Kyi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4069
•5 November 2021
Kyi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4069 (5 November 2021)
Division:GENERAL DIVISION
File Number: 2020/4028
Re:Mu Kyi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:5 November 2021
Place:Perth
The decision under review is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – refusal to grant Australian citizenship – delegate not satisfied of identity (Citizenship Act s 24(3)) – Applicant from Myanmar – no source documents produced – failure to exhaust reasonable efforts to obtain identity documents – failure to provide sufficient life story – Tribunal not satisfied of identity – prohibition under the Citizenship Act s 24(3) applies – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) preamble, ss 24(1), 24(3)
CASES
Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1267
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
HJPB and Minister for Home Affairs [2019] AATA 5247
RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729
Shafari and Minister for Home Affairs [2019] AATA 808
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Tella and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2115
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (2016) < ch 2.1.1
Department of Foreign Affairs and Trade, DFAT Country Report Myanmar (2017) paras 5.23, 5.24, 5.42
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) ch 13
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 16 Assessing Identity under the Citizenship Act (2019) para 4.4
REASONS FOR DECISION
Deputy President Boyle
5 November 2021
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent to refuse to approve the Applicant becoming an Australian citizen. The delegate refused the Applicant becoming an Australian citizen on the basis that the delegate was not satisfied of the Applicant’s identity and that, accordingly, the prohibition on approval under s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) applies.
BACKGROUND
The Applicant says that she is a citizen of Myanmar born on 10 August 1972.
On 8 January 2009, the Applicant was granted a Refugee (class XB) (subclass 200) visa and arrived in Australia on 19 March 2009.
On 21 April 2016, the Applicant lodged an application for Australian citizenship by conferral.[1] In that application, the Applicant listed three of her children as dependents. In support of her claimed identity, the Applicant provided a copy of a Document for Travel to Australia (DFTTA), stamped 19 March 2009, and copies of her Western Australian driver's licence and a pensioner concession card.
[1] T3/21.
On 28 May 2016, the Respondent’s department requested that the Applicant provide a Form 1399— “Declaration of Service.” The Applicant provided a completed Form 1399 on 21 June 2016.[2]
[2] T4/36.
On 2 August 2016, the department requested that the Applicant supply any further information or documents in support of her claimed identity, and that she bring these documents to her citizenship interview on 15 November 2016. At that interview, the Applicant provided a copy of her DFTTA, a UNHCR Household Registration Document registered 16 December 1999, copies of her Western Australian driver's licence, a pensioner concession card[3] and a Medicare card.
[3] T5/64–6.
On 27 February 2017, the department requested that the Applicant provide any further information or documents which support her claimed identity within 28 days, and requested that she complete a Form 80— “Personal Particulars for Assessment including Character Assessment.”
On 27 March 2017, the Applicant provided the completed Form 80 and five statutory declarations each dated 20 March 2017.[4] The statutory declarations stated that the Applicant had been unable to obtain a marriage certificate and birth certificates for herself and her dependent children listed in the application as her marriage, her birth, and her children's births were not registered by the Myanmar government.
[4] T5/46–63; T5, 67–76.
On 10 March 2020, the department requested that the Applicant provide any identity documents issued in Myanmar in relation to the Applicant and her immediate family.[5] The Applicant was also requested to detail, inter alia, the attempts she had made to obtain identity documents from Myanmar, an explanation of what happened to any identity documents that had been issued, and an account of her life story prior to arriving in Australia. The Applicant did not provide a response to this request.
[5] T6/77.
On 28 April 2020, the department wrote to the Applicant inviting her to comment on adverse information and provided her with 35 days to respond.[6] The Applicant did not respond to this invitation.
[6] T7/85.
On 25 June 2020, a delegate of the Minister refused the Applicant's application for citizenship on the basis that the prohibition in s 24(3) of the Act applied.[7]
[7] T2/8.
On 6 July 2020, the Applicant sought review of the delegate's decision by the Tribunal.[8]
[8] T1/1.
THE ISSUE
The issue for determination is whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
THE HEARING
The application was heard on 16 July 2021. The Applicant appeared on her own behalf and the Respondent was represented by Ms C Saunders of MinterEllison. The Applicant was the only witness to give evidence. She gave evidence through an interpreter.
LEGAL FRAMEWORK
The Preamble to the Citizenship Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 24(1) of the Citizenship Act provides:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(3) of the Citizenship Act relevantly provides that:
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Australian Citizenship Policy[9] states, at ch 13:
The identity provisions prohibit the approval of a citizenship application in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.[10]
[9] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).
[10] As to the status of the Policy see RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654 at [105].
The Policy also refers to the concept of identity as described in the Attorney-General’s Department’s National Identity Proofing Guidelines.[11] Chapter 2.1.1 of the Guidelines relevantly provides as follows:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
[11] Attorney-General’s Department, National Identity Proofing Guidelines (2016) < ch 2.1.1
The Revised Citizenship Procedural Instructions CPI 16 – Assessing Identity under the Citizenship Act, provides, at para 4.4, as follows:
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.
Three pillars of identity
Individual characteristics
Biometrics
Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents
Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information
Life story
A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity assessment process. The citizenship applicant is likely to be well documented, information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified. Through their reliability and comprehensiveness, identity documents testify to important events in the applicant’s life story. Through personal identifiers contained in identity documents, the applicant’s biometrics held on departmental records are matched and confirmed.
CONSIDERATION
In Beyan and Minister for Immigration and Border Protection[12] Senior Member Walsh stated (at [38]) that:
... a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.
(See also Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[13])
[12] [2015] AATA 256.
[13] [2020] AATA 1267 at [30]–[31].
The Respondent concedes that there is no requirement that identity must be established by documentary evidence alone, however, an application may be refused if an applicant has failed to avail themselves of opportunities to secure evidence of identity which might reasonably be expected to exist and which they been advised to secure.[14]
[14] Citing Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117] per Deputy President Nicholson.
The approach taken in Dhayakpa has been followed by Tribunals in a number of cases.[15]
[15] See YMPL and Minister for Immigration and Border Protection [2017] AATA 1458; Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97.
In Sinnathamby and Minister for Immigration and Border Protection,[16] the Tribunal accepted that the applicant had lost his identity documents in the capsizing of a boat en route to Australia, but found that the inconsistencies in his other evidence and the bogus nature of some documentation provided in support of the citizenship application gave rise to a conclusion that he was not a person of good character.
[16] [2018] AATA 2579.
The Respondent contends that the Tribunal cannot be satisfied of the Applicant’s identity based on the material that the Applicant has provided. The Respondent points out that the Applicant's key identity documents reflect the Applicant’s identity at a point in time (after she had arrived in Umpium camp in 1996), and do not provide an unbroken chain linking to a primary official identity document such as a birth certificate.[17]
[17] Citing Shafari and Minister for Home Affairs [2019] AATA 808 at [41] per Senior Member Morris; Tella and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2115 at [51] per Senior Member Evans-Bonner.
The Respondent contends that, while the Applicant may face practical difficulties, she could make more extensive inquiries with respect to obtaining further identity evidence, as the country information indicates it is likely she would have some form of identity documentation. The Respondent submitted that the 2017 DFAT Country Information Report on Myanmar[18] suggests that it is plausible that the Applicant was issued with identity documentation while in Myanmar, including a “Citizenship Scrutiny Card,” a “Household Registration List” and, potentially, a birth certificate.
[18] Citing Department of Foreign Affairs and Trade, DFAT Country Report Myanmar (2017) paras 5.23, 5.24, 5.42.
The Applicant was cross-examined on the potential that she has, or at some stage had these identity documents. She was also cross-examined on what the Respondent saw as inconsistencies in the narrative that she has provided.
Asked about whether she had ever had a birth certificate or other identity documents, the Applicant’s evidence was that she was born in a remote village in Kayin State (formerly Karen State) in the south-east of Myanmar on the border with Thailand and had never had a birth certificate.[19]
[19] transcript at 15.
In relation to inconsistencies in the Applicant’s history, the Respondent pointed to documents that had been provided by the Applicant which were not consistent as to her birthplace. Her evidence was that the two places that had been identified in the documentation as her birthplaces were very close “like a suburb here nearby.”[20] These inconsistencies had been pointed out by friends after the Applicant’s arrival in Australia.
[20] transcript at 16.
The Applicant’s evidence was that the error in relation to her birthplace had been pointed out to her by a friend who now lives in Sydney. Her evidence was that she had known this person since they were children and had spent time together in their home village in Myanmar.[21] Asked why she had not asked this person to provide a statement supporting the Applicant’s history and claims of identity, the Applicant’s evidence was that:
Because I think she lives far from me and also I thought that people who pass the test the same time as me all got their citizenship, and I will get it as well without a problem.[22]
[21] transcript at 16.
[22] transcript at 17.
Asked about what steps she had taken to ascertain what identity documents she might be able to obtain from Myanmar, the Applicant advised that she had not taken any steps because she did not have anyone who she could get in touch with to obtain such documents.[23]
[23] transcript at 17.
The Applicant provided a number of statutory declarations by her and her husband which explained that she had never been recorded in Myanmar government records.[24] She also provided a UNHCR Household Registration Document[25] and the DFTTA, issued by the Australian Government.[26] These documents are not, either in their own right or in conjunction with statements provided by others, sufficient to establish the Applicant’s identity.
[24] T5/67–75.
[25] T5/65.
[26] T3/33.
I agree with the Respondent’s contention that it would be reasonable for the Applicant to make further efforts to obtain evidence going to identity in the circumstances of this case. Any sympathy that the Applicant's position might attract in relation to obtaining sufficient evidence is not a relevant consideration in circumstances where the Tribunal must be satisfied of the Applicant’s identity.[27] I am not satisfied that the Applicant has exhausted all reasonable efforts to obtain identity documents or statement supporting her narrative.[28]
[27] HJPB and Minister for Home Affairs [2019] AATA 5247 at [34], [40] per Member Warner.
[28] Dhayakpa.
The documents provided by the Applicant are documents that have been issued by the relevant Australian authorities or UNHCR based on information provided by the Applicant. In effect, those documents are simply evidence of who the Applicant says she is, not of who she is.[29] The Applicant has not produced any source documents from which her identity prior to her arrival in Australia could be established, nor has she provided statements from people who would be able to support her narrative and history to establish her identity.
[29] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1729 at [48].
Based on the evidence before me, I am not satisfied of the identity of the Applicant. Accordingly, the prohibition under s 24(3) of the Citizenship Act applies and the Applicant’s application for citizenship by conferral must not be approved.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 5 November 2021
Date of hearing: 16 July 2021 Applicant: In person Counsel for the Respondent: Ms C Saunders Solicitors for the Respondent: MinterEllison
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