QSNT and Minister for Home Affairs (Citizenship)
[2019] AATA 248
•22 February 2019
QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 248 (22 February 2019)
Division:GENERAL DIVISION
File Number: 2018/0853
Re:QSNT
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:22 February 2019
Place:Perth
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Tribunal is satisfied with the Applicant’s identity within the meaning, and for the purposes of, s 24(3) of the Australian Citizenship Act 2007 (Cth).
..........[Sgd]..............................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP - Myanmar refugee - application for citizenship refused – no birth certificate – born in rural village - whether Tribunal satisfied of identity – consideration of country information – identity satisfied
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 24(3) – 52(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth) – s43(1)
CASES
Ahmadi and Minister for Immigration and Border Protection [2018] AATA 4189
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa v Minister for Immigration and Border Protection (2015) 148 ALD 162Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Attorney-General Department’s National Identity Proofing Guidelines
Australian Citizenship Instructions – Instruction 5.27.1 - Instruction 5.27.2
Department of Immigration and Border Protection – Australian Citizenship Policy – Chapter 13
REASONS FOR DECISION
Member C Edwardes
22 February 2019
THE APPLICATION
The Tribunal is asked to review the Minister’s decision (the decision) refusing to approve the Applicant’s application for citizenship. The decision was made pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) which provides that the Minister must not approve of a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision to refuse to approve a person becoming an Australian citizen under s 24 of the Citizenship Act.
BACKGROUND
The Applicant arrived in Australia on 22 November 2012 on a Refugee visa (XB subclass 200) (T7, 125). She is a citizen of Myanmar.
The Applicant filed an application for citizenship dated 23 December 2016. (T6, 82-115)
The Applicant provided the following documents (T6, T7):
·Western Australian motor vehicle drivers licence.
·UNHCR identity card.
·Alinta energy account.
·Western Australian Licence and Motor Injury Insurance Policy.
·Document for travel to Australia.
·Change of Name Certificate.
·Two birth certificates for her children born in Malaysia.
·A marriage certificate issued by the Methodist Church.
·Form 1399 – Declaration of service.
·Form 80 – Personal particulars for assessment including character assessment.
·Statutory Declaration.
The Delegate wrote to the Applicant on 31 January 2018 advising her that her citizenship had been refused on the basis that she had failed to satisfy s 24(3) of the Citizenship Act as the Department could not be satisfied of the Applicant’s identity (T1, 3-11).
The Respondent’s advice to the Applicant is contained in the Applicant’s decision record. (Decision Record) which states (T2, 7-11):
Your Document for travel to Australia states your name as [QSNT] and your date of birth is [Date] 1975. I attach some weight to this document because it was issued to you by the Department to facilitate your travel to Australia, however, I cannot verify your name and date of birth prior to that time.
You also provided your UNHCR identity card that appears to have been issued in 2009. I also attach some weight to this document because, despite being issued in a transit country and after you had left your country of origin, it was issued by a third party organisation and shows the consistent use of your name [QSNT] and date of birth.
I also note that since you arrived in Australia on 22 November 2012, you have been consistent in your claims to have been named [QSNT] and that you were born in 1975. I also note that you have assumed a family name [QSNT] and in 2015 you obtained the appropriate document for this change in Australia.
You provided one (1) marriage certificate from your church in your country of origin issued on [Date] 1996 when you were approximately 21 years of age. This is only [sic] document you have provided from your country of origin and as it was issued by a church and not by official registration authority, I am unable to verify it and therefore I cannot place significant weight on this document.
You also provided two (2) birth certificates for your children born in Malaysia and registered on [Date] and [Date] respectively. I place some weight on these documents because, despite being issued in a transit country after you had left your country of origin, they show your consistent use of your name [QSNT] and your relationship with your husband.
While I note that these three (3) documents show your consistent use of your name [QSNT] since the time of your marriage in 1996 when you were approximately 21 years of age, as there is an absence of any earlier documentation, I cannot be satisfied of your identity prior to that time and from the time of your birth until that time.
While documents are an important aspect in establishing your identity, I must also consider your life story. When assessing your life story in the context of citizenship, it was necessary to be able to create a complete identity 'picture' of the person from birth. The objective is to link your identity at birth to the identity provided in your application for Australian citizenship. This can be achieved by considering key chronological events in the person's life, and using other pillars identity assessment - biometrics and documents to piece together and corroborate information.
The information that you provided at your citizenship interview is consistent with information you provided to the United Nations Commissioner for Refugees (UNHCR) and previously to the Department, namely, your name is [QSNT], you were born in [Name] Village, [Name] Myanmar on [Date] 1975 and your ethnic origin is Chin. You completed 4 years primary level schooling and you left Myanmar in 2008 by travelling on land to Yangon, Thailand and then Malaysia where you remained for approximately 4 years prior to coming to Australia. During your time in Malaysia your two children were born which I consider to be a key chronological event in your life.
With the exception of your marriage certificate, your citizenship application includes no documentary evidence which might be considered to build a picture about your identity since birth or the period you spent overseas before your first arrival in your transit country when you were approximately 33 years of age and your subsequent arrival in Australia.
Your biometric was first captured on 13 September 2017 at your citizenship interview. There is [sic] no previously held records of your biometric identifiers to enable a comparison with your current biometric.
In summarising your case, I find that the information you have provided about your identity does not demonstrate your identity from birth until you were approximately 21 years and then not again until you were 33 years of age, as such, I am unable to be satisfied of your identity and I am prohibited from approving you to become an Australian citizen.
On 22 February 2018 the Applicant sought a review of the Decision by the General Division of the Administrative Appeals Tribunal (AAT). The Applicant stated “the decision is wrong. I have provided evidence of my identity and will provide further evidence.” (T1, 3).
The matter was heard in Perth on 12 February 2019. The Applicant appeared in person and was represented by Mr Lang. The Respondent was represented by Mr Gerrard, of the Australian Government Solicitor.
RELEVANT LEGISLATION AND PRINCIPLES
Section 24(3) of the Citizenship Act provides that the Minister must not approve of the applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the Applicant.
Chapter 13 of the Australian Citizenship Policy states:
The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
The Tribunal notes instruction 5.27.2 of the Australian Citizenship Instructions (ACIs) which states:
…In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity…
Further, instruction 5.27.1 of the ACIs states, under the heading “Minister’s decision (s24) – summary,” that “[t]here are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to: identity…”
The Tribunal is assisted by the Australian Citizenship Policy. The policy provides assistance to those who administer the Citizenship Act. Whilst not bound to apply policy guidelines the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
ISSUE
The issue for determination by the Tribunal is whether the Applicant satisfies s 24(3) of the Citizenship Act. That is, the Tribunal is to determine whether the Tribunal is satisfied of the identity of the Applicant.
EVIDENCE
The Tribunal received the following:
·Exhibit A1 – Statement of Facts, Issues and Contentions dated 11 June 2018.
·Exhibit A2 – Statutory Declaration of [QSNT] signed 23 May 2018.
·Exhibit A3 – Statutory Declaration of Mr S signed on 22 May 2018.
·Exhibit A4 – Statutory Declaration of Mr Y signed on 23 May 2018.
·Exhibit A5 – Statutory Declaration of Mr P signed on 23 May 2018.
·Exhibit A6 – Hearing Certificate.
·Exhibit A7 – UNHCR Identity Card; Mr Y .
·Exhibit A8 – Australian Citizenship Documents of Mr S.
·Exhibit R1 – T documents (T1-8 pp1-149).
·Exhibit R2 – Statement of Facts, Issues and Contentions dated 16 July 2018.
·Exhibit R3 – Hearing Certificate.
·Exhibit R4 – Submissions Addressing Country Information.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
The Tribunal notes the Secretary’s contentions (R2):
25.The respondent contends that the Tribunal is faced with an application where it cannot be certain of the applicants’ identity to the standard expected for the conferral of Australian citizenship. A certificate of Australian Citizenship is a legal document of considerable significance: see Beyan at [38]. The Tribunal should not countenance an outcome which could lead to certificates being issued in circumstances where, as here, the identity of the applicant is far from clear.
26.In the applicant’s case, sufficient documentation has not been provided which should lead the Tribunal to conclude that it can be satisfied as to her identity to the requisite degree.
27.The respondent contends that having regard to the country information it is reasonable to expect the applicant to produce any or all of the following evidence:
27.1.A copy of her father’s Household (or Family) List;
27.2.A birth certificate, having regard to the fact that a birth certificate is required to be added on to a Household Registration list; and
27.3.A Citizenship Scrutiny Card (‘pink card’) that the applicant is a Myanmar citizen.
28.Furthermore, in light of the concerns expressed by DFAT in respect of the prevalence of fraud the Department should have the opportunity to examine the original copies of these documents should the applicant provide them.
29.The respondent acknowledges that there are circumstances where an applicant should not be required to produce documents appropriate to an established society: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117]; YMPL and Minister for Immigration and Border Protection [2017] AATA 1458 at [34]. However, in each of those cases the applicant gave evidence of efforts which had been made to obtain documentation.
30.The respondent submits that where credible country information identified the type of documentation that should be expected to be produced or to be obtained, that documentation should be produced. Where it is not, then an acceptable and credible explanation should be provided as to why it has not been produced including evidence of attempts to obtain documentation.
31.In this case, having regard to the high standard of satisfaction required for Australian citizenship, the applicant has not provided evidence which the country information indicates should be available.
32.Furthermore, the respondent contends that what is absent is a substantiated explanation of the attempts the applicant claims to have made to obtain documentation from Myanmar. There is certainly no evidence that the applicant has “exhausted [her] avenues of search for such documentation”: see Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [27]. There is simply an unsupported assertion that it is “impossible” for her to obtain documentation and “unreasonable” for her to be expected to make such attempts. The sole reference to any attempt is the following:
I have tried to get a Birth certificate and Identity card from Myanmar. My parents have informed me that the local government officials have told them that they cannot issue any Birth certificate or Identity document because I “left the country illegally”.
33.There is no evidence of this purported contact. More significantly, there is no evidence of any formal enquiries made with the Myanmar authorities. There is no country information provided which supports the contention that it [sic] a policy of the Myanmar authorities not to issue identity documentation to persons who have left Myanmar unlawfully.
34.In these circumstances, the respondent contends that the applicant’s identity is unclear and cannot be satisfactorily ascertained.
The Applicant contends (A1):
1.That she has supplied sufficient credible evidence to adequately prove her identity.
2.That it would be impossible and therefore unreasonable in the circumstances to expect her to have biometric documentation to cover the period from birth to her marriage and her flight from her country of origin where such documentation was not available to her in her country of origin at the time and where the Applicant has no means of acquiring such biometric documentation at present or in the reasonably foreseeable future.
3.That it is unreasonable to expect the Applicant to have applied for a Birth certificate or a passport in circumstances where she was fleeing persecution perpetrated by the very government authorities responsible for issuing such documents.
4.That she has supplied statutory declarations covering her entire life from birth to marriage to residence as a refugee in Malaysia to arrival in Australia and her life in Australia to date.
5.That the documentary evidence supplied satisfies the biodata, personal information and life story requirements of the Act in sufficient detail to satisfactorily prove her identity.
The Respondent has provided the following country information (R2):
Country information
20.A copy of the 2017 DFAT Country Information Report on Myanmar (DFAT Report) is filed with this Statement of Facts and Contentions.
21.The respondent notes that the applicant has advised that she was included on her father’s Family List. In this regard, the DFAT Report provides the following information in respect of the importance of Household Lists. At 5.22 – 5.25 it provides:
Household registration is required to obtain identification documentation and to gain access to services such as electricity and water. Household lists are also used by townships for population estimates. Township Administration offices administer household lists. If a member of a household wishes to change their registration, the formal process is for the head of the household to go to the township and have them removed. The household member would then be issues [sic] with a relocation notice. This notice, together with money and other identification documents, are then taken to the Township Administration office in the person’s new location where they are then added to the list for their new household. The types of documentation and the amounts of money required for this process vary across different jurisdictions.
When a baby is born, their birth certificate is required to add them to their household list. Each household must have an officially nominated ‘head’. While this is largely now just a tradition, at times the household head can be called upon to represent the household.
It is rare for a citizen of Myanmar who is resident in the country to not be registered on a household list. If a person is found to be unregistered, the penalty is a maximum of seven days’ detention at the police station, during which time the person must prove they belong to a household and have the head of the household come to register them on their household list.
[emphasis added]
22.From this it can be seen that a birth certificate is required for a person to be added to a Household List.
23.Relevantly, the DFAT Report provides the following information in respect [sic] documentation. At 5.40-5.43 the DFAT Report provides:
Myanmar’s 1982 Citizenship Law provides for full, associate and naturalised categories of citizenship. A range of rights apply to holders of associate and naturalised citizenship.
…
In 1989 the government began a process to implement the 1982 Citizenship Law which involved replacing the previous National Registration cards (NRCs) with a new series of identification documents. Under the 1982 law, the government issues full Myanmar citizens with Citizenship Scrutiny Cards (CSCs, also known as ‘pink cards’), naturalised citizens with Naturalised Citizenship Scrutiny Cards (NCSCs or ‘green cards), and associate citizens with Associate Citizenship Scrutiny Cards (ACSCs or ‘blue cards’).
Non-citizens are typically issues [sic] with Foreign Registration Certificates.
The CSCs issued to full citizens contain information including the bearer’s photo, name, father’s name, nationality, religion and occupation. The identity cards take the form of a pink credit card-sized document, made of stiff card and sometimes laminated. Forgeries are reportedly difficult to distinguish from genuine documents. The identity card grants relative freedom of domestic travel within Myanmar and can be used to access some services, including voting and government schooling.
24.The DFAT Report also notes that there is a high prevalence of document fraud in Myanmar at 5.50:
Document fraud is highly prevalent in Myanmar. Fraud can take the form of fake documentation, or genuine documentation provided on the basis of fraudulent information. The prevalence of corruption in Myanmar means that fake documentation can be purchased with relative ease. As noted above, the unsophisticated nature of CSCs, ACSCs and NCSCs means that fake documents are relatively easy to produce. While passports have more sophisticated security features, it is possible to obtain a genuine passport using a fake CSC.
(Original Emphasis.)
The Tribunal as a result of hearing similar cases is aware of reports dealing with the issue of birth certificates from Myanmar. These reports include the Lutheran World Federation Submission to the UN Periodic Review dated 2-13 November 2015. It states (R4):
According to UNICEF, 3 out of 10 children under 5 in Myanmar had no birth certificate. While most children in Yangon are registered, 76% of children in Chin State do not possess a birth certificate and 35% of children affected by armed conflict are unregistered. Among other things, this has major implications for obtaining a Citizen Scrutiny Card (CSC) which is the main document confirming the legal identity of an individual.
The UNICEF report of May 2017 states that “one in five children is born without registration...” (T2).
The Applicant has provided the following statutory declarations in support of this application (A2-A5):
Statutory declaration of [QSNT]
I [QSNT] of [Address], Ballajura, WA 6066 hereby make oath/declare that:
1.I am the Applicant in the Administrative Appeals Tribunal Case No.2018/0853.
2.The facts deposed to in the statutory declaration are within my own personal knowledge and, in all material respects, true and correct.
3.I was born on the [Date] 1975 in [Name] village, [Name] Township, Chin State in Myannmar.
4.My parents are Mr U and Mrs U. I have a brother Mr S.
5.On [Date] 1996 I married Mr Y in our village in Myannmar. My husband was born in the same village as me and we now have three children. I attach a copy of my Marriage certificate.
6.[Name] village is small, with only about 50 houses and 150 people living there. We all knew each other because the village was so small.
7.There was never a need for me to have a birth certificate or identity document to go to school or even to get married because everyone in the village knew each other and we could all identify each other.
8.My husband and I were forced to flee from Myannmar in about 2008 because of the persecution by the Burmese government of the Chin people.
9.I was never issued a Birth certificate after I was born because I lived in a rural village in a remote part of the country. I was only registered with the Burmese government during the census as a member of my Fathers' family and included on his "Family List."
10.When I left Myannmar I had no opportunity to take a Birth certificate or other identity documents with me because I had never been issued with a Birth certificate or any other identity document. My husband and I fled to Malaysia and I approached the UNHCR for recognition as a refugee.
11.We left Myannmar illegally because we were in danger of being tortured and persecuted. I did not have a passport and could not leave through official border posts.
12.ln Malaysia I did not have any form of identity from Myannmar and all my documentation from the UNHCR was based on my marriage document and confirmed by my husband and people who knew me from the village who were also in Malaysia.
13.ln 2012 my husband and I were accepted for resettlement in Australia under the Refugee and Humanitarian programme. I arrived in Australia on the [Date] 2012 on a subclass 200 Refugee visa. I attach a copy of my travel document (number E02xx) and visa used to enter Australia.
14.ln Myannmar it was not usual to use a surname and so my travel document is in the name of [QSNT]. The same applies to my Marriage certificate.
15.ln 2015 I decided to change my name to include a surname to avoid any further difficulties with documents and documentation in Australia. On [Date] 2015 my name was officially recorded in the records of the Registrar for Births, Deaths and Marriages, WA as [QSNT]. I attach a copy of my Change of Name certificate.
16.I have tried to get a Birth certificate and Identity card from Myannmar. My parents still live in [Name] village but they have informed me that the local government officials have told them that they cannot issue any Birth certificate or Identity document because I "left the country illegally."
17.ln 2014 the Burmese government conducted an official census of people living in Myannmar. I was not present at the time and have been excluded from the Family List of my Father. My husband was also out of the country so no new "Family List" was made to include me in my husbands' household.
18.The policy of the Burmese government is that people who have left the country illegally are not given any documentation. I fear that if my family in Myannmar try to get documents for me it will place them in danger of prosecution or persecution by the Burmese government. I believe that I have been placed on a Burmese government “Black List” of people known to have left the country illegally.
19.I have consistently used the name [QSNT] all my life (until I added [Name] as a surname in Australia), it appears on my Marriage certificate and the birth certificates issued to my children in Malaysia and I have supplied the evidence of my husband, my brother and a friend to confirm my identity.
20.I have been out of my country of birth for about ten years. I have lived in Australia for nearly six years. I cannot return to Myannmar because I will face persecution there so it is not possible for me to go back and get any identity documents.
Statutory declaration of Mr Y.
I, Mr Y of [Address], Ballajura, WA 6066 hereby make oath/declare that:
1.I am the husband of the Applicant in the Administrative Appeals Tribunal Case No.2018/0853, [QSNT].
2.The facts deposed to in the statutory declaration are within my own personal knowledge and, in all material respects, true and correct.
3.I was born on the [Date] 1970 in [Name] village, [Name] Township, Chin State in Myannmar.
4.My parents are Mr D and Mrs D.
5.On [Date] 1996 I married [QSNT] (now [QSNT]) in our village in Myannmar. My wife was born in the same village as me and we now have three children. I attach a copy of my Marriage certificate.
6.[Name] village is small with only about 50 houses and 150 people living there. We all knew each other because the village was so small.
7.I knew my wife in the village from when we were young children.
8.My wife and I were forced to flee from Myannmar in about 2008 because of the persecution by the Burmese government of the Chin people.
9.I was never issued a Birth certificate after I was born because I was born and lived in a small rural village in a remote part of the country. There was no government office in or near our village where births could be registered or identity documents given and most people in the village went all their lives without any birth certificate or other formal identity documents. I was only registered with the Burmese government as a member of my Fathers' family and included on his "Family List" after a census was done by the government.
10.When I left Myannmar I had no opportunity to take a Birth certificate or other identity documents with me because I had never been issued with any such documents. My wife and I fled to Malaysia and I approached the UNHCR for recognition as a refugee.
11.While the Applicant and I lived in Malaysia we did not have any official identity documents such as passports or birth certificates or National Identity cards.
12.We left Myannmar illegally because we were in danger of being tortured and persecuted. I did not have a passport and could not leave through official border posts.
13.ln 2012 my wife and I were accepted for resettlement in Australia under the Refugee and Humanitarian programme. I arrived in Australia on the [Date] 2012 on a subclass 200 Refugee visa. I attach a copy of my travel document (number E02xx) and visa used to enter Australia.
14.ln 2015 my wife decided to change her name to include a surname to avoid any further difficulties with documents and documentation in Australia. On [Date] 2015 her name was officially recorded as [QSNT].
15.I have tried to get a Birth certificate and Identity card from Myannmar. My parents still live in [Name] village but they have informed me that the local government officials have told them that they cannot issue any Birth certificate or identity document for me because I "left the country illegally."
16.ln 2014 the Burmese government conducted an official census of people living in Myannmar. I was not present at the time and have been excluded from the Family List of my Father. No new "Family List" has been created for me and my family as we no longer live in Myannmar.
17.The policy of the Burmese government is that people who have left the country illegally are not given any documentation. I fear that if my family in Burma try to get documents for me it will place them in danger of prosecution or persecution by the Burmese government. I believe that I have been placed on a Burmese government "Black list" of people known to have left the country illegally.
18.I have been out of my country of birth for about ten years. I have lived in Australia for nearly six years. I cannot return to Myannmar because I will face persecution there so it is not possible for me to go back and get copies of my identity documents.
19.My wife and I are part of the Daichin ethnic community in Perth. We worship regularly at the [Name] Church which is situated at [Address] Perth and we are well-known in our community.
20.My wife's brother, Mr S, and his family also live in Perth and are part of our community. We regularly socialise with each other. He came with me to the airport to meet his sister (the Applicant) when she arrived in Perth in November 2012. I knew my brother-in-law when we lived in [Name] village in Myannmar.
21.I also know Mr P in Perth. He was from [Name] village in Myannmar. He was also forced to flee Myannmar and we met again in Malaysia. He also came to the airport to meet the Applicant when she arrived in Australia for the first time.
22.I confirm that the Applicant is the same person I knew from [Name] village in Myannmar and the same person I married in 1996 and then fled to Malaysia with. I confirm that we lived in Malaysia for about 4 years while we waited to be resettled as refugees somewhere in the world and that the Applicant is the same person who joined me in Australia in [Date] 2012 and the same person who applied for Australian citizenship, which application was refused on 31st January 2018.
Statutory declaration of Mr P.
I Mr P of [Address], Westminster, WA 6061 hereby make oath/declare that:
1.I know the Applicant in the Administrative Appeals Tribunal Case No.2018/0853, [QSNT] and make this declaration to assist in proving her identity.
2.The facts deposed to in this statutory declaration are within my own personal knowledge and, in all material respects, true and correct.
3.I was born on the [Date] 1978 in [Name] village, [Name] Township, Chin State in Myannmar, the same village where the Applicant, her brother and her husband were born.
4.[Name] village is small with only about 50 houses and 150 people living there. We all knew each other because the village was so small. I am not related to the Applicant but we have known each other and have been friends since we were children and lived in the village in Myannmar.
5.I was forced to flee from Myannmar because of the persecution by the Burmese government of the Chin people.
6.I was never issued with a Birth certificate after I was born or given any other form of official identity document. There was no local government office in the village or nearby which could issue such documents and most of the people in the village spent their entire life without any birth certificate or identity document. Like most people, at census time I was registered with the Burmese government as a member of my Fathers' family and included on his "Family List."
7.When I left Myannmar I fled to Malaysia and I approached the UNHCR for recognition as a refugee.
8.In Malaysia I met the Applicant again after she and her husband arrived in Malaysia after fleeing from Myannmar.
9.In 2012 I was accepted for resettlement in Australia under the Refugee and Humanitarian programme. I arrived in Australia on the [Date] 2012 on a subclass 200 Refugee visa.
10.I do not believe it will be possible for me or the Applicant to get a birth certificate or identity document from Myannmar. The policy of the Burmese government is that people who have left the country illegally are not given any documentation. I fear that if my family in Burma try to get documents for me it will place them in danger of prosecution or persecution by the Burmese government. I believe that I have been placed on a Burmese government "Black list" of people known to have left the country illegally.
11.I confirm that I have no doubt whatsoever that the Applicant is the same person I knew from [Name] village in Myannmar, the same person I met again in Malaysia and the same person who came to Australia in November 2012. I went with her brother and husband to the Perth International airport to meet the Applicant when she arrived in Australia. The Applicant is the same person who applied for Australian citizenship, which application was refused on 31st January 2018.
12.We are all part of the Daichin ethnic community in Perth. We speak the same language we spoke in Myannmar. We socialise with each other regularly at the [Name] Church at [Address] where we worship on a Sunday. We also visit each other's homes.
Statutory Declaration of Mr S.
I, Mr S of [Address], Ballajura, WA 6066 hereby make oath/declare that:
1.I am the biological brother of the Applicant in the Administrative Appeals Tribunal Case No.2018/0853, [QSNT]. I have known her all my life as my older sister.
2.The facts deposed to in the statutory declaration are within my own personal knowledge and, in all material respects, true and correct.
3.I was born on the [Date] 1982 in [Name] village, [Name] Township, Chin State in Myannmar.
4.My parents are Mr U and Mrs U.
5.[Name] village is small with only about 50 houses and 150 people living there. We all knew each other because the village was so small.
6.I knew husband of my sister, Mr Y, in the village from when we were young children.
7.I was never issued a Birth certificate after I was born because I lived in a rural village in a remote part of Myannmar. There was no government office in the village or close by which could issue birth certificates or other identity documents. To the best of my knowledge most people in our village never had a birth certificate or identity document for their whole life. I was registered, after a census, with the Burmese government as a member of my Fathers' family and included on his "Family List."
8.There was no real need for any identity documents because we all knew each other and could confirm each other's identity. When marriages took place they usually involved a couple from the village and the priest and community knew them well so there was no need to produce a birth certificate or identity document to prove who you were.
9.There is nothing unusual in my sister having no birth certificate or identity documents as a person from a remote village in Myannmar.
10.I was forced to flee Myannmar to avoid persecution by the Burmese government and when I left Myannmar I had no opportunity to take a Birth certificate or other identity documents with me because I never had any. I fled to Malaysia and I approached the UNHCR for recognition as a refugee.
11.I left Myannmar illegally because I was in danger of being tortured and persecuted. I did not have a passport and could not leave through official border posts.
12.ln 2008 I was accepted for resettlement in Australia under the Refugee and Humanitarian programme. I later brought my fiancée to Australia on [Date] 2011 and we married at the offices of the Registrar of Births, Deaths and Marriages on [Date] 2011. I attach a copy of my travel document D01xx.
13.ln 2015 my sister decided to change her name to include a surname to avoid any further difficulties with documents and documentation in Australia. On [Date] 2015 her name was officially recorded as [QSNT].
14.I confirm that the Applicant is my biological sister and the same person I knew from [Name] village in Myannmar and the same person who came to Australia in November 2012 and the same person who applied for Australian citizenship, which application was refused on 31st January 2018.
15.I went to Perth International Airport in November 2012 with my brotherin-law Mr Y to meet my sister.
16.We are all part of the Daichin ethnic community in Perth. We speak the same language we spoke in Myannmar. We socialise with each other regularly at our homes. My children refer to the Applicant as "Ni Ni" which means "Aunt" in our language and culture.
17.I see my sister and her family regularly at the [Name] Church at [Address] where we worship on a Sunday.
18.I am an Australian citizen. I was granted citizenship by conferral on [Date] 2013. I attach copies of my Citizenship Certificate and my Australian passport biodata page.
19.I believe it will be inconsistent for my sister to be refused Australian citizenship because of lack of identity documents from Myannmar when I have been granted Australian citizenship with the same lack of documentation as my sister.
HEARING
The Applicant made no opening statements.
The Respondent stated that the Applicant’s application for citizenship had been refused on the basis that the department could not be sure of her identity and that she had not provided an adequate explanation as to why she could not attain documentation that would verify that she is who she purports to be. The Tribunal therefore could not be satisfied of her identity given the integrity and high standards of the Citizenship process.
The Applicant gave the following evidence:
·She confirmed the content of her Statutory Declaration.
·She was born in [Name] village in Myanmar.
·She is of the Chin ethnicity and lived in Myanmar from 1975 to 2008.
·She never had a birth certificate but said she had a ‘pink card’ which she attained at the age of 18 years.
·In her travels from Myanmar to Malaysia she had to give her ‘pink card’ to the people smugglers she had used to escape Myanmar illegally with her husband.
·The ‘pink card’ was never returned to her.
·She has made no effort to get a copy of the card from Myanmar authorities because she left Myanmar illegally and any efforts to procure past documentation would result in reprisals against her family in Myanmar. This was her firm belief.
·In 2014 she was on a household list, but post this time her name does not appear.
·In Malaysia she was registered as a refugee under the auspices of the United Nations (T6, 101).
Under cross-examination the Applicant said the following:
·Confirmed she was born in 1975 and was a citizen of Myanmar. She was Chin and a Christian.
·She lived with her parents until she married and thereafter lived with her husband’s parents until she and her husband escaped Myanmar illegally.
·She was on her father’s household list, however is no longer on that list.
·Asked how she knew she was no longer on the list she said her brother had told her. She communicated with him by phone. There were no emails.
·Asked why she did not get a letter from her family in Myanmar to say who she was she said she did not know that she could ask that of her family. She speaks to them by phone every one to three months.
·She said she has no Birth Certificate. She went to school up to grade four. There were no school records available and though she was baptised she had no documentation.
·She receive a ‘pink card’ when she turned 18 years, however when she escaped Myanmar illegally she had to hand this to a people smuggler and it was not returned.
·She feared for her family in Myanmar if she made inquiries about documentation, but confirmed nothing happened to her parents after the 2014 census.
·She has made no contact in Australia with the Embassy of Myanmar to secure documents and will not do so even if this application fails for fear of repercussions for her family in Myanmar.
Under re-examination the Applicant stated:
·Her parents lacked the requisite education to be able to write letters.
·She will not contact the authorities for documentation if the application fails.
·She has five children; three in Australia and two in Myanmar with one daughter married in that country.
·She and her husband left their two children in the care of her parents when they escaped because they felt taking children on the journey would be too dangerous.
·Asked why she wanted citizenship, she stated she wanted to be part of the Australian community and wanted to live in Australia forever.
The Applicant’s husband Mr Y gave the following evidence:
·He confirmed the content of his Statutory Declaration.
·He had no Birth Certificate and no other identity documentation from Myanmar.
·His ‘pink card’ was given to a people smuggler when he left Myanmar illegally for Malaysia, and was not returned.
·In Malaysia he registered with the United Nations as a refugee (A7).
·He stated he could not get copies of documents from authorities in Myanmar because relatives had advised him no such information would be provided because he left the country illegally.
·He had attended school to grade four and had no school certificates.
·He knew the Applicant in [Name] village.
·He could not get a copy of his ‘Household List’ as his parents had passed away and the remaining family no longer lived in the family home in Myanmar.
·He has not tried to get a letter from his remaining family confirming his identity.
·He feared any inquiries to authorities would impact adversely on his remaining family in Myanmar. This was his belief.
·He was a citizen of Myanmar.
·He contacted his family by phone two to three times a year.
Under cross-examination, Mr Y stated:
·He received his ‘pink card’ when he turned 18 years old and this was the only identification document he had.
·When asked why he did not mention the ‘pink card’ in his statutory declaration he said he thought he had.
·It was his belief that the authorities would act adversely against his family in Myanmar if inquiries were made because he left illegally. There was no evidence to support this merely a belief.
On re-examination Mr Y stated he did not know of anyone who got into trouble with the authorities over seeking such information.
Mr S gave the following evidence:
·He was aged 35 and had three children. He came to Australia in 2008.
·He received Australian citizenship on the recommendation of the department in 2013 (A8).
·He was the biological brother of the Applicant and both of them had the same mother and father.
·He confirmed the contents of his Statutory Declaration.
·He had no identification documents, other than the ‘pink card’ which he handed to the Police following his escape from Myanmar.
·He was 17 years old when he left Myanmar and he attended school until grade eight.
·When he applied for citizenship he had the same documents as his sister; he had no birth certificate and no ‘pink card’.
·He is an Australian citizen, with citizenship granted by the department in 2013.
Under cross-examination he said:
·He was in Malaysia from 1999 to 2008 when he was accepted into a refugee programme to settle in Australia.
·He did not tell his sister he was leaving Myanmar and did not contact her whilst in Malaysia. He never told his sister he was leaving because he was not living with her at the time in Myanmar.
·He only knew his sister arrived in Malaysia as a result of the Chin network at the refugee camp and thereafter spoke to her by phone from Australia.
Mr P gave the following evidence:
·He confirmed the contents of his Statutory Declaration.
·He was born in [Name] Township and confirmed the identity of the Applicant as he grew up with her and her husband.
·He has known the Applicant for about 20 years.
·He left Myanmar in 2006/7 for Malaysia and has no identification documents from his time in Myanmar. He had a ‘pink card’; however this was handed over to a people smuggler and never returned.
·He caught up with the applicant in Malaysia, however did not travel with her and her husband as they escaped Myanmar.
·He arrived in Malaysia before the Applicant.
·He believed his relatives in Myanmar would be at risk of reprisals from the authorities if inquiries were made for documents because of the way he left Myanmar.
·He was an applicant for Australian Citizenship
Under cross-examination he stated:
·His ‘pink card’ was handed to a people smuggler and never returned.
·His contact with people smugglers was through the Chin network at the village in Myanmar.
·He identified Mr S as the brother of the Applicant, knew him in their village and knew he had gone to Malaysia.
·He had no contact with Mr S in Malaysia.
·He knew no one in Perth from their village other than the Applicant, her husband and her brother.
When asked under re-examination why he had not approached the Myanmar Embassy in Australia for documents, he stated others had tried and were unsuccessful.
Mr Lang made the following closing statements:
·The Applicant had limited education.
·She had grown up in a rural part of Myanmar which was remote and in a village with a very small population.
·She was a refugee who was in fear for her remaining family in Myanmar.
·Her evidence was consistent.
·Obtaining Birth Certificates for people living in remote communities in Myanmar was problematic.
·The Applicant’s ‘pink card’ being either taken by people smugglers or the Police was a consistent story.
·She knew if she gave false evidence and it was found out to be the case, her permanent residency might well be put at risk.
·There was a general fear and distrust of Myanmar authorities.
·Her brother had attained Australian citizenship with the same level of documentation as his sister.
Mr Gerrard made the following closing remarks:
·The Minister stood by the arguments in the SOFIC (R2).
·Application for citizenship requires a higher threshold in the standard of documents than residency.
·Integrity in the citizenship process is critical when evaluating applications.
·The identity of the Applicant is unclear. The Tribunal cannot be satisfied on the basis of what has been presented at this hearing.
·Not one Statutory Declaration submitted has any mention of a ‘pink card’, yet each of the witnesses before the Tribunal acknowledged this was an important document for the purposes of identification.
·The department is not saying the Applicant is of bad character, it merely is proposing her identity cannot at present be verified to the high standard required to attain Australian citizenship.
·There is no evidence that the authorities would not assist with copies of documents, nor evidence of retribution for those with family remaining in Myanmar who request documentation.
·The Applicant and her witnesses seeking Australian citizenship all said they would not seek documentation from Myanmar authorities should their applications prove to be unsuccessful.
·Arguments concerning the Applicant’s brother being granted Australian citizenship five years ago can only be done so on the basis of speculation.
CONSIDERATION
What is required in this application is for the Tribunal to be satisfied of the Applicant’s identity within the meaning and for the purposes of, s 24(3) of the Citizenship Act.
With regards to the effective determination of ‘identity’, the Tribunal is informed by the Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines), which are in turn reflected in the Citizenship Policy. The Guidelines observe that a person’s identity is not a fixed concept and is highly dependent on context.
The Tribunal notes the Respondent’s concern that the Applicant has not produced any official or reliable documentation from Myanmar to substantiate her identity. The Tribunal notes the Respondent’s observation that none of the Statutory Declarations in evidence make reference to the absence of a ‘pink card.’ The Tribunal considers the use of the term ‘identity document’ within the Statutory Declarations of the Applicant and other witnesses to encompass a reference to identity documents commonly available inclusive of a ‘pink card’.
The Respondent claims that the Applicant has not taken appropriate steps to acquire identity documents from appropriate authorities.
The Tribunal notes commentary in Confidential v Minister for Immigration and Citizenship [2013] AATA 144:
[32]…This evidence certainly goes towards establishing that the applicant uses her ‘Western’ name in the local community but, in my view, is insufficient to enable the Minister to properly form an opinion as to the identity of the Applicant.
…
[34]I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.
The Tribunal also notes commentary in Dhayakpa v Minister for Immigration and Border Protection (2015) 148 ALD 162 at paragraph 117:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
The Tribunal accepts a certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256).
In CDNB and Minister for Immigration and Border Protection [2018] AATA 757 the Tribunal considered it relevant to the assessment of identity to examine whether the applicant had portrayed a consistent life story. Specifically the Tribunal found that (at [92]) “… there was a level of consistency in relation to names, date of birth and… ethnicity.” The Tribunal observed similarly in the present application a consistency in relation to names, date of birth, ethnicity and also personal history.
The Tribunal acknowledges the various Statutory Declarations indicating the Applicant is who she claims to be and that her brother, husband and friend of 20 years attest to her identity.
The Tribunal has been provided with Statutory Declarations outlining the difficulties that would be confronted in requiring the Applicant to secure further identity documents from her home country. Whilst there is no evidence to verify this, equally there is no evidence to indicate this is not the case.
The Tribunal has no evidence to indicate the Applicant provided falsified information in her citizenship application. The Tribunal found the Applicant to be a truthful witness, who has had a limited education.
The Tribunal notes that the Applicant holds a permanent visa and when asked why she wanted to become an Australian citizen said she wanted to be a part of the Australian community and wanted to live here for the rest of her life.
The Tribunal considers that there is no evidence before it to suggest that the Applicant does not respect and abide by the law.
The Tribunal finds that there is no evidence before the Tribunal to suggest that the Applicant is not truthful or has engaged in fraudulent or deceptive practices.
The Tribunal considers that there is no evidence to suggest that the Applicant has previously been involved in unlawful activity.
The Tribunal is satisfied with the identity of the Applicant, having considered the evidence of witnesses, in particular her biological brother, husband and her friend of 20 years Mr P.
The Tribunal acknowledges that the Applicant has not been able to produce official documentation in terms of her birth; however the Tribunal accepts her explanation concerning having no Birth Certificate and the fact that her ‘pink card’ was not returned by the people smuggler who took it from her. The Tribunal finds whether real or imaginary there is a real fear of repercussions arising from requesting documents from Myanmar authorities. Specifically there is a consistent fear of reprisals against family members who remain in Myanmar.
The Tribunal notes that the Applicant’s biological brother, also a refugee from Myanmar had no Birth Certificate or ‘pink card’ at the time his Australian citizenship was conferred on him (A3).
In Ahmadi and Minister for Immigration and Border Protection [2018] AATA 4189 the Tribunal found:
41.Contrary to the respondent’s submission that the Tribunal’s task is not informed or assisted by reference to the material in Mr Ahmadi’s siblings’ citizenship applications or the decisions themselves, the Tribunal finds that Mr Ahmadi’s primary proof of identity… is identical to his siblings’… which have been accepted by the Department as genuine documents.
…
50.The Department has not presented any evidence before the Tribunal of concern that Mr Ahmadi is not who he claims to be… As such, the Tribunal finds it hard to accept that a parallel cannot be drawn between Mr Ahmadi’s siblings’ conferral of Australian citizenship…
…
52.The Tribunal, having considered all the evidence placed before it, is satisfied of Mr Ahmadi’s identity…
Similarly, in this matter the Tribunal finds it hard to accept that a parallel cannot be drawn with Mr S’ conferral of Australian citizenship, which occurred on the basis of an equivalent level of documentation as was provided by the Applicant.
The Tribunal notes relevant Country Information provided in relation to the Applicant.
The Tribunal notes that the Applicant was granted a Refugee visa (XB subclass 200) and arrived in Australia on this visa.
The Tribunal accepts the explanation of the Applicant regarding the reasons she changed her name.
Having considered all the evidence before it and having observed the Applicant and other witnesses closely, the Tribunal is satisfied as to the identity of the Applicant.
CONCLUSION
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Tribunal is satisfied with the Applicant’s identity within the meaning, and for the purposes of, s 24(3) of the Australian Citizenship Act 2007 (Cth).
I certify that the preceding 63 (sixty three) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
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Associate
Dated: 22 February 2019
Date of hearing: 12 February 2019 Advocate for the Applicant: Nabeel Lang Counsel for the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
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