] Applicant’s submissions [14].

The Applicant’s status derives in part from her parents’ former and current status, and also on her own particular circumstances, having been born offshore with no notification having been provided to the Myanmar authorities of her birth.[54] In determining the status of the Applicant in any application for Myanmar citizenship, the authorities would be required to consider the status of the Applicant’s parents, and that would be determined by an assessment of whether the two generations prior to her parents (that is, including her eight great grandparents) were permanently settled in Myanmar.[55] The onus of proof when establishing citizenship entitlement to the Myanmar authorities for all those previous generations is on the applicant.[56] It is practically impossible for children of non-national ethnicities such as the Applicant to establish citizenship.[57]
[54] Ibid [36].
[55] Applicant’s Supplementary Statement of Issues, Facts and Contentions [22].
[56] Applicant’s submissions [30]; Applicant’s Supplementary Statement of Issues, Facts and Contentions [37]-[39].
[57] Applicant’s Supplementary Statement of Issues, Facts and Contentions [30].
The question of whether or not the Applicant’s father had a birth certificate, being born in 1979 prior to the Citizenship Law, is ultimately not determinative of citizenship.[58] The evidence that the Applicant’s mother and older brother were unable to be added to the Household List corroborates the Applicant’s parents’ claim that they were not considered by the Myanmar authorities as citizens of Myanmar.[59]
[58] Applicant’s submissions [37].
[59] Applicant’s submissions [40], [62]; Applicant’s Supplementary Statement of Issues, Facts and Contentions [11], [15].
Country of origin information indicates that Muslims outside Rakhine state are increasingly denied citizenship and identification documents.[60] Many Rohingya have obtained documents illegally in Yangon through the payment of bribes even though they may not be legally entitled to the documents.[61] On the basis of this country information it is apparent that the holding of a Myanmar passport does not in itself establish Myanmar citizenship when the passport was obtained through an agent. Moreover, the fact that the Applicant’s family were able to leave Myanmar with the assistance of an agent is also consistent with the country information that the Myanmar authorities smooth the passage of Muslims out of the country because the authorities want Muslims to leave Myanmar.[62]
[60] Applicant’s submissions at paragraphs [54]-[56].
[61] Applicant’s Supplementary Statement of Issues, Facts and Contentions [7].
[62] Applicant’s submissions [57].
The Applicant’s parents’ passports and the Naing Card of the Applicant’s father should be considered as fraudulently obtained evidence of citizenship, rather than fraudulently obtained citizenship. These are not evidence of citizenship, but rather evidence of a fraudulent claim to be citizens of Myanmar. This conclusion is supported by country of origin information.[63]
[63] Ibid [58].
Registration of citizenship of a child is dependent on a determination by the Myanmar Embassy as to whether the child’s parents are citizens at the time of application, and also whether the child is a citizen. At a practical level the Applicant is not recognised by the State of Myanmar to be a citizen unless and until an application to have her birth registered is accepted. Hence the Applicant is at a dejure and defacto level not a citizen of Myanmar in the absence of registration.[64]
[64] Applicant’s Statement of Issues, Facts and Contentions [9]-[10].
If the Applicant’s parents were to make an application to the Myanmar Embassy in order to establish that they had taken all reasonable steps to acquire the citizenship of Myanmar for the Applicant, this would necessarily involve disclosure of the Applicant’s and her family’s status as refugees in Australia. This would breach the safety and privacy of the Applicant’s remaining family members in Myanmar. It would be onerous to impose such a requirement on the Applicant to undertake such contact with the Myanmar authorities.[65]
[65] Applicant’s submissions [17].
If the Applicant’s parents are Myanmar citizens, the act of applying for and being granted protection visas in Australia is one considered to be of such disloyalty as to engage s 16 of the Citizenship Law, so as to cause the cessation of citizenship, thereby disentitling them from registering the birth of the Applicant at the Myanmar Embassy.^[66]
[66] Applicant’s Statement of Issues, Facts and Contentions [12]-[16].
The evidence establishes that the Applicant is not a citizen or national, has never been a citizen or national, and is not entitled to become a citizen or national, of Myanmar.[67]
[67] Applicant’s submissions [71].
Respondent
At the time of the Applicant’s birth, the Applicant's parents were holders of Myanmar passports identifying them as citizens of Myanmar. Country information indicates that persons who are Rohingya from Yangon such as the Applicant's parents are able to access identity documents and passports.[68]
[68] Respondent’s Statement of Issues, Facts and Contentions [22].
The Respondent relies on the initial statement of the Applicant’s father to the Department that he had obtained a birth certificate and had obtained a Myanmar passport through an agent. His later statement, that the passport was obtained without documentation, should be given no weight. In particular, the Respondent places reliance on the fact that the Applicant's father had an earlier passport which he used to travel to the UAE and resided there for some time. He also had a UAE driver's licence.[69]
[69] Ibid [23].
There is therefore evidence to support the finding that the Applicant was a Myanmar citizen at the time of her birth, relying on the provisions of s 7 of the Citizenship Law.[70]
[70] Ibid [24].
While there is a provision under the Citizenship Law requiring registration of a birth when it occurs overseas, there is nothing to suggest that failing to register a birth denies conferral of citizenship under that provision — see for example s 10 and s 11 - both of which contemplate that registration may occur many years after the birth of a person who is required to be registered.[71]
[71] Ibid [25].
While both s 9, relating to persons born in Myanmar, and s 10 which relates to persons born outside of Myanmar, require registration of birth, the only apparent sanction is a fine for failing to do so rather than preventing the acquisition of citizenship. Section 17 of the Citizenship Law is also relevant as it recognises that citizenship acquired by birth can only be revoked due to an infringement of s 16. The Applicant is currently in no position to form the requisite intention for s 16 to apply.
The Respondent does not accept the Applicant’s contention that s 16 of the Citizenship Law is engaged. The act of the Applicant’s parents leaving Myanmar when not lawfully entitled to reside in any other country is not sufficient for this provision to apply. At the time of their departure from Myanmar, the Applicant's parents had no basis for claiming that they had left permanently. Nor can it be said that this provision was satisfied at the time of the Applicant's birth when the Applicant's parents held bridging visas which enabled them to remain lawfully in Australia on a temporary basis. Whilst they have now been granted temporary protection visas they are not permanent residents of Australia. Neither can it be argued that they have acquired the citizenship of or have registered themselves as a citizen of another country (Australia) or taken out a passport or similar certificate.[72]
[72] Respondent’s Statement of Issues, Facts and Contentions [28].
The fact that the Applicant's birth has not been registered with the Myanmar authorities cannot dictate the outcome of statelessness for the purposes of s 21(8) of the Act. This provision can only be relied upon if a person is not a national or citizen of a country and has never had such status and is not entitled to acquire such status.[73]
[73] Ibid [30].
The Respondent contends that the Applicant has the status of a Myanmar citizen under the Citizenship Law from birth. This is not a case where registration is required to acquire such status, so the position regarding any registration is not relevant.
The Respondent contends that the Tribunal cannot be satisfied that the Applicant has demonstrated that she is not a national or citizen of Myanmar, nor that she has never had that status. At the time of her birth the Applicant satisfied the legislative requirements for Myanmar citizenship.[74] That is sufficient for demonstrating that the Applicant cannot rely on s 21(8) as she does not satisfy s 21(8)(c)(ii).[75]
[74] Ibid [32].
[75] Ibid [33].
COUNTRY INFORMATION
The Tribunal has had regard to the country information referred to by the parties. A July 2017 Department of Immigration and Border Protection publication Rohingya: Issues Relating to Statelessness (Myanmar, Bangladesh and Malaysia) - Thematic briefing[76] provides the following information in relation to Rohingya in Yangon, and their ability to obtain identity documents, including passports, and acquire citizenship status.
[76] Department of Immigration and Border Protection, Rohingya: Issues Relating to Statelessness (Myanmar, Bangladesh and Malaysia) - Thematic briefing - Country of Origin Information Services Section (COISS), effective from 14 July 2017.
Rohingya in Yangon
Yangon hosts an established Rohingya population. Small numbers of Rohingya have settled in Yangon, the capital of Myanmar, and other places in Myanmar. An established community of Rohingya settled there prior to the early 1990s, before the government imposed stricter restrictions on movement. Rohingya make up 85-95% of the population of Mingalar Taung Nyunt township in Yangon. In recent years, a growing number of Chittagonian-Bengali (or Rohingya) religious trust funds and mosques have been spotted throughout the former capital, attesting the increasing presence of Rohingya beyond Rakhine State (as demonstrated by the wealthy Chittagonian Sunni Arkaty Bara Masjid on 30th Street for instance). At November 2014, new Rohingya arrivals from Rakhine State continued to settle in Yangon, paying hefty fees to brokers for flights from Sittwe to Yangon.
Rohingya living in Yangon generally do not publicise their identity. The size of the Rohingya population in Myanmar outside Rakhine State is unclear, as these people generally do not publicise their ethnicity.Most Rohingya in Yangon reside under different identities as the Rohingya identity can draw attention from authorities, Buddhist nationalists and the 969 Buddhist radical group. Levels of trust, relationship or contact between Muslim and Buddhist communities in Yangon continues to diminish.
A few Rohingya in Yangon have obtained citizenship status; greater numbers have obtained other forms of identity documentation. A small number of Rohingya in Yangon have full citizenship and have obtained pink registration cards (CSCs [“Naing cards”], at times through bribing authorities or falsely registering as Kaman. This has however become almost impossible in recent years. Lawyers and activists note that some Rohingya have secured naturalized or associate citizenship status through bribery or by registering themselves as a recognized ethnic group such as the Kaman. Typically, Rohingya in Yangon are registered as ‘Burmese Muslims’. Burmese Muslims hold national ID cards and residency documents.Most Rohingya in Yangon hold an NRC, which remains a valid document. The NRC is, however, not proof of citizenship but rather of identity and of permanent residence.
Documented Rohingya in Yangon have been able to obtain passports. A significant number of Rohingya in Yangon possess NRCs and can obtain passports. Rohingyas possessing CSCs [“Naing” cards] have used these to obtain passports. Alternatively, passports can be obtained by bribing officials or using a broker. To obtain passports however, the identities used are either organized by the broker or obtained by falsely claiming a different ethnicity. Since the Burmese government wants Rohingya and Muslims to leave the country, bribery can smooth the passage through airport immigration. Burmese Muslims (which Rohingya in Yangon typically register as) holding national ID cards and residency documents have a legal right to a passport (emphasis added).
The 2017 Department of Immigration and Border Protection publication referred to above provides information in relation to other forms of documentation that may be obtained by Rohingya.
Other forms of documentation – household lists and birth certificates
Household lists are often the only formal documentation available to Rohingya in northern Rakhine State. Penalties of up to seven days in prison apply to people not registered on a household list.Household lists contain identification of a person’s residential status, their address details and personal information including registration number, ethnicity and religion.Every Rohingya must present a household list at the time of a check by authorities, otherwise they will be classified as illegal immigrants. Those fleeing to Bangladesh in the wake of the post-October 2016 security ‘clearance operations’ are at risk of having their names removed from their household lists, compromising their ability to prove their legal residence should they return.
Household lists are required to obtain services, yet have become harder to obtain since 1988. From 1988 onwards, Rohingya experienced many restrictions in obtaining household lists. These included rude behaviour from officials, the necessity to pay bribes, tardy processing times (up to six months), harassment in the form of being required to submit unnecessary documents, expenses required in travelling to the local Immigration and National Registration Department (INRD) office (where applicants had to apply in person), and illiteracy hampering the ability to complete forms. Due to these concerns, Rohingya often use third persons or agents to access their documents for them. From 2000 onwards, new household lists have not been issued for newly married Rohingya couples separating from their parents’ households; the children of undocumented parents also therefore do not appear on any household list. From January 2016, a new procedure commenced to insert new-born Rohingya babies onto household lists; the process is so bureaucratically onerous that most children are likely to remain unregistered. Household lists are required to obtain CSCs, birth certificates, school enrolments, travel permits and to gain access to services such as electricity and water.
Authorities have ceased issuing birth certificates to new-born Rohingya. Since the mid-1990s, new-born Rohingya children have not been issued with a birth certificate. Respondents to a recent survey in Rakhine State indicated that until 2005, the regular practice was for birth certificates to be issued to parents at the time of a child’s birth. After 2005 however, parents only received a delivery certificate rather than a birth certificate. Midwives and nurses (associated with Sittwe hospital – where some affluent Rohingya women gave birth) are authorised to issue delivery certificates; traditional birth attendants tending to the majority home births are not authorised to do so. Many children born in rural areas post-2005 do not therefore have birth certificates. Birth certificates are required to add children to a household list. In urban areas, delivery certificates are required to enrol children in primary school, though this may not be the case in rural areas; even Rohingya children with birth certificates are frequently denied access to public education (emphasis added).
The DFAT Country Information Report on Myanmar[77] dated 18 April 2019 provides the following in relation to the entitlement to and grant of Myanmar citizenship to Rohingya.
[77] Exhibit A9, pp 23-24.
Citizenship
3.9 Up until the late 1980s, all Myanmar citizens were issued formal identity documentation known as National Registration Cards (NRCs), and many residents of Rakhine State, including Rohingya, held NRCs. Non-citizens were issued Foreign Registration Certificates. In 1989, the government carried out a ‘citizenship scrutiny’ exercise as part of the implementation of the Citizenship Law. During this process, NRCs were replaced with full, naturalised or associate Citizenship Scrutiny Cards (CSCs). Under the Citizenship Law, many Rohingya are formally eligible for associate or naturalised citizenship, but very few have been issued CSCs of any type following the citizenship scrutiny exercise. While this is largely due to the unwillingness of government officials to provide citizenship to Rohingya, many Rohingya also reject the categories of associate or naturalised citizenship, on the basis that they implicitly deny the existence of Rohingya in Myanmar before 1823, and legally reinforce what Rohingya see as the inaccurate view that Rohingya are immigrants from Bangladesh. Associate and naturalised citizenship categories confer fewer rights than full citizenship.
3.10 In 1995, the government began to issue Temporary Registration Cards (TRCs) (known as ‘white cards’) to those who identified as Rohingya. However, in 2015 then-President Thein Sein declared white cards invalid, thus removing the only formal identity documentation available to the Rohingya. Temporary Approval Cards (known as ‘white card receipts’) were given out in exchange for TRCs, reportedly as part of a plan to reinstate identification documents at a later date. However, these were not accepted as valid documentation for the purposes of voting in the 2015 elections, or to stand as candidates, or form political parties.
3.11 From June 2015, the government began issuing a new ‘identity card for national verification’ (ICNV). DFAT understands that as few as 1,000 people were issued this card in 2015. Rohingya applicants were required to identify as ‘Bengali’ on the ICNV, and rights associated with the ICNV, including its limited two-year validity, were unclear. The UN Fact-Finding Mission described a campaign to coerce Rohingya to accept the ICNV, and increased restrictions on those with white card receipts in parts of northern Rakhine State.
3.12 From 2016, the government restarted the process to determine who is a citizen under the Citizenship Law. Rohingya were requested to undergo a ‘citizenship verification process’ (as opposed to the ‘citizenship process’ for members of the 135 recognised ethnic groups), and issued National Verification Cards (NVCs). The NVC does not specify religion or ethnicity, it has no expiry date and it is the current form of identity documentation required for Rohingya by the government. Reports of coercion to accept the NVC increased following the October 2016 violence, however as at January 2017, only around 6,000 NVCs had been issued in Rakhine State, compared with nearly 400,000 white cards which were surrendered, in part reflecting the decreased trust in the authorities from the Rohingya population.
3.13 In August 2017, the Advisory Commission on Rakhine State, a government established body chaired by former UN Secretary General Kofi Annan, made a number of recommendations to improve the government’s citizenship verification process for Rohingya, including making the process voluntary.
3.14 Despite these restrictions specified by authorities, the rights provided by the NVC remain opaque. In theory, NVC holders are permitted to travel anywhere in Myanmar, however in practice this is limited by the rules and regulations of local areas (see Freedom of Movement, and Movement restrictions in Rakhine, Kachin and Shan States). In February 2018, the government advised DFAT that a NVC is required by Rohingya in order to access basic services such as health and education. Despite this, most Rohingya remain unwilling to participate in the citizenship verification process and accept NVCs on the basis that it may remove their right to remain in Myanmar long-term, or establish them as a lower class of citizen with fewer rights. As a result, the vast majority remain undocumented – or holding a white card receipt – and are effectively stateless. This is having significant implications in particular for the registration of new births in the Rohingya community (see Birth and Death Certificates, and National Identity Cards). Credible sources reported that Rohingya also face difficulties in legally obtaining passports (emphasis added).

The United Kingdom Home Office March 2019 Country Policy and Information Note Burma: Rohingya (‘CPIN’) notes that whereas the Citizenship Law ‘does not include specific sections to deny the Rohingya citizenship, violation and selective application of the law effectively rendered the Rohingya stateless’.[78] The Citizenship Law makes membership of one of the country’s eight ‘national races’ the primary basis for citizenship, declaring ‘Kachin, Karenni, Karen, Chin, Burman, Mon, Arakanese, Shan and other national races and ethnic groups who resided in an area of the state as their permanent home anterior to 1823AD are Burmese citizens’.[79]  According to the CPIN ‘[m]ost Rohingya were unable to prove to the state ‘conclusive evidence of their lineage’, [under section 42] effectively making them stateless’. It cites Al Jazeera which reported ‘[t]o get citizenship, [the Rohingya] need to prove they have lived in Myanmar for 60 years, but paperwork is often unavailable or denied to them. As a result, their rights to study, work, travel, marry, practise their religion and access health services are restricted.’[80]  
[78] ‘Country Policy and Information Note – Burma: Rohingya (including Rohingya in Bangladesh)’ (Country Information Note, Version 2.0, United Kingdom Home Office, March 2019)’ [4.1.2].
[79] Nick Cheesman, ‘Problems with Facts about Rohingya statelessness’, E-International Relations, 8 December 2015.
[80] ‘Country Policy and Information Note – Burma: Rohingya (including Rohingya in Bangladesh)’ (Country Information Note, Version 2.0, United Kingdom Home Office, 2019) [4.1.3].
In 2015, the Department of Immigration COISS sourced information from Mohamed Anwar, the Secretary-General of the Burmese Rohingya Community in Australia, including the question of the citizenship status of Rohingya in Yangon.
Question:
3. Do you have any information about the citizenship status of Rohingyas who reside in Rangoon? Is there a section of the Rohingya community who have full citizenship?
Answer:
Majority of Rohingyas do not have citizenship status in Yangon. However, there are few Rohingyas who were able to obtain citizenship cards previously by falsely registering to other recognized ethnic groups such as Kaman and bribing to authorities. However, this becomes almost impossible lately. Since 2012, Rohingyas become too afraid to use those cards anymore and are living in fear all the time as they can face severe prosecution/punishment if they are caught having the falsely obtained citizenship cards.
I will refer to some quotes received from some activists and US state department in regard to Rohingya citizenship.
Chris Lewa, the Arakan Project Coordinator and based in Thailand and Myanmar, [a recognised expert on the Rohingya] mentioned about citizenship for Rohingya in Myanmar,
It is, indeed, practically impossible for a Rohingya in Myanmar to qualify for citizenship under the existing immigration law of Myanmar. Rohingya are therefore stateless.
...
I do know of a few persons of Rohingya origin born in Yangon who do have citizenship documents. It seems, however, that most of them obtained it through bribes or connections to the authorities or else by declaring to belong to a recognised "national race" such as Kaman who are also Muslims (emphasis added).
The 2016 publication, Rohingyas - Insecurity and Citizenship in Myanmar, explains the legal effect of the Citizenship Law and the citizenship scrutiny process for Rohingya:[81]
According to the International Federation of Human Rights League (2000), the Rohingyas were forced to apply for new Citizens Scrutiny Cards. They returned their old ID cards and re-applied for Citizens (sic) Scrutiny Cards as part of this process. However, many of them did not receive back their Citizens Scrutiny Cards or other documents they provided as part of the process or any other legal documents that would enhanced (sic) their citizenship status. Only a few Rohingyas were granted citizenship under the 1982 Citizenship Law (International Federation of Human Rights League, 2000). As a result, the rest of the Rohingyas lost their citizenship status and became foreigners without legal documents. This loss of citizenship and legal standing meant that the Rohingyas entered into a status of de jure statelessness. The 1954 Convention relating to the Status of Stateless Persons defines de jure statelessness as applying to individuals who have not received nationality automatically nor been granted citizenship through an individual decision under the operation of any state’s laws. In contrast, de facto statelessness applies to stateless people who are unable to obtain proof of their national identity, residency or other means of qualifying for citizenship (Biliz and Lynch, 2009).[82]
…
Burma Campaign UK (2013) stated that the creation of 1982 Citizenship Law rendered the Rohingyas stateless because the 1982 Citizenship Law disqualified them from being granted any of the three types of citizenship - full, associate or naturalized (Shafer, 2013).
It would appear that Rohingyas who had been granted citizenship before 1982 could not under the 1982 Citizenship Law be denied citizenship. However, by delaying the re-granting of citizenship by the scrutinizing and approval process, Rohingyas have effectively been denied citizenship since 1982. This study suggests that deliberate bureaucratic delays are the main reason for the current statelessness of Rohingyas. The Bureau of Democracy, Human Rights and Labor (2013) indicates that the 1982 Citizenship Law contributes to statelessness because the Rohingyas are not recognised as one of the 135 national ethnic groups which automatically acquire citizenship according to the 1982 Citizenship Law. The 1982 law does not grant citizenship to children of non-citizens so that Rohingya children born in Myanmar are also stateless (emphasis added).[83]
[81] Trevor Gibson, Helen James and Lindsay Falvey (eds), Rohingyas - Insecurity and Citizenship in Myanmar (Thaksin University Press, 2016).
[82] Ibid p 76.
[83] Ibid p 91.
CONSIDERATION AND REASONS
The Tribunal has considered the parties’ submissions and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard.  
1) Are the Applicant’s parents citizens of Myanmar?
It is not in dispute that the Applicant’s parents are Rohingya Muslims. The parties are however at odds as to whether, as Rohingya Muslims, the Applicant’s parents are citizens of Myanmar. The Respondent contends that the fact that the Applicant’s parents held a genuine Myanmar passport when they arrived in Australia is evidence that they are Myanmar citizens. This is supported by the evidence that the Applicant’s father previously held a passport which he used to travel to the UAE and obtain a driver’s licence. The Applicant contends that whereas the passports the Applicant’s parents held when they entered Australia are genuine, they were obtained via an agent through the use of false documents and the payment of a bribe. As the Applicant’s parents are ineligible for any form of citizenship under the Citizenship Law, they are unable to obtain a Citizenship Scrutiny Card (CSC), which is evidence of Myanmar citizenship, unless a bribe is paid.
For the reasons that follow, the Tribunal finds that the Applicant’s parents are not citizens of Myanmar and are stateless.
The evidence before the Tribunal is that the Applicant’s parents entered Australia as the holders of genuine Myanmar passports. The Tribunal accepts the Applicant’s father’s evidence that these passports, although genuine, were obtained by engaging an agent who organised for the passports to be issued in the Applicant’s parents’ names without documentation and by the payment of a bribe. The Tribunal accepts this evidence which is consistent with the country information in paragraph 49 above, which confirms ‘passports can be obtained by bribing officials or using a broker. To obtain passports … the identities used are either organised by the broker or obtained by falsely claiming a different ethnicity’.
Moreover, the fact that the Applicant’s parents held genuine passports is not evidence in itself that they are citizens of Myanmar. The country information makes clear that it is ‘practically impossible’ for a Rohingya to qualify for citizenship under the eligibility provisions of the Citizenship Law. Rohingya are not one of the eight recognised ‘national races’ who are eligible for citizenship under the Citizenship Law. Nor are they readily able to prove ‘conclusive evidence of their lineage’ to make them eligible for citizenship as belonging to one of the 135 ethnic groups ‘who resided in an area of the state as their permanent home anterior to 1823AD’. Those Rohingya who do have citizenship documents invariably have obtained these through bribes or connections to the authorities, or by falsely declaring as belonging to one of the recognised national races. This country information is consistent with the Applicant’s father’s claim that his father obtained for him a Naing card (a Citizenship Scrutiny Card), indicating full citizenship and issued under the Citizenship Law, by the payment of a bribe.
The country information supports a finding that even if the Applicant’s father, who was born in 1979, had been recognised as a Myanmar citizen prior to the 1982 Citizenship Law, he would not have maintained this status following the entering into force of this law and is therefore de jure stateless. The Applicant’s mother, who was born in 1983, would not under the Citizenship Law have been recognised as a citizen of Myanmar, and is also stateless.
The evidence before the Tribunal in relation to the Applicant’s parents and her older brother is consistent with the country information and supports a finding that they are stateless. The Applicant’s father gave evidence, which the Tribunal accepts, that the identity documentation he has held over the years, including a driver’s licence, his first passport, a Naing card, and his registration on the Household List were all obtained through the payment of bribes. This accords with the country information that this is one of the few ways that Rohingya can acquire such documents. The evidence in relation to the inability to register the Applicant’s mother following her marriage and her brother upon his birth on the Household List, which is accepted by the Tribunal, is also consistent with a finding that they were not regarded as citizens and therefore unable to be included as members of the household. The evidence that the Applicant’s brother was able to attend school, despite not being included on the Household List and not having a birth certificate, is not inconsistent with a finding that, like his parents, he is stateless. The country of origin information indicates that a delivery certificate, which the Tribunal accepts was issued to the Applicant’s parents at the time of their son’s birth, is sufficient to enrol a child in primary school.
On the basis of the evidence before it, including the Applicant’s parent’s evidence and the country information, the Tribunal is satisfied on the balance of probabilities that the Applicant’s parents and her older brother are stateless.
2) If so, did the Applicant acquire citizenship at birth?
Having found that the Applicant’s parents are stateless, it follows that the Applicant is not eligible for Myanmar citizenship under the Citizenship Law. The Applicant is only eligible for citizenship under s 7 if one or both of her parents is a citizen, associate citizen or naturalised citizen. Accordingly, the Applicant did not acquire Myanmar citizenship at birth nor is she currently eligible for the grant of Myanmar citizenship.
3) What is the consequence of the failure to register the Applicant’s birth?
As the Tribunal has found that the Applicant did not acquire Myanmar citizenship at birth there are no consequences which follow from the failure of her parents to register her birth with the Myanmar Embassy.
4) Is the Applicant eligible for citizenship by conferral under s 21(8)?
As the Tribunal has found that the Applicant is stateless and is not a Myanmar citizen nor eligible for the grant of the citizenship of Myanmar, and there being no evidence that the Applicant is a national or citizen of another State, or eligible for citizenship or to acquire the nationality of another State, she meets the requirements of s 21(8) of the Act.
CONCLUSION
The Applicant is eligible for citizenship by conferral under s 21(8) of the Act.
DECISION
The Reviewable Decision dated 22 February 2017 is set aside and in substitution a decision is made that the Applicant is eligible for citizenship by conferral under s 21(8) of the Australian Citizenship Act 2007 (Cth) and is to be granted citizenship under s 24 of that Act.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

..................................[SGD]..............................
Associate
Dated: 5 February 2020

Date(s) of hearing: 12 July 2019

Date final submissions received: 27 October 2019

Solicitors for the Applicant: Mr D Taylor, Sydney West Migration Pty Ltd

Solicitors for the Respondent: Ms D Watson, Australian Government Solicitor

[2020] AATA 397

5 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Standing

Jurisdiction

Date(s) of hearing:	12 July 2019
Date final submissions received:	27 October 2019
Solicitors for the Applicant:	Mr D Taylor, Sydney West Migration Pty Ltd
Solicitors for the Respondent:	Ms D Watson, Australian Government Solicitor