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

[2022] AATA 1534

Nungdoithai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1534 (8 June 2022)

Division:GENERAL DIVISION

File Numbers:         2020/3869

2020/5929

Re:Grace Nungdoithai

FIRST APPLICANT

BJMN

SECOND APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:8 June 2022

Place:Melbourne

The Tribunal:

1.    sets aside the decision dated 27 May 2020 to refuse Grace Nungdoithai’s application for citizenship and remits it to the Respondent with a direction that she meets the requirements of s 24(3) of the Australian Citizenship Act 2007 (Cth); and

2.    sets aside the decision dated 27 May 2020 to refuse BJMN’s application for citizenship and remits it to the Respondent with a direction that it be reconsidered in accordance with the finding made in respect of the First Applicant, and that an assessment of the best interests of the child be undertaken with particular focus on the Second Applicant’s nationality.

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Dr Stewart Fenwick, Senior Member

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – first applicant citizen of Myanmar – second applicant born in Malaysia – limited documentation linking first applicant to country of origin – consideration of best interests of minor child – decisions set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Burma Citizenship Law 1982

Secondary Materials

Citizenship Procedural Instructions 4 ‘Person under 18’
Citizenship Procedural Instructions 12 ‘Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship’
Citizenship Procedural Instructions 13 ‘Best interests of the child assessments’
Citizenship Procedural Instructions 16 ‘Assessing identity under the Citizenship Act’
National Identity Proofing Guidelines 2014
refworld (Web Page) < Tract of Chin State’, Myanmar Information Management Unit (Web Page) < FOR DECISION

Dr Stewart Fenwick, Senior Member

BACKGROUND

1. Ms Nungdoithai, the first applicant, applied on 28 June 2020 for a review of decisions of a delegate of the Respondent Minister dated 27 May 2020, refusing her application for citizenship, and that of BJMN, her minor child, the second applicant.

2. Ms Nungdoithai was born in Myanmar in 1984. In 2008 she travelled to Malaysia, where her son was born in April 2010. After being granted permanent refugee visas, the Applicants arrived in Australia in January 2014.

3. Ms Nungdoithai applied for citizenship for herself, and also on behalf of BJMN, in April 2018. Ms Nungdoithai was asked in early 2020 to provide additional information to that already supplied in support of the applications for citizenship. She provided a completed personal particulars form but was unable to provide identity documents from her country of origin.

4. Ms Nungdoithai represented herself and BJMN at the hearing. In respect of her application, she lodged an undated statement, a bundle of material, and a list of household members. The bundle included a letter from a citizen of Myanmar who was studying in Australia.

5. The Respondent lodged:

   (a)Tribunal documents (T), Supplementary Tribunal documents (ST), and a Statement of Facts, Issues and Circumstances (SFIC) in respect of each applicant;

   (b)an Amended SFIC and a brief written submission in relation to nationality in BJMN’smatter;

   (c)the DFAT Country Information Report Myanmar, 18 April 2019 (ST1); and

   (d)a copy of Ms Nungdoithai’s offshore humanitarian visa file (ST2).

6. The hearing commenced on 10 September 2021 and was adjourned at my request, to permit the Respondent to address the issue of the nationality of BJMN. Shortly after this, the Respondent lodged the Amended SFIC in the BJMN’s matter, and the documents comprising ST2.

7. Due to the age of the BJMN, I have made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) for the non-disclosure of BJMN’s name.

8. The hearing resumed on 4 February 2022. Following the hearing, I sought further written clarification from the Respondent as to the contentions made in closing arguments about this issue.

   LEGISLATION

9. The primary legislative provision relating to Ms Nungdoithai is s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act), under which the Minister, or a decision maker, must not approve a person becoming an Australian citizen unless satisfied of their identity.

10. The primary legislative provision relating to BJMN is s 24(2) of the Act, under which the Minister, or a decision maker, has a broad discretion in respect of their application for citizenship. This is phrased as a discretion to refuse citizenship despite the person otherwise being eligible.

11. Guidance in the exercise of these discretionary powers is provided in a departmental policy document, the Citizenship Procedural Instructions (CPI).

12. With respect to identity issues, CPI 16 ‘Assessing identity under the Citizenship Act’ (CPI 16) references another policy document, the ‘National Identity Proofing Guidelines 2014’, produced by the Attorney-General’s Department (the Guidelines).

13. In summary, key matters raised by these documents include:

    (a)identity is not a fixed concept and is dependent on context (Guidelines, [2.1]);

    (b)decision makers in the Department rely on a combination of three elements, or pillars of identity, being – biometrics, documents, and life story (CPI 16, [4.4]);

    (c)considering a single pillar in isolation is not generally an adequate basis for a finding of identity (CPI 16, [4.4]); and

    (d)in cases of persons who are undocumented, life story may be given greater weight, supported by reference to further relevant material (CPI 16, [4.15]).

14. Policy guidance in respect of applicants who are minors is found in CPI 4 ‘Person under 18’ (CPI 4). Particular policy considerations are stated for persons under 15 years of age (CPI 4, [7.1]), which include, relevantly, whether the child is:

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

    …

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

15. I note that the subject of ‘significant hardship’ is addressed in CPI 12 ‘Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship’ (CPI 12). It offers definitions of key terms, and some common scenarios encountered in decision making.

16. While it was not provided to the Tribunal with the materials lodged in this matter, 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’ (CPI 13, [2]).

17. ‘Best interests of the child’ is not defined; but the phrase is informed by the principles in the United Nations Convention on the Rights of the Child (CPI 13, [2.2]). CPI 13 states at [3.3] that the best interests of the child ‘shall be undertaken’ when a decision maker is considering the exercise of the discretion under s 24(2) of the Act.

18. This consideration is described (CPI 13, [3.4]) as a ‘primary consideration in actions concerning children’; and the best interests of the child must be weighed with other primary considerations. These are stated to include the objectives of the Act, community protection, and community expectations.

    ISSUES

19. The issue arising in Ms Nungdoithai’s matter is whether I can be satisfied as to her identity.

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

    EVIDENCE

21. In her evidence at the hearing Ms Nungdoithai stated her date of birth as a date in August 1984. She stated that she was born in Chin State, Myanmar, and identified the village by name.

22. Ms Nungdoithai stated that she had not left home until departing Myanmar in 2008. She stated that she left as she no longer felt safe; and she travelled to Malaysia via Thailand. She was arrested on arrival in Malaysia and spent three months in jail, because of her status as a refugee.

23. Ms Nungdoithai provided names for her parents, stating that her parents did not know their dates of birth, and that her father told her his family name was ‘made up’. She stated that her mother no longer resided in the home village, having left for India due to conflict.

24. She also provided the names of her two siblings, stating that one of her siblings had another name. Ms Nungdoithai was not sure what name she provided for this sibling when she registered with the United Nations. She also named a stepsister on her father’s side.

25. In respect of information provided by her in Statutory Declarations in 2018 and 2020, Ms Nungdoithai stated that she was not issued a birth certificate and that her national identity card was confiscated by the ‘broker’ (which I understand is a reference to the individual who facilitated her travel to Thailand and/or Malaysia).

26. She stated that her name had been removed from the list of household members because she no longer lived in the family home. Ms Nungdoithai also confirmed she no longer had her school card or school records.

27. During closing submissions, Ms Nungdoithai provided further evidence about the list of household members and her living arrangements. During this later passage of evidence, she stated that:

    (a)her home village had no high school, and therefore she lived with another family in Hakha and returned to the village during school holidays;

    (b)she estimated that she spent a total of five to six years attending high school which ended at Year 10, which she repeated several times;

    (c)she completed high school in 2003, and may have returned to the village in 2004; and

    (d)her household had at times included one or two cousins.

28. During this later passage of evidence, Ms Nungdoithai stated that the letter included in the material she lodged was written by a school friend and that they attended Year 10 together. She stated that they reconnected using Facebook in Australia and met in person subsequently, but did not see each other frequently. Ms Nungdoithai also identified herself in a photograph that she had supplied, stating that this was taken when she was in Year 10.

29. When asked in evidence what steps she had taken to obtain documents from Myanmar following the making of her citizenship application, Ms Nungdoithai stated that she was ‘not really able to provide any’. She confirmed that she had provided the copy of the household list from photographs forwarded to her by her younger sister. Her other sister is in India, along with her mother.

30. Ms Nungdoithai also stated that she considered that if she took steps to try to obtain a new identity card this might cause problems for anyone she asked to assist. I asked Ms Nungdoithai whether she knew what the procedure was, and she stated that it was to be applied for in-person with fingerprint identification, and a household list.

31. With respect to the absence of a birth certificate, Ms Nungdoithai stated that there was no hospital or clinic in her hometown, and that she had been born at home. She was unable to obtain further help or assistance from home, as no one there was able to use email.

32. In relation to the Second Applicant, Ms Nungdoithai confirmed her son’s date of birth and that he was born in Malaysia. She stated that she did not consider him to hold citizenship of any country.

33. When asked if her son held Malaysian citizenship, she responded ‘no, I don’t think so’;  and said she had never heard of ‘these kind of children holding’ it. Ms Nungdoithai stated that at school age he was permitted to have a birth certificate but was unable to enrol in a Malaysian school.

34. Ms Nungdoithai confirmed that her son has Australian permanent residency. When asked about the impact of not obtaining citizenship, she responded that her son had been asked about it because his friends are citizens. Ms Nungdoithai also stated that it ‘may hurt him’ in the future, if he has no other nationality.

35. Ms Nungdoithai stated that she had not made inquiries about her son being a national of Myanmar. She stated that they came here as refugees and was not sure who she would ask about this.

    CONSIDERATION

36. The Respondent submitted at the hearing that the Tribunal cannot be satisfied as to Ms Nungdoithai’s identity. This was due to the absence of identity documents dating to her life in Myanmar.

37. The Respondent submitted that her name is not on the household registration list, and that Ms Nungdoithai has not provided proof of her identity or school enrolment. The Respondent contended that she had not exhausted all avenues to secure proof of her identity in Myanmar.

38. I queried the Respondent’s submission about the interpretation of information on the second page of the household registration form, which records the number of people in the household at inspection dates in 2000, 2004, 2006 and 2010.  The Respondent then conceded that this document may be interpreted as supporting Ms Nungdoithai’s evidence about her living arrangements.

39. The Respondent submitted that no contentions had been raised that BJMN would suffer hardship if he was not granted citizenship. He has the right to remain in Australia indefinitely, and a decision not to exercise the discretion under s 24(2) of the Act in his favour will not affect that right.

40. I raised with the Respondent’s representative the issue of assessment of the best interests of the child. The Respondent contended that Second Applicant’s status as a permanent resident meant that he was entitled to the same education, health and welfare benefits as a citizen.

41. I sought further submissions with respect to the operation of foreign law on the nationality of the Second Applicant. The Respondent contended that, as his mother and father are citizens of Myanmar, it was open to conclude that under s 7 of the Burma Citizenship Law 1982 he, too, was a citizen of Myanmar.

42. The Respondent’s brief submission on nationality following the close of the hearing essentially restates references to documents made in the Amended SFIC, and it provides an extract of this provision of the law (albeit referring to the legislation as the ‘Myanmar Citizenship Act 1982’).

    First Applicant

43. I accept that Ms Nungdoithai has not provided a document that unequivocally links her directly to Myanmar. The household list lodged with the Tribunal does not bear her name.

44. The Respondent sought in its evidence and its submissions to demonstrate that Ms Nungdoithai has not exhausted all avenues to obtain historical or perhaps reissued documents. However, I am not confident that there is an obvious pathway for Ms Nungdoithai to do so. I accept her evidence that she is unable to seek help from family members.

45. There is, however, a chain of documents spanning several years including her time in Malaysia and Australia that reinforces her evidence at the hearing. That is, there is a clear and consistent picture of Ms Nungdoithai’s name, location and family members, including in Myanmar.

46. The name of her parents, the two siblings of that union, and her home village are consistent in Ms Nungdoithai’s:

    (a)Malaysian marriage certificate (T6, p 103);

    (b)offshore humanitarian visa application (ST2, p 53);

    (c)Application for Australian Citizenship (T6); and

    (d)Personal Particulars Form (T10).

47. I note that a publicly available map of the villages in Chin State[1] shows a village bearing the name provided in Ms Nungdoithai’s evidence and in the documents, sitting to the northwest of the state capital, Hakha.

    [1] ‘Village Tract of Chin State’, Myanmar Information Management Unit,

48. I also note that the information provided in her personal particulars form (T10, p 134) indicates that Ms Nungdoithai resided in her home village between 1984 and 2008.

49. I note further that in her application for citizenship (T6, p 144), Ms Nungdoithai refers to her stepsister as a next of kin, and as a humanitarian visa applicant.

50. The names of immediate family members, both in evidence and the documents identified, match those on the household list. I note that this list does not bear the village name identified in Ms Nungdoithai’s evidence and the identified documents. Indeed, the address details give the appearance of being an address in Hakha township itself.

51. The significance of the evidence relating to Ms Nungdoithai’s schooling arises because of the data on the second page of the household list. While the first page bears four names (husband, wife and two daughters), reflecting the stated identities of Ms Nungdoithai’s family unit, the table described as ‘Inspection Record’ on page two carries four separate entries across four years. In the initial entry from 2000, the household is described as comprising seven individuals (one male and six female), and four individuals in the later years.

52. There appears to be a possible inconsistency between Ms Nungdoithai’s evidence about her years of higher schooling, her period of residence in the village, and the subtotals of individuals at different times on the household list. However, as conceded by the Respondent at the hearing, based on the available evidence, it is open to conclude that Ms Nungdoithai may have been absent from her village for schooling, and not been recorded as a household member.

53. There is no dispute that Ms Nungdoithai was no longer in Myanmar in 2010, which is the last date of household inspection recorded in this document; and it appears to be that time at which the list (comprising her parents and siblings) was last compiled. There is no evidence before me to clarify categorically why the household appears to be in Hakha township.

54. Notwithstanding this particular anomaly, I am satisfied that the household list links Ms Nungdoithai with her immediate family group in Myanmar, relatively proximate in time to her departure for Malaysia.

55. For this reason, I afford this document some weight in the chain of material across time. I find that this documentation provides adequate substantiation for Ms Nungdoithai’s life story. That is, while I accept that there is no document unequivocally tying her to Myanmar, her identity is not in question, and taking into account the totality of the material, I make this finding accordingly.

56. I note that Ms Nungdoithai provided a letter from an individual described as a former schoolmate, that asserts this fact, and otherwise provides a general character reference. This is not a sworn document, and the individual was not called to provide direct evidence. Accordingly, I afford it minimal weight, but do not discount the information entirely.

    Second Applicant

57. As seen from the submission of the Respondent, BJMN’s application for citizenship has been addressed solely in light of CPI 4; being whether he would experience significant hardship, as a person under 15 usually resident in Australia and living with a non-citizen parent.

58. This was addressed quite briefly in evidence at the hearing. I do not consider the views of Ms Nungdoithai as definitive in relation to this question. However, it is somewhat telling that she was not able to point to any factor that might meet the threshold established in the policy guidance.

1. On the basis of the material before me, I am satisfied that BJMN would not suffer significant hardship or disadvantage.

2. However, as noted above, the best interests of the child are also a primary consideration. It was for this reason that I sought  the assistance of the Respondent in dealing with the issue of BJMN’s nationality.

3. The reason for the inquiry arises from the fact BJMN is described in his Malaysian birth certificate, issued by the Malaysian authorities (ST2, p 43), as a ‘non-citizen’ (‘bukan warganegara’). This was raised with the Respondent’s representative at the commencement of the hearing, and it was the reason for the lodging of the Amended SFIC.

4. The Respondent contends in the Amended SFIC that the birth certificate describes BJMN as a citizen of Myanmar. With respect, this is not correct.  He is, rather, described as being of Myanmar ethnicity (‘keturunan’, or race; noting that this translation is included in the document itself).

5. The Amended SFIC identifies other documents in Ms Nungdoithai’s offshore visa application file that identify BJMN as having citizenship of Myanmar (for example ST2, p 44).

6. Whether BJMN possesses any particular nationality is a legal question. The provision from the Burma Citizenship Law offered by the Respondent (s 7) states, relevantly:

   The following persons born in or outside the State are also citizens:

   (a) persons born of parents, both of whom are citizens …

7. Accordingly, should it be the case that both of BJMN’s parents held citizenship of Myanmar when he was born, then he himself may be understood to qualify automatically.

8. An assessment of BJMN’s care arrangements in the material lodged by the Respondent (ST2, p 22), undertaken in 2012, records a split in the marriage between his father and Ms Nungdoithai. This document reports that BJMN’s father had returned to Myanmar some time prior to the assessment, having previously worked and travelled in Southeast Asia. On the basis of this material, I consider it reasonable to conclude that his father was, at the time of BJMN’s birth, a citizen of Myanmar.

9. I note that the Respondent’s submission on nationality did not include reference to s 16 of the Burma Citizenship Law.[2] This section provides:

   A citizen who leaves the State permanently, or who acquires the citizenship of or registers himself as a citizen of another country, or who takes out a passport or similar certificate of another country ceases to be a citizen.

   [2][2] The version cited in this submission is found at

10. There is no direct evidence as to when Ms Nungdoithai might be considered to have permanently left Myanmar. In her oral evidence, she stated that she left the country due to fears for her safety. Her identity card issued by the United Nations High Commissioner for Refugees (UNHCR) (ST2, p 44) bears an issue date in 2012. However, the UNHCR Resettlement Referral Form for Group Submission to Australia (ST2, p 71) indicates that Ms Nungdoithai was recognised as a refugee in Malaysia in August 2009.

11. Accordingly, should it be that case the Ms Nungdoithai can be considered to have left Myanmar permanently upon departing its territory in 2008, or upon her receiving the formal assistance of the UNHCR in 2009, then it may be BJMN was not born to persons both of whom were citizens of Myanmar.

12. On this basis, there is at least an arguable case that BJMN might be understood as not possessing any nationality and he is, therefore, stateless.

    CONCLUSION

13. I have found that I can be satisfied as to the identity of Ms Nungdoithai. The correct and preferable decision in this matter is, therefore, that the decision under review be set aside and remitted for reconsideration in accordance with this finding.

14. This outcome would potentially change the basis upon which a decision in relation to the BJMN would be made. Moreover, the consideration of the best interests of the child and the child’s nationality, as addressed in the consideration above, may also change the basis upon which a decision would be made.

15. For this reason, the correct or preferable decision in BJMN’s matter is to set the decision under review aside and remit it for reconsideration in accordance with the finding in respect to his mother, Ms Nungdoithai.

    DECISION

16. For the reasons given above, the Tribunal:

    (a) sets aside the decision dated 27 May 2020 to refuse Grace Nungdoithai’s application for citizenship and remits it to the Respondent with a direction that she meets the requirements of s 24(3) of the Australian Citizenship Act 2007 (Cth); and

    (b) sets aside the decision dated 27 May 2020 to refuse BJMN’s application for citizenship and remits it to the Respondent with a direction that it be reconsidered in accordance with the finding made in respect of the First Applicant, and that an assessment of the best interests of the child be undertaken with particular focus on the Second Applicant’s nationality.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decisions herein of Dr Stewart Fenwick

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Associate

Date: 8 June 2022

Dates of hearing:

10 September 2021
4 February 2022

Applicant:

Advocate for the Respondent:

Self-Represented

Sarah Hardie

Solicitors for the Respondent:

HWL Ebsworth Lawyers