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

[2022] AATA 619

Lout and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 619 (4 March 2022)

Division:               GENERAL AND OTHER DIVISIONS

File Numbers:               2021/0535; 2021/0541

Re:  Bi Le Ki Khy Lout

FIRST APPLICANT

Lout by his father Bi Le Ki Khy Lout

SECOND APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:                   4 March 2022

Date of Written Reasons:      1 April 2022

Place:Melbourne

The Tribunal sets aside the reviewable decisions and substitutes decisions that the Tribunal is satisfied of the First Applicant’s identity for the purposes of s 24(3) of the Act, and that the discretion under s 24(2) of the Act to refuse the Second Applicant’s application should not be exercised.

......................[sgd] ..................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP- application for conferral of Australian citizenship – Myanmar – whether the Tribunal is satisfied of the Applicant’s identity – s 24 Australian Citizenship Act 2007 (Cth) – Citizenship Policy – National Identity Proofing Guidelines – Revised Citizenship Procedural Instructions – three pillars of identity – lack of documents provided to the Department – inconsistent information provided to Department – eligibility of persons under 18 – general eligibility provisions – exercise of discretion to refuse citizenship approval of minor applicants – Revised Citizenship Procedural Instructions – United Nations Convention on the Rights of the Child – assessment of each applicant in their own right – best interests of the children – persuasive witness testimony – Tribunal satisfied of Applicant’s identity – decisions set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Hneidi and Ors v Minister for Immigration and Citizenship [2010] FCAFC 20
Minister for Home Affairs v G (2019) 164 ALD 103

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)

Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

1 April 2022

INTRODUCTION

1. The First Applicant seeks review of decisions of a delegate of the Minister dated 20 January 2021, refusing his and his minor child’s (the Second Applicant) applications for Australian citizenship by conferral.

2. The hearing was held in-person at the Tribunal’s Melbourne Registry on 4 March 2022. The First Applicant was self-represented. The Respondent was represented by Mr Thomas Creedon, a solicitor with the Australian Government Solicitor.

3. At the conclusion of the hearing the Tribunal set aside the reviewable decisions and gave oral reasons. On 28 March 2022 Mr Creedon requested written reasons. These now follow in accordance with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). In providing them the Tribunal has had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:

   ‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

   BACKGROUND

4. The First Applicant is a thirty-nine-year-old citizen of Myanmar and is of Chin ethnicity.[1] He lived and worked as a farmer in Myanmar until 2007, when he departed for Malaysia.[2] His partner joined him there in 2010[3] and they married later that year.[4] In late 2012 they jointly applied for an Offshore Refugee and Humanitarian (Class XB) visa,[5] which was granted in May 2013.[6] The Applicant arrived in Australia with his wife and the Second Applicant in June 2013.[7] By virtue of the visa held by these family members they have the right to reside in Australia permanently.

   [1] Exhibit R1, 104 187.

   [2] Ibid 188.

   [3] Ibid 189.

   [4] Ibid 218.

   [5] Ibid 192.

   [6] Ibid 4.

   [7] Ibid 5.

5. The First Applicant lodged an application for Australian citizenship by conferral in October 2018, together with photocopies of a driver’s licence, Medicare Card, Healthcare Card, and a photograph of himself.[8] He subsequently had the following interactions with the Department of Home Affairs:

   (a)On 27 February 2020, a delegate of the Department requested documents issued to him in Myanmar and further details of his life story to support his claimed identity;[9]

   (b)On 2 April 2020, the First Applicant responded to this request with a completed Form 80-Personal particulars for assessment document;[10]

   (c)On 8 July 2020, a delegate of the Department invited the First Applicant to comment on adverse information regarding his citizenship application.[11] The delegate noted the First Applicant had not provided any identity documents from Myanmar or Malaysia, and there was inconsistent information about his family composition in several visa applications the Applicant had previously sponsored;

   (d)On 27 October 2020, in the absence of a response, a delegate of the Minister sent the First Applicant a further invitation to comment;[12]

   (e)On 20 January 2021, after having received no response from the First Applicant, a delegate of the Minister refused his citizenship application on identity grounds under s 24 (3) of the Australian Citizenship Act 2007 (Cth) (the Act).[13] On the same day a delegate also exercised the discretion under s 24(2) of the Act to refuse the Second Applicant’s application. Although the Second Applicant was found to satisfy the citizenship criteria under s 21(5) of the Act, it was determined he did not meet the policy requirements for applicants under the age of 16 years and thus the discretion to refuse his application was enlivened.

   [8] Ibid 104.

   [9] Ibid 129.

   [10] Ibid 152.

   [11] Ibid 170.

   [12] Ibid 5..

   [13] Ibid 4.

6. The Applicant sought review of both decisions on 31 January 2021.[14]

   [14] Ibid 1.

   LEGISLATIVE FRAMEWORK  

7. The Preamble to the Act outlines the nature of citizenship and its accompanying rights and responsibilities as follows:

   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.

8. A person can apply for Australian citizenship under s 21(1) of the Act.

9. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 52(1)(b) of the Act confer jurisdiction upon the Tribunal to review decisions made under s 24 of the Act.

10. Section 24 of the Act empowers the Minister, or a delegate of the Minister, to approve or refuse to approve an application for citizenship made under s 21 of the Act. Specified circumstances are set out at ss 24(3) to (7) of the Act, that preclude the Minister from granting citizenship. This includes, as per s 24 (3), if the Minister is not satisfied of the person’s identity:[15]

    There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.[16]

    [15] Division 5 of the Act sets out identity provisions at ss 40-45.

    [16] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth).

    Citizenship Policy and Procedural Instructions

11. The Australian Citizenship Policy Statement (Policy) (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued on 26 February 2021) provide guidance for decision-makers exercising power under the Act. Australian Citizenship Procedural Instruction 16 ‘CPI 16-Assessing Identity under the Citizenship Act’ (CPI 16), and the National Identity Proofing Guidelines (Guidelines), are apposite to the First Applicant’s application. CPI 4 is relevant to the Second Applicant’s application, which has been lodged independently on behalf of a child aged 15 years and under. CPI 13 is also relevant given it focusses on the ‘best interests of the child’.

12. The Tribunal can be assisted by policy in discharging its review functions under the AAT Act.[17] The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion.’[18] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[19] Noting that each case before the Tribunal is considered de novo and on its merits, Government policy is ordinarily considered and applied unless there is a cogent reason not to do so.[20] No submissions were made that the Tribunal should disregard the available policy and the Tribunal has applied it.

    [17] See, for example, Hneidi and Ors v Minister for Immigration and Citizenship [2010] FCAFC 20 at [41].

    [18] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].

    [19] Ibid, [65]; [70].

    [20] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

13. The term ‘identity’ is not defined in the Act. Paragraph 2.1.1. of the Guidelines provides guidance:

    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.

14. CPI16 relevantly describes three pillars comprising biometric data, documents, and life story, as the foundation on which assessments of identity are made:

Pillar 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.

1. Decision-makers are required to consider each pillar together to ‘comprehensively test and evaluate a person’s claims with regard to their identity’:

   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.

2. The Guidelines supplement the three-pillar approach with the following directions:

   4.12 How do I assess a person’s identity – an evidence based approach

   In order to make an informed assessment of a person’s identity, 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.

   The way in which officers should approach the concept of assessing a person’s identity from birth is to create an identity timeline, thus creating a complete picture of the person’s identity from birth to present. The objective is to link the Applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life. The three pillars are the methodology for establishing a person’s identity, and officers must turn their mind to the individual characteristics in order to piece together a person’s identity timeline and create an ‘identity picture’.

   4.14 Assessing pillar two – documents

   Documents are an important element of the process in establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).

   When assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent, or otherwise, and whether they element support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells. Documents need not be identity documents to tell a story. For instance, a hotel invoice may demonstrate a person’s presence in a particular place at a point in time.

   4.15 Assessing pillar three – life story

   When assessing a person’s life story in the context of a citizenship application, officers should seek to create a complete identity ‘picture’ of the person from birth. This is not done by asking a person to recite their life story in interview. Instead, a practical way in which to begin an assessment of a person’s identity, while at the same time considering their life story, is to consider their identity timeline.

   In most cases, by the time a person applies for Australian citizenship, they will have interacted with the Department and previously provided aspects of their life story. Where necessary, officers should locate the information provided during these interactions, plot it on the person’s identity timeline, and compare it with information provided at the time of applying for Australian citizenship.

3. Depending on the confidence required in the person’s claimed identity, the Guidelines state that evidence provided in support of a person’s identity should satisfy some or all the following identity proofing objectives:

   Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another and that the right service is delivered to the right individual. This would include a check that another person has not previously claimed ownership of the identity (i.e. there is a sole claimant), for example by checking the organisation’s database for identity records with the same attributes.

   Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created (i.e. the identity is that of a real person) through evidence of commencement of identity in Australia. Where greater confidence in the claimed identity is required, this objective may also include a check that an identity has not been recorded as deceased (e.g. through the Fact of Death file).

   Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community (including online where appropriate). Even where a person is able to obtain genuine identity documents in a fictitious name, it will be harder to provide evidence that the identity has been active in the community, particularly over an extended period of time and if evidence reflects the breadth of a person’s life, such as:

   Citizen: evidence that demonstrates the person’s life as a citizen and any support or services they are provided by government

   Money: evidence that demonstrates the person’s financial and working life, and

   Living: evidence that demonstrates where they live and what they consume.

   
   
   

   Confirm the linkage between the identity and the person claiming the identity

   to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder. This has traditionally been done by comparing a person’s face against a photograph, although there is an increasing range of technologies that can provide alternative methods, such as comparison of a biometric captured at enrolment against a biometric previously captured by a trusted organisation.

   
   
   

   Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used. This could be through checks against internal registers of known fraudulent identities or against ‘dummy records’ recorded in the system. Where possible, this could include checks against information provided by external sources, such as law enforcement agencies.

4. Cl 7.1 of CPI 4 provides the following general instructions:

   In order to uphold and maintain the integrity of the citizenship program decision-makers must have due regard to all the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years and under, or where a child’s application is being considered as an individual application because their responsible parent’s application has been refused or their parent has died.

5. CPI 4 then identifies the following factors as relevant to a decision under s 24(2) of the Act as to whether the Minister should exercise the discretion to refuse the application. Decision-makers are counselled to consider whether the child is:

   ·usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or

   ·usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or

   ·usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application. If the child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time (for example, if the child would not have access to a certain scholarship which is only available to Australian citizens), then this may be a relevant consideration for decision-makers...or;

   ·usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance)…or;

   ·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a responsible parent or care has consented to the application…

   Applications must also be carefully considered to ensure that the child and their family unit or their relevant responsible parent, intends to reside, or continues to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.

1. Cl 10.1 of CPI 4 provides that in deciding whether to exercise the discretion under s24 (2), decision-makers should undertake a ‘best interests of the child assessment’, which must be included in the reasons for the decision to demonstrate that the decision-maker has considered this matter. This reflects Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) to which Australia is a party, which provides:

   1.    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

   …

2. CPI 4 provides additional guidance as to how the best interests of the child assessment is to be weighed in the decision-maker’s considerations when exercising power under s 24(2):

   The best interests of the child is a primary consideration but it is not the only consideration that must be taken into account. A best interest of a child assessment cannot override a legal requirement set out in the Act, but the exercise of a discretionary power, such as subsection 24(2) must take account of the best interests of the child as a primary consideration.

3. CPI 4 also refers to CPI 13. In defining the phrase ‘best interests of the child’, CPI 13 draws upon the principles in the UNCRC and identifies the factors most likely to be relevant to citizenship decisions as follows:

   ·children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse;

   ·families should be able to stay together, as far as possible;

   ·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;

   ·a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;

   ·prevention of the illicit transfer and non-return of children abroad;

   ·freedom of religion;

   ·the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and

   ·the degree of the child’s integration into the Australian community.

4. CPI 13 also supplements the guidance provided in CPI 4 as to how a best interest of the child assessment is to be considered in conjunction with the other matters relevant to the exercise of discretionary power under s24 (2). It provides:

   Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):

   ·     the objectives of the relevant provision/s in the Act;

   ·     community protection; and

   ·     community expectations.

   This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under section 34 of the Act but, depending on the particular facts and after taking into account the other primary considerations, the decision-maker may conclude that revocation of the person’s citizenship is the decision that should be made. This involves a weighing of the competing interests. For example, a severe detriment to the child might outweigh a minor fraud offence by the parent, whereas if it is only marginally in the child’s best interests that citizenship not be revoked, that may be outweighed by the parent’s conviction for a serious offence.

   ISSUE FOR DETERMINATION

5. The issues for determination in this matter are:

   (a)Whether the Tribunal is satisfied of the First Applicant’s identity for the purposes of s 24(3) of the Act; and

   (b)Whether it is appropriate to exercise the discretion under s 24(2) of the Act to refuse the Second Applicant’s application.

   EVIDENCE  

6. The following documents were tendered into evidence at the hearing:

   (a)Statement of the Applicant dated 17 June 2021;[21]

   (b)Statement of the Applicant’s friend, Lian Cung Thang Tla Hnie dated 17 June 2021;[22]

   (c)Statement of Ngo Ko Cinzah dated 12 August 2021;[23]

   (d)Documents lodged by the Respondent numbering 538 pages.[24]

   [21] Exhibit A1.

   [22] Exhibit A2.

   [23] Exhibit A3.

   [24] Exhibit R1.

   Evidence  

7. The First Applicant adopted his statement and requested that his minor child’s application be heard together with his. He discussed his early life in Myanmar as a farmer, being forced to work at times for the military, and eventual decision to leave for Malaysia in 2007 for a better life. He gave evidence about living and working in Malaysia until 2013 and using his surname for the purposes of UNHCR registration and a subsequent humanitarian visa application, but said surnames were not in common usage while he was living in Myanmar.

8. The First Applicant gave evidence about how his United Nations documents in Malaysia were produced. There is no dispute this was based on the First Applicant’s self-reported claims alone and there is no biometric data from his time in Myanmar on which to base any subsequent comparison.

9. In terms of documents, it was similarly agreed that the First Applicant had not provided any documents from his life in Myanmar. He claimed to have made two attempts in the past to source documents and invoked the coup in Myanmar as to why he had been unable to do so. He said villagers he tried to contact had hidden ‘in the jungle where there are no phone connections,’ and he would be unable to do so until they went to one of the larger cities, which were under military control and therefore unsafe. The Applicant said he was born in a small village, never had a birth certificate or other documents, and some villagers did not even have national identity cards. 

10. In terms of life story, Mr Creedon questioned the First Applicant about gaps and inconsistencies in the overall life story he presented. The First Applicant’s evidence is that because of language and writing difficulties, others filled in forms on his behalf and his responses may have been misunderstood, even when interpreters were used.

11. The Applicant said the two witnesses who accompanied him to the hearing both knew him personally in Myanmar and could vouch for his identity.  This is what subsequently occurred, with two close friends, one of whom is a Pastor, stating they both grew up in a village adjoining the First Applicant’s village and often met while growing up to go fishing and undertake other activities.

12. Much of Mr Creedon’s questioning centred on the First Applicant’s family composition and sponsoring of multiple migration applications to Australia for people purporting to be his relatives. Given that Mr Creedon’s questioning suggested the First Applicant had either knowingly or recklessly sponsored visa applications to Australia for people who were not his relatives, the Tribunal paused proceedings to issue a warning. The First Applicant said he understood his right not to answer questions that he thought may tend to incriminate him. During cross-examination, the First Applicant agreed he had signed migration sponsorship forms for people who claimed to be his relatives but were not. One person he sponsored had claimed to be related to the First Applicant’s grandfather but in cross examination the First Applicant said he was unsure about the precise nature of their relationship. He said he was assisted with some of the migration sponsorship forms by a person in Malaysia he had never met. The First Applicant referred to another person whose visa he sponsored as his brother.[25] When asked to explain this relationship by Mr Creedon the First Applicant stated: ‘they fill out the forms and they make up this story, because they wanted to come to this country’. He conceded that the claim this person is his brother was ‘not true’. He said that he knew the authors of these forms were going to fill them out but claimed not to know the contents before he signed them. When pressed as to why he did so, the First Applicant responded:

    So at that time many people fill out these kind of sponsorship forms, and they told me that if I sign these document then they will be able to come to Australia, um, the things that contained in the form it was, it is them who fill out the form because they know English better than me, and I never know myself that they will be making up these kind of stories, I just want them to come to this country and I sign the form because they say that once I sign the form they will be able to come here.

    [25] Ibid 337.

    CONSIDERATION

13. Receiving an Australian certificate of citizenship is a significant privilege bestowing considerable rights and obligations. The strict emphasis on establishing identity as a precondition to granting citizenship, differs significantly from the refugee assessment process, which focusses on the satisfaction of protection criteria. The focus on identity in the former is particularly important because it links to the acquisition of valuable identity documents like a passport and potential entitlement to taxpayer-funded benefits. Australian citizens can also vote, depart / return to Australia at will, and apply for certain public sector jobs. Thorough assessment of identity claims is therefore inexorably linked to the integrity of Australian citizenship.

    Biometric data

14. There is no biometric data from the Applicant’s life in Myanmar to use as a comparator with later identity documents in Malaysia and Australia.

    Documents

15. The Australian Citizenship Act and the common law do not require identity to be established only by the production of documents. However, due regard can be had about whether an Applicant has made reasonable efforts to secure documents that might reasonably be expected to exist.

16. The name Khy Lout does not appear on the First Applicant’s marriage certificate in Malaysia[26]  or his UNHCR identity card[27], or his minor child’s birth certificate. The Tribunal accepts the collective evidence of the First Applicant and the two witnesses that there is a different approach to the use of family names in Myanmar and the absence of a family name on his Malaysian document is not conclusive of any intention by the Applicant to conceal or use a different identity. The Tribunal accepts the First Applicant gave his family name to United Nations and Australian officials when asked. His two witnesses’ unchallenged evidence is that this is his correct family name, but which was not in common usage in Myanmar. The Tribunal has no reason to doubt this is the First Applicant’s family name.

    [26] Ibid 218.

    [27] Ibid 219.

17. The information provided in the Personal Particulars Form submitted by the First Applicant and his wife is very minimal. By way of example, there is no employment information,[28] no education details,[29] no reference to his mother,[30] and no references to siblings[31] despite referring to three siblings in a previous visa application 10 years ago.[32] His claim that he has no personal contacts in Australia[33] is contradicted by his previous successful sponsoring of visa applications. Some of the information in the Personal Particulars Form also conflicts with his UNHCR records.[34] It is accepted, however, that the absence of some of this information has more to do with others filling in these forms for the First Applicant prior to his arrival in Australia than an attempt to mislead or obfuscate.

    [28] Ibid 134 [Q19].

    [29] Ibid 157 [Q20].

    [30] Ibid 164 [Q44].

    [31] Ibid 165 [Q45].

    [32] Ibid 200.

    [33] Ibid 167 [Q47 & Q48].

    [34] Ibid 187-191.

18. The Tribunal was unpersuaded by aspects of the First Applicant’s evidence relating to past efforts he claimed to have made to source documents from his life in Myanmar. For example, the coup in Mynamar was in February 2021, but the Department’s enquiries pre-date that event by a considerable margin. It is therefore unpersuasive for the First Applicant to invoke the coup as an impediment to seeking information reasonably thought to exist. There is no persuasive evidence about these attempts and there is other evidence closer to home that would have strengthened the First Applicant’s identity claims. This includes, for example, statements from his wife, brother, and wife’s cousin in Australia.

19. The Tribunal was impressed with the honest and forthright evidence of Mr Lian and Mr Cinzah. Their unchallenged evidence is they both knew the First Applicant well in Myanmar when they were young men living in nearby villages and that the First Applicant is who he says he is. Their evidence about a close and frequent association with the First Applicant in Myanmar was freely given, consistent, and determinative in the Tribunal’s view.

20. In terms of the Second Applicant who is currently nine years old, the Tribunal is satisfied he was born in Malaysia while his parents were living there and accompanied them to Australia. The Tribunal is also satisfied the child’s birth certificate was based on the information in his parent’s UNHCR documents, which was in turn based on their self-reported claims, albeit without use of a family name. The Second Applicant has not departed Australia and is usually resident with his parents who are not Australian citizens. They have clearly consented to the citizenship application because they submitted it on the child’s behalf. The Tribunal has considered whether there is any disadvantage or hardship arising for the Second Applicant if his application is not granted, which is not evident on the facts.

21. The Tribunal notes the Second Applicant is a permanent resident of Australia with permission to reside here indefinitely. He attends school and has access to healthcare and other services. He is protected by Australian law. His immigration status does not change, nor is there any suggestion his best interests are affected if his or the First Applicant’s citizenship applications are not granted. That is because of the family’s permission to reside in Australia indefinitely. The Tribunal therefore finds that the exercise of the discretion to refuse citizenship to the Second Applicant would not infringe on his rights as a minor child as set out in the Convention. If his application were not successful, the Second Applicant could also be included in a subsequent citizenship application by the First Applicant or apply in his own right after attaining the age of 16. If the First Applicant’s application is approved, however, it is desirable to maintain consistency and approve the Second Applicant’s application, which Mr Creedon acknowledged in submissions.

22. The First Applicant’s oral evidence about signing visa sponsorship applications that he either knew contained inaccurate information, or he signed without knowing the contents, gives rise to serious concerns. Such conduct is inconsistent with the integrity of Australia’s migration system. That said, the Applicant’s character is not currently before the Tribunal and has not been assessed by the Respondent in the context of his citizenship application. The Tribunal is solely limited to the question of identity in this matter on which the citizenship application has been refused. Having considered the available evidence, the Tribunal is satisfied of the First Applicant’s identity. Notwithstanding the absence of biometric data or documents from his life in Myanmar, and inconsistencies arising from the material in evidence, the unchallenged and persuasive evidence of Mr Lian and Mr Cinzah is determinative as far as identity is concerned.

    CONCLUSION

23. The Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act.

    DECISION

24. The Tribunal sets aside the reviewable decisions and substitutes decisions that the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act, and that the discretion under s 24(2) of the Act to refuse the Second Applicant’s application should not be exercised.

I certify that the preceding forty-three (43) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

...............................[sgd].........................................

Associate

Date of hearing:	4 March 2022
First Applicant, self-represented:	Bi Le Ki Khy Lout
Advocate for the Respondent:	Mr Thomas Creedon
Solicitors for the Respondent:	Australian Government Solicitor