QYKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 627
•22 March 2021
QYKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 627 (22 March 2021)
Division:GENERAL DIVISION
File Number: 2020/1143
Re:QYKW
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 March 2021
Place:Sydney
The reviewable decision is set aside, and the matter is remitted to the Minister for consideration with a direction that the Applicant satisfies the identity requirements of subsection 24(3) of the Act.
......................[sgd].........................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – Rohingya – meaning of identity – application of Citizenship Procedural Instructions – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)CASES
Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Merzael and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 221
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988
Shi v Migration Agents Registration Authority [2008] HCA 31
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540SECONDARY MATERIALS
Australian Citizenship Policy Statement, 27 November 2020
Australian Citizenship Procedural Instructions (Cth); CPI 16 – Assessing Identity under the Citizenship Act (issued 10 April 2019)
Explanatory Memorandum to the Australian Citizenship Bill 2005
Alison Gibberd, Judy Simpson, Sandra Eadees: ”No official identity: a data linkage study of birth registration of Aboriginal children in Western Australia”, Australian and New Zealand Journal of Public Health, 3 July 2016.
REASONS FOR DECISION
Chris Puplick AM, Senior Member
QYKW (a pseudonym) (the Applicant) is seeking a review of a decision, made by a delegate of the Minister (the Respondent) on 18 February 2020, to refuse his application for citizenship by conferral (the reviewable decision).
The original citizenship application was submitted on 3 February 2017.[1]
[1] It was recorded as being received by the Department on 9 February 2017, Tribunal Documents at [21].
The basis for the Respondent’s decision was that the Minister’s delegate was not satisfied as to the true identity of the Applicant as required under subsection 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Respondent accepts that the Applicant was born in Myanmar[2] and his Rohingya ethnicity has been accepted by the Department[3] and is not challenged by the Respondent in these proceedings.
[2] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [3].
[3] Supplementary Tribunal Documents at [55].
The Applicant applied for review of the reviewable decision on 28 February 2020 and the matter was heard on 22 February 2021. The proceedings were conducted, in accordance with the Tribunal’s COVID-19 protocols, via Microsoft Teams. The Tribunal and the Respondent appeared on video and (due to technical difficulties) the Respondent and his legal representative participated by telephone. The parties were assisted by an interpreter in the Rohingya language.
Citizenship
Citizenship is a fundamental bedrock of the Australian polity. “The conferral of citizenship is a privilege”[4] which both confers rights and engenders obligations. It is a thing of legal status and a thing of value.[5] It is not to be bestowed lightly.[6]
[4] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422 at [35].
[5] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
[6] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
For persons not born with Australian citizenship, it may be acquired in a number of ways as specified in the Act.
One of those ways, as is relevant in this matter, is citizenship by conferral.
Citizenship by conferral
The Act provides that a person may make an application for citizenship by conferral.[7] The Minister must make a decision on the application and either approve or refuse it.[8] An applicant must meet certain qualifications specified in the Act[9] and, if they do, they must then undertake and pass the Citizenship Test[10] (unless they are exempted from so doing)[11]. Once those steps are completed a qualified applicant must make the Pledge of Commitment[12] before their citizenship is granted finally.
[7] The Act s. 21.
[8] The Act ss. 24(1).
[9] The Act ss. 21(2)
[10] The Act s. 23A.
[11] The Act ss. 21(3)(d); 21(4)-21(8).
[12] The Act s. 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[13] They are not relevant in these proceedings.
[13] The Act ss. 24(4)-24(6).
However, there is a foundational and fundamental matter which precedes all other considerations and requirements for the grant of citizenship.
Subsection 24(3) of the Act provides:
“The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.”
Two important aspects of this requirements must be noted. The Minister (or their delegate) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish their identity.
The Explanatory Memorandum to the Australian Citizenship Bill 2005[14] makes it implicit that:
'[t]here may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.' (at 41).
[14] The legislation which became the Australian Citizenship Act 2007 (Cth).
What is “identity”?
The Act itself provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are “(2) the condition of being oneself or itself, and not another” and “…(6) the state or fact of being the same one”.
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
a. The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
b. Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
Establishing identity
As noted, citizenship is a privilege and must not be granted to people whose identity cannot be established. As the Tribunal said in Gjura:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.[15]
[15] Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 at [32].
Decision-makers are assisted in the process of determining the identity of an applicant for citizenship by conferral by various policy. Significantly, the Australian Citizenship Procedural Instructions (CPIs), published by the Department administering the Act, and the National Identity Proofing Guidelines (ID Guidelines) published by the Commonwealth Attorney-General’s Department in 2016 are two such policies. The CPI relevant to this matter is CPI16 – Assessing Identity under the Citizenship Act (10 April 2019) (CPI16).
It is to be noted that these guidelines are policy – they are not law, and while they must be given utmost consideration by any decision-maker[16] they are not to constrain the right of the decision-maker to make any decision lawfully open to them to make, based on the material before it at the time of its own decision-making.[17]
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[17] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
The ID Guidelines relevantly provide as follows:
1.1 Background
1.1.1 Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the CPIs. The ID Guidelines themselves recognise this (emphasis in original):
5.1 Exceptions processes to confirm a claimed identity
5.1.1 Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
5.1.2 Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents, for example because they were raised in institutional or foster care; people with limited participation in society; and young people or those over 18 who are yet to establish a ‘social footprint’ in the community.
To this list the Tribunal would add people who have been refugees from conflict zones; victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities, especially those identified as being part of the “Stolen Generations”.
The ID Guidelines continue:
5.1.3 Alternative identity proofing processes that organisations MAY consider for these exceptions cases include (note different combinations of these processes may be appropriate depending on the individual circumstances).
1Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
2Verification of the person's claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
3Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
4A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims.[18]
[18] ID Guidelines at 5.1.3 (1-4).
It is also important to note what the ID Guidelines provide in definitional terms. Paragraph 2.1.1 states:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
This definition is restated in CPI16, at [4.4], and CPI16, in the same part, establishes a trifecta of factors used to establish identity:
Three pillars of identity Individual characteristics Biometrics Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies. Documents Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
CPI16 goes on to make explicit that:
Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.
It also states clearly at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of possibilities independent of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
Issues in this application
The Minister has made it clear that there are three principal concerns which have led to the refusal of the citizenship application, namely:
(i)A lack of clarity about the actual name of the Applicant;
(ii)Contradictory information about the date of birth of the Applicant, and
(iii)Inconsistencies and lack of information about the life history of the Applicant.
The Applicant’s visa status
The Applicant arrived in Australia by boat, as an Unauthorised Maritime Arrival, landing at Christmas Island on 10 June 2012. On 23 October 2012, he was granted a Bridging (subclass 050) visa. He was granted permanent residence via a Protection (Class XA – subclass 866) visa on 12 December 2012. He is currently the holder of a Five Year Resident Return (subclass 155) visa which was granted on 18 September 2018.[19]
[19] Tribunal Documents at [13].
Documentary evidence before the Tribunal
There are a number of key documents, each of which contain significant information about the Applicant which the Tribunal needs to consider. The documents described hereunder are those of most probative value to the Tribunal although they are by no means the only documents considered or cited.
Firstly, there is a letter from the United Nations High Commissioner for Refugees (UNHCR) which was issued in Kuala Lumpur, Malaysia on 25 January 2012.[20] (The UN letter) The document reads as follows:
“This is to certify that [the Applicant] (DOB 01/01/1990) from Myanmar, is an asylum seeker registered with the Office of the United Nations High Commissioner for Refugees. This person’s claim for refugee status is in the process of being examined. As an asylum-seeker, he is a person of concern to the Office of the United Nations High Commissioner for Refugees, and should, in particular, be protected from forcible return to a country where he claims to face threats to his life or freedom, pending a final decision on his refugee status. Any assistance accorded to [the Applicant] will be most appreciated.
Questions regarding the information contained in this document may be directed to the Office of the United Nations High Commissioner for Refugees at the address above.”
[20] Tribunal Documents at [52].
The UN letter is signed by the UNHCR Representation in Malaysia and bears the UNHCR seal. Attached to the document is a photograph of the Applicant whose image appears over a word which is the Applicant’s single name.
It is important to note that the Respondent accepts, without demure, that this photograph is a photograph of the Applicant.
Secondly, there is a record of interview,[21] conducted on Christmas Island on 10 June 2012, that is, the date of the Applicant’s unauthorised arrival by sea. (The Biodata Record). It was conducted with the assistance of an interpreter who participated by telephone.[22] This document is handwritten and contains, in at least one place, a script which was identified for the Tribunal as being in the Burmese language.[23]
[21] Respondent’s Tender Bundle (Tender Bundle) at [1]-[6].
[22] Ibid at [3].
[23] Transcript, 22 February 2021, page 33 at lines [16]-[46].
Thirdly, accompanying the Biodata Record is a document, with details pre-populated in printed form, which is an Irregular Maritime Arrival Entry Interview which was conducted on 16 June 2012.[24] (The IMA Record).
[24] Ibid at [7]-[21].
Fourthly, there is a detailed Decision Record recording the assessment by the Department which led to the Applicant being granted a Protection (Class XA) visa which is dated 12 December 2012.[25] (The PV Record).
[25] Supplementary Tribunal Documents at [55]-[70].
There are numerous Statutory Declarations and Statements by the Applicant which will be referred to throughout this decision, together with other references and testimonials.
Documentation is important, but not essential, in the establishment of personal identity. Where it is not available, an additional burden is thrown upon those other pillars of identity which need to be established.[26] The Tribunal also made this clear in CDNB saying:
[P]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants ...[27]
[26] Merzael and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 221 at [83].
[27] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9].
Myanmar/Burmese Rohingya
The Tribunal will not dwell at length on the position of the Rohingya minority in Myanmar. Suffice to say that it is generally accepted that this ethnic/religious minority has been subject to lengthy and systematic persecution by the Myanmar authorities, the Myanmar military and militant sections of the Buddhist religious community.[28] There has been a recent decision of the International Court of Justice[29], by way of a provisional measures decision ordering the government of Myanmar to take steps to prevent the genocide of Rohingya and to protect them from persecution.
[28] This matter was canvassed in the protection visa assessment and decision: Supplementary Tribunal Documents at [55]-[70].
[29] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), International Court of Justice 23 January 2020, General List no. 178.
Issues regarding the Applicant’s name
The Applicant told the Tribunal that in Myanmar he was known by one name only.[30] The use of a single name by the Applicant is consonant with the UNHCR issuing a letter related to him in which he is referred to as “Mr [the Applicant’s single name]”. It also accords with the annotation on the PV Record that:
Known aliases: [The Applicant’s single name] (only name given to UNHCR).[31]
[30] Transcript, 22 February 2021, page 10 at line [19] to page 11 at line [9].
[31] Supplementary Tribunal Documents at [55].
The use of single names in many countries is not an unusual occurrence.[32] The Applicant claims that he was born in Hawar Bil, a village of the district of Maungdaw in Arakan (Rakhine) province/state in Myanmar.[33] He is an ethnic Rohingya and a Sunni Muslim. His native (sole) language is Rohingya.
[32] The current Indonesian Minister of the State Secretariat is Pratikno, the Indonesian President from 1968 to 1988 was Suharto.
[33] Supplementary Tribunal Documents at [55]. Another version of this place, referred to as Kawar Bill, appears in the Tribunal Documents at [115].
The Country Information Report – Myanmar issued by the Department of Foreign Affairs and Trade (18 April 2019) records that:
“While most children in urban areas are registered, few children in remote areas have birth certificates. Children in Rakhine State are most likely to be unregistered, and local sources report to DFAT that Rohingya face difficulties in obtaining birth certificates.”[34]
[34] Department of Foreign Affairs and Trade: Country Information Report – Myanmar (18 April 2019) at [5.56], Tender Bundle at [85].
The Applicant’s father’s name[35] appears on a “Myanmar National’s Registration Card” which was issued to him in Bangladesh where he fled as a refugee in 2017[36] and on a Death Certificate from the Turkish Field Hospital, Republic of Turkey, Ministry of Health on 29 March 2019.[37]
[35] Tribunal Documents at [108]
[36] Applicant’s Statutory Declaration (12 January 2020), in the Tribunal Documents at [113]. This Statutory Declaration is not properly dated but the Tribunal accepts, based on evidence presented by the Respondent at the hearing, that the date of 12 January 2020 should be accepted.
[37] Tribunal Documents at [99]. The Turkish Field Hospital was operating at the Cox’s Bazar Refugee Camp in Bangladesh.
The Applicant’s Migration Agent (Mr Mohammed Ullah) states:
“[The Applicant]’s father […] has got Household list as temporary resident of Myanmar but its lost when [his father] fled to Bangladesh with his family on 25th of August 2017 due to fear of Burmese Military crackdown to him and his family like other Rohingayas.
Myanmar Authority in Arakan State sometime issue Individual Identity Card for the Rohingaya Muslim who intends to travel for treatment or urgent shopping needs inside the Arakan as an ID for Travel.”[38]
[38] Applicant’s Submissions at Tab [3a].
The Applicant himself states that all relevant documents related to himself and his parents were lost when their “house was torched by the army”[39] after which the family fled to Bangladesh.
[39] Applicant’s Statutory Declaration (12 January 2020), Tribunal Documents at [113].
On his arrival at Christmas Island, the Applicant was interviewed, and the Biodata Record created. The Biodata Record required details of (the Applicant’s) “Your family name” and “Your given name(s).” This document was completed by the (then) Department of Immigration and Citizenship officials who wrote alongside “Your family name” the name of his father and alongside “your given name(s)” the Applicant’s single name. Next to the Applicant’s single name there appears something in Burmese script which the Tribunal was informed translates as a name containing two words (the latter of which is the Applicant’s single name).[40]
[40] Tender Bundle at [1].
The Tribunal notes that, in another document, the Applicant’s given email address includes the Applicant’s single name and, roughly, the other word which appears on the Biodata Record in Burmese script, and the year ‘1991’ as a suffix.[41]
[41] Tribunal Documents at [22].
The Applicant’s uncontroverted evidence is that he produced his UN letter to the departmental officials and they accepted it as proof of his identity as “Mr [the Applicant’s single name]”[42] and, as noted, agreed that the photograph on the UN letter was indeed that of the Applicant.
[42] Transcript, 22 February 2021 page 19 line [16] to page 20 line [26].
The Applicant states that although he was only ever known by his single name, when asked for a family name he gave that of his father. The IMA Record records that “Client stated that [the Applicant’s father’s name] is his FATHER’s name.”[43] Hence what the Respondent characterises as the “creation” of the name [the Applicant’s name] [the Applicant’s father’s name] (the combined name).
[43] Tender Bundle at [20].
There is an interesting parallel here in the matter of Ahamod who, coincidentally was also a Rohingya refugee born in Maungdaw who arrived in Australia by boat. The Tribunal had to consider matters such as the variety in the spelling of his name, the absence of documentary evidence and the inconsistencies in various reports. The Tribunal found:
[100] The Tribunal accepts that the Applicant was truthful, and was genuinely trying to assist the Tribunal. The Tribunal also accepts that the Applicant was illiterate at the time of his arrival in Australia, [44] and was assisted in completing his Biodata and Entry Interviews by an interpreter and in difficult circumstances. Further there is strength in the argument that the Entry Interview was prepopulated and hence reproduced errors in spelling and date of birth contained in the Biodata Interview.
[44] Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7.
From this point onwards (10 June 2012) the Applicant presents himself with the combined name:
(i)IMA Record (16 June 2012)[45]
(ii)PV record (12 December 2012)[46] based on application of 7 September 2012
(iii)Citizenship application (9 February 2017).[47]
[45] Tender Bundle at [7].
[46] Supplementary Tribunal Documents at [55].
[47] Tribunal Documents at [21].
Rather than give all the precise details the Tribunal notes that the combined name is used in several Statutory Declarations; a visa holder card, several Titres De Voyage, a NSW Driver Licence and a Medicare Card.[48] It is also the name by which he is known on his membership card of the Burmese Rohingya Community in Australia.[49]
[48] Tribunal Documents at [17];
[49] Ibid at [109].
The Tribunal has before it a copy of another UNHCR Refugee Agency identification card in the name of the Applicant’s elder brother.[50] The name includes the father’s name in the latter portion and includes the term “bin”. The use of that term (to mean “son of”) in Muslim (Arabic) communities is a common naming convention and this card is indicative of the fact that other male members of the family identify themselves by use of a given name(s) and then the patronymic of their father.
[50] Ibid at [97]. Supplementary Tribunal Documents at [48].
The Applicant’s brother’s UNHCR card records his date of birth as 03/01/1983[51] while that of the sibling’s mother assigns her a birth date of 1 January 1967.[52] By contrast the Applicant records his brother’s date of birth as 31 December 1987.[53]
[51] Tribunal Documents at [97].
[52] Ibid at [98].
[53] Ibid at [30].
The Tribunal also accepts the evidence to the effect that the Applicant’s mother currently remains a UNHCR person of concern[54] in the Kutupalong Camp, Cox’s Bazar, Bangladesh.[55]
[54] Tribunal Documents at [98].
[55] Ibid at [113].
The Respondent has sought to make much of two points in relation to this issue of the Applicant’s name. In the first instance, it presses the point that the Applicant has not been entirely forthcoming (in their submission) about the use of an “alias” or “other name” in relation to the use of the Applicant’s sole name.[56] Secondly it makes something of the alternate spellings of the patronymic name.[57]
[56] Respondent’s SFIC at [18]-[25]. Transcript, 22 February 2021, page 10 at line [38] to page 11 at line [46].
[57] Transcript, 22 February 2021, page 24 at line [40] to page 25 at line [12].
Neither of these submissions is accorded any significant weight by the Tribunal.
The use of the single name was clearly the basis of the issue of the UN letter and the PV Record indicates as much with its reference to any aliases used. The explanation of the addition of the patronymic to the single name at the time of the creation of the Biodata Record and its subsequent use by the Applicant is so obviously plausible and commonsensical as to need no further comment.
As to the question of variations in spelling, the Tribunal need look no further than the Commonwealth Government’s own document, Improving the Integrity of Identity Data: Recording of a Name to Establish Identity which states:[58]
Names are rarely unique. There are many possible variations on a name - for example, Mohammed, Muhammad, Mahomed, Muhomad, Mohammed, Mohumad. Some names are so widely used that variations are common. For example, Lee is the second most commonly used surname within Korea. Some variations on Lee are Yi, Yee, Rhee, Rhe, Rhi, Ri, Le, Leigh, Li.
Complexity can also be added by transliteration methods[59]:
1there are several official and unofficial Korean transliteration methods in use
2there is no official transliteration method for Arabic names, and
3there are three contemporary but different official transliteration methods for Chinese names, with many others being used historically.
The inconsistent use, error, amendment or deliberate falsification of names means it can be difficult if not impossible to uniquely identify a person by name at a given point in time, or track the identity of the same person over time.
[58] Improving the Integrity of Identity Data: Recording of a Name to Establish Identity – Better Practice Guidelines for Commonwealth Agencies – June 2011 (Attorney-General’s Department) at [6]. Footnote (44) appears in the text as given.
[59] Words imported from one language to another (using a different alphabet).
Consideration of all the material before it leads the Tribunal to conclude that the Applicant in this matter is [the Applicant’s single name], son of (bin) [the Applicant’s father’s name] and is properly known as the combined name and that he has established that such name is one by which he can and should be known legally and for the purposes of his citizenship application.
The Tribunal notes that section 4.5 (Name and Identity) of CPI 16 deals, in part, with recording identity where only a single name is associated with a person. It provides a mechanism whereby family names may be added to documentation in order to meet the requirements to obtain an Australian passport and other identity documents.
Issues regarding the Applicant’s date of birth
The starting point for this consideration is that fundamentally the Applicant does not know when he was born.[60]
[60] Tribunal Documents at [112].
Surprising as this might seem to most Australians, there is nothing uncommon about this throughout the rest of the world and, indeed, even in Australia this problem has arisen among those Aboriginal people whose birth dates were never properly recorded.[61]
[61] Alison Gibberd, Judy Simpson, Sandra Eadees: ”No official identity: a data linkage study of birth registration of Aboriginal children in Western Australia”, Australian and New Zealand Journal of Public Health, 3 July 2016; >
As has already been noted, the DFAT Country Report on Myanmar points to the fact that many children in that country are not registered at birth, nor supplied with birth certificates and this is even more the case with members of the Rohingya community.
The best the Applicant can recall is that his mother told him that he was born in January 1990.[62] When asked, the Applicant could not recall the name of the month in either the Burmese or Islamic calendars in which he was born,[63] and his only insistence was that it was in the month of January according to our Gregorian calendar.
[62] Transcript, 22 February 2021, page 22 lines [37]-[38].
[63] Transcript, 22 February 2021, page 22 line 40] to page 23 line [10].
The Applicant’s date of birth appears in a variety of records as either 1 January 1990 or 15 January 1990.[64]
[64] The various records are set out in the Tribunal Documents at [16]-[17].
From the evidence before the Tribunal, the first attempt to record a formal date of birth for the Applicant in official Australian records seems to have occurred with the creation of the Biodata Record. The departmental officials, in creating that record had before them the UN letter which recorded his date of birth as 1 January 1990.[65] The interview which led to the creation of the record was conducted with the interpreter on the telephone and took place on the day the Applicant arrived at Christmas Island (10 June 2012) after (a presumably hazardous and stressful) time at sea having left Indonesia some days before.
[65] Tender Bundle at [3] indicates the record creator had the UN letter in their possession.
There is no clear explanation as to how the date of 15 January 1990 then came to be entered in the Biodata Record as the Applicant’s date of birth. The Tribunal is not persuaded that this resulted from the Applicant himself advising that that was the specific date of his birth but rather that it was recorded as a result of some confusion or misunderstanding about the answers being given, via a telephone interpreter, and hence recorded as such.
The next relevant record is that of the PV Record which was created six months later (12 December 2012). The Identity Finding should be quoted in full:
Identity Finding
The applicant stated that he was born in Hawar Bil, Maungdaw, Arakan Province, Myanmar (Burma) on 15 January 1990. The applicant advised that he was sure that he was born in January 1990. However, he advised that he unsure of the day. I advised the applicant and his representative that it was departmental policy to list the first day of the month as the birth day in these circumstances. The applicant reiterated that to the best of his knowledge it was the 15th of the month and he and his representative advised that they would not change the date. It is my view that a change of date to the 1st of January would more accurately reflect the departmental policy. However, I relied on the applicant’s advice and accepted the date of the 15th of January.
In his Protection visa (PV) interview the applicant spoke the Rohingyan language. At the interview, he was questioned regarding his identity, birthplace, nationality and places he had resided in his life. He answered questions with sufficient detail to satisfy me that he was recounting his personal experiences. Overall, I accept the applicant is Rohingyan who has lived the majority of his life in Arakan Province, Myanmar (excluding the period in Malaysia and his travels to Australia).
In order to support his identity, the applicant provided a letter from the UNHCR which states that he is a person of concern. I held concerns that the photo provided on the UNHCR letter was not of the applicant. I discussed the photos (which are not of good quality) with my manager and we are both satisfied that the photo is most likely of the applicant.
Further to this point, this letter does not support the applicant’s claim that he is a mandated refugee, rather it advises that he had an interview for refugee status determination in September of this year and that he is a person of concern. This discrepancy in detail does not impact on the applicant’s identity assessment (or claims for protection).
Based on the other information provided by the applicant, the reasons listed above and in the absence of any evidence to the contrary, I accept the applicant’s details are as listed above for the purposes of this assessment.[66]
[66] Supplementary Tribunal Documents at [55]-[56].
It is noteworthy that the Delegate in this case records the Applicant’s assurances about his date of birth as being “to the best of his knowledge” and it is also unclear as to who the Applicant’s “representative” might have been at this stage.
This Delegate had before him/her to consider:
(i)The details of the UN letter giving a birth date of 1/1/90;
(ii)The Biodata Record with a birth date of 15/1/90;
(iii)The Applicant and his representative’s advice to retain the Applicant’s birth date as 15/1/90, and
(iv)Departmental policy which suggested that the Applicant should be assigned a birth date of 1/1/90.
The Delegate initially chose to assign the Applicant a date of birth of 1 January 1990, but then bowed to the Applicant’s insistence on the date of 15 January 1990.
The Applicant, having been granted a Protection Visa, was then free to live and operate in the Australian community. He used the 15 January 1990 date to open a bank account and to obtain documents such as his Provisional Driver Licence, his Medicare card, and various Titres de Voyages (which he used to travel back to Bangladesh to see his mother). This date was also recorded on the grant of his Return Resident (subclass 155) visa dated 18 September 2018.[67]
[67] Tribunal Documents at [82].
Prior to the grant of that visa, the Applicant lodged his application for citizenship (Form 1300) on 3 February 2017. On the form, which was completed on his behalf, the date of birth provided was 15/01/1990.[68]
[68] Tribunal Documents at [21].
On 6 August 2019, the Department sought further information from the Applicant as part of their processing of his citizenship application.[69] The Department particularly sought information which would help in establishing the Applicant’s identity based on documents issued prior to his arrival in Australia.
[69] Ibid at [54].
On 17 August 2019, the Applicant provided some documents of which the only one pre-dating his arrival in Australia was his UN letter. This prompted the Department to seek further particulars which they did by letter of 2 November 2019.[70]
[70] Ibid at [91].
It appears at this stage, although the details are not clear, that somehow the Applicant became aware of the discrepancies in documentation showing his date of birth as alternately 1 January or 15 January 1990.
In her submission, Ms Balakrishnan (solicitor for the Minister) stated:
In terms of the date of birth, given the applicant’s functional illiteracy, the respondent cannot quarrel with the fact that the applicant was perhaps unaware of the difference between the dates of birth until it was pointed out to him by the department in 2019.[71]
[71] Transcript, 22 February 2021, page 49 lines [25]-[28].
Consequently, on 10 January 2020, the Applicant lodged a Notification of incorrect answer(s) form (Form 1023).[72] In that, the Applicant wrote:
“I am a Rohingaya Refugee from Myanmar. When I arrived in Australia by boat on 10/06/2012. After arrival, I was detailed by the Australian Immigration Authority at Christmas Island. I do not remember my actual date of birth but the month was January 1990. Inn (sic) that case my date of birth should be 01/01/1990 according to my UNHCR Registration Card […]. I mistakenly inserted by date of birth 15/01/1990 instead of 01/01/1990. I regret my mistake and do confirm that my date of birth is 01/01/1990.”[73]
[72] Tribunal Documents at [111]-[112].
[73] Ibid at [112].
The Applicant also supplied a copy of his Burmese Community in Australia membership card showing that he joined that association on 12 January 2020 with a recorded birth date of 1 January 1990.[74]
[74] Ibid at [109].
The Applicant submitted a Personal particulars for assessment including character assessment form (Form 80) on 10 January 2020 now showing his date of birth as 1 January 1990.[75] This is in contrast to his Form 80 of 10 August 2019 which gave the 15 January 1990 date.[76]
[75] Ibid at [115].
[76] Ibid at [64].
The evidence presents to the Tribunal the following:
(i)The Applicant clearly has no precise recollection of his date of birth.
(ii)He claims, based on his mother’s advice, that it was sometime in January 1990.
(iii)The UNHCR assigned him a birth date of 1 January 1990.
(iv)The Biodata Record transcribes, on an unclear basis, a birth date of 15 January 1990.
(v)The Delegate conducting the PV assessment was inclined to assign a birth date of 1 January 1990 (being otherwise satisfied of the Applicant’s identity) but was persuaded, in part by the Applicant’s unidentified “representative”, to adhere to the 15 January 1990 date.
(vi)The Applicant used the 15 January 1990 date from 2012 to 2020 for the conduct of his life and transactions which required the provision of a date of birth including formal transactions with the Australian authorities on matters such as the issuing of visas.
(vii)Although perhaps of no consequence (and the Tribunal assigns this matter no weight) the Applicant uses the suffix 1991 in his email address.
(viii)The Australian authorities do not appear to have taken any steps to challenge the Applicant’s date of birth in any of their transactions with him (for example in the issuing of his Medicare card, issuing of Titres de Voyage or processing visa applications).
(ix)When asked to provide additional material to support his application for citizenship in late 2019, the Applicant somehow became aware of the inconsistency of the records of his birth date.
(x)As a result, the Applicant provided to the authorities a statement claiming that the recording of his birth date as 15 January 1990 was in error and that the correct date of his birth was 1 January 1990.
There is no logical conclusion to this conundrum other than to conclude that the Applicant’s date of birth remains unknown.
What then are the consequences of this?
First of all, it should be noted that possession of a birth certificate of some sort is not an absolute prerequisite for the establishment of personal identity. CPI16 states:
Documents are an important element of establishing a person’s identity. While they do not establish or verify a person’s identity in and of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate information pursuant to pillar one (biometrics) and pillar three (life story).[77]
[77] CPI16 at [4.14]. Emphasis added.
That cannot be the end of the matter such that the Applicant is left consigned to the Stygian gloom of indefinite indetermination of the date of his birth. No one can operate in the contemporary life of Australia on that basis. Like it or not, law, custom and practice require that we have a fixed birth date for a variety of everyday living purposes.
The UNHCR assigned to the Applicant a birth date of 1 January 1990.
The practice and policy of the Australian government is less clear. The Delegate assessing the PV application in 2012 implies that the policy was to assign a first of the month date where a month and year is known.[78] Presumably that was the relevant policy at the time as understood by the Delegate.
[78] Supplementary Tribunal Documents at [55].
On the other hand, the Department of Home Affairs appears to have an Unknown DOB policy (dated 19 November 2018) which provides:
Unknown Date of Birth Policy
The Department’s Unknown DOB policy is intended as guidance for officers when enrolling a client’s biographical details or creating an electronic record for the first time. The policy states that where a client’s specific day and month of birth is unknown, the default date should be recorded as 31/12/YYYY. If the month is known, the default day is the last day of the month, for example 31/MM/YYYY.
This policy however may not be applicable if a client has already commenced their identity in the community. A client who has resided in Australia will have established their identity by acquiring documents and other forms of identification. Where a specific date of birth has been established in the community, it is not appropriate to change to an unknown DOB (e.g. 31/12/YYYY), unless there is evidence that proves the established year of birth is incorrect. Replacing a client’s ImmiCard to reflect an identity change can have a substantial impact on a client’s ability to access services and the need to update documents.
It is not appropriate to amend a specific DOB to an unknown DOB where the year remains unchanged. For example, if a claimed DOB is 13/4/2000 and the client has been operating in the community with that identity, the provision of a document that only supports a year of birth of 2000 should not be used as the basis to amend the recorded specific DOB to 31/12/2000 unless additional evidence supports 31/12 as being correct. Replacing the client’s identity credential is not warranted in this instance.[79]
[79] Department of Home Affairs: Identity, Biometric and Immigration Status. ImmiCards and the Identity Lockdown Policy. Procedural Instruction. >
The logic of the Department of Home Affairs policy is compelling. Were the Applicant to now have his date of birth recorded in official government records as 1 January 1990 then any future transactions involving such matters as:
·Renewing visa applications
·Renewing Medicare cards or drivers licenses
·Obtaining other forms of entitlement cards issued from Australian government authorities based upon access to the existing database where an initial date of birth is already recorded
·Obtaining any further Titres de Voyages
·Undertaking banking transactions or financial transactions related to bank records (e.g. acquiring loans or credit cards)
would almost certainly result in difficulties for the Applicant when different birth dates were identified. He would then be faced with the dilemma of producing some form of certification that his date of birth was 1 January 1990 and the Tribunal is not aware of where or how, or by whom any such certificate could be generated.
On the other hand, he has existing documentation giving his birth date as 15 January 1990 upon which he has been able to operate in the Australian community, without impediment or difficulty for the last eight or so years. A number of those documents are recognised as satisfying identity requirements.
The only documentation affirming a 1 January 1990 date of birth is the UN letter which is not a recognised document for identification purposes accepted by any Australian government or authority. It is the only document upon which the Applicant can base a claim of birth on 1 January 1990 and it remains the case that he has no idea, his Statutory Declarations notwithstanding, as to whether or not that is his true date of birth.
The Tribunal itself has no proof of the Applicant’s date of birth upon which it can rely. However, to the extent that undeniably there was a date of birth, 15 January 1990 appears to be the most appropriate date to assign to the Applicant as it is based upon the weight of documentation, originally generated by the government itself.
Purported issues regarding the Applicant’s life history
The Respondent mounts an attack upon the Applicant’s claim making two principal assertions (drawn from the Respondent’s SFIC):
1The Respondent also submits that it is relevant that the applicant claims to have been mandated by the UNHCR (see for example [Supplementary Tribunal Documents at [50]]), but the only evidence provided demonstrates that he is registered with UNHCR and a decision on his refugee status is pending.
2The respondent submits that the applicant is not engaged in the identity process.[80]
[80] Respondent’s SFIC.
The Applicant’s refugee status
As to the first of these, it is correct that the UN letter refers to the Applicant as having a case “pending” a final decision on his refugee status, and he nevertheless has claimed that he has received “the UNHCR refugee mandate”.[81] This matter was noted by the Delegate assessing the PV application who wrote:[82]
In order to support his identity, the applicant provided a letter from the UNHCR which states that he is a person of concern. I held concerns that the photo provided on the UNHCR letter was not of the applicant. I discussed the photos (which are not of good quality) with my manager and we are both satisfied that the photo is most likely of the applicant.
Further to this point, this letter does not support the applicant’s claim that he is a mandated refugee, rather it advises that he had an interview for refugee status determination in September of this year and that he is a person of concern. This discrepancy in detail does not impact on the applicant’s identity assessment (or claims for protection).
[81] Supplementary Tribunal Documents at [50].
[82] Ibid at [55]-[56]. Emphasis added.
Nothing more need be said. The Delegate was absolutely correct.
The Applicant’s engagement with the identity process
As to the second matter, what the Applicant has done in terms of attempting to obtain documentation is gather material from his brother and his mother who are respectively in Malaysia and Bangladesh. He obtained documentation related to his late father. He has explained – with considerable plausibility – that the destruction of his home by the Myanmar military[83] and the flight of his family from persecution (as acknowledged by the UNHCR) meant that no documentation of the kind sought by the Minister could be produced by him.[84]
[83] Applicant’s Statutory Declaration (12 January 2020). Tribunal Documents at [113].
[84] Applicant’s Statutory Declaration (23 December 2019). Tribunal documents at [100].
The Minister’s representative put to the Tribunal, as she was obliged to do, the proposition that the Applicant should have engaged more fully in attempting to secure personal documentary evidence from the Myanmar government or authorities.[85]
[85] Transcript, 22 February 2021, page 49 at line [46] to page 50 at line [3].
The Minister, however, has no right to ask the Applicant to do something which is manifestly impossible. The known history of the persecution of the Rohingya minority in Myanmar is a matter of international scandal and condemnation. The current overthrow of the legitimate, democratically elected civilian government of Myanmar by the armed forces (Tatmadaw) merely compounds the issue.
The Minister’s representative, in discussion with the Tribunal accepted the difficulties posed by the current circumstances in Myanmar:
SENIOR MEMBER: Thank you, Ms Balakrishnan. Let’s just spend a moment on those, if we might. Ms Balakrishnan, you’re not actually seriously putting to me that a Rohingya refugee in this country at this stage, and given what just happened in Burma - in Myanmar, is in any way to be expected to get documentation out of the Burmese government. You’re not actually putting that to me as a serious submission, are you?
MS BALAKRISHNAN: Of course, not at the moment with what’s going on over there, Senior Member. I will not take it any further.[86]
[86] Transcript, 22 February 2021, page 50 lines [33]-[41].
In cross-examination over a period of some hours, the Respondent sought to call into question the credibility of the Applicant when he recounted his life story.
The essential elements of the Applicant’s life story are that he grew up in a poor household as part of an ethnic/religious minority subject to persecution and discrimination. He had limited schooling (and is functionally illiterate beyond basic understanding) and indeed was bullied at school. He left school at an early age to tend the family cows and vegetable gardens. As a young man (about 20 years of age) he fled persecution and in November 2010 he arrived in Malaysia (via Bangladesh) where he was detained in a refugee camp until December 2011. In January 2012, he obtained the UN letter indicating his protected person status. At some time in mid-2012 he travelled illegally to Indonesia where, after a brief stay, with the assistance of people smugglers he took a boat to Australia arriving in June 2012.[87]
[87] Transcript, 22 February 2021, page 25 line [39] through to page 33 line [2].
His elder brother had fled Myanmar in 2005 and his parents fled after their home was torched by the military in August 2017.
The Respondent’s representative sought to question how the Applicant was able to afford to flee Myanmar and later to pay people smugglers. It appears that the Applicant’s father arranged for both him and previously, his brother, to escape from Myanmar to Bangladesh[88] and that he then paid the people smugglers out of money which he had earned by way of cash payments for undertaking short-term small-scale labouring jobs after his release from detention in Malaysia and later in Indonesia.[89]
[88] Tender Bundle at [18].
[89] Transcript, 22 February 2021, page 46 line {43} to page 47 line [16].
All of these claims were tested by the Delegate assessing his PV application, who concluded:
As I am satisfied the applicant was recounting his personal experiences which are supported by country information, I find the applicant is a credible witness. I accept the following as facts:
-The applicant is a Rohingyan Sunni Muslim who has lived his life in Arakan Province.
- The applicant was forced to hide on numerous occasions and he had difficulties when practicing his religion.
- The applicant suffered ongoing physical mistreatment and harassment while in Myanmar.
- The applicant’s father was beaten by Myanmar authorities.
- The applicant fled to Malaysia in 2010 and is a person of concern to the UNHCR (see identity for details).[90]
[90] Supplementary Tribunal Documents at [60]-[61]. Emphasis added.
Once again, the Tribunal endorses the findings of the Delegate in this matter. The Delegate found, within the obvious limitations of a telephone-based hearing, the Applicant to be a credible witness and his life story to be entirely plausible.
Preliminary findings on identity
Returning to the three pillars of identity, it is clear that the biometric requirement cannot be met in terms of matters of fingerprints, genetic data or realistic signature comparisons. However, the UN letter contains a purported photograph of the Applicant and that is the same photograph as appears in a variety of documents as being the likeness of the Applicant. The Tribunal is satisfied that they are the one and same person.
The documentary evidence is, for the strict purposes of personal identification, non-existent. There are no documents which conclusively establish the date of birth of the Applicant, nor indeed, very much about any other aspects of his life prior to his arrival in Australia. The absence of this documentation is however, both explicable and understandable. The Applicant has not failed to make some effort to establish aspects of his identity by gathering such material as he could from living members of his family and in relation to his deceased father. He has not been negligent in this respect. The fact that a level of documentation has not been forthcoming to satisfy the Respondent is no fault of his.
The details of the Applicant’s life story have been canvassed and both the Delegate assessing his PV application and the Tribunal have found the Applicant to be a person of credibility and his life story plausible. There was nothing put to the Tribunal by the Respondent which called into question the essential elements of his life story as presented, although the Applicant had issues recalling some aspects of that story and gave differencing emphasis to aspects of it at different times. There was, however, no evidence that he was being evasive or misleading in his evidence.
In relation to these matters the Tribunal concludes that:
(i)The Applicant’s identity (or name) is consistent with his combined name.
(ii)His date of birth is unknown but that, to the extent it is necessary for present or future purposes, it should be taken to be 15 January 1990.
(iii)The details of his life story which he has supplied to the Department and to the Tribunal should be accepted as true and accurate in all essential details
The Tribunal is also satisfied that the Applicant has taken all reasonable and practical steps to obtain documentary corroboration of his identity and furthermore that it is highly unlikely that he was ever issued with anything akin to a birth registration certificate. It is most probable that no such document exists.
Does this meet the threshold test of acceptability?
The Minister very properly states that the Tribunal must have a high degree of satisfaction as to the identity of an applicant to accept that the test in subsection 24(3) of the Act is met. The exhortations in the Explanatory Memorandum have been quoted supra and must guide decision-makers.
In Sinnathamby and Minister for Immigration and Border Protection, the Tribunal said clearly that:
Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.[91]
[91] Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579, [56].
I made the position clear in Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that where there are doubts as to the applicant's identity, the applicant's citizenship application should not be approved. I stated:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.
The Tribunal accepts the point made in Dhayakpa that:
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[92].
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.[93]
[92] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310, [117].
[93] Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267 at [100]-[103].
However, the matter in Boshra Al-Hussaini is distinguishable from this matter because, in the former case there was real doubt as to whether the applicant was the person she claimed to be or was in fact entirely another (but related) person. She failed the test of “contrast” in this regard. There is no suggestion in this instance that the Applicant is some other person than the one he claims to be.
There is a balancing element in this. In Boshra Al-Hussaini, I said:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.[94]
[94] Ibid, [100]. Emphasis added.
The fact that decisions often cannot be absolute but must be made on balance is reflected in my comment in Adalat that:
Consideration of the material before the Tribunal leads it to a clear conclusion that the identity of the Applicant as Mahmoud Adalat is not established to any reasonable degree of satisfaction and that, as a result, the Respondent cannot be sufficiently satisfied of that identity to approve a grant of citizenship. The Respondent must therefore refuse the application.[95]
[95] Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360, [64]. Emphasis added.
Similarly, in CDNB, the Tribunal observed:
I proceed on the basis that production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.[96]
[96] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9].
The Respondent placed some significant degree of reliance on the Tribunal decision in Ahamod which, as the Tribunal has noted, bears many factual resemblances to this current application. In that case the Tribunal found against the applicant stating:
(102) The Tribunal finds that there are too many inconsistencies in the evidence going to the identity of the Applicant. If it were limited in explanation only to the phonetic spelling of his name by an interpreter, which information was prepopulated in the subsequent material produced, such inconsistency might be explained. But this is compounded by different spellings of his name in the UNHCR correspondence and UNHCR cards, different dates of birth of he, his wife, and his parents, including a bogus or unreliable document, and inconsistencies in his life story.
(103) The Applicant has also failed to exhaust all reasonable avenues of enquiry with respect to his identification. Indeed the UNHCR letter dated 8 October 2009 is the only identity document that existed prior to the Applicant’s arrival in Australia which too has a different spelling of his name.[97]
[97] Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7.
The Tribunal in that matter placed considerable emphasis upon the statements of Dixon J (as he then was) in Briginshaw in relation to establishing proof of identity. His Honour therein stated:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.
……But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[98]
[98] Briginshawv Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at [361]-[362].
However, the Tribunal itself has adopted a qualified approach to the use of the Briginshaw test as it made clear in CDNB:
In Sullivan v Civil Aviation Safety Authority, the Full Federal Court rejected the notion that the Tribunal is bound to apply the decision in Briginshaw when making findings of fact that are ‘grave or serious’, but “may inform itself – and in some circumstances should inform itself – by reference to evidence or other materials which properly support the seriousness of the findings being made and the seriousness of those findings upon a party”. While I accept the Respondent’s point that the grant of Australian citizenship is a serious issue, I do not purport to apply the ‘rule’ or ‘principle’ in Briginshaw having noted the analysis of the Full Federal Court in Sullivan. This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the CDNB and WLVM, in the context of a grant of Australian citizenship.[99]
[99] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757, [6] citation omitted.
Clearly, for the Tribunal to be “reasonably satisfied” in its conclusions about identity, and although it is not bound by the strict rules of evidence[100], it cannot be capricious in its assessments but must have some solid evidentiary basis for its findings.[101]
[100] Administrative Appeals Tribunal Act 1975 (Cth), ss 33(1)(c). Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540, at [115].
[101] Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988 at [42].
As with Boshra Al-Husseini, the case of Ahamod is distinguishable. In this application there is no suggestion of bogus or unreliable documentation, no differences in the spelling of UNHCR documentation, no other family documents in evidence and, as already explained, the Tribunal does not find that the Applicant has failed to exhaust all reasonable avenues of enquiry with respect to obtaining proof of identity via documentation issued prior to arrival in Australia.
CONCLUSIONS
The establishment of an applicant’s identity for the purposes of the Act rests, as has been tested on the three pillars of biometrics, documentation and life story. The Tribunal has set out above its conclusions in relation to each of these.
This combination of factors allows the Applicant to be uniquely distinguished from others, and thus creates an identity which allows for both continuity in himself and contrast with others.
The Tribunal is satisfied of the identity of the Applicant, a Rohingya, born on 15 January 1990 and holding a valid visa to allow his permanent residence in Australia.
Having established the identity of the Applicant for the purposes of citizenship by conferral, the first of the hurdles in obtaining that citizenship is cleared and the Applicant is now able to progress to the remaining hurdles, namely satisfying the requirements of the remainder of section 24 and the suite of requirements in section 21 of the Act; that is, passing the Citizenship Test and making the Pledge of Commitment.
DECISION
The reviewable decision is set aside, and the matter is remitted to the Minister for consideration with a direction that the Applicant satisfies the identity requirements of subsection 24(3) of the Act.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 22 March 2021
Date of hearing: 22 February 2021 Applicant’s Representative: Mr Ullah, Ctg Lawyers Solicitors for the Respondent: Ms Balakrishnan,
Australian Government Solicitor
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