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

[2024] AATA 1820

KXZC and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1820 (18 June 2024)

Division:GENERAL DIVISION

File Number(s):      2020/7701

Re:KXZC

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:18 June 2024

Place:Sydney

The reviewable decision is set aside and the matter remitted to the Respondent for reconsideration with the direction that the Applicant satisfies the requirement in s 24(3) of the Australian Citizenship Act 2007 (Cth).

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

Deputy President B W Rayment OAM KC

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether decision-maker can be satisfied of the identity of the person – stateless Rohingya – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Citizenship Procedural Instruction 16 - Assessing Identity under the Citizenship Act

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

18 June 2024

1. KXZC is a Rohingya stateless person, born in Myanmar. He is a permanent resident of Australia and has been here since 2011. He does not have any criminal convictions. He runs his own business in Sydney, he is married with one child, and his wife was pregnant with their second child at the time of the hearing. He is a university graduate.

2. He sought citizenship by conferral. A delegate refused his application on the ground that they were unsatisfied as to the identity of the applicant. He now seeks review in the Tribunal. In making my decision, I have given consideration to government policy published in Citizenship Procedural Instruction 16 - Assessing Identity under the Citizenship Act.

3. Neither the applicant’s mother nor his father is still alive. His father died in 2010 and in 2013 his mother and several of his siblings died on board a vessel on its way to Australia when the vessel capsized.

4. The respondent submitted that the applicant failed to discharge his onus to establish his identity because he failed to give a complete account of his life story, including his names, family and claim to statelessness, and that there was inconsistent documentary evidence. On the contrary, I accept the explanations of the applicant regarding those matters, and I am satisfied on the balance of probabilities as to his identity as he claims.

5. As is well known, Rohingyas often have difficulty with official documents issued in Myanmar and the applicant’s situation is no different. The difficulty may stem from a desire of the Myanmar government to discriminate against Rohingyas or not to recognise them officially, noting that the applicant was granted a permanent protection visa in 2012. The applicant, like other Rohingyas, used both a Burmese name and a Muslim name in Myanmar. Whilst not all Rohingyas born in Myanmar are stateless, the evidence before me leads me to conclude that it is more likely than not that the applicant was not a citizen of the country and is stateless.

6. I have had the benefit of hearing witnesses, most of whom are relatives of the applicant, and all of whom were cross-examined, and, in the result, I have no doubt as to his identity because of his own evidence and the evidence of the witnesses. The witnesses whose oral evidence I heard were the Applicant himself, two of his brothers who lived with him in Myanmar and now live in Australia near the applicant, and the applicant’s maternal aunt who resides in Malaysia and whom the applicant has twice visited in Malaysia, in 2014 and 2018. I also had evidence before me from the applicant’s maternal uncle who lives in Bangladesh and who maintains contact with his nephews in Australia, including the applicant. I also heard from a family friend who also lives near the applicant and who knows him as a member of the local community. There is no reason to doubt the applicant’s identity.

7. The reviewable decision will be set aside, and the matter remitted to the Respondent for reconsideration with the direction that the Applicant satisfies the requirement under s 24(3) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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

Associate

Dated: 18 June 2024

Date(s) of hearing:	1 & 2 June 2023
Date final submissions received:	26 October 2023
Solicitors for the Applicant:	Sydney West Migration Pty Ltd
Solicitors for the Respondent:	HWL Ebsworth Lawyers