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

[2022] AATA 3184

NTFK and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3184 (30 September 2022)

ReviewNumber:     2020/4612 and 2020/4613 and 2020/4903

Division:GENERAL DIVISION

File Numbers:         2020/4612 & 2020/4613 & 2020/4903

Re:NTFK

FIRST APPLICANT

PHCW

SECOND APPLICANT

TLXX

THIRD APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Dr Stewart Fenwick, Senior Member

Date:30 September 2022

Place:Melbourne

The Tribunal:

1.Sets aside the decisions dated 17 July 2020 to refuse the applications for citizenship of NTFK and TLXX and remits them to the Respondent for reconsideration in accordance with the direction that both Applicants satisfy the identity requirements in s 24(3) of the Australian Citizenship Act 2007 (Cth); and

2.Sets aside the decision dated 17 July 2020 to refuse the application for citizenship of PHCW and remits it to the Respondent for reconsideration with the direction that PHCW is stateless, and in accordance with the decisions made in respect of the first and third Applicants.

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

Dr Stewart Fenwick, Senior Member

Catchwords

CITIZENSHIP – applications for Australian citizenship by conferral – first and third applicants nationals of Myanmar – second applicant minor child born in India – current citizenship of all applicants in doubt – adoption of family name after arrival in Australia – absence of documentation linking first and third applicants to Myanmar – whether second applicant faces significant hardship or disadvantage – whether  second applicant stateless – best interests of the child – reviewable decisions set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Burma Citizenship Law 1982 (Myanmar)

The Citizenship Act 1955 (India)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Secondary Materials

Attorney-General’s Department, National Identity Proofing Guidelines (2016)
Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990)
Convention on the Reduction of Statelessness, opened for signature 30 August 1961,989 UNTS 175 (entered into force 13 December 1975)
Department of Home Affairs, Australian Citizenship Policy Statement (27 November 2020)

Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

30 September 2022

background

1. The applicants in these matters have all lodged applications for review by the Tribunal of adverse decisions by delegates of the Respondent in respect of their applications for conferral of Australian citizenship. The three applicants are members of the same family. By virtue of their status as holders of humanitarian visas, the names of the Applicants have been replaced by the anonyms NTFK, PHCW, and TLXX.

2. In the case of the first and third Applicants, delegates were not satisfied of their identity pursuant to s 24(3) of the Australian Citizenship Act 2007 (the AC Act). In the case of the second Applicant, a minor, the delegate exercised the discretion under s 24(2) of the AC Act to refuse to approve the grant of citizenship on the basis that they would not suffer significant hardship if not granted citizenship.

3. NTFK lodged an application for review dated 20 July 2020 from a refusal decision dated 17 July 2020. They were born in Myanmar in 1980 and registered as a refugee by the United Nations High Commissioner for Refugees (UNHCR) in India in mid-2000. NTFK was subsequently granted a refugee visa and arrived in Australia in 2010, applying for citizenship in 2016. The Respondent Minister’s Department sought additional information on several occasions prior to the adverse decision in 2020.

4. An application was lodged on PHCW’s behalf on 20 July 2020 from a refusal decision also made on 17 July 2020. They were born in India in 2008 and were aged 13 at the time of the hearing. PHCW also arrived in Australia on a refugee visa in 2010.

5. TLXX lodged an application dated 27 July 2020 from a refusal decision also dated 17 July 2020. They were born in Myanmar in 1983 and registered as a refugee by the UNHCR in India in 2007. TLXX was also granted a refugee visa and arrived in Australia in 2010. Further information in respect of TLXX’s application for citizenship was also sought on several occasions prior to the adverse decision.

6. The Applicants were unrepresented before the Tribunal and an interpreter in the Hakha Chin language assisted at the hearings. The First and Third Applicants lodged emails dated 16 February 2021 comprising answers to questions about their identity posed by the Respondent (Exhibit A1). NTFK also lodged two letters of support from Church representatives who also described themselves as long term friends of the first Applicant (Exhibit A2). The first letter is from a Rev. TK dated 2 July 2021 (together with a translation), and the second from a Rev. CC, dated 14 February 2022. Pastor Joshua from the Australian Chin Baptist Church gave evidence at the hearing.

7. The Respondent initially lodged documents under s 37 the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T documents) and Statements of Facts, Issues and Contentions (SFIC) in respect of each application. Annexed to the SFICs in the matters of NTFK and TLXX is a document titled ‘The 2014 Myanmar Population and Housing Census, Chin State, Haka District, [redacted] Township Report’, Department of Population, Ministry of Labour, Immigration and Population, dated October 2017 (the Township Report).

8. Supplementary T documents (ST) were subsequently lodged in the three matters, and, in March 2022, Further Supplementary T documents (FST). The latter documents include, among other documents, heavily redacted reports titled ‘Identity and Biometrics – Biographic Information Comparison Report’ in respect of both NTFK and TLXX (the Identity Reports). In respect of PHCW’s matter, the FST documents comprise The Citizenship Act, 1955 (India), and the Burma Citizenship Law of 1982.

9. The Respondent lodged the FST documents shortly prior to the matters being first listed for hearing in early 2022. The Respondent’s representative stated that, given the heavy redactions of the Identity Reports, instructions were at that time being sought as to the possibility of lodging less redacted versions. The question of whether an order under section 35 of the AAT Act should be made preventing the disclosure of the Applicants’ identities was also raised, and, as noted, an order was made accordingly on 11 March 2022.

10. Given the recent provision of the FST documents to the Applicants, and the potential for a different version of the Identity Reports to be lodged, the matter was temporarily adjourned. I raised with the Respondent’s representative the absence of submissions in their SFIC which addressed the second Applicant’s nationality, noting that the Tribunal sought clarification of the Respondent’s position on this issue.

11. Additional documents were lodged in June 2022 comprising:

    (a)a Supplementary SFIC in respect of the second Applicant dated 10 June 2022;

    (b)Open Affidavit of Ms Michelle Cozadinos, Director of the Complex Identity Advice Section with the Respondent’s department, dated 10 June 2022, in respect of the first and third Applicants, annexing a revised version of the Identity Reports; and

    (c)Confidential Affidavit of Ms Michelle Cozadinos, dated 10 June 2022, annexing unredacted versions of the Identity Reports.

12. The applications were subsequently relisted, and the additional documents identified above were lodged by the Respondent. The Respondent’s representative submitted at the resumed hearing that the Identity Reports were provided pursuant to s 38 of the AAT Act, and indicated that the Respondent did not intend to rely upon this material. Pursuant to a request made within the Open Affidavit, I made a further order under s 35 of the AAT Act on 14 June 2022 preventing the disclosure of the information contained in those remaining redactions included in the Identity Reports lodged with that affidavit.

    legislation

13. The two relevant provisions of the AC Act are: s 24(3), under which a decision maker must not approve a person becoming an Australian citizen unless satisfied of their identity; and s 24(2), under which a decision maker may refuse citizenship despite the person otherwise being eligible. Departmental policy known as the Citizenship Procedural Instructions (CPI) deals with the exercise of power under these statutory provisions.

14. Copies of several CPI were lodged by the Respondent in these matters, and bear the issue date of 10 April 2019. The most recent CPI are those issued 1 January 2022, and I will highlight in these reasons substantive differences between the two versions.

15. In CPI 16, ‘Assessing identity under the Citizenship Act’ (CPI 16), identity is described as being a ‘certain combination of characteristics or attributes that allow [a] person to be uniquely distinguished from others within a specific context’ ([4]). A new section appears in the January 2022 version that states that ‘humanitarian entrant citizenship applicants’ may hold limited or no documentation from their country of origin ([4.1]). It states further that it may not be appropriate to ask such applicants to seek such documentation directly or via family and friends. CPI 16 cross references the ‘National Identity Proofing Guidelines 2016’ produced by the Attorney-General’s Department, which states that, in such circumstances, alternative identity proofing processes might be developed. This section states further that ‘it may be appropriate to take the point of permanent visa grant as the starting point of the identity assessment and consider Australian issued primary documents’ ([4.1]).

16. Assessing a person’s identity is described as being reliance upon a combination of “three pillars of identity”: biometrics; documents; and life story ([5]). In some cases, it may be determined that not all pillars are necessary to establish identity. The previous version stated that a single pillar alone is said not generally to be an adequate basis for a finding about identity ([4.4]).

17. Changes to attributes of a person’s identity, such as name changes, are also addressed ([8]). CPI 16 states that official evidence is required that ‘explains’ each change made and shows a ‘clear link’ to the original identity ([8.1]). When assessing a change of identity, decision makers are encouraged to consider the reasons for any change and the documentation provided to support the change ([8]).

18. Assessing a person’s identity is said to involve consideration of consistency across the three pillars ([11]). In circumstances where an applicant claims to be stateless and is undocumented, life story may become a more significant factor ([11.3]). There may be a heightened need to explore further material including credible open source country information. This will assist in testing whether claims are ‘factually accurate or plausible, and align with country processes’.

19. Several CPI, read together, are relevant to the circumstances of the second Applicant:

    (a)CPI 4, ‘Australian Citizenship by Conferral – Person under 18’ (CPI 4), provides policy guidance in respect of applicants who are minors;

    (b)CPI 12, ‘Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship’ (CPI 12) offers definitions of key terms, and some common scenarios encountered in decision making; and

    (c)CPI 13, ‘Best interests of the child assessments’ (CPI 13) provides guidance ‘on when to consider the best interests of a child when making decisions that may affect the interests of a child (whether or not the child is part of the application being assessed)’ ([2]).

20. Several scenarios are discussed in CPI 4 ([7]) based upon residency and the citizenship status of family members. Where the child is usually resident in Australia with an Australian citizen parent, no further inquiry is generally required. Where a resident child’s parents are not citizens, it is stated that a decision-maker must assess ‘whether the child would suffer significant hardship or disadvantage, if they were not to become an Australian citizen at this time’.

21. Common scenarios in the “conferral caseload” are discussed in CPI 12 ([3.2]). These include: access to travel documents from a country of nationality or their alternatives; and, impediments to accessing education in Australia.

22. ‘Best interests of the child’ is not defined in CPI 13, but is understood with reference to the principles in the United Nations Convention on the Rights of the Child (UNCRC) ([3.2]), to which Australia is a party. In expanding briefly upon the relevant factors, CPI 13 notes that a child has ‘the right to preserve his or her identity, including nationality’. This appears to be a reference in part to article 7 of UNCRC which states that a child shall have ‘the right to acquire a nationality’, having also stated their right to registration upon birth.

23. When a decision maker is considering the exercise of the discretion under s 24(2) of the AC Act, an assessment of the best interests of the child ‘shall be undertaken’ ([3.3]). In matters involving the exercise of discretion, the assessment is described as a ‘primary consideration’. Other primary considerations include the objectives of the AC Act, community protection, and community expectations ([3.4]).

    issues

24. The issue arising in the matters of the first and third Applicants is whether I can be satisfied as to their identity.

25. The issue arising in the second Applicant’s matter is whether it is appropriate that the discretion not to grant citizenship be exercised.

    evidence

26. In their evidence at the hearing, NTFK confirmed a date of birth in April 1980 in [redacted] village, Chin State. NTFK stated they fled to India due to persecution in February 2000. They stated that they no longer have any family resident in Myanmar.

27. NTFK stated they had asked their brother about the ‘family book’ in the past, and this was not in the family’s possession. NTFK stated further that their siblings ‘might have’ student identity documents from Myanmar.

28. When asked about their name, NTFK confirmed that their Offshore Humanitarian Visa application was in a different name. NTFK stated that they did not change their name after arrival in Australia, but rather added two elements to their name. They stated that a family name, or surname, is not that important in Myanmar, and when in India, NTFK only used their first name. They also confirmed that their first name comprises three elements, not two as recorded in the visa application.

29. NTFK formally changed their name in Australia to include four elements in 2012, after learning they had the opportunity to do so. NTFK described the use of three elements only in a 2013 lease agreement as a mistake.

30. NTFK acknowledged that they had at different times in official forms described themselves as a citizen of Myanmar, and as stateless. NTFK stated that they were mistaken when declaring they held Myanmar citizenship in a form filled out in 2017 and did not have a full understanding of the question at the time.

31. NTFK also stated that they did not have a full understanding of the question when declaring in 2019 that they held Myanmar identity documents, having previously stated the opposite in an earlier form. NTFK clarified that they had in the past had a national identity card and family book. The household list was lost when the family moved village, and NTFK referred to their Statutory Declaration of March 2019 (NTFK, T9[g]).

32. In evidence, NTFK was also taken to apparently different date references in relation to their educational history, being a statement NTFK attended primary school between 1993 and 1996 (NTFK, T5[b]), and between 1986 and 1996 (NTFK,T11, p118). They maintained that the latter date range was correct.

33. NTFK stated that a statement in their 2016 Application for Australian Citizenship (NTFK, T3) that their mother was deceased was incorrect, and the form had been completed by someone else.

34. When asked about the implications of the grant or denial of citizenship to PHCW, NTFK stated they did not know whether the second Applicant has permanent residency, or the entitlement to travel and return to Australia. NTFK was unable to state what the impact might be of failing to obtain citizenship.

35. When asked why NTFK sought citizenship for PHCW, they responded that it was to attend other schooling in the future, and to contribute to Australia. PHCW would also have ‘more opportunity and entitlements and more responsibility’ if they were to be granted Australian citizenship.

36. In their evidence, TLXX acknowledged a date of birth in April 1983 in [redacted] village, Chin State. TLXX stated they arrived in India on a date in March 2007 when they followed NTFK. TLXX stated further their mother continues to live in Myanmar and they have cousins and step-siblings there.

37. TLXX confirmed they had asked relatives for copies of identity documents and a family household list, but had been unable to obtain them, and it did not occur to them to seek copies of their relatives’ documentation.

38. When asked about the use of different names, TLXX confirmed that they have used two different names. TLXX acknowledged using a name with two elements, given to them by their grandmother, in their humanitarian visa application.. TLXX stated further they did not wish to change this name while their grandmother was alive, but that she had passed away in 2008.

39. TLXX confirmed the formal change of name to one containing three elements including NTFK’s family name, and different to their prior name, in 2014 (TLXX, T3[d]). TLXX stated that they changed their name when they became aware they had the opportunity to do so.

40. TLXX acknowledged making a declaration in 2009 that they held citizenship of Myanmar, and an opposing declaration in their 2016 Application for Australian Citizenship that their Myanmar citizenship ceased in 2007. TLXX stated that the latter question was answered by an agent.

41. TLXX exhibited difficulty in answering questions in respect of holding national identity documents in or from Myanmar, explaining that forms had been completed by someone else, and that she had limited English.

42. When asked about apparently inconsistent descriptions of their parents’ names, TLXX again stated they did not complete the form in question.

43. When asked about descriptions provided of their employment history in their visa application and citizenship application, TLXX responded that one had been completed by an agent and another by NTFK. TLXX also exhibited confusion about who had assisted with which form.

44. When asked about educational background, a section left blank in one form and described in another as commencing in 1988, TLXX stated they had no proper documents and had counted years from their birth year to attempt to determine their answer.

45. Pastor Joshua was unable to recall NTFK’s full name when asked the purpose of his attendance at the hearing, calling the first Applicant by their family name. He later identified TLXX by the name adopted in Australia.

46. The witness was unable to recall when they first met the Applicants, but thought he met NTFK and TLXX in 2015 when working together at what he described as the ‘Western Melbourne Life Friendship’. The pastor stated they did not know the Applicants in Myanmar.

47. I asked the witness whether he had anything he could inform the Tribunal of with respect to NTFK. The pastor responded that he understood the first Applicant was before the Tribunal because of their birth certificate and that there was ‘no such thing’ in Myanmar, especially in villages. He had known the couple for a while and considered them ‘good people’. He described NTFK as being a Deacon of their church, honest and reliable.

    Wider material

1. The information contained in the statements comprising Exhibit A1 is consistent with the evidence provided at the hearing. It addresses the addition of names in the case of NTFK, and the change of name in the case of TLXX. An additional detail provided is that TLXX’s grandmother was an ‘idol worshipper’, and that when the third Applicant’s mother adopted Christianity she proposed the name by which TLXX is now known. Information is also provided about the possession of identity documents when living in Myanmar.

2. One of the letters of support comprising Exhibit A2 asserts that the writer has known NTFK since childhood, and that the first Applicant attended primary school and Baptist church in the village of their birth. A question about the manner in which the first Applicant’s name is spelled in this letter was raised at the hearing, as the family name is broken into two syllables. Having considered the original and the translated document, it appears to me to be an error by the translator.

3. The second letter asserts that NTFK was born and raised in the village of their birth, and that the writer and first Applicant attended school together.

4. Both NTFK and TLXX lodged Statutory Declarations in 2016 to assist with the consideration of their citizenship applications (NTFK, T3[f] and TLXX, T3[e]), and I noted above at least one cross reference to this material arising during evidence. These declarations are cited in the decision records for each Applicant.

5. The ST documents in each of these applications comprise, largely, material relating to the Applicants’ refugee visa applications. These bundles also include DFAT country reports for Myanmar (for years 2017 and 2019), elements of which are cited in the SFICs (NPFK, SFIC [42]; TLXX, SFIC [46]). Matters highlighted by the Respondent include the issuing of identity cards, although portions of the material post-date the departure of the Applicants from Myanmar. There is also a reference made to widely accepted practices within Myanmar with respect to household registration lists.

6. I note the 2019 country report also states that: Chin living inside and outside Chin State report being subject to bribery and encountering problems obtaining identity documents; experience delays in obtaining identity cards; local authorities typically request bribes for updating household lists; and fraud as “highly prevalent” and able to affect all forms of identity documentation ([3.41], [5.61]).

7. The Township Report is relied upon by the Respondent to support an argument that, at least in 2014, a large proportion of the population of the region in question in the Chin State held identity documents of some form (NTFK, SFIC [47]). I note that the stated villages of birth for both NTFK and TLXX are listed in the Township Report (Table 1, pp 8-9), and that the size of these villages are recorded as approximately 1,000 persons and 500 persons respectively (Table 1, p 8).

8. The original, fully redacted versions of the Identity Reports reveal tables setting out photographs of NTFK and TLXX, together with the data reported for a range of subjects (name, place of birth, education etc) across different categories of immigration files, being refugee visa applications (two visa types in the case of NTFK) and the citizenship applications.

9. The Identity Reports attached to the open affidavit reveal a timeline and statement of what are described as ‘inconsistencies’, with reference made to various records, including the information in the tables referred to above. There is also a statement of ‘concerns’ in the second version of the Identity reports.

10. I summarise briefly observations made in this version of the Identity Report for NTFK:

    (a)they have been consistent in regard to reporting family composition, but inconsistent in providing dates of birth for immediate family members, and their mother was reported as deceased and then still living in a later form (p 9);

    (b)they reported TLXX as an only child and later as having a sibling (p 9);

    (c)they appear to have given inconsistent information in relation to possible relatives living in Australia, and two close relatives including a paternal uncle carry the same family name as that used by NTFK (pp 9-10); and

    (d)different dates have been provided for when their citizenship of Myanmar ended (p 10).

11. I also summarise briefly the observations made in the second version of the Identity Report for TLXX:

    (a)they provided inconsistent information in relation to their parents including inconsistent years of birth, and adding a family name in the citizenship application (p 2, 7); and

    (b)they provided inconsistent information in relation to siblings (p 2, 8).

    consideration

12. At the hearing, NTFK made the following submissions:

    (a)the citizenship applications were lodged in 2016 with the assistance of an agent with funding from a government service for persons who speak English as a second language;

    (b)the reasons why there may appear to be conflicts or different information provided in the records is because the first Applicant did not keep a copy of the original application;

    (c)after receiving follow-up questions, NTFK personally prepared responses and TLXX had no knowledge of the forms which were completed by others on each occasion;

    (d)a lot of friends in the Chin community lodged citizenship applications around the same time and they only have UNHCR identification or an Australian driving license yet have nonetheless successfully obtained citizenship; and

    (e)community leaders have encouraged the use of Australian documents as it is well known, including from visits by Australian members of parliament to Myanmar, that it is not possible for people who have fled to obtain birth certificates from their countries of origin.

13. At the hearing, the Respondent’s representative contended that the Tribunal cannot be positively satisfied as to the identity of the NTFK. It was submitted that:

    (a)no identity documents from Myanmar have been provided, and it was only at the hearing that evidence was given that no family remains in Myanmar;

    (b)corroboration of the first Applicant’s life story is only in the form of two letters in which no dates are provided, and which add little value and should be given limited weight;

    (c)all avenues have not been exhausted for obtaining identity documents, and NTFK could not explain why no supporting statements had been provided by other family members;

    (d)inconsistent answers have been provided regarding life story; and

    (e)no documents have been provided to substantiate the name changes.

14. Essentially the same submissions were made with respect to TLXX, and it was noted that evidence was given at the hearing about family members remaining in Myanmar, for whom no documents were provided. It was also submitted that inconsistencies in life story could not be explained by having received assistance with visa and citizenship applications.

15. With respect to PHCW, it was contended by the Respondent that insufficient evidence has been provided to satisfy the Tribunal that the test of significant hardship or disadvantage is met. The evidence given dealt with attributes that PHCW would gain from citizenship, but it was unclear what would be lost were citizenship not attained at this time.

16. In reply, NTFK contended that the main reason for the applications for citizenship was for the benefit of PHCW. As he is stateless, should the family travel, PHCW may be at a disadvantage.

17. The Respondent’s representative submitted that CPI 13 does not address statelessness in relation to the best interests of the child inquiry.

18. I have also considered the detailed SFICs lodged in relation to NTFK and TLXX. The evidence at the hearing broadly tracked the topics and issues raised in these documents.

19. As noted very briefly at the start of these reasons, the Applicants form a family group. The materials and evidence at hearing do not address the full history of the relationship between NTFK and TLXX in great detail. However, I note that the material reveals that the family group is somewhat larger than the Applicants alone and includes a further three children born in Australia between 2011 and 2018 (TLXX, T11, pp 115-116).

20. Biometrics are an important, perhaps critical, marker of identity. I have considered the photographic evidence, and the first and third Applicants appeared before me by video link. No issue has been raised about physical identity in these matters. However, given the nature of the issues before me, I consider it important to state that I am satisfied that NTFK and TLXX bear a consistent resemblance across the various sources of information relied upon by the Respondent.

21. The change of name, or rather addition of a family name, by NTFK after arrival in Australia clearly stands out as a relatively major variation in the information and evidence about their identity. As with virtually all of the critical information, it too stands out as being untethered to key source documents from Myanmar. I will return later to this important issue.

22. NTFK does not appear on the face of the material before me to have adopted this family name through a formal change of name process, but did use proper avenues to amend immigration records. The T documents and Identity Reports make reference to the FOI process being used for this purpose. I read their evidence at the hearing as referring to this process.

23. This evidence provided a cultural explanation for the absence of a family name. I consider that this evidence was not substantively challenged. The information contained in the Identity Report about close relatives in Australia also bearing this name was not raised with NTFK at the hearing. However, it provides some indication that the name is not fictional nor without a reasonable basis. I consider that this material is properly before me and that I am able to afford it at least some weight.

24. The change of name for TLXX is somewhat more substantial, in that it might be understood as the adoption of a new identity. TLXX’s names over time are also lacking in substantiation through documents from their country of origin.

25. However, written and oral evidence has been provided about the change. In formal terms, the T documents include a change of name certificate under Australian law (TLXX, T3, p 33). The Respondent department records in respect of TLXX were also amended accordingly.

26. CPI 16 refers to the provision of evidence of the change of name; I consider this has been provided. The policy also calls for an explanation. The adoption of the family name is, I consider, relatively self-explanatory. TLXX has also explained the change of first names in cultural and familial terms. This evidence was not challenged by the Respondent.

27. From my consideration of the material overall, I do not consider there to be any unsatisfactory gaps or elisions from the life story provided by both NTFK and TLXX. I accept the Respondent’s contention that there are inconsistencies within the documentary record. A partial explanation was provided in evidence about the adult parties receiving assistance in the completion of forms.

28. Evidence was not taken from the Applicants as to their levels of literacy. From the manner of giving evidence at the hearing, I accept that neither NTFK or TLXX are fluent English speakers, or at the very least, confident in using English in a formal setting.

29. These inconsistencies are of concern, particularly the variations in references to and details of family members. Nonetheless, in the context of the material overall, and the specific claims about key life events and locations, I do not consider these variations to undermine in any critical way the value of the documents.

30. I also accept the Respondent’s contention that the letters of support (Exhibit A2) should be given limited weight. However, it was not contended that they be wholly disregarded, and I find that they carry some limited positive weight in supporting the life story of NTFK.

31. I am not able to place any weight on the evidence of Pastor Joshua as it did not anchor the first or third Applicant in Myanmar.

32. The Respondent’s case rests in large part upon the contention that NTFK and TLXX have not put sufficient effort into obtaining original records from Myanmar. The Respondent notes, fairly, that conditions have changed in that nation, and that this task is now more difficult than it may have been previously (NTFK, SFIC, [34]).

33. It appears that written and oral submissions in this matter by the Respondent were made without taking into account the revised CPIs. Specifically, no explicit reference was made to the situation of certain humanitarian entrant citizenship applicants with respect to possession or availability of country of origin documentation (as contemplated in [4.1]).

34. Given this fact, it may be inappropriate to place significant weight in these reasons upon this specific element of the Departmental policy. The issues in the matters of the first and third Applicants here also go beyond documentation as they include changes of name.  Having said that, I consider both the present and immediately prior versions of CPI 16 afford some latitude to a decision maker when assessing and determining the identity of applicants who are undocumented, particularly given the authorities that I will shortly address.

35. I have included above some references to the DFAT Country Reports additional to those cited by the Respondent. I consider the circumstances of applicants of Chin ethnicity should be understood in context, and that includes particular difficulties associated with obtaining and maintaining formal documentation.

36. The Respondent has cited decisions of the Tribunal in this area, including Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (at [27]). This decision appears to endorse arguments relating to the need for an applicant to exhaust, in certain circumstances, all avenues of enquiry to source identity documentation.

37. Reference is also made to BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (at [54]) for the proposition that the relevant test in these matters is one of a positive state of satisfaction (rather than an evidentiary burden of proof). This indeed applies to administrative decision making in the Tribunal generally.

38. As to the significance of documentary proof of identity, I also note the decision in Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310. I consider the observations of the Honourable Deputy President at [117] to be relevant in the context of these applications. To paraphrase, the expectation that documentary proof of identity be provided might be moderated in certain social and cultural contexts.

39. I consider that such an expectation is not determinative in the case of NTFK and TLXX. The biometric evidence bridges the various documentary sources, and the life story is adequate, in the context of asylum seekers from their minority ethnic group in Myanmar, to remedy the identified inconsistencies in information otherwise provided.

40. Accordingly, I am satisfied as to the identity of both NTFK and TLXX.

41. The issue with respect to PHCW is whether the discretion under s 24(2) not to grant citizenship should be exercised. More specifically, what arises for consideration here is the scope or range of matters to be taken into account in the exercise of this discretion.

42. I accept the contention made by the Respondent that the evidence as to the nature and severity of disadvantage that might be experienced by PHCW in not attaining Australian citizenship was weak (PHCW, SFIC, [23]; Supplementary SFIC, [13]).

43. In the initial SFIC lodged in respect of the second Applicant, the Respondent contends that failing to attain citizenship does not go against the best interests of the child, when measured against factors identified in CPI 13 as most likely to be relevant to citizenship decisions (PHCW, SFIC [20]). These factors include protection from violence, the preservation of identity, including nationality, freedom of religion, and integration into the Australian community.

44. In the further SFIC lodged, the Respondent submits that under applicable laws of Myanmar and India, PHCW did not obtain citizenship of either country, and is thus stateless (PHCW, SFIC [8]). This material was not traversed at the hearing, however I have considered the relevant laws of both Myanmar and India provided by the Respondent.

45. As to whether the second Applicant obtained Indian citizenship by virtue of their birth in the country, I am satisfied that this is not the case by reference to section 3 of The Citizenship Act, 1955. It is also not apparent from PHCW’s records that they were registered as a citizen of India under section 5 of that Act.

46. Further, as the Respondent contends (PHCW, SFIC [11]), I am satisfied that PHCW did not attain citizenship of Myanmar, as I consider it reasonable to conclude that both of their parents were not citizens at the time of their birth. This is by virtue of section 16 of the Burma Citizenship Act 1982 which provides that a person who permanently leaves that nation ceases to hold citizenship. The material demonstrates that PHCW’s parents had met this condition at the time of the second Applicant’s birth.

47. It follows from this that, as submitted by the Respondent, PHCW is stateless, and I make this finding.

48. The Respondent further contends that a stateless individual may obtain a Certificate of Identity to assist with travel and, accordingly, this does not change the assessment as to no significant disadvantage (PHCW, SFIC [13]).

49. I do not agree with this view. It appears to me to be fundamental to the best interests of a child that they be able to claim a nationality, particularly when stateless and being a member of a family of undocumented asylum seekers. I accept that a mechanism exists to facilitate travel, but the antecedent issue of the absence of any formal recognition by a state seems to be a more substantive and critical issue.

50. I note that a stateless person is eligible for citizenship under s 21(8) of the AC Act, but this provision requires the person be born in Australia, and so is not applicable in the case of PHCW.

    conclusion

51. I have concluded that I am satisfied as to the identity of NTFK and TLXX. The correct or preferable decision in their applications is that the decisions be set aside and remitted for consideration given this finding.

52. I have concluded there is a basis for finding that PHCW is stateless. Therefore the correct or preferable decision is that the decision be set aside and remitted for reconsideration in the light of both this finding and the decision made with respect to the applicant parents.

    decision

53. For the reasons given above, the Tribunal:

    (a)sets aside the decisions dated 17 July 2020 to refuse the applications for citizenship of NTFK and TLXX and remits them to the Respondent for reconsideration in accordance with the direction that both applicants satisfy the identity requirements in s 24(3) of the Australian Citizenship Act 2007 (Cth); and

    (b)sets aside the decision dated 17 July 2022 to refuse PHCW’s application for citizenship and remits it for reconsideration in accordance with the direction that this applicant is stateless and in accordance with the decisions made in respect of the first and third Applicants.

I certify that the preceding one hundred (100) paragraphs are a true copy of the written reasons for the decision herein of Senior Member Fenwick

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

Associate

Dated:  30 September 2022

Date of hearing:

14 June 2022

Applicants:

NTFK and TLXX (self-represented)

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Nicole Maddocks

Minter Ellison