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

[2023] AATA 1029

Mei and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 1029 (5 May 2023)

Division:GENERAL DIVISION

File Number(s):      2021/7234 & 2021/7235

Re:Mei Mei &  San Thein

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:5 May 2023

Place:Brisbane

The decisions under review are affirmed.

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

Senior Member R Bellamy

CATCHWORDS

CITIZENSHIP – refusal of applications for Australian citizenship by conferral – section 24(3) of Australian Citizenship Act 2007 – where identity of Applicants not sufficiently established – limited documentary evidence and biometric data – unverified life stories – failure to make reasonable enquiries to obtain further evidence – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

RLTL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4696.

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act

Austrian Red Cross ACCORD Austrian Centre for Country of Origin & Asylum Research and Documentation, Myanmar Update COI Compilation November 2012

DFAT Country Information Report, Myanmar, 18 April 2019

DFAT Country Information Report, Malaysia, 29 June 2021

Navigating with a Faulty Map, Access to Citizenship Documents and Citizenship in Myanmar, Institute on Statelessness and Inclusion, October 2021

REASONS FOR DECISION

Senior Member R Bellamy

5 May 2023

1. The Applicants each claim to have been born in Myanmar, to have separately fled to Malaysia in adulthood, and to have met each other and married there. They came to Australia in 2014 and applied for citizenship in 2018. Their applications were rejected because they failed to establish their identities to the satisfaction of the Minister (or his delegate). They sought review of those decisions in the Tribunal. Neither Applicant has provided reliable evidence of their identities relating to the period before they came to Australia. Nor have they made reasonable enquiries that might have produced reliable evidence to support their claims. In those circumstances, can the Tribunal be satisfied that that they are each who they claim to be or, the corollary of that, that one or both are not concealing their true identities?

   THE RELEVANT LAW 

2. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”) provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act provides that 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. Subsection 24(3) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

3. After the Applicants lodged their citizenship applications, a delegate of the Minister (“the Respondent”) wrote to them concerning gaps and discrepancies in the information they provided. They were asked for information to support their claimed identities before they arrived in Australia, including evidence of any Myanmar issued documents they had and details of their life stories. They furnished some more information however ultimately each of their applications were rejected under section 24(3) of the Act. The Tribunal has jurisdiction to review the decisions under section 52(1)(b) of the Administrative Appeals Act 1975 (Cth).

4. The Applicants had legal representation in the Tribunal proceedings, and they provided some additional information prior to and during the hearing which took place on 26 to 28 July 2022. Following the hearing, I was provided with a transcript of the sound recording of the hearing. The transcript contains some errors. These written reasons provide a more accurate record of what was said and who said it.

5. The Department has issued the Australian Citizenship [Policy Statement][1] which contains guidance, particularly at chapter 16 (“CPI 16”), about the assessment of a person’s identity for the purposes of the Act. The CPI is not a legislative instrument that the Tribunal is required to apply, however the Tribunal should be guided by it in the absence of cogent reasons not to.[2] CPI 16 identifies three “pillars” relevant to the assessment of a person’s identity, being biometrics, documents and life story. Biometrics are a measurable characteristic that is unique to a person such as fingerprints or facial features. Neither of the Applicants have provided any biometric evidence that pre-dates their arrival in Malaysia. The earliest biometric data, being photographs of their faces, is contained in United Nations High Commissioner for Refugees (“UNHCR”) cards issued to them in Malaysia in March 2013.[3]

   [1] A revised version of the CPI 16 was issued on 1 January 2022.

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

   [3] Exhibit S1, T17, pages 635 to 636.

6. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Neither of the Applicants have produced any documents at all dating from the periods of their lives in Myanmar, although San Thein produced some documents relating to a child of his who was born in Myanmar which include a version of his name on them. I will discuss these in more detail later. Both Applicants produced identity documents that were created in Malaysia based solely on unverified information provided by them to the issuers of the documents. All those documents prove is who each Applicant claimed to be in Malaysia. The same applies to Australian issued identity documents as they are based on the Malaysian issued documents and unverified information from the Applicants. 

7. The third pillar, life story, is an account of the events that happened to a person during their lifetime. Each Applicant provided rather bare accounts of their respective lives before coming to Australia. CPI 16 advises that a decision maker should 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 holistically.[4] Regard may be had to country information to assess a person’s life story, particularly where that person is unable to provide identity documents to prove their identity, as is the case here.

   [4] Exhibit M1, T3, page 95.

   MEI MEI’S LIFE BEFORE MEETING SAN THEIN   

8. The only source of information about Mei Mei’s life in Myanmar is Mei Mei. According to her, she is an ethnic Mara who was born on 26 May 1990 in Lai Len Tey village in Chin State, Myanmar.[5] There was not a hospital in her village, which is in a remote, mountainous, sparsely populated area, so she was born at home. Her parents died when she was young and her paternal grandparents raised her. She was able to name her parents and grandparents. Her father’s name was La Nge and it was sometimes spelt Hla Nge or Hra Nga. She was always known as Mei Mei but used her father’s name to identify herself between different tribes in her Chin community.[6]

   [5] Ibid, T14, page 610.

   [6] Exhibit M3, A1.

9. The population in her village was around 200 or 300, and there was a communal church where children gathered for school. There was no government administration as her village was a “black zone” controlled by rebels, so she does not have any identity documents. As the village was in a conflict zone, soldiers from both the government army and the rebel army would force her adult family members to porter for them.[7]

   [7] Ibid.

10. Mei Mei does not know if her parents or grandparents were registered. In a statutory declaration she made in April 2022, she said she did not need to be registered to attend the village school, which she described as more akin to childcare, and that her grandparents sent her there so she would not be made to porter.[8] However, in her citizenship application, lodged in 2018, she gave a more formal description of her schooling, stating that from June 1995 to March 2000 she attended primary school, and from June 2000 to March 2003 she attended secondary school.[9]

    [8] Ibid.

    [9] Exhibit M1, T8.

11. Mei Mei’s family lived self-sufficiently from farm produce and bartered with others in the village. In 2003, when she was 13 years old, her village, including her home and the communal church building, was burnt to the ground by an armed group. Her grandparents disappeared and she was told by other villagers that they were captured and taken to be porters. She never saw them again. She moved into a hut with other people from her village, and then moved around when she needed to. She helped grow crops with people from four or five other families. On occasion, she was forced to work as a porter for both sides of the conflict. Sometimes soldiers beat and tortured villagers who made mistakes.[10]

    [10]  Exhibit M3, A1.

12. Mei Mei’s account of her life to this point is broadly consistent with the Department of Foreign Affairs and Trade Report on Myanmar, April 2019, pertaining to remote areas where there was long term conflict.[11]

    [11]Exhibit M1, T6.

13. On 5 April 2010, Mei Mei fled Myanmar with the assistance of “agents” who took her through Thailand and into Malaysia. She arrived in Malaysia on 12 April 2010.[12] She lost contact with the people from her village when she left because there were no phones or electronic communication.[13] She told the community leader that she was willing to go to Malaysia and they told her to be prepared to leave on 5 April 2010.[14]

    [12]  Exhibit M3, A1.

    [13]  Ibid.

    [14]  Transcript, page 59, lines 27 to 31.

14. In Malaysia, Mei Mei initially did various jobs for the agency including working as a cleaner, kitchen hand/dishwasher, labourer in a sugarcane farm, labourer making palm oil, and selling sugarcane juice. She did those jobs during the day and at night she worked in the night market. After six to eight months, she no longer had to work for the agency. From around 2011 she did whatever job she could, including working at a sewing machine factory, delivering products, working at roadside vendor’s, cleaning and working at night markets.[15]

    [15]  Exhibit M3, A1.

15. Mei Mei claimed that for most of the time, she moved around, living in different places. She said she mostly lived in a suburb called Taman Medan in Penang near a bazaar named “Pasar Malam”[16] (which means night market). She claimed to have met San Thein while working at a night market in a place called Butterworth in Penang. According to San Thein, they lived in Penang until they left for Australia. Mei Mei said she and San Thein worked at the same places and lived where they were working, unable to afford to rent their own place.[17] Mei Mei could not recall the address of anywhere she had lived. Although she did not speak the local language, one would still expect that if she had lived in the same area for three years, she would be able to describe places she had lived with more precision, such as pointing to places in a street directory or saying the name of streets where she had lived even if she could not write them, and she did not.   

    [16] Transcript, page 60, lines 32 to 36.

    [17] Transcript, page 60, lines 13 to 21.

    SAN THEIN’S LIFE BEFORE MEETING MEI MEI

16. The main source of information about San Thein’s life in Myanmar is San Thein. His aunt is the only other source and her evidence is limited to a letter indicating that she is his aunt and he is the biological father of her adopted daughter.

17. According to San Thein, he was born on 5 April 1974 in Yangon and he lived there all his life, except for short periods when he went elsewhere for work, until he left for Malaysia in August 2008. He identifies as Karen as his (adoptive) father was of Karen ethnicity.[18]    

    [18] Exhibit M3, A2.

18. According to the DFAT report on Myanmar, the Citizenship Law provides for full, associate and naturalised categories of citizenship. Full citizenship is available to people belonging to one of the 135 officially recognised “national races”, or people belonging to ethnic groups that are considered to have settled in the country prior to 1823. Karen is among the recognised national races.

19. The Ward or Village Tract Administration Law requires all births and deaths to be registered with ward or village tract administrators. Most children in urban areas are registered. Until the late 1980s, all Myanmar citizens were issued formal identity documentation known as a National Registration Card. In 1989, the government carried out a “citizenship scrutiny” exercise as part of the implementation of the Citizenship Law. During this process, those were replaced with full, naturalised or associate Citizenship Scrutiny Cards.

20. Village and Ward Tract Administrators throughout Myanmar are required to compile and register births and deaths and move people to and from household lists. As such, households are required to report any changes, including relocations and marriages, to Township Administration Offices. The types of documentation and the amounts of money required for this process vary across different jurisdictions. Household lists are issued and updated by the Ministry of Immigration and Population and the Ministry of Home Affairs.

21. Household registration is required for the issuance of identity documentation, school enrolment (particularly at the secondary and higher levels), accessing services (including health, electricity and water), marriage and travel permission. Transparency International reported in 2017 that 40 per cent of Myanmar people who had applied for identity documentation had paid a bribe for the service.[19]   

    [19] Exhibit M1, T6, paragraphs 2.11; 3.9; 5.33 to 5.62.

22. San Thein claimed to have been delivered by a local midwife so there are no hospital records of his birth. However, it does not necessarily follow that he did not have a birth certificate and registration on his parents’ household list. Indeed, according to him, he attended a government school from the age of five[20] which suggests that he was registered on a household list (also referred to as a Household Registration List or “HRL”).

    [20] Exhibit M3, A2.

23. He lived in Ward 10, South Okkalapa. When he was nine years old his parents died in a car accident. In his community there was one “head” for every ten households, and the head of his community was a man called Tin Oo. That person told him his parents had died. They lived communally so he was helped by neighbours from various homes. At his parents’ funeral he found out they were not his biological parents, but adoptive parents. He also found out about an adopted aunt Khin Than Win. She was 15 years old at the time. Afterwards they spoke infrequently. He claimed not to have any documents from either his biological or adoptive parents.[21]  

    [21] Ibid.

24. He left school and got his first job at the age of nine at a motor vehicle repair shop in Tarmway Township, working for a man called Win Maung. He was provided with accommodation and registered as a guest on Win Maung’s HRL. Win Maung was his guarantor at the local council office: he would report San Thein to the head of households and pay a bribe to let him register as a guest.[22] San Thein had to live as a guest because he could not verify who his parents were and did not have a family home. When San Thein was over 18, he had to report to the head of households himself. They let him register as a guest because they knew of his situation. His aunt, being so young, could not help him get a more permanent registration.[23]

    [22] Exhibit M3, A2.

    [23] Ibid.

25. San Thein claimed that it suited him to live and work in different places and he never got a national identity card because he did not have a permanent address and it was too expensive.[24] He said it was hard to get a card because he did not have a birth certificate and he did not know who his blood relatives were.[25] I do not accept this. Yangon is an urban area. Country information indicates that his birth would have been registered. His daughter’s birth certificate (see below) includes the names of her biological parents, indicating that the identities of San Thein’s biological parents would have been recorded by the government administration. There is no evidence that he ever attempted to get a copy of his birth certificate or sought information from the local administration about his birth parents.      

    [24] Ibid.

    [25] Transcript, page 41, lines 30 to 34.

26. According to San Thein, at the age of 20, he commenced a relationship with a lady named Aye Aye San. In a statement dated 9 July 2021, he said he and Aye Aye San got married.[26] Later, in a statutory declaration dated 22 April 2022, he described the relationship as casual, claimed they did not live together, and said they were never married. He said he was still living in various workshops with his employers and sometimes he travelled as an assistant to a truck driver. They stayed together occasionally but people referred to them as husband and wife. Their daughter, Saw La Hnin Nwe, was born on 19 December 2003 and they split up in 2005. Aye Aye San left their daughter with him.[27] His name is listed on Saw La Hnin Nwe’s Maynmar birth certificate as “U Than Win Tun @ U San Thein”.[28] “U” is an honorific title.[29] 

    [26] Exhibit M1, T26, page 783.

    [27] Exhibit M3, A2.

    [28] Exhibit M1, T26, pages 791 to 792.

    [29] Exhibit M3, A1; Exhibit M3, A2.

27. San Thein has previously claimed that he and his daughter moved in with his aunt and that is how they lived until he fled to Myanmar.[30] This would constitute a permanent residential arrangement and remove a claimed barrier to getting a National Identity Card. It would also mean that there are HRLs pertaining to his aunt’s household in which he is listed as a guest or family member. However, he later claimed that his aunt occasionally helped to look after Saw La Hnin Nwe and in 2007 he left his daughter permanently in his aunt’s care. He said his aunt was healthy and doing well financially so she agreed to adopt Saw La Hnin Nwe and look after her for him. He was not involved in the process of Saw La Hnin Nwe being registered on an HRL.[31]

    [30] Exhibit M1, T26, pages 780 and 783.

    [31] Exhibit M3, A2.

28. According to San Thein, on 9 September 2007, he helped to transport injured people to hospital during the Saffron Revolution using motor vehicles from his workplace. He claimed that this created a risk of him being arrested by the military dictatorship and that his employer and friends made plans for him to flee.[32] He claimed that everyone involved in the Saffron Revolution was in danger and that if the military found out who they were they could have been detained, arrested and abused. A friend told him the military was aware that “we were helping the injured [persons involved] in the uprising. So that they informed that I am in danger”.[33] He pretended to be an assistant driver for a truck driver named Ming Au who drove him to Mandalay on 10 August 2008 where he crossed the border illegally into Thailand before entering Malaysia on 29 August 2008.[34]  

    [32] Exhibit M1, T26, page 783.

    [33] Transcript, page 13, line 43 to page 14, line 14. 

    [34] Exhibit M3, A2.

29. Country information[35] indicates that the Saffron Revolution consisted of a series of public demonstrations centred in Yangon[36] that occurred in August and September 2007. The protests were led by monks. Demonstrators were dispersed by the police and military using violent means. Many people were arrested in their homes and in monasteries at the time, however there is no indication that the authorities continued to arrest those suspected of involvement, let alone peripheral involvement, after the demonstrations ceased. Following the demonstrations, the government regime began to systematically repress Burmese Buddhists, closing monasteries, arresting and defrocking monks, and curtailing their public religious activities. San Thein claims to be Buddhist however his life story does not include any information about whether, or how, he practiced his religion, and he does not claim to have been at risk because of his religion.  

    [35] Exhibit M1, T5, T6.

    [36] Formerly known as Rangoon.

1. The country information before me does not support San Thein’s claim that he was at risk of arrest for assisting injured people after the demonstrations stopped in September 2007. Further, there is no evidence that the authorities paid any attention to him or that he had to take any action to evade the authorities between September 2007 and his departure in August 2008. I find his explanation for leaving Myanmar dubious.  

2. In Malaysia San Thein could not get formal work because he was there illegally so he worked informally as a general labourer in different shops. He worked as a construction worker, welder, door maker, plumber, electrical worker, wirer, sugar cane farmer and cleaner. After three months he was able to pay off the agency. I do not have difficulty accepting that a person who had entered Malaysia illegally was only able to engage in informal work.

3. Despite having lived in the same area in Malaysia for six years according to his account, San Thein was unable to provide business names or contacts there or to give a specific residential address. Nor could he remember any address he had lived at in his 34 years in Myanmar except for the address of his adoptive parents.[37]    

   [37] Transcript, page 12; page 16, lines 10 to 15.

   BOTH APPLICANTS

4. The Applicants’ account of “agents” taking them to Malaysia, arranging work for them in construction, factories and plantations, and taking a portion of their wages for a period is consistent with country information.

5. According to the Applicants, they met at a night market where Mei Mei was working in Butterworth, Penang in July 2010.[38] On 1 August 2010 they got married on a construction site at Butterworth by the President of the Burma Refugee Organisation (“BRO”), and his wife.[39] They provided an “Affidavit of Marriage” certificate purportedly signed by “U Maung Hla”, who is listed as the Chairman of the BRO of Malaysia and “Daw Moe Moe Khing”, who is listed as “Children and Women Affair”.[40]

   [38] Exhibit M3, A1, A2; Exhibit M1, T17, page 623.

   [39] Ibid; Exhibit M3, A2.

   [40] Exhibit M3, MM-17. “Daw” is an honorific title.

6. Mei Mei gave evidence in the hearing that it was not possible to get married at a religious place because the church and monastery were far away, so the chairperson of the BRO office and his wife, “they make witness and then we make a little celebration by feeding our colleagues, providing food, that’s all”.[41] However, San Thein indicated that they did not officially marry and the people who witnessed the affidavit of marriage did not actually witness anything: they issued the certificate in the BRO office at Kuala Lumpur which is a six hour drive from Penang, and San Thein picked it up on his way to the UNHCR office there. The certificate was issued to let the Burmese community where they lived know they would be living together and were going to get married. The date of marriage on the certificate is the date that San Thein told the BRO that he and Mei Mei had married.[42] There is no evidence about what actually took place when the Applicants apparently had some sort of marriage ceremony and who else, if anyone, was there. This document is not the evidence it purports to be. Mei Mei claimed that she had photos of their “wedding” on a mobile phone that was stolen after they came to Australia.

   [41] Transcript, page 65, lines 35 to 40.

   [42] Transcript, page 20, lines 4 to 9.

7. While in Malaysia the Applicants registered with the United Nation High Commissioner for Refugees Committee. They were recognised as refugees by the UNHCR and issued a UNHCR Refugee Card each. The application process involved each writing a brief biography for the UNHCR.[43] The UNHCR documentation identified the Applicants as “Mei Mei”, born 26 May 1990 in Myanmar[44] and “San Thein”, born on 5 April 1974 in Myanmar[45]. Their cards could not have been based on any identity documentation from Myanmar because they both claim not to have had any.

   [43] Exhibit M3, A1; Exhibit M3, A2.

   [44] Exhibit M1, T24, page 723.

   [45] Ibid, page 724.

8. The DFAT Myanmar report states that DFAT is aware of reports of citizens of Myanmar disposing of their identity documentation to obfuscate their identity and fraudulently apply for protection.[46] Further, the DFAT country report on Malaysia, June 2021, states that UNHCR ID cards, often the only form of personal identification that bearers have, are considered valuable commodities within the refugee community. In 2016, there were instances of fake UNHCR ID cards being available for sale or genuine cards being provided to individuals who did not meet the registration criteria.[47] Accordingly, I cannot give much weight to these cards in terms of establishing who the Applicants were at that time. 

   [46] Exhibit M1, T6.

   [47] Exhibit M1, T7.

9. On 29 May 2014, the Applicants arrived in Australia on a permanent refugee and humanitarian visa (Class XB) subclass 200 visa. The only documents they brought with them were the Australian government issued “Document for travel to Australia” that each had. The information in those appears to have been based on information provided by the Applicants through the UNHRC and in their visa applications.

10. The Applicants’ shared mobile phone was stolen on 14 September 2014 along with some other items. They made a report to the police. The Applicants claim that the details of their contacts in Malaysia, and photos of themselves, their bosses, and their friends were stored on that phone.[48]

    [48] Exhibit M3, A1; Exhibit M3, A2.

11. On 15 June 2015, the Applicants had a daughter and on 11 July 2017 they had another daughter.

12. In a statutory declaration San Thein made on 19 April 2018[49] in support of a child Subclass 101 visa application for Saw La Hnin Nwe, he said he failed to declare her in his visa application because he did not understand the process and did not know he had to declare her. He indicated that when he arrived in Australia he learned how to use the internet and began contacting Saw La Hnin Nwe using Viber (a secure calling and messaging application). They talked two or three times per month and he had been sending medication for his aunt and providing financial support of around $200 every month. He said:

    “I need to have my daughter with me. I need to raise her, give her education because my aunty is not in a position to raise her anymore. In our culture it is not unusual if parents cannot take care of their children, then other family members can look after them. When the parents are able to look after the child, they can be returned to the parents…I will support and look after her as much as I can. I will try my best to look after her…She will not have a problem because she will live with me, my wife and her half-sisters…She is very excited about coming here and living with me and my family. I would like my daughter to be with me soon in Australia.”

    [49] Exhibit M1, T26, page 783.

13. The letter from San Thein’s aunt essentially said she adopted Saw La Hnin Nwe who was the natural daughter of her nephew, San Thein. She indicated that she had two natural sons, was struggling financially, and that she agreed to handover Saw La Hnin Nwe to San Thein.[50]

    [50] Exhibit M1, T26, page 785.

14. In early June 2018 both Applicants lodged separate applications for citizenship by conferral.[51] Each signed their application. San Thein listed his name as San Thein. When asked why he called himself San Thein, and not U Than Win Tun @ U San Thein in his visa and citizenship applications, he said he does not like the first part of his name and that since Malaysia he has been known as San Thein. It was pointed out that the visa application asked for all of the names that he legally had or was known by. He replied “Yes, but I no longer use…that name when I was asked”.[52]

    [51] Ibid, T8; Exhibit S1, T8.

    [52] Transcript, page 39, lines 12 to 14.

15. Another discrepancy is that neither Applicant disclosed the existence of San Thein’s daughter in Myanmar. The application form asked the question “Do you have any other children you are NOT including in this application?”. Both Applicants ticked “yes” and listed their two Australian born children but not Saw La Hnin Nwe.

16. On 29 June 2018, a refugee service lodged an orphan relative visa for Saw La Hnin Nwe.

17. In his April 2022 statutory declaration, San Thein said he did not include his daughter in his citizenship application because she had not arrived in Australia at that time. He also said he did not think she was his responsibility as she had been adopted by his aunt[53] but under cross examination he said that was not what he meant.[54] There is nothing in the application form to suggest that it only asked for children within Australia, and I note that in the statutory declaration he made three months prior he spoke about his daughter coming to Australia as though to was a fait accompli. 

    [53] Exhibit M3, A2.

    [54] Transcript, page 36, lines 29 to 36.

18. In a statutory declaration San Thein made on 1 November 2018, he said he was involved in the local Burmese community and would be able introduce Saw La Hnin Nwe to other families and children her age, that he would continue to provide financial, emotional and psychological support to her in Australia, and that he would be responsible for taking care of her the same way he is responsible for his other children.[55] He provided the following documents in support of the visa application (with English translations):

    ·     a DNA test that effectively proved his paternity of Saw La Hnin Nwe;

    ·     a copy of her birth certificate which named Daw Aye Aye San as her mother and U Than Win Tun @ U San Thein as her father;

    ·     Aye Aye San’s Citizenship Scrutiny Card;

    ·     his aunt’s Citizenship Scrutiny Card;

    ·     an HRL with his daughter listed in it and “U Than Win Tun @ U San Thein” recorded as her father; and

    ·     a letter from his daughter’s school.[56]

    [55] Exhibit M1, T26, page 770.

    [56] Ibid, T26.

19. He also provided the exact street address where his daughter lived with his aunt in Ward 10, Okkalapa Township, Yangon.

20. The visa was granted on 7 March 2019 and Saw La Hnin Nwe came to Australia to live with the Applicants on 29 May 2019.

21. On 9 April 2020, the Applicants had another child.

22. On 1 February 2021 there was a military coup d’état in Myanmar. It was not disputed, and I am prepared to accept, that there is a more oppressive regime in place now than there was before the coup.

23. In early May 2021, the Applicants lodged a Form 80 “Personal particulars for assessment including character assessment” in relation to their citizenship applications. That form asked “Do you have children? Children includes biological or adopted, children from current or previous marriage, all step-children and deceased children.” The form asked for particulars including place and country of birth and current country of residence. The Applicants both included only the details of their three Australian born children and did not disclose the existence of Saw La Hnin Nwe.[57]

    [57] Exhibit M1, T11, pages 583 to 584.

24. In relation to this form, San Thein said the interpreter misunderstood the question and told him he only had to include children who were born in Australia.[58] That is rather hard to believe given the question did not say that and in fact asked for the country of birth of each declared child.

    [58] Transcript, page 31, lines 1 to 11.

25. Mei Mei gave similar explanations for her failure to disclose Saw La Hnin Nwe in both forms: she said in her 8 April 2022 statutory declaration that she believed that only children who had been born in Australia were required to be included. Under cross examination she admitted that she had not asked the interpreter what exactly was being requested. When asked why she thought she only had to include the details of children born in Australia, she said “Because I didn’t know and the person who…helped us filling the form would not know that my husband has a daughter with his previous marriage”. When asked why they did not tell that person the truth about their family, she said “Because we are still not sure that my daughter’s visa will be granted…Because we are not clearly explained about the detail of the form.” She then said they were asked to provide the children born in Australia and they did that.[59] Again, I note that there was no indication in the form that the question only concerned Australian born children. In relation to the second form, Mei Mei indicated that she thought only children born in Australian had to be included.

    [59] Transcript, pages 74 to 77.

26. I accept that neither Applicant had much of an education and they do not speak English. I accept that completing official forms can be difficult even for well educated people who have no difficulty with the language in which the form is written. However, even so, I find both Applicants’ explanations for omitting Saw La Hnin Nwe from their visa application forms and their “Personal particulars for assessment including character assessment” form unconvincing. The fact that they left out such an important piece of information without providing a reasonable explanation calls into question whether other information they provide can be relied on.

27. Another concern is Mei Mei’s involvement in a visa application by a woman I shall refer to as Dino. In 2018, Mei Mei signed a “Refugee and special humanitarian proposal” form that accompanied an “Application for an Offshore Humanitarian visa Refugee and Humanitarian (Class XB) visa” form in relation to Dino and her family.[60] Her name was included in a subsequent application in 2019.[61] The application indicated that Dino was from the same village as Mei Mei (although it was spelt differently) and that she lived there from her birth in 1987 to 2010 when she escaped.[62] The form described Mei Mei as Dino’s cousin. Dino’s application was rejected.

    [60] Exhibit M1, T17, page 614.

    [61] Ibid, T21, page 655.

    [62] Ibid, T18, page 634.

28. In April 2021, Mei Mei was asked to provide further information concerning her citizenship application. She was required, among other things, to fill in a form 596 that asked for information relating to all visas she had applied for to sponsor anyone to Australia. Mei Mei returned the form blank.[63]

    [63] Ibid, T10.

29. Mei Mei did not give a clear or consistent explanation of her involvement in Dino’s application and her failure to disclose it. She was extensively cross examined[64] and what emerged was that, according to her, Dino had contacted her via Facebook messenger from Malaysia and told her they were from the same village and related through her father’s family. Mei Mei agreed to sign a pre-filled form that Dino posted to assist Dino to come to Australia “to help her have a better life”. Mei Mei signed the form without knowing what it said.

    [64] Transcript, pages 79 to 97. 

30. Mei Mei conceded that she had never met Dino. She explained that on the basis of the age gap between them (which is only three years) and the distance between houses in the village. I find that implausible if one is to accept Mei Mei’s description of village life with the small population, bartering between households, one village school, and Mei Mei’s interaction with other villagers after her grandparents disappeared.  

31. Mei Mei did not ask Dino how they were related. She asserted that they were not closely related and “We are not actually connected by blood… We are just from the same region”,[65] but as they are of the same clan “obviously she was the same descendent as my father”.[66] Nor did Mei Mei ask Dino if she knew what had become of her grandparents because it “was a dark past. And she have similar situation like me. And I don’t want to dig it again”.[67]

    [65] Exhibit M3, A1, page MM6.

    [66] Transcript, page 81, lines 16 to 17.

    [67] Transcript, page 82, lines 2 to 3.

32. Mei Mei claimed she did not realise the form, or the subsequent form, were sponsorship forms. Her evidence varied from her simply not knowing she had applied to sponsor Dino, to being asked by the person helping her with the form 596 if she had sponsored someone and telling that person “no”, to that person telling her that sponsoring someone meant taking responsibility for them which, to her, meant she had not applied to sponsor Dino. 

33. If indeed Mei Mei and Dino both lived in the same village from 1990 to 2010, Dino is obviously a person who could corroborate at least some of Mei Mei’s claims about her identity and her life there, and possibly she could help Mei Mei to contact others from her village to do the same.  

34. Mei Mei claimed that she lost touch with Dino after the pandemic struck in 2020. She gave evidence that “they stop contacted me, and I couldn’t find them on Facebook”.[68] However, she later said neither of them contacted each other after Dino’s application was rejected. Further, it appeared that Mei Mei had blocked Dino on the Messenger application. She said she was not aware that Dino was blocked and seemed to suggest her children might have done it as they use her phone to “watch YouTube and other stuff”.[69] She repeated that after Dino’s application was rejected she could not contact her or find her on Facebook. Even after this evidence had been elicited, when Mei Mei was asked why she had not tried to contact Dino and ask her to write a letter about life in her village to confirm her account, she said “How could I contact her because I don’t have her number?”.[70]  

    [68] Transcript, page 90, lines 26 to 27.

    [69] Transcript, page 91, line 25.

    [70] Transcript, page 91, line 46.

    CONSIDERATION

35. There is some reliable evidence of San Thein’s identity when he was in Myanmar. That evidence is a version of his name on his daughter’s birth certificate, which appears to have been issued on 19 December 2003, and in an HRL in which she is listed. Neither document includes his date of birth or other identifying features. There is a letter from his aunt, which is less reliable, that refers to him as San Thein and states that he is her nephew and her adopted daughter’s biological father. This evidence is capable of establishing that the person who has called himself San Thein since he was in Malaysia had a version of that name in 2003 and his adoptive aunt now refers to him as San Thein. 

36. The Applicants have approached the Chin Refugee Committee Malaysia, UNHCR Malaysia and Centacare for assistance in obtaining documents to help them to establish their identities, however none have been forthcoming.[71] It is expected that the UNHRC would not be able to assist as neither Applicant claims to have had any identity documents when they entered Malaysia or to have provided any documentation to the UNHRC during their registration processes. It appears that a person from the Chin Refugee Committee Malaysia helped the Applicants to complete their visa applications. The Applicants do not claim to have given any identity documents to that person. Centacare has assisted the Applicants in Australia. The Applicants claim that the only identity documents they brought with them to Australia were the Document for travel to Australia that they each had, so one would not expect Centacare to be able to assist with respect to identity documents that pre-date their arrival in Australia. These enquiries were made by the Applicant’s legal representative. There are other avenues of enquiry that the Applicants themselves could explore but they have not.        

    [71] Exhibit M3, MM18 to 35.

37. Neither Applicant has made any enquiries with the Burmese Government to ascertain if any identity documentation exists in relation to them. According to country information the local government administration in Yangon should have records of San Thein’s birth, schooling and registration as a guest in various families’ HRLs. He gave the following explanation:

    “I have not attempted to obtain identity documents from Myanmar because I am fleeing Myanmar and its government. All of my family members who could apply for these identity documents on my behalf have either died or I have lost contact with them. The only person I remain in contact with is my aunt.

    …I have thought about asking her to write a support letter for me, but I currently only have very basic communication with her so I think it would be impossible.

    In the context of my daughter’s application to come to Australia, any communication with Aye Aye San was done through my adopted aunt. I did not talk to Aye Aye San directly.

    It was already very difficult to get registered in Myanmar itself and it would be even more difficult to get my aunt to register me, and very unlikely that she would have access to any HRLs on which I was a guest, from before 2008.  

    It is currently a civil war in Myanmar, and there is constant fighting with guns in the city. My aunt has very limited phone and internet connection, and the government keeps blocking Facebook messenger. If they find out that my aunt is using Facebook they will shoot her in the street straight away.”[72]

    [72] Exhibit S3, ST13.

1. There is no country information before me that indicates that San Thein could not make enquiries with the Myanmar government or the local administration where he used to live merely because there is no record of him having left legally. He obviously cannot be harmed by the Burmese authorities as he is not there. It may be that the authorities would not assist in response to any such enquiries. That cannot be established in the absence of a genuine effort to obtain his identity documents.    

2. Whether his aunt would have access to HRLs on which he was a guest prior to 2008 depends on whether he lived with her between 2005 and 2008 as he, at one time, claimed he did. His aunt is a key witness to his name, identity, the identities of his adoptive family members and his life in Myanmar. He sought her assistance with respect to his daughter’s visa application and she was able to provide key documents. No country information was put forward that in any way supports the assertion that his aunt would be harmed for using Facebook messenger. Nor is there any evidence that the authorities or any other group would be interested in San Thein’s aunt merely for being in contact with him. In the hearing San Thein was asked if the current Myanmar government was aware of his existence and he replied “the Burmese military government, they might know me or they might not...”.[73]

   [73] Transcript, page 14, lines 19 to 21.

3. In the hearing San Thein claimed that during his daughter’s visa application process he asked his aunt to enquire whether his old school had a record of him, however “it has been closed most of the time”. He did not know what exactly “closed most of the time” meant. He has not asked his aunt to enquire more recently.[74] He also said he had tried to contact her but her phone was disconnected and he did not know her new phone number, and he could not find her on Facebook.[75] However, later he admitted that he had not tried to contact her since his daughter arrived in Australia, saying “I want to stop the communication since she arrived in Australia for the sake of her future. I want her to forget, to leave her past and start a new life like me.”[76]  

   [74] Transcript, page 41, lines 35 to 46.

   [75] Transcript, page 42, lines 20 to 29.

   [76] Transcript, page 49, lines 10 to 24.

4. San Thein’s evidence about his ability to contact his aunt was altogether unconvincing. In particular, there is no evidence that his daughter wanted or needed to forget her past in Myanmar. She made a two-page statutory declaration for the purpose of this proceeding.[77] She did not speak negatively of her life in Myanmar, although she did say she grew up without any memory of either of her biological parents. San Thein conceded that his daughter had a very good relationship with his aunt and her two sons. I find it incredible that she stopped contacting the parent who raised her as soon as she reached Australia, that she did not miss her mother and brothers, and that they did not miss her.      

   [77] Exhibit S3, ST 89 to 90.

5. San Thein’s evidence then changed to “If I contact my aunty it can hurt her and so as my family that’s why I couldn’t contact her and I couldn’t provide - I cannot provide her any evidence that you have requested.” The following exchange then occurred:

   Q: But you were in contact with her for many years after coming to Australia.

   A: But I cannot - I am really cautious in these days with contacting my aunty in Burma because the situation is Burma is very unsafe.  By contacting her I might - it can hurt her.

   Q: How? How does her confirming your identity and talking about your life in Myanmar, how does it put her at risk of harm? Why would the authorities even care?

   A: Because in the street, every street, there are a lot of spies and lots of people’s phones where tapping, so that she - they - the authorities know who is contacting the - someone from overseas and…If they aware that it can be a problem, might suspicious. Authorities might be suspicious of her.

   Q: Did you ask her if there was a risk?

   A: I don’t have to ask her. I know about this by - through Facebook because there are many news, many stories written on Facebook about how it can be harm by contacting someone from Burma or ‑ ‑ ‑

   Q: Are you saying that every person in Myanmar who has contact, phone contact with someone outside of Myanmar is at risk of harm from the authorities?

   A: I think someone like me should not contact the remaining relatives in Burma because it can - they are quite risk, so ‑ ‑ ‑[78]

   [78] Transcript, page 51, lines 1 to 34.

6. This evidence does not stack up with the known facts. First, San Thein was in frequent contact with his daughter and aunt up to 2019. Second, the coup d’état which changed the regime did not occur until early 2021, after San Thein claims he stopped contacting his aunt. Third, San Thein gave evidence that he used to transfer money to his daughter in Myanmar by giving money to Burmese students in Australia whose families in Myanmar would then give the equivalent in Burmese currency to his aunt. Normally the families would physically go to his aunt and hand her the money.[79] Accordingly, there are members of the Burmese community here who have family members living near his aunt, and there is a relationship of trust with these people. When asked why he believed his aunt would be at risk if he contacted her, he cited Facebook (without producing any Facebook material) rather than sources from these families.

   [79] Transcript, page 28, lines 17 to 21.

7. If San Thein’s life story is true, there are other people he knew in Myanmar who could attest to his identity or provide relevant evidence. As Senior Member Fairall observed in RLTL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship), people leave footprints as they travel through life.[80]  Having spent 34 years in Yangon, many of those working for various people, it is expected that San Thein left “footprints” in the form of photographs, work rosters and the like. He may not have had direct contact with Aye Aye San recently but she did what he and his aunt asked of her in 2018/2019. Others he knew include Min Muang, Tin Oo (who was the local administrator when his parents died), the other administrators who let him register as a guest because they knew of his situation, other employers, and the truck driver who helped him leave Myanmar. He has previously been able to communicate with people in Myanmar via Facebook messenger and Viber, and there is no reliable evidence that it is no longer possible or safe to do that. He has not looked for the people he once knew or asked members of the Burmese community here or their families in Myanmar to help him track people down or make enquiries for him.  

   [80] [2020] AATA 4696 [36].

8. If Mei Mei’s account of her life in Myanmar is true then she probably does not have Burmese identity documents. However, that does not mean there are no records of her existence and no villagers who could corroborate her claimed identity and life story. If Dino was able to find her on Facebook, then Dino or Mei Mei could potentially use Facebook to track down others, but she has not tried or asked Dino for help. Nor has she sought assistance from the Burmese community in Australia. She did not identify any specific fear concerning contacting the Myanmar authorities, and she said the government probably would not be aware of her existence. She said she does not know how to deal with the authorities there. When it was suggested that she approach the Burmese embassy as it might be able to confirm that she was never issued a birth certificate or any other document which would support her story, she said it would be very difficult for her but she did not explain why.[81] 

   [81] Transcript, pages 71 to 72.

9. Since losing their mobile phone, the Applicants have not tried to track down anyone they knew in Malaysia.

10. Neither Applicant has provided biometric data from before they entered Malaysia or reliable identity documents from Myanmar or Malaysia. If their life stories are true, their ability to have acquired and kept that sort of evidence is limited, particularly for Mei Mei, and I make allowance for that. However, that puts greater importance on their respective life stories and neither have provided sufficient detail and precision in their accounts of their lives in Myanmar and Malaysia.

11. What concerns me most is that there are reasonable steps that each of the Applicants could have taken, particularly San Thein, to help establish their identities or to corroborate their claims that they cannot obtain the usual biometric data and identity documents that help to establish identity, and they have not done so. In circumstances where there are deficits in their life stories and both Applicants are loose with facts, it is all the more important to have reliable verification of their claims. In Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7,[82] Senior Member Illingworth said:

    “[w]here there is minimal documentation, the Applicant must be able to explain why this is the case and provide evidence that all avenues reasonably available to him have been exhausted”.

    [82] At [92].

12. I respectfully agree. The wording of section 24(3) of the Act makes it clear that the Minister (or Tribunal standing in the shoes of the Minister) must reach a state of satisfaction as to an Applicant’s identity in order to approve their application. It is for the Applicant to provide information on which the decision maker can reach that state of satisfaction. Neither Applicant has done that. I am not satisfied of either of the Applicants’ identities. I must affirm the decisions under review.

13. This decision does not necessarily mean the Applicants cannot become Australian citizens. It is open to them to make fresh citizenship applications supported by better evidence.        

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 5 May 2023

Date of hearing:

26 July 2022

27 July 2022

28 July 2022

Solicitors for the Applicant:

Ms Jennifer Samuta

Samuta McComber Lawyers

Solicitors for the Respondent:

Mr Ingmar Duldig

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
2021/7234 Mei Mei
M1	Section 501 G-Documents (T1 to T26 paged 1 to 835)	R	-	6 November 2021
M2	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 16)	A	31 March 2022	1 April 2022
M3	Applicant’s Tender Bundle (pages MM-1 to MM-88)	A	-	12 April 2022
M4	Family Composition Table (2 pages)	A	-	30 June 2022
M5	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16) and Attachment A - CPI 16 Assessing identity under the Citizenship Act (27 pages)	R	13 May 2022	13 May 2022
2021/7235 San Thein
S1	Section 501 G-Documents (T1 to T18 paged 1 to 746)	R	-	6 November 2021
S2	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 17)	A	31 March 2022	31 March 2022
S3	Applicant’s Tender Bundle (pages ST-1 to ST-89).	A	-	12 April 2022 & 28 April 2022
S4	Family Composition Table (2 pages)	A	-	30 June 2022
S5	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 18) and Attachment A - CPI 16 Assessing identity under the Citizenship Act (27 pages)	R	13 May 2022	13 May 2022
Both Applicants
A1	Applicants’ Response to Senior Member Bellamy’s Questions	A	29 July 2022	17 August 2022